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'Throat' in Court

Lawrence G. Walters
Many adult industry observers questioned the wisdom of Virginia officials' decision to bring obscenity charges against the purveyors of two well-known classic adult films, "Deep Throat" and "The Devil in Miss Jones."

The two owners of the Virginia sex shop Pheromoans were indicted in November on three misdemeanor charges of violating state obscenity laws. Each charge carries a maximum penalty of 12 months in jail and a $2,500 fine.

Indeed, it is rare to see such prosecutions in modern times, given the vast array of substantially more explicit materials available in both DVD and web formats. In fact, it appears that investigators were initially interested in pursuing more modern adult fare, in that they allegedly purchased a copy of "Barely Legal Hotties" at the commencement of their investigation. So what made law enforcement turn its attention to the industry classics "Deep Throat" and "The Devil in Miss Jones"?

Is this a Keystone Kops-type blunder, or are more insidious forces at work?

Both movies have been around for decades and are part of American culture. This might be part of an intentional strategy by the prosecutors, because the bar will be set very low for what constitutes an obscene work if they get a conviction.

"Deep Throat" has been the subject of multiple obscenity prosecutions throughout the country — particularly in the 1970s, when it was first released. The title was often shown at rundown theaters by proprietors willing to take a legal risk in order to revitalize their dying businesses. The movie reels would be delivered in nondescript briefcases, and tickets were sold for cash. Occasionally, the theaters would be raided — sometimes resulting in seizure of the film and even the projectors.

To illustrate the absurdity of obscenity laws, "Deep Throat" has been the subject of obscenity acquittals in various parts of the country. Even North Stafford, Va., officials were not successful in obtaining a conviction against "Deep Throat" — more than 20 years ago. Despite repeated efforts at blocking this film, customers would routinely line up around the block wherever the movie was shown to get a glimpse of what the government was telling them they shouldn't see.

But then something happened: VCRs. In the 1980s, people learned that they did not need to stand out on a public street and risk being seen by their neighbors in order to get a glimpse of erotica. They could pop in their videocassette rented from the corner video store with no fear of embarrassment and no risk of getting caught up in an obscenity raid, and distributors could get their product out to retail outlets without nearly the public attention and fanfare generated by a motion picture release in local theaters.

As a result, the adult video industry exploded, with a host of titles exploring every fetish and nuance of human sexual behavior. Although the Reagan and George H.W. Bush administrations initiated multiple obscenity prosecutions against video producers and distributors during the 1980s, the level of explicitness in adult video content continued to increase dramatically — with only a few topics viewed as off limits. After the proliferation of adult websites in the mid- 1990s, even those few remaining taboos went by the wayside.

Public Response: A Yawn
Industry observers reportedly believed that depictions of these previously off-limits subjects would certainly cause some controversy and maybe even incite some high-profile prosecutions. Instead, the public response was a collective yawn, attributable to the vast number of websites that had already broken the ice and thoroughly explored every subject.

Case in point was the exploration of female urination by Penthouse centerfold models in 2000.

The level of explicitness has continued to increase even until today, where virtually no sexual subject is off limits, at least with respect to online material. The industry generally respects historical avoidance of topics dealing with children, animals and actual violence but graciously explores almost all other subjects.

That brings us back to Virginia and its decision to prosecute the sellers of adult film classics "Deep Throat" and "The Devil in Miss Jones."

To understand the possible strategy here, one must consider the potential impact of acquittals or convictions involving this type of material, as opposed to more common (and thoroughly more explicit) modern adult fare. If "Deep Throat" was to be convicted in these times of mainstreaming the adult industry and liberalized sexual standards, such a conviction would make a dramatic statement.

For a film like "Deep Throat" to be targeted, with its attendant plot and place in pop culture, community standards would have to be tremendously conservative. The prosecution likely would waive that court ruling around for the entire country to see, arguing that North Stafford community standards do not tolerate even the likes of these adult film classics. By implication, therefore, they could argue that virtually all other adult material similarly falls outside their "community standards."

On the other hand, a successful prosecution of the more recent, explicit material would set the bar fairly high as to contemporary community standards, justifying the conclusion that such a ruling is essentially meaningless and that every adult film must be considered on its own merits.

This is why convictions for content dealing with bestiality, scat or fake "snuff" films have not have much impact or influence on erotic film production in the past. Producers and distributors can readily comfort themselves with the notion that their films are "different" and do not rise to the level of the convicted work.

So, as it turns out, Virginia investigators may be "dumb like a fox." A conviction there could be more harmful to the industry than any other pending obscenity prosecution, given the nature of the content involved. Conversely, an acquittal would not be tremendously harmful for law enforcement's agenda. An acquittal would only mean that these particular movies, with their themes and historical significance, are not obscene under local community standards. The ruling would have no impact on the legality of other, more explicit materials that are commonly distributed throughout the country. Similarly, an acquittal would not allow the industry to claim much of a victory, since "Deep Throat" has been acquitted by various juries and courts in the past and is not typical of the kind of erotic materials currently produced.

Important Virginia Case
All this means that the Virginia case is important to watch. The defendants are only facing misdemeanor charges, and therefore the stakes are not quite as high as in some of the federal felony prosecutions currently pending or the racketeering and obscenity prosecution filed in Pensacola, Fla. Short of a civil proceeding, where jail time is off the table, misdemeanor prosecutions are certainly a more humane way to test the community standards applicable to particular materials in a given location.

In sum, conviction for "Deep Throat" or "The Devil in Miss Jones" would be a sad commentary on modern society — at least in North Stafford, Va. — if it occurs. One would hope that societal norms have progressed to the point where they could tolerate an adult's decision to purchase (or sell) a classic adult film like "Deep Throat" for private viewing. This author had the honor of defending

"Deep Throat" in his first obscenity jury trial in the late 1980s. Hopefully, the fine citizens of North Stafford, Va., will laugh the prosecutors out of court in this case, just as they did in Daytona Beach, Fla., in what seems like a lifetime ago.

Lawrence G. Walters, Esq., is a partner with the law firm of Weston, Garrou, DeWitt & Walters, with offices in Orlando, Los Angeles and San Diego. You can reach Lawrence Walters at Larry@Lawrence Walters.com, www.FirstAmendment.com or AOL screen name Webattorney.

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