The Top Fifteen Obscenity Prosecution Stories of 2007
By Attorney J. D. Obenberger
end-of-2007 wrap-up was commissioned by XBIZ and ran as a front-page,
above-the-fold story in its last print edition in 2007. It summarized
the biggest obscenity stories of the year and made some observations
about what might be expected in the future - the future in which we now
live. It serves also as a snapshot of cases that were then in progress.
This end-of-2007 wrap-up was commissioned by XBIZ and ran as a front-page, above-the-fold story in its last print edition in 2007. It summarized the biggest obscenity stories of the year and made some observations about what might be expected in the future - the future in which we now live. It serves also as a snapshot of cases that were then in progress.
From Northern Virginia to Southern California, federal and
state prosecutors and grand juries across America continued to bring criminal
obscenity charges against adult operators during 2007. Some few of the cases
were widely reported in the adult trade publications, while others were barely
reported at all. My purpose in this article is to bring to the fore those cases
brought, pending, or resolved in 2007 that are most useful in taking the
temperature of the waters in which the adult producers and distributors swim..
A smart operator will pay close attention to the pending
cases as they emerge and play out for several important reasons. First, the
nature of the content charged (and at least in the case of Max Hardcore, the identity of the defendant) gives a fair
indication of what attracts the interest of law enforcement and prosecutors. Whether
the result in the end is acquittal or otherwise, that punitive interest can be
very expensive and very scary. Second, the results in these cases may be of
predictive help in assessing whether content is likely to be legally obscene.
Finally, understanding the sentences and forfeitures imposed provides a reality
check to connect the reader with the ultimate downside of high-risk
decision-making in adult content selection.
1. The Ray Guhn/Come
on Her Face Case:
When the cops came for McGowan, they came in force with a
SWAT team that simply commandeered his house and pointed a rifle to his head,
according to published accounts.
The Northern part of Florida amounts to a cultural
continuation of Alabama, but the Pensacola area has never been noted for
gracious Southern hospitality to the adult industry. Moreover, Florida has been
the home of the ugliest kind of prosecutorial gamesmanship in obscenity cases
for a long time. (Ask Chris Wilson, mentioned below, who was jailed over
Christmas 2005 for nowthatsfuckedup.com. while the State unsuccessfully played
procedural games in order to have him remain in custody indefinitely.) In the
latest of these perversions of the judicial process, in July 2007, the
indictments in Escambia County were dismissed so that the same case might be immediately
resurrected and reindicted in the presumably even more conservative adjoining Santa
Rosa County. The new judge denied a motion to transfer the case back to
Pensacola finding that the defense had not adequately established bad faith in
the procedure. A full array of motions attacking the existence and
applicability of the Florida obscenity statute have been filed and more are on
the way. In the latest development, in October 2007, the Santa Rosa County
Judge has ruled that the jury will be instructed to apply the community
standards of four Florida counties, including Escambia County to determining
whether the elements of obscenity are proved by the State under the statute and
the Miller test.
The website is no longer operated by the persons charged, but by foreign operators. The case, and a variety of motions based on the statutes and the constitution, is pending and obviously the defendant is fighting like hell through Larry Walters.
[Update: In the end, all of the defendants took a plea and all of them were sentenced to incarceration.]
At least four brick and mortar adult operators were indicted
for obscenity in September 2007 by a Kansas special grand jury Johnson county, convened
as the result of a petition drive organized by moralizer Philip Cosby and his
Kansas City chapter of the National Coalition for the Protection of Children
and Families (NCPCF). Amazingly, the indictments include Halloween costumes and
devices designed to preserve penile rigidity. To illustrate the contemporary
cultural attitudes in that state, it should be noted that the Kansas Supreme
Court, last year, deposed a sitting judge whose browsing activity included
websites featuring naked women, which was detected by an examination of his
chamber’s computer browser history. Another grand jury in Wyandotte County is
about to roll out.
Spirit Halloween was indicted for the costumes on September 26, but the charges were dismissed on the State’s motion on October 10th, apparently because the prosecutor felt that the State could not meet its burden of proving the costumes obscene. The indictment and immediate dismissal may suggest something about the level of hysteria that NCPCF has created among the people living in Kansas. Priscilla’s was indicted for various sex aids, including the vibrating ring, and possession with intent to sell the sex video “Teen Cum Targets”. Hollywood at home was indicted for promotion of four video titles: “Real Female Masturbation 13” (New Machine), “Anal Machines” (Vamp), “Hellcats 12” (Evil Angel), and “Don’t Kiss Me, I’m Straight”. (HIS) A writer familiar with the content observed that Hellcats twelve featured solo female urination in panties without accompanying sex, oral, vaginal, anal, and group anal sex. Gringo Loco was indicted for the sale of one. Those two cases are quite fresh and obviously remain pending now.
3. Max in Tampa
The indictment includes counts addressed to both delivery of DVD’s and Internet distribution, including one clip, me20europromo.wmv, only 1:47 in duration and other brief segments extracted from the site. The government has not alleged that any whole website operated by Max is an obscene work, but charges clips instead, continuing the pattern established in the Extreme Associates case. The DVD titles named in the indictment are “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. The content is reported to include fisting and hard anal.
Max Hardcore was previously been tried in L.A. County under California state charges for material featuring urination, fisting, and depictions of adults performing as children, leading to a hung jury and a subsequent guilty plea to a non-porn city charge to avoid retrial. On October 5, 2005, his home office was raided by the FBI. Subsequently, the Federal Government filed an action for the civil forfeiture of his house. Authorities also are now also seeking the criminal forfeiture of the sites MaxHardcore.com, PissedOnPornStars.com and CatalinaXXX.com.
Any assessment of this case must address three issues: 1) Why Max? 2) Why Tampa? and 3) Why now, so late in the administration? It is my opinion that Max remains a special case in the eyes of prosecutors because they believe that the depictions in his videos not only cross all known and socially-accepted disgust lines, but because they regularly do so with a cold and sadistic stare aimed at the utter objectification of his performers, perhaps to their psychological injury. The case is brought in Tampa because the government wishes to establish that Max’s kind of content will be taken as obscene even outside especially conservative regions, believing that its offensiveness will be evident even in communities that are generally tolerant to controversial expression. It may hope that success will encourage US Attorneys in other parts of the country to bring cases. It is brought now because the hands at DOJ feel so strongly about Max and his content that they simply will not permit him to slip away due to the passage of time. Max’s content is also featured in the Movies by Mail case, highlighted below. This has been a continual crusade against him and it will continue into the foreseeable future. The case is pending.
[Update: Max was convicted on all counts, represented by Jeff Douglas and Lou Sirkin, though he was able to save his home from forfeiture. He was sentenced to prison where he remains at the time of this update. This was not an Obscenity Task Force case.]
4. Movies by Mail
v. Harb. The operators of “Movies by Mail” were federally charged
[Update: In the end, Paul Cambria pled his clients out.]
5. Red Rose
On April 26, the defense filed a motion to dismiss and a supporting brief generally challenging the federal obscenity statutes on constitutional grounds, and as applied to text descriptions without graphic illustration. These motions were denied on August 30, 2007. The defense is currently required to file additional motions by November 7, 2007. This is a Larry Walters case. The case is pending.
[Update: In the end, she took a plea to avoid incarceraton.]
6. Vomit Brazil
7. LA Scat
Ira Isaacs was indicted in the United States District Court for the Central District of Florida in Los Angles. The February, 2007 indictment relates to video titles described as
"Gang Bang Horse”, 'Pony Sex
Game", "Mako's First Time Scat", "Hollywood Scat Amateurs
No. 7", "Laurie's Toilet Show" and "Bae 20". The tapes were apparently promoted
at the following sites, whose domains the government seeks to forfeit
criminally: www.scatmovies.com, www.scatcinemax.com, and www.stolencarfilms.com.
In late October, Isaac’s counsel obtained a stipulated order continuing trial proceedings, providing that counsel shall confer in February 2008 regarding a trial date. This case is pending.
[Update 6.15.11: The case is still going on, with a fresh batch of new (2011) indictments and news that the government has identified eight forensic experts that may testify in the expected 2012 trial. Isaacs is represented by Roger Diamond.]
8.J & M
in 5th Cir.
The Ragsdale investigation led
law enforcement to Ragsdale’s partner and his prosecution and conviction for
distributing obscenity. An acquittal
was obtained concerning a work featuring urination and defecation, but defendants were convicted in connection
with a work that depicted the piercing of nipples by needles billed as
sexual torture without accompanying
sexually explicit acts. McDowell was convicted only of aiding and abetting
the criminal distribution of obscene materials through the United States Mails
(“Torture Video 23”) and was sentenced
to 30 months imprisonment. He was acquitted of conspiracy to violate the
obscenity statutes, using an interactive computer system to distribute
obscenity, and one count of aiding and abetting. This conviction was reversed
August 24 by the Fifth Circuit because there was no evidence that the defendant
knew the US Mails would be used by his partners and associates and no
reasonable inference of that knowledge arose from the evidence.
Fairly technical issues of proof
have emerged to decisively affect innocence or guilt this year not only for Mr.
McDowell, but for a series of defendants in the J & M case, mentioned above.
The lesson here is that the First Amendment and Constitutional Law may be the
heart of obscenity defense, but the everyday general principles of law,
including the rules of evidence, always remain immeasurably valuable to
exploitation by defendants and their counsel whenever the government screws up
and runs off half-cocked.
10. Le Video Store
[Update: In the end, there was a plea to a lesser non-obscenity offense.}
11. Chris Wilson
12. S & M Svengali in NY
[Update: The defendants were convicted by a jury. On appeal, the Ninth Circuit found error at trial concerning the instructions, but concluded that it was not plain error, affirmed the convictions, and remanded on a technical matter. The defendants went to prison. The Ninth Circuit decision and some commentary is found in our Cases section.]
previously dismissed the case on constitutional grounds but was reversed
by the US Court of Appeals. The US Supreme Court denied review, and so the
matter is back in front of Judge Lancaster.
On February 1, 2007, the Defense filed its second Motion to dismiss which dealt with other constitutional issues related to the obscenity concept of a “work as a whole” and contemporary community standards. Though, on July 31, 2007 Judge Lancaster denied the motion to dismiss, he agreed to treat it as a motion in limine that should provide direction as to what the government must prove at trial in order to survive a motion for an acquittal. Case pending.
[Update: The Supreme Court denied certiorari from the adverse Third Circuit opinion. In the end, the defendants pled guilty.]
15. Virginia: After Hours Video
After Hours Video and its owner Rick E. Krial, which recently opened as the first adult business in Staunton, Virgina was indicted on 16 felony and misdemeanor charges related to selling obscene movies by the grand jury on November 1, 2007.
titles include: "Sugar
Britches", "City Girls-Exxxtreme Gang Bangs", "The Video
Adventures of Peeping Tom", "Tag Teamed 3 -The Art of Double Penetration", "Teen Angel -The
Search for Snatch", "Teens Cumming of Age#4",
"Erotica", "Teanna Kia is the Bitch", "5 People You
Meet in Porn", "Big Loves - Thiclc for Diclc", "A Group
Thing #I", "Hog Farm".
This prosecution was commenced shortly after the operator opened his store against protests and community agitation against its establishment. Florida is not the only state displaying evidence of prosecution gamesmanship: The indictment discloses that material was purchased on three different dates – so that the subsequent purchases might be charged as a second or subsequent offense – and thereby become punishable as felonies.
[Update: This went to the jury with Paul Cambria closing. The Obscenity Task Force from DC attended trial to give the local prosecutors a hand. The defendants were convicted of several obscenity counts, acquitted of several, and in the end. at least one of the stores closed as part of a post-trial deal, which had been the prosecutor's object from the start. One juror was quoted as saying that group sex violated the community standards of Northern Virgina.]
*** *** *** *** ***
Observations About the State of Obscenity Prosecutions
cases highlighted in this article speak for themselves – and about where
obscenity prosecution now stands - with eloquence.
means have all of the charged materials been deemed obscene by juries. But it
has happened twice this year, in the J & M case and United States v.
Kilbride, both in Phoenix, Arizona, a place seldom, if ever, listed among the
most Bible-thumping American jurisdictions most hostile to porn. Fisting and
extremely aggressive facial assaults with demeaning language were more than
these juries could accept. For what it’s worth, at least one member of the J
& M jury stated afterwards that the jury might have acquitted had they
known of the availability of similar material in the Phoenix area. Maybe. But
this judge did not permit the introduction of comparable material, holding that
mere availability does not establish acceptance of the material. No one can or
should assume that any member of any jury will be a customer of this industry
nor that he or she will be fully aware of the range of adult materials
produced. Therefore, when assessing content for potential risk, the question
that always should be asked is how the material will play to people who don’t
watch porn. The Cambria List still offers much value in wise content selection.
matters who you are. Especially if you are Max. Or if you have dared the
Attorney General to come get you. As in everything else, size counts. Sizable
defendants attract special attention. Obnoxious behavior invites prosecution,
most extreme kinds of content – torture, rape, scat, and urine - seem to invite
prosecution everywhere. Harsh and insulting language and degrading treatment of
performers, whether on camera or off, seem also to invite prosecution.
there is a hysteria or personal animus stimulating the prosecution, as in
Kansas and Virginia, even run of the mill content can and will be indicted and
charged in 2007.
ugly, and vindictive prosecutorial games are sometimes played by prosecutors
and enforcement agents on the state level in Florida and Virginia, and it’s my
guess that it depends on the legal culture of the jurisdiction to assess what’s
likely to transpire. Some places are just nastier than others.
In general, until the United States Supreme Court takes another look at obscenity (something that not all of us are necessarily hoping for), it is unlikely that the arguments asserting that the obscenity statutes are broadly unconstitutional when applied to willing adult customers, based on free speech and privacy principles, will prevail anywhere. As this writer has observed many times, the battle against repression will be won in jury trials, one case at a time, until the overpowering number of acquittals shall convince the prosecutors that the obscenity statutes no longer have teeth.
Copyright 2007-2011 J. D. Obenberger. All rights reserved.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is firstname.lastname@example.org.
J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.