Legal Angels: 1

Alex Henderson
Skillful, accomplished 1st Amendment lawyers can be found in many different parts of the U.S., including Cincinnati (home to H. Louis Sirkin), Chicago (where J.D. Obenberger and Reed Lee are based) and Buffalo, N.Y. (home of Paul J. Cambria Jr.). But if any American city deserves to be exalted as the capital of 1st Amendment law, it is Los Angeles. The adult entertainment industry has made many advances over the years, and L.A.-based 1st Amendment attorneys have been playing a crucial role in its progression for at least half a century.

"Los Angeles is where you find the greatest concentration of 1st Amendment attorneys in the country, without a doubt," said Gregory Piccionelli, one of the city's prominent 1st Amendment lawyers. "Tons of significant 1st Amendment work has come out of Los Angeles, and there has been tons of decisions that have occurred around the country that involved Los Angeles-based attorneys. When 1st Amendment issues arise, the Southern California 1st Amendment attorneys will frequently be the ones who take on those issues." Piccionelli, of the firm Piccionelli & Sarno, noted that 1st Amendment attorneys do not represent adult companies exclusively. Allan B. Gelbard, another busy 1st Amendment attorney based in L.A., said, "Keep in mind that 1st Amendment lawyers aren't just porn lawyers; we do other stuff as well."

Not Just Adult
Piccionelli, in fact, has had his share of clients in both mainstream and adult entertainment. But because erotic expression has frequently been attacked in the U.S., those who create or distribute adult material often need the help of attorneys who are experts on 1st Amendment matters — and in Los Angeles, there is a long list of attorneys who fit that description, including Jeffrey J. Douglas, head of the Free Speech Coalition's board of directors, Piccionelli's partner Robert Sarno, and Alan Isaacman, who represents Larry Flynt.

Los Angeles also is home to the adult-industry-friendly firm Rohde & Victoroff, which includes Stephen F. Rohde and partner Gregory T. Victoroff, and to a long-running firm that has been downright vital to the adult industry: Weston, Garrou, DeWitt & Walters, which includes John H. Weston, Clyde F. DeWitt and G. Randall Garrou in the firm's main L.A. office and the Lawrence Walters in its Orlando, Fla. office.

Weston, Garrou, DeWitt & Walters is the firm that once boasted the presence of Stanley Fleishman, a seminal 1st Amendment attorney whose work helped make the adult entertainment industry what it is today. Arguably, all of the attorneys who currently represent clients in the adult industry — from Douglas, Piccionelli and Sarno in Los Angeles to Cambria in Buffalo — are disciples of Fleishman, who passed away in 1999.

"The first major Los Angeles 1st Amendment attorney, in a very real sense, was also the first major U.S. 1st Amendment attorney, and that was my former partner Stanley Fleishman, now deceased," Weston said. "Stanley was probably the first attorney in the country to devote a significant amount of his time to the issues of sexually oriented speech and expression in the media and government attempts to regulate and censor it."

To fully appreciate the role that L.A.-based 1st Amendment lawyers have played — and continue to play — in shaping the adult industry, one needs to think back to 1957. That year, Fleishman took on the case of Alberts vs. California, which Weston describes as the companion case to Roth vs. U.S.

Los Angeles resident David Alberts, who ran a mail-order business, was convicted of obscenity under a California statute for publishing pictures of nude and scantily clad women. New York-City-based publisher and writer Samuel Roth, meanwhile, was convicted of obscenity under federal law for selling a publication called American Aphrodite, which contained both literary erotica and nude photography. When the Roth and Alberts cases went to the U.S. Supreme Court in 1957, the high court's decision in Roth vs. U.S. established a new definition for obscenity and ruled that material was obscene if its "dominant theme, taken as a whole, appeals to the prurient interest" according to the "average person, applying contemporary community standards."

To 1st Amendment purists, the Supreme Court's decisions in the Roth and Alberts cases were far from ideal; Roth's and Alberts' convictions were upheld by the Supreme Court, which ruled that obscenity was not protected by the 1st Amendment. Roth, in fact, went to prison for several years. But even so, the creation of the Roth test was a major victory for adult entertainment because it made obscenity much more difficult to prove.

Before the Roth test, U.S. obscenity law still had remnants of the old Regina vs. Hicklin test for obscenity, which was handed down from England in 1868 and greatly influenced American obscenity law for generations. Under that test, an artistic work could be considered obscene if even a small part of it was mildly erotic. Under the Roth test, however, the entire work had to be analyzed in order for it to be condemned as obscene. Attorneys had been chipping away at the Regina vs. Hicklin test for decades, but Fleishman did more than chip away at it; Fleishman helped topple it once and for all.

"The Roth test in 1957 was a wonderfully important watershed and was, in many ways, attributable almost exclusively to Stanley Fleishman," said Weston, who joined Fleishman's firm in 1970. "Stanley did not argue the Roth case, but legal scholars all agree that Stanley's briefing and Stanley's argument in Alberts, which was argued contemporaneously with Roth and decided at the same time as Roth, was really what carried the day."

In part two, we'll continue our look at the impact L.A.-based attorneys have had on 1st Amendment law.

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