Stagliano’s Lawyer Addresses Elements of Obscenity Case

Steve Javors
LOS ANGELES — John Stagliano’s attorney has officially been served with the federal obscenity indictment that was unsealed yesterday by the Justice Department. Court papers reveal that a grand jury was sworn in on Nov. 15.

Evil Angel owner Stagliano (along with corporate entities Evil Angel and John Stagliano Inc.) has been indicted on seven counts of violating federal obscenity laws, which includes the distribution of allegedly obscene materials via mail and Internet.

Al Gelbard, who represents Stagliano, told XBIZ that his client’s case raises interesting constitutional questions.

“The charges are what they are; I disagree with them politically and morally,” Gelbard said. “It’s a waste of the government’s resources. We’re very confident that we’ll prevail at trial.”

Procedurally, the next step is for Stagliano to be served with the indictment followed by his arraignment. Gelbard is trying to get Stagliano arraigned in California.

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."

Gelbard plans to make a pretrial motion to have the court define what the appropriate community is when relating to alleged obscene works delivered via the Internet. 1st Amendment attorney Louis Sirkin filed a similar motion in the Extreme Associates obscenity case. Gelbard said that he expects Sirkin to be involved on Stagliano's defense team in some capacity. The courts have not definitively ruled on the identity of who comprises the Internet community.

“In today’s world of technology, especially how it relates to the Internet, this obscenity prosecution creates a lot of issues before we even get to trial, including defining the appropriate community as it relates to Internet material,” Gelbard said. He also plans to make a motion that obscenity laws are invalid on its face.

“The interesting issue here is that they feel they can prosecute for an individual trailer on a website,” Gelbard said. “The Miller test for obscenity requires that you take a work as a whole, so our position is probably going to be that the taking out of context of one trailer out of the entire website cant satisfy that constitutional standard.”

Noted adult industry attorney Greg Piccionelli told XBIZ that what might be set up are differing circuit court opinions on the web’s community standard, which would potentially foment a Supreme Court battle. He hopes that the liberal 9th U.S. Circuit Court of Appeals rules for a possible national standard and that he thinks the government is playing for a ruling that would set a local community standard in Stagliano’s case, judging by the makeup of the highly conservative U.S. Court of Appeals for the Federal Circuit in Washington, D.C.

The fate of two of Piccionelli’s clients is intimately entwined with the Washington, D.C., court’s interpretation of the constitutional issues pertaining to the case against Stagliano.

Piccionelli represents on appeal two spammers that were convicted of an obscenity provision in CAN-SPAM. In the case, which currently is on appeal in the 9th Circuit, Piccionelli won Jeffrey Kilbride's and James Schaffer's release on bail stating that they were improperly being held in jail during the appeal while critical questions pertaining to their conviction have not been answered — and would likely result in their conviction being overturned.

The court sided with the defense, stating that “appellants have shown by clear and convincing evidence that the appeal raises ‘a substantial question’ of law or fact that is likely to result in reversal.”

One of the substantial questions of law that Piccionelli raised had to do with whether it is appropriate to let local jurisdictions serve as the community under the Miller test when material is distributed online.

Of particular interest to Piccionelli is the seventh count of Stagliano’s indictment relating to making the allegedly obscene material available for minors to view on the web. Piccionelli said this count was the government’s way of tacking on additional charges to the obscenity indictment, reasoning that the government can’t just claim obscenity, but that they also are out to protect children from accessing adult content online.

This is where the case gets interesting and where one of the most crucial constitutional questions will be addressed.

The seventh count of the indictment claims that the defendants “knowingly used an interactive computer service to display an obscene image … in a manner available to a person under 18 years of age.” The image in question is the trailer for Belladonna’s “Fetish Fanatic 5.”

The Child Online Protection Act (COPA), a 1998 law that criminalized commercial website owners for making available online material considered harmful to minors, was struck down as unconstitutional in federal court last year. U.S. District Judge Lowell Reed Jr. ruled that COPA, which would have used “contemporary community standards” to determine material harmful to minors, is “impermissibly vague and overbroad” when applied to Internet content.

Piccionelli believes that the government has dug up 1989’s Dial-a-Porn law, which was intended to prevent children from accessing phone sex lines.

“The question of law about whether or not the Dial-a-Porn law applies to Stagliano’s case would be one of the first I would raise,” Piccionelli said. “To the degree that this gets rolled against Stagliano and would be appealed, the jurisdiction that this was brought in would mean that the appeal goes to what is arguably the most administration-friendly and conservative appellate court in the country. And that explains at least in part why this case was brought in Washington, D.C.”

Piccionelli’s history of advising clients to comply with the Dial-a-Porn law, which states that consumers must request or authorize adult material to be displayed before accessing it, dates back to before the rise of the adult Internet industry. Piccionelli advised his clients to comply with the law by requiring a credit card to access explicit content because the Internet was accessed via dial-up modems and telephone lines. This spawned the adult verification service (AVS) business.

However, in 1998, when the Communications Decency Act was enacted, it appeared Congress “either thought the Dial-a-Porn law wasn’t applicable or was insufficient, because the CDA had its own age verification mechanism,” Piccionelli said. “The age verification element of the CDA later was ruled unconstitutional, leaving the government to solely enforce the Dial-a-Porn law as the only thing left in its arsenal.

“So now that the CDA and COPA have been ruled unconstitutional with regard to the harmful matter provisions, it looks like what the government is trying to do is to see if they can en graft the Dial-a-Porn law to the Internet. That issue is going to provoke a response of ‘Does this really apply?’ If it did, why did Congress pass the CDA and COPA then?”

Gelbard hesitated to speculate about the government’s tactic in releasing a press release before the defendant has been served, but said, “all obscenity prosecutions are inherently political.”

If convicted, Stagliano faces a maximum of 32 years in prison and $7 million in fines.