XSF '08: Legal Obscenities Seminar

Joanne Cachapero
LAS VEGAS – On Thursday, in the one of the most well-attended XBIZ Summer Forum '08 seminars, more than 120 attendees turned out to hear a wide-ranging discussion on obscenity and the comments of recently indicted Evil Angel director/producer John Stagliano, as well as attorneys Lou Sirkin, Jeffrey Douglas, Lawrence Walters, Allen Gelbard and Greg Piccionelli. The panel was moderated by XBIZ’s Tom Hymes.

While last year’s hot legal issue was U.S.C. 18 2257 regulations for record-keeping, the hard-to-define subject of obscenity prosecution seemed to evoke more concern, especially in light of recent decisions in the Max Hardcore and Ray Guhn/TitanCash cases. Hardcore was an attendee at this year’s XBSF, but not present at the legal seminar.

Stagliano, who led off the discussion, was accompanied by wife Karen and Evil Angel director Joey Silvera, whose “Storm Squirters 2” is one of the titles named in the obscenity indictment.

Explaining his feelings on standing accused, Stagliano told the audience about being prosecuted based on the subjective decision of authorities at the Justice Department, who have claimed that his company’s movies are “obscene.”

“I’ve been thinking about why they did this to me” he said. Stagliano pointed out that he is facing 32 years in jail based on the prosecution’s dislike of his movies and that, somehow, the content threatens the rights of a community.

Stagliano went on to say that he believed the rights of the individual outweigh the rights of community, and that defending the rights of the individual is what the American Constitution is based on.

He noted also the decision in the Hardcore case, in which the defendant was found guilty on 10 counts of distribution of obscene materials.

“Some jurors in the Max Hardcore case wanted to acquit, but didn’t have the balls to stand up to the other jurors,” Stagliano pointed out. “But they believed in freedom in their hearts.”

Unlike in the Hardcore case and the Extreme Associates case that is currently being litigated, where the material in question is considered on the fringe of extreme sexual content, the Evil Angel material is closer to what most adult producers consider more “mainstream” content. Many adult producers have created DVD titles and online content featuring similar themes.

“John’s material is very middle of the road and I think the government doesn’t understand his material,” attorney Sirkin told XBIZ.

“We as lawyers, to be honest, you either believe in the 1st Amendment or you don’t. You either believe substantive due process rights,” Sirkin added. “My only criteria — that I don’t encourage anybody to make is that which is not being done by consensual, participating adults. As long as they are willing, and obviously, nobody should be hurt.

“Acting does show extremes of what goes on in human life,” Sirkin offered, “whether we find the situations or the materials may seem to be degrading, it’s only degrading to the viewer, because for the people participating in it, it’s voluntary behavior.”

But the vague standards that exist for defining obscenity become increasingly murky, complicated by rapidly evolving advances on the Internet.

“Obscenity will remain a threat to anyone in this room,” said XBIZ columnist Piccionelli, addressing both DVD and online producers in the audience. “But in a digital environment, who is the most at risk?”

Piccionelli cited that most prosecutions were targeted at producers of extreme material and said while he would not discourage the right to distribute such material, that adult producers might consider the type of content they were willing to distribute as a business decision, in terms of determining how much risk to take.

Sirkin, who has provided counsel in numerous 1st Amendment cases including Extreme Associates and the JM/5-Star cases, raised the ever-looming debate over how courts determine what material is “obscene,” based on the Miller test’s criteria of materials being considered “as a whole” and being deemed obscene by community standards.

All the lawyers agreed that with the rapid changes in online distribution formats caused by the proliferation of Internet adult websites, the criteria are no longer accurately defined by standards set more than three decades ago.

“[The definition of] community is the core central feature of obscenity,” Piccionelli said.

In terms of defining a global Internet community where, reportedly, 12 percent of Google searches are adult-oriented, standards for obscenity become a grey area.

Walters pointed out that in the Ray Guhn pre-trial arguments, he used Google statistical data to show that the word “orgy” was searched more frequently in the trial venue in Pensacola than the phrase “apple pie.” He also utilized mail order statistics from adult retailer Adam & Eve to show that many residents of the area were purchasing adult products.

Douglas, who was part of the Hardcore defense team and has litigated many other obscenity trials, said that it was his opinion that most judges in state and federal courts were not willing to “put their neck out there” and hand down a ruling that could potentially determine standards for the definition of community on the Internet – especially with Internet law being mainly new and uncharted territory.

“I don’t think all judges are afraid,” attorney Gelbard told XBIZ. “A judge that is more technologically savvy — a younger judge that grew up in a more liberal time when he’s confronted with some of these issues, may well realize that prior law isn’t on point. It’s one thing for a judge to say that a court superior to me has spoken on this exact issue and I don’t have the authority to change this. It’s another thing to say that no one has spoken on this specific issue yet, so I have a clean slate to write with — and I think that may happen far sooner than later.”

Walters pointed out also that, when applying the “taken as a whole work” criterion of Miller, that there was an arguable point that websites must be taken as a whole, similar to a book or a magazine with pages and pages of content. The idea of juries being required to review entire websites in order to determine lack of significant social or artistic value might be enough to squelch prosecution of online producers, he said.

Gelbard, who is a member of Stagliano’s legal defense team, stated his opinion that the issue of obscenity is largely political and often prosecuted in order to appease right-wing religious factions or to secure funding for various Justice Department divisions that deal with obscenity, child pornography and crimes against women.

However, on an individual level, Gelbard cited the problem as being rooted in violation of an individual’s right to access legal material in the privacy of their own home. Adult producers like Stagliano, he said, were directly defending those rights to privacy laid down in the Constitution.

Aside from the discussion of many other related issues that forced the seminar to run over its time limit, the attorneys also urged action from adult industry members, in order to take a “front line” stance against obscenity prosecutions, but also to protect the individual right of free speech.

Piccionelli advised all adult online producers to add a disclaimer to their website, declaring the material contained within as legitimately produced content that was not child pornography. This, he said, would help to separate the often confused issues of adult content being associated with illegal child pornography and would also add significant social value to a website.

He also urged online webmasters to copyright their websites as a whole work, reinforcing the idea of the entire website being considered a whole work, in the event of obscenity prosecution.

Douglas urged industry members to join the Free Speech Coalition, of which he has been longtime chairman, as well as other civic groups including the American Civil Liberties Union and a local Chamber of Commerce.

“Be a small hero for your industry,” Douglas urged.

Walters and Sirkin agreed that, in respect to obscenity prosecutions, each adult producer should feel obligated to be a “foot soldier” and present a unified front in support of the industry.

As an example, Sirkin pointed out that in the Hardcore case, many retailers pulled Hardcore’s products off their shelves, fearing prosecution. Then, when the defense team went to gather evidence that Hardcore’s product was commonly sold in local adult retail stores, they ran into problems locating product, in order to show the court what was commonly available for sale. He encouraged adult producers, distributors and retailers to take a strong pro-pornography stance and not be swayed by fear of potential prosecution.

The Staglianos made an appeal for industry members to visit their new legal website, DefendOurPorn.org, where interested parties could follow the trial and get more information, as well as make donations.

An audience member suggested that perhaps the online industry might consider donating 25 cents to $1 from each membership, in order to fund legal defense and resources for adult producers, and that such a program might be facilitated by the payment processors.

Without time left for audience questions, the seminar ended with several audience members lingering to discuss their concerns. And though most adult producers clearly hope they would never have to retain the services of 1st Amendment attorneys or face prosecution, the reasons why they might be targeted still remain a mystery and a cause for concern.

“I think that any time that anyone is prosecuted, whatever the material may be, it has a chilling effect and it’s frightening,” Sirkin said.