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Stagliano Attorneys: Miller Test Is Outdated for Online Adult

Stagliano Attorneys: Miller Test Is Outdated for Online Adult
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Nov 4, 2008 9:00 AM PST    Text size: 
LOS ANGELES — John Stagliano’s attorneys have filed another motion to dismiss obscenity indictments against the Evil Angel owner and his companies, claiming that charges should be dropped because contemporary community standards are outdated and that the Miller requirement’s “as a whole” rule cannot be met for online content.

Stagliano’s counsel also said that prohibitions of transporting adult content, whether online or through common carrier, is an unconstitutional burden for the exercise of free speech.

Stagliano, Evil Angel Productions and John Stagliano Inc. were charged with seven federal counts of operating “an obscenity distribution business and related offenses in April. The charges stem from the mail and Internet distribution of two movies in the Washington, D.C., area.

The movies named in the indictment are "Milk Nymphos," directed by Jay Sin; "Storm Squirters 2," directed by Joey Silvera; and a trailer from Belladonna's "Fetish Fanatic 5."

Friday’s motion was in relation to the government’s opposition earlier submitted to the court.

Attorneys for Stagliano and his company — Robert Corn-Revere and Paul Cambria — said that the 1st Amendment prohibits “prosecution of Evil Angel Productions for use of an interactive computer service to distribute online communications because, unlike many offline publishers, Internet publishers cannot control the geographic reach of their communications.”

His counsel also said that 18 U.S.C. § 1465 and 47 U.S.C. § 223(d) are impermissibly overbroad because they employ Miller’s community standard element in the determination of whether certain Internet communications that are not geographically controlled are obscene.

They also said that the government’s stance as “taken as a whole” is unconstitutionally vague with respect to online communications. The Miller test requires that the material in question must be "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest."

"We principally maintain that because 18 U.S.C. § 1465 and 47 U.S.C. § 223(d) allow the government to determine context on the Web at its convenience without sufficient notice to web publishers, the 'taken as a whole' elements of both statutes must be declared unconstitutionally vague," Paul J. Cambria, Jr. and Roger W. Wilcox Jr., two of the attorneys who represent Evil Angel, told XBIZ.

"Alternatively, our position is that the whole matter to be considered by the jury is the entire Evil Angel website, not just a tiny portion of it taken out of context,” Cambria and Wilcox said in a joint statement.

As for their last point on why the court should dismiss charges, Stagliano’s counsel said prohibitions of transporting adult content, regardless of means of transmission, is unconstitutional relative to free speech.

“Evil Angel Productions maintains that the 1st Amendment and the Due Process Clause protect defendant’s right to distribute obscene material to adults for viewing and use in private, particularly in light of Lawrence vs. Texas [which struck down sodomy laws], and the [5th U.S. Circuit Court of Appeal’s] more recent decision in ReliableConsultants Inc. vs. Earle, [relative to the sale of sex toys].”

Stagliano did not respond to XBIZ requests for comment.

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