Landmark Miller
Another L.A.-based attorney, Burton Marks, played a key role in a subsequent Supreme Court ruling: 1973's landmark decision in Miller vs. California, which established a new test for obscenity. Parts of the Roth test were upheld in the Miller test, but while the Roth test described obscenity as being "utterly without redeeming social importance," the Miller test said that obscenity lacks "serious literary, artistic, political or scientific value," so called the "SLAPS test." In 1973, some 1st Amendment attorneys regarded the SLAPS part of the Miller test as a setback for adult entertainment; nonetheless, it was during the 1970s that the adult film explosion took erotica to a new level of sexual explicitness, and defending the content of sexually explicit films (including oral sex) kept Los Angeles 1st Amendment lawyers busy.
Laws prohibiting oral sex were common at the time, and L.A.-based attorneys argued that such laws were unconstitutional. Weston challenged the constitutionality of California's oral sex prohibition, which the California State Supreme Court repealed in 1976. And 12 years later, in 1988, adult film companies in California enjoyed another major victory when the California State Supreme Court made its historic decision in Freeman vs. California.
When Los Angeles County prosecutors alleged that paying people to have sex on camera was pandering, and adult filmmaker Hal Freeman was convicted of five pandering counts, his Los Angeles attorneys, Stuart Goldfarb and Dennis A. Fischer, appealed. The case went to the California State Supreme Court, which ruled that paying adult actors to have sex on camera was not a form of pimping or pandering.
"As far as Los Angeles is concerned," Gelbard said, "it's hard to talk about adult entertainment without mentioning the Freeman decision, which basically made it legal to make adult films here, and that sort of opened the flood gates."
Piccionelli agreed. "With the Freeman decision, California became the first state in the country to actually create a legal sanctuary for the commercial creation of adult films," he said. "The Freeman decision is one of the reasons why the adult entertainment industry is located here."
Weston, on the other hand, has a long history of challenging zoning ordinances he considered discriminatory against adult bookstores, beginning with the case Young vs. American Mini Theaters in 1976, and has also been proactive in challenging RICO statutes that have been aggressively used against adult businesses. Also of great importance was Weston's work in the Traci Lords case. In 1986, it was discovered that actress Lords had lied about her age and was a minor when she posed nude for Penthouse and made roughly 200 erotic films.
"The adult industry could have been wiped out," Weston said. "Theoretically, everyone who had hired Traci Lords was subject to prosecution."
Adult Industry Saved
But the courts ruled that there could not be strict liability, and all of the people who had created or distributed Lords' material not knowing that she was underage when it was made breathed a huge sigh of relief.
"That decision saved the adult industry," Weston added.
Although adult entertainment has come a long way since Fleishman's groundbreaking work in the 1950s and 1960s (Fleishman generally defended more softcore erotica, and his successors more hardcore material), erotic expression still has its share of opponents. In the 2000s, L.A.-based 1st Amendment attorneys have been busy dealing with both federal obscenity prosecutions and 2257 age-verification laws that Gelbard describes as "Draconian."
Adult entertainment, however, is not the only target of social conservatives, who, as Piccionelli explained, also go after mainstream entertainment, be it Hollywood films, hip-hop or video games. Piccionelli stressed that Los Angeles will maintain a vibrant community of 1st Amendment lawyers not only because of adult entertainment but also because of all the mainstream entertainment that is created in Southern California.
"Los Angeles has a long history of pushing envelopes," Piccionelli said. "There are very few places in the country where you can say that cultural phenomenon gets going with regularity, and Los Angeles is one of those places. Wherever you have cultural advancement and expression of that advancement, you're going to run up against folks who are not happy about those changes and who will try to restrain them. Because of the location of the adult entertainment industry and the non-adult entertainment industry in Southern California, Los Angeles will continue to be an important place for 1st Amendment attorneys."
