Extreme Implications

The last several years have seen an unprecedented rise in the number of obscenity prosecutions leveled at adult industry members unlucky enough to be caught in the crosshairs of state and federal officials. Unlike the dreaded 2257 regulations, which are predicated on the tangible process of record-keeping, obscenity is a slippery, subjective slope that — as a legal offense — is difficult to define and often difficult to defend.

The resulting legal campaigns that must be waged by those charged with obscenity can suck years and assets out of the lives of the defendants, including Max Hardcore, Ira Isaacs, Karen Fletcher (aka Red Rose), as well as the principals named in the Extreme Associates, JM Productions/Five Star Video and RayGuhn/ prosecutions.

But despite the efforts of the Justice Department, the Bush administration and right-wing morality watchdogs everywhere, it's no surprise these prosecutions seem to be largely ineffective.

First Amendment attorney Jeffery Douglas, who currently is representing Max Hardcore and defendants in the JM Productions/Five Star case, tried to put it into perspective.

"When you look at what this administration has done in obscenity prosecutions — while there are these half-dozen high profile ones pending now — when you look at the entire six and one-half years, they really haven't done very much," Douglas said.

"And when you consider the extraordinary amount of commerce in sexually explicit material — Max's titles which are virtually indistinguishable from thousands of other titles being produced — and the utter arbitrariness and randomness to an obscenity prosecution; even if you were to multiply the number of pending obscenity prosecutions by 100, with 15 to 16 thousand new releases a year, tens of millions of transactions every year, 600 cases is insignificant," Douglas said. "And six is ludicrous."

Hardcore, who initially was raided in October 2005, finally was indicted in May on 10 counts that include mailing of obscene material and transmitting five allegedly obscene video clips via the Internet.

Titles named in the indictment include "Max Hardcore Extreme 20 — Euro Edition," "Pure Max 19 — Euro Edition," "Max Hardcore Golden Guzzlers 7 — Euro Edition," "Fists of Fury 4 — Euro Edition" and "Planet Max 16 — Euro Edition."

Arraignment for Hardcore took place in mid-July. Douglas attributes the long delay between execution of the search warrant and initiation of the indictment to the inner-workings of the Justice Department, as well as some "fact-specific components [of the case] that presented a challenge to the DOJ," according to Douglas.

They are scheduled to go to trial in March at U.S. District Court in Tampa, Fla.

"There will be very vigorous motions hearings, prior to the matter ever going to trial. There are a number of issues, some of which we would seek dismissal on and others to receive other benefits," Douglas said.

He added that they will pursue a motion to dismiss obscenity charges, similar to the motion filed by Attorneys Louis Sirkin and Jennifer Kinsley in the pending obscenity case against Extreme Associates and its owners Rob Black and Lizzy Borden (aka Rob Zicari and Janet Romano).

In January 2005, attorneys in the Extreme case motioned successfully for charges to be dismissed on the grounds that federal obscenity statutes were unconstitutional and not applicable to materials on the Internet. The judge's decision to dismiss, however, was appealed by the Justice Department and overruled in the 3rd U.S. Circuit Court of Appeals.

Zicari and Romano originally were charged in 2003 for distributing three videos via mail and six images over the Internet, alleged by prosecutors to be obscene.

According to Kinsley, there still is no trial date set for the Extreme case.

"In fact," she said, "the government is now complaining that the case is moving too slowly, which is ironic given that the government chose to appeal the case to the 3rd Circuit, causing a lot of delay."

Kinsley feels that the long delay is advantageous to her clients.

"In the Extreme case, a rush to trial is not beneficial," she said. "It makes more sense to let emotions and passions die down before trying the case.

"I said in the beginning of the case that it was our goal to outlast the Bush administration and we have nearly accomplished that. This case is not going to trial until well into 2008, if ever."

As far as the current political climate, the JM Production/ Five Star Video case may have had some indirect effect on recent personnel changes at the Justice Department.

In a complicated legal twist, one of the eight U.S. attorneys who were dismissed — eventually leading to the scandal that ostensibly caused the resignation of Attorney General Alberto Gonzales — may have been fired because of his reluctance to pursue the JM/Five Star case.

In an email to then-Attorney General Gonzales, Brent Ward, who heads up the Justice Department's obscenity task-force, questioned the actions of U.S. attorney Paul Charlton.

"We have two U.S. attorneys who are unwilling to take good cases we have presented to them. They are Paul Charlton in Phoenix (this is urgent) and Dan Bogden in Las Vegas," Ward wrote.

The urgency of the matter suggests that Ward was referring to the only obscenity trial in Arizona, which is the JM/Five Star case.

Charlton's reluctance with the case may have been caused knowledge of the U.S. Trustee's Office of the Justice Department involvement with adult retailer Castle Megastores during bankruptcy proceedings.

Between 2003 and 2006, Castle stores located in Arizona sold more than 100 copies of the four titles that have been named in the JM/ Five Star case including "Filthy Things 6," "Gag Factor 15," "Gag Factor 16" and "American Bukkake 13." This was during the same time period that Castle's business was being administered by appointees of the Trustee Office, due to the bankruptcy.

This apparent conflict of interest was cited in a motion to dismiss by attorney Richard Hertzberg, who represents two principals in the case, but was later denied, as were separate motions filed by attorneys Al Gelbard, Sirkin, Kinsley and Douglas.

There have been numerous motions filed in the JM/ Five Star case, all of which have been denied. The case is scheduled to go to trial on Oct 16.

Kinsley stated further that even with the departure of Gonzales, she does not expect any significant shift in the prosecution of obscenity cases from the DOJ.

"The key players — Brent Ward and Andrew Osterbaan — are still around and will likely shape the philosophy going forward," she said.

While other obscenity cases have been long-standing as they go through the process of pre-trial hearings and various motions by defense attorneys, attorney Roger Jon Diamond is judicious in his approach of the case for client Ira Isaacs, who was arraigned on Aug. 27 on charges of obscenity and two counts of improper labeling for several titles, including "Gang Bang Horse — Pony Sex Game," "Mako's First Time Scat, "Hollywood Scat Amateurs 7" and "Laurie's Toilet Show."

Isaacs, who was never arrested but informed of his indictment by mail, appeared at his arraignment voluntarily, pleaded not guilty and was released on a $10,000 personal surety bond with a promise to appear for trial.

The trial date has been set for Oct. 9 in U.S. District Court in Los Angeles, though preliminary pretrial hearings have not yet occurred.

"In theory, there is always an opportunity to file motions; the question is whether or not there's any legal basis for doing so," Diamond said.

In the Isaacs case, "the motions to dismiss, when they're filed will be based upon the claim that the obscenity statute is invalid."

But Diamond was quick to point out that the same motion, filed by Sirkin and Kinsley for Extreme Associates, while initially successful, was overruled.

Diamond, who has been a practicing law since 1967 and defended many 1st Amendment cases, has a history of winning hard-to-defend obscenity cases in difficult venues. He once successfully litigated a case involving bestiality in Amarillo, Texas, and during the '70s, won a case involving child pornography.

He believes that if the case proceeds to trial, he will be able to show his client has always acted in good faith and that the labeling violations were the result of an oversight.

In terms of the obscenity charges leveled against Isaacs, Diamond does not dispute the contents of the DVD titles in question and is optimistic his client will beat the charges.

"I look forward to trying the case for Mr. Isaacs," Diamond said. "He's a very nice gentleman. He doesn't deserve to be prosecuted and as I've said, I've tried a number of these cases and done fairly well. I predict a successful defense unencumbered by useless motions."

Attorney Lawrence Walters is handling perhaps the two most unusual obscenity prosecutions currently in progress.

Karen Fletcher's paysite, where she was known as Red Rose, was shuttered in October 2005 after she was charged with obscenity for having posted text-only content — stories she had written with themes of bestiality, water sports, scat, BDSM, group sex and sex with children.

The Justice Department was alerted to her website after online payment processor Paypal filed a Suspicious Activity Report with the financial crimes enforcement division of the U.S. Treasury.

At the beginning of September, motions to dismiss were denied in U.S. District Court in Pittsburgh, the same venue where the Extreme Associates case has been filed, though the Red Rose case is being heard by a different judge.

Walters expects the trial date to be set for April 2008.

There will be another round of pretrial hearings in about 60 days, where Walters expects to make motions to raise evidentiary issues as to comparable materials to be viewed by the jury, as well as other issues that the defense team is in the process of evaluating.

The Red Rose case has special precedent-setting potential because the obscenity charges pertain to content that is text-only and also because it was published online.

"We haven't had a prosecution of text since the Miller case in 1973," Walters explained

In Miller vs. California, the defendant was accused of distributing — by mail — brochures that contained allegedly obscene text, pictures and drawings.

The case resulted in the current legal definition of obscenity, which was handed down by the U.S. Supreme Court as the three-pronged Miller Test, which states that obscene materials must 1) lack political, artistic, literary and scientific value, 2) violate community standards for obscenity and 3) have the sole purpose of appealing to one's prurient interests.

"You know, the obscenity laws are written in such a way as to apply to text and there's no Supreme Court case that says that it doesn't," Walters said. "So in the absence of that, the lower courts may not have much wiggle room to avoid taking the case to trial. That's what we're getting prepared for."

In the Ray Guhn case, the latest development is a dismissal of the case from the court in Escambia County Florida and re-filing of the charges in Santa Rosa, Calif., presumably in an attempt by the prosecution to find a more favorable venue.

Walters will file a motion for dismissal asserting an abuse of the dismissal procedure based on the actions of the prosecutor, among several other motions to dismiss.

Clinton McCowen, aka Ray Guhn, former owner/operator of affiliate program, was arrested in June 2006 with his general manager Kevin Patrick Stevens.

Both men were arrested under charges of manufacture and sale of obscene material, solicitation for prostitution and racketeering. A charge of money laundering was added in July.

McCowen, Stevens and three other defendants were arraigned at the the end of July and pleaded not guilty. A sixth individual also was charged in the case by the State of Florida, with an additional charge for possession of crystal methamphetamine.

Walters said the Ray Guhn case is of particular concern to the adult community because there has never been a prosecution with so many additional charges predicated on the initial charge of obscenity. Racketeering and money laundering can only be proved if the materials in the case, content shot for the website, is judged to be obscene.

The charges of prostitution in connection with paying men and women to perform in sexually explicit productions challenges the hallmark People vs. Freeman case (1988) in which the ruling determined performers in non-obscene, sexuality explicit productions were not considered to be engaging in prostitution, and ostensibly legalized adult movie production in California.

Walters said he hopes neither the Red Rose or Ray Guhn case results in a conviction — otherwise, his clients could be in custody while Walters seeks a precedent-setting decision on appeal.

Walters also urges industry members to come forward with financial support for both of the defendants, who are facing long, costly legal defenses that could have a profound effect on the entire adult community, especially if the charges result in convictions.

If even one conviction results in any of the current obscenity prosecutions, the repercussions for the industry could be like the first ominous "click" in a long line of dominos.

"Now is the time for people to get interested and I hope that message gets out," Walters said. "Don't wait until they get convicted and don't wait until the Supreme Court takes up the case. Let's get it right now, so that we set the best record we can."