The Philpot Jury Obscenity Trial: Not Guilty in Arkansas

“Not Guilty”Verdict in Jury Obscenity Trial at Forrest City, Arkansas

        By J. D. Obenberger, Attorney at Law

     This Article was originally published by AVN.com on September 10, 2010 with editing not reflected here. This is the original account (with only one deletion, made at the request of a defense lawyer and a small few hindsight edits). It was reported at the time to be the longest front-page news story ever run on AVN.com. Few published accounts detailing the story of obscenity trials conducted within the past twenty years exist; Mark Kernes wrote masterful accounts of the Max Hardcore and John Stagliano trials for AVN, but, so far as I know, this is the only one telling the detailed story of a local, state obscenity trial conducted in the Bible Belt during that time.

    I drove seven hours from Chicago through the southern tip of Illinois at Cairo, and then along the Mississipi toward Memphis, and then west over the Crowley's Ridge to Forrest City to watch this trial. It has been my ambition for a long time to try an obscenity case in the rural South;I don't know whether I'll ever get the opportunity to do that, but in the meantime, wild horses couldn't keep me back from watching an obscenity jury trial in Dixie. I learned about this prosecution while conducting research with which to chart out every American obscenity prosecution I could find mentioned in published accounts during the past twenty years, in order to gain better information with which to advise my clients. When I learned about this case from a local newspaper article that was reprinted in XBIZ online, I called the prosecutor and found out from him who was involved. It turned out that the defense lawyers were people I knew. Nothing in this article comes from them. Before leaving for Arkansas, I contacted AVN and made plans with it to write this piece; I made no secret about my plans to write for publication when I got to Forrest City.

    Once I saw the players face-to-face and learned some of the drama of this case, I gave considerable thought to the idea of writing a book-length account of the amazing story that is summarized here. Both the trial judge, Olly Neal, and the prosecutor,Fletcher Long, are remarkably interesting characters. But the writing and publication of this mere article caused a more-than-minor furor. There were those in significant relation to this case who were afraid that any attention or notoriety given to the verdict might encourage further prosecutions of these defendants (who remained in business after trial). They applied much pressure to silence these words, to prevent them from ever being read. I published them, but at a very high personal price. I remain convinced that this is a story that deserves telling widely and that doing so will benefit those who make and distribute adult entertaiment content, online and in brick and mortar stores. A book could do all of that with more power, I think. But, for the time being, that book project remains a project on my back burner. A massive collection of notes sits on the corner of my desk, still. Anyone who has thoughts about whether this book deserves to be written is welcome to email me with their thoughts.

    This is the story of local political officeholders and prosecutors; the trial and its outcome show them to have been out of touch with the values of the communities in which they had lived for many years and with the attitudes of the people who elected them. The applause from the jury box after the videos was played and the rapid four-hour acquittal in this case communicated that to them rather dramatically, and nothing I might write would be likely to affect that lesson. (One can only imagine where they thought they were going, when, in open court, that juror in the front row loudly applauded when one of the charged, sexually-explicit, hard-core videos came to its sweaty conclusion.) The last thing people in the prosecutor's position want to do is to risk looking silly, to risk looking like they are wasting money in these hard times by prosecuting people for something that is not a crime, to enforce a code of morality that no one believes in anyway, and to risk branding their own county as a backward place. More broadly, it passes that lesson on to local prosecutors all across the nation, especially to those in places thought to be more conservative than others; they will ask whether their chances to convict for obscenity are better than those involving a jury in rural Arkansas. It communictes the same message upstream to the Depatment of Justice. (They had a representative attend the trial, sitting an the prosecutor's table who left town before the jury went out to deliberate.) This article communicates powerfully because it wears no gloves: the exact and precise nature of the material that was shown to the jury is explained in text with "high resolution" attention to detail. 

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    In a sleepy Delta town named after the founder of the Ku Klux Klan, Confederate General Nathan Bedford Forrest, nestled into the side of Crowley’s Ridge about forty miles west of Memphis, after about four hours of deliberation that followed a week of trial, a rural St. Francis County, Arkansas jury rendered a verdict acquitting all defendants of all the obscenity counts, just before 11 p.m. last Friday night. [September 3, 2010]

    Forrest City eaks out its existence from a strip of motels and fast food and convenience stores (with liquor) serving an Interstate exit - and from some local agriculture and retail. That strip features a Sonic, a Wal-Mart (the crown jewel of local retail in this part of Arkansas - it came up in closing argument), and some restaurants with nice homestyle Southern cooking. (The local supermarket contained the richest assortment of ingredients for distinctly Southern cooking that I've ever seen in my life.) I don't want to say anything uncharitable about the local pizza restaurant, so I won't say anything at all. Forrest City is a small regional banking and retailing center for this part of rural Arkansas; the old, narrow, downtown streets feature sidewalks cut narrow to make room for the enlargement of the state highway that runs through. The railroad that gave birth to Forrest City also cuts a wide swath of cleared lots through central Forrest City; on each side of the Tracks are storefronts that saw better days when the trains stopped here. South of those tracks rambles the segregated Negro Quarter of Forrest City, very unlike the rest of the town. Late at night, when the sidewalks north of the tracks have grown quite still and silent, in the Black part of town families and familiar friends mingle and talk and laugh under dim, 40- and 60-watt bulbs on porches and sidewalks in front of late night mini-food stores, way into the night. Adjacent to the tracks, on one side, the St. Francis County Courthouse is a brand-spanking-new post modern, high-security, chunk of brick and reinforced concrete that stands behind the old courthouse bell, preserved from the demoliton of the Old Courthouse. On the other side of the Tracks is a big, old frame house that serves as the museum for the local historical society. If there are any book stores in Forrest City, I didn't see them, but there's a decent office supplies store that's been there forever.

    The local government’s crusade against two adult superstores that operated at exits on Interstate Highway 40 began with undercover DVD purchases by confidential informants and arrests in 2005 and 2006. Manager Larona McClurg, store clerks, and one of the Philpot corporations entered “no contest” pleas and the corporation ultimately paid $40,000.00 in fines in the initial phase of the investigation and prosecution; store manager McClurg remains on probation to the present as a result of her early arrest and nolo plea. One of the stores was closed by its owners in February, 2010. 

On November 18, 2008, Prosecuting Attorney Fletcher Long, Jr. filed criminal information with the court clerk alleging that Jimmy and Wayne Philpot and their corporations had committed the Class D felony of the promotion of obscenity by selling obscene materials at the adult superstore on October 17, 2007 (Private’s Reality #1) and November 14, 2007 (DVSX’s Grudgefuck 7). The purchases underlying these charges were also made by confidential informants. Wayne and Jimmy Philpot faced 0-6 years in prison had they been convicted by this jury. 

Prosecuting Attorney Long has been the elected prosecutor for St. Francis County since 1993, and for long prior to his election had acted as an assistant or deputy. Long is a tall,craggy man with a shock of white hair and a slow, ponderous style in the courtroom. The image of a very strict country parson easily comes to mind. He is probably best known on the national stage for his controversial but successful prosecution of decorated Vietnam Veteran Wayne DuMond for the rape of Forrest City High School cheerleader Ashley Stephens, the daughter of a politically well-connected local mortician in 1983. The prosecution was based on an identification made by the victim on the street, made thirty days after her assault. No physical evidence tied DuMond to the crime, though sereological evidence could not exclude him. DNA testing was not used. She had reported an attack by a blue-eyed, bearded man but DuMond had hazel eyes and no beard. A local vigilante committee broke into DuMond’s house after his arrest, sexually assaulted him and castrated him with a razor, leaving him bleeding in his house to be found by his children. The former local sheriff secured DuMond’s testicles from the crime scene and brought them to the victim’s mortician father who placed them in a jar with preservative; DuMond’s gonads remained on the Sheriff’s desk for some time until he flushed them in the toilet. The region is no stranger to vigilantism and lynchings; a local railroad trestle used for the latter purpose was only demolished in recent years; the locals pointed out the location for me, showing me where it used to stand. Long co-tried this case with a much younger man, Deputy Prosecutor Christopher Moreledge, whose stiff and almost mechanical movements brings both Star Wars’ R2D2 and Mad Men’s Peter Campbell to mind. His closely cropped hair and shaved neck made it easy to spot that when he blushes because he does so on the side of the neck. Moreledge wears a gold oval signet ring where other men might wear a wedding ring. 

They were both assisted by DOJ Obscenity Task Force Attorney Matthew Buzzelli who, in narrow, round, dull steel glasses, sat at counsel table through trial and softly consulted with the local prosecutors under his breath, though he neither formally appeared nor went onto the record. Buzelli has been awarded a Special Achievement Award from Department of Justice and it was he who provided DOJ Obscenity Task Force assistance to local prosecutors in Staunton, Virginia in Paul Cambria's Rick Krial case that led to convictions two years ago. When Buzzelli appeared in that courtroom, the newspapers reported his explanation that DOJ was helping out only because Staunton was so close to DC. Nobody asked him what he was doing in Arkansas, a bit down the road from northern Virgina, though the Defense did unsuccessfully object to his presence at the prosecution counsel table. He quietly dissolved permanently from the Forrest City courtroom about the time of closing arguments.

The individual defendants were represented by veteran obscenity defense lawyer Lou Sirkin of Cincinatti, and Fort Lauderdale attorney Jamie Benjamin, both members of the Fist Amendment Lawyer’s Association, together with West Memphis attorney Bart Ziegenhorm for the corporations. Mr. Sirkin’s style of cross-examination and closing argument is best described as polished, subtle, suave, and unflappable with a slighe admixture of cockiness. Mr. Benjamin contributed a significant degree of  unvarnished intensity. Mr. Zuggerhon’s low-key “Just the Facts” style was in sharp contrast to both.

The jury consisted of six men and six women, six Whites and six Blacks, spread in age between their twenties and sixties. 

After the jury was empanelled, the courtroom was nearly empty during the week of trial but for the wives of the Philpots and sometimes a daughter. A local reporter, denied the chance of taking photographs of the trial, made sporadic visits to court. Sometimes County Judge Gary Hughes made an extended appearance. In Arkansas, the County Judge is not so much an actual judicial officer as he is the chief executive authority for the county, and it was reported that he was the actual driving force behind the Philpot crusade. He is a stocky man with a huge amount of white hair combed straight back from his receding hairline. But for them, the benches of the large, formal jury courtroom were largely empty. 

The trial judge was Olly Neal, a Black jurist just approaching seventy years of age, tall, skinny as a rail, with white, wooly hair. He served ten years on the Arkansas Appellate Court and returned to Forrest City recently to fill a vacancy caused when a St. Francis County judge got in trouble and left the bench. Though he projected a warm, charming, cordial, and often humorous kindliness during the trial, together with a careful, calm, and considerate demeanor to all in the courtroom, he essentially gave the prosecutors nearly everything they asked for, fair or fowl, and gave the defense next to nothing that it sought. Maybe it’s significant that was Arkansas’ first African American elected prosecutor in 1991, but he’s not known in this locale for being a conservative. 

The prosecutors admitted a “summary” compilation of the two videos, running about fifteen minutes, which the State described as a fair and accurate distillation, while, in fact, the “summary” centered its focus on hard acts of simultaneous double penetration, simultaneous dual facial ejaculations, choking, awkward insertions of dildos mounted on sticks or rods, the stuffing of underwear into the mouth of a female performer, tossing a female performer onto and pulling her about the bed by a leg, and the like. When, at the defense request, the six hours of Reality #1 and Grudgefuck 7 were played in their entirety, the jury was exposed to much humorous dialog, witticisms, extended psychodrama between the performers, and documentary-style content including Private’s promotional video concerning an elaborate cinematographic production expensively filmed in Morocco by an “acclaimed” director, featuring elaborate sets and cameras mounted on tracks, wholly missing from its “fair and accurate summary”. On cross examination, the Arkansas State Police civilian who prepared the summary admitted that Prosecutor Long sat next to him in a Little Rock office, selecting which material should be included in the “summary” video. The “summary” presented by the prosecution appeared to plainly mislead the jury as to key issues of the case, a point which could not have been missed by it. While the same civilian employee of law enforcement stated that the material had no plot that he could discern, especially in the case of Grudgefuck 7, it is patently evident that hostility was set up between the characters and a resolution reached in each of the segments; in one segment, an elaborate psychological reversal occurred though often witty ad-lib dialog turning the aggressive male into the psychological bottom. 

A dramatic and pivotal moment of trial occurred when Lou Sirkin cross-examined the civilian State Police employee who created that “summary”. After establishing that the charged works each bore a copyright notice, he asked the State Police employee whether he had “respected” the copyright in making his (derivative) summary. Time passed. Silence. The uncomfortable employee started to increasingly display his discomfort  as the ramifications of the question sunk in. He started to explain what he was considering in formulating his answer. More silence. Finally, Mr. Sirkin let him off the hook. But some damage had been done. Especially when coupled with evidence of the prosecutor’s role in the creation of the “summary”, these events appeared to strongly and negatively flavor the credibility of the prosecution and adversely color its apparent candor before the jury. 

The first charged video, “Reality 1” from Private, reflected anything but reality. The segments consisted of pure fantasy set in Euro-, high-production-value style with attractive performers displaying elaborate make-up and hair styling, speaking German. The sets included private pools, richly decorated living rooms, and other expensive sets by which Private is known. The scenes were interspersed with documentary-style promos extolling new Private productions with attention to the cost of the productions and the fame of the directors and performers. They included superficial interviews with the performers in English and they were accompanied by trailers of the same sort. The dialog was minimal in the featured content but consisted mainly of energetic, hard sex, usually of the anal and double-penetration variety, extended for long periods of time and depicting the males literally working up a sweat. Direct ass-to-mouth was routine. The female performers seemed to demonstrate consistent enthusiasm for these acts and the invariable facial and multiple facial ejaculations were usually accompanied by at least modest smiles, there was often a zoom to a shot of the female’s smiling eyes and fadeout to black. 

The second charged video, “Grudgefuck #7” from dvsx, was topically aimed at hostility between partners, usually with a farcical or lightweight plot line that just managed to take the edge off of such otherwise-violent depictions such as choking, stuffing panties in mouths and tossing partners around and dragging them by a leg, but explained the context of the violence. As noted above, at least one of the invariably one male on one female vignettes featured significant psychological dialog throughout the sex that reversed the roles of dominance by which the segment began, the petite female telling her male aggressor that he was a “pussy” and it looked to her like he “swallowed”.  

These videos had been purchased by confidential informants after deputies sent them into the stores with hundred-dollar bills and instructions merely to “buy pornography”. This failure to direct their informants may have been their biggest single mistake: armed with that much money, they were naturally drawn to the most expensive content, and that tends to imply expensive, foregin content possessing high production values. That is exactly what they purchased. Their content was actually far richer in plot and documentary value under the Third Fork of the Miller Test, relating to “serious value” than what a random selection from the racks and bins of a normal adult retail establishment would be expected to yield. In this case, the defense actually had something to argue on "Serious Value" that at least approached the straight-face-test, and that's an aberration from the pattern of most obscenity prosecutions.

The most dramatic moments of the trial occurred outside the presence of the jury and involved whether Manager Larona McClurg would testify in response to a prosecution subpoena. The prosecutors needed her testimony to establish that Wayne and Jimmy Philpot, absentee owners living in Florida, knew the nature and character of the store’s products – and that everything that she did – including writing checks totaling $995,000.00 that amounted to the disbursement of proceeds from the store operations to other interests controlled by them – was done by their authority. Still employed at the store and facing allegations that she had violated the terms of her probation for continuing to work at the store, which was deemed “unsuitable employment” by her probation officer, she intended to assert her constitutional privilege against testifying. The State sought and obtained an order for testimonial immunity from Judge Neal. She still refused to testify unless and until she might confer with her independent counsel. With great tact and apparent restraint, the Judge asked her whether she understood that such conduct might have “consequences” to her “liberty”. He asked whether she understood what that meant. He observed that he sure didn’t want to look like he was threatening her. At that point, the State agreed to let her reach her attorney by cell phone and get advice from him concerning the order. She did so and began to testify, providing the testimony to the State that it needed. 

Perhaps as a result of the US government having learned a lesson in Washington during the Stagliano trial in which it failed to tie the defendant to the films being sold in his name, the prosecutors here spent much time and made elaborate effort to tie the brothers Philpot to the operations of the store and to establish that the proceeds wound up in their hands outside the State of Arkansas. They put the manager of the Philpot’s local bank on the stand to authenticate signature cards and copies of numerous checks from Exhibit A through Exhibit PP distributing $995,000.00 to Florida. By using the store Manager, they established that she used a stamp or manually signed her boss’s names to the checks, acting on general authorization or instruction. At these, perhaps the tensest moments of the trial, the beefy brothers Philpot sat gravely still and stared straight ahead - as the Prosecutor painted them to be carpetbaggers - before this Southern jury seated a couple of miles from Confederate Avenue. 

Still, on Friday morning, September 3, Judge Olly Neal granted Bart Ziegenhorm’s motion to direct a verdict in favor of RJJW Investments, Inc. and against the State because there was not evidence that either video was purchased from the store that corporation operated, dismissing that party as a defendant. 

Judge Neal (outside the presence of the jury) heard the proffered testimony of a defense-retained private investigator who had researched extensively the availability of sexually-explicit materials throughout the different parts of Arkansas and had purchased some at 23 locations. He lost some of them along the way, but stood prepared to testify about 16 of them and provide a foundation for their admission into evidence. Under an Arkansas statute, the “community” at interest for the purposes of the first two forks of the Miller Test is statewide. (Deputies in the hallway were heard to grumble about this law, expressing their wish that truly local standards applied, together with their regret that videos featuring Gays and Transexuals were not presented in this case.) The Private Detective’s testimony recounted that there was one other adult megastore standing at an Interstate exit in Texarkana, near the Texas border. He also testified about many other, more discrete locations where he purchased – and observed others purchasing – sexually explicit materials akin to the videos at bar in the Philpot case. These places included “head shops” where pipes and biker gear were sold, featuring adult material behind a sheet, various lingerie and sex toy shops with backrooms, some locked and some not locked, at least one store with a selection of explicit videos on another floor and gas stations selling magazines with included videos. Few, if any, of the outlets outside Texarkana advertised the availability of adult materials on exterior signage, and it was clear that some digging was necessary to find similar materials elsewhere in Arkansas. In order to introduce evidence of comparable material to prove community acceptance of the materials, it is necessary in Arkansas and many other jurisdictions to establish the similarity of the materials and their sale under circumstances that suggest such acceptance. The State stipulated to similarity to the materials charged in Forrest City. It contested the second element of the test. Judge Neal prohibited the testimony, apparently because the “back room” nature of the testimony about sales did not imply to him circumstances of community acceptance in the sales. He observed that the mere fact that such materials could be located and purchased did not establish acceptance by the community. 

During the week of trial, the St. Francis County Fair was proceeding two miles south of the city limits at the Fair Grounds. The cattle and horse barns were mostly empty and the arts and crafts, canning and pickling judgings each had a few ambitious submissions; but there were signs that much has left this county over the years. There was a small midway of carnival rides featuring bad carnie food and a dining hall operated by local ladies that served competent barbeque and cole slaw. Maybe the most interesting things going on down there were the beauty pageant and the part-Native American Vietnam Vet who was chipping out arrowheads and spearpoints from Arkansas flint; I coulnd't resist taking a few home. The stone stuff, that is.

What was taking place in the courthouse, regarding the jury instructions was quite the opposite, rendering that structure St. Francis County’s UnFair Grounds. The instructions defining “prurience”, an important part of the first fork of the Miller Test, have seldom been so badly mangled. Normally, “prurience” is simply defined in obscenity cases as an appeal to a morbid or shameful interest in nudity, sex, or excretion. Here, for the first time, and without the support of prior cases approving such language, the jury was told that “prurience” related to an “abnormally lustful” interest in sex. The instructions advised that appeal to a “degrading” interest appealed to the prurient, too. Mr. Long asked for language in the definition of patent offensiveness that would have described it as a violation of customary limits of “morality and decency” but he withdrew that one when the argument seemed to go against him. But he was able to keep “abnormally sexually exciting” as part of the prurience definition, a seeming excursion from Supreme Court jurisprudence, and he obtained an accurate (but unfairly emphasizing) instruction plainly telling the jury that obscenity is just not protected by the First Amendment. These instructions were loaded in the direction of the prosecution and probably contained the potential for reversible error. 

Christopher Moreledge began stiffly arguing to the jury immediately after Judge Neal instructed on the law. His arguments went on for forty minutes and seemed largely ineffective or counterproductive. He argued that the “summary” video was fair and accurate - when it seemed pretty obvious, I think to everyone, that its selective bias against dialog and value was anything but representative. He claimed that, though the Private video extolled location shooting in Morocco, there was no evidence showing Morocco. (It had actually seemed plain enough when the Moroccan castles and landscapes appeared on the screen before the jury.) He announced that the jury should not be desensitized to hardcore and that it should remember its first shock when it saw a facial ejaculation. This comment seemed to assume something about the jury’s knowledge and experience and its susceptibility to shock that just possibly might not have been true. He kept reminding the jury that it was to enforce “THE LAW” as instructed by the judge, and this became his mantra, repeated many more times, though without much visible punch. Similarly, he many times referred to the instructions as a “go-to” that answered all of the jury’s questions. He made the jury look repeatedly at an overhead projection of jury instructions and required it to wait through his fiddling around to get the pages displayed. Defense objections and motions for mistrial, actually expressed before the jury, punctuated his argument. There had been testimony about the AVN Show in Las Vegas, attended by the store Manager, and he advised the jury that what happens in Las Vegas should stay in Las Vegas - and not come to Arkansas. He referred to an outtake depicting on-set observers making a “choking signal” to the performers – but his misinterpretation of what everyone in the courtroom saw did not seem to comport with the activity shown on the screen. It is an easy inference that the prosecution lost whatever remaining credibility it had by the end of Moreledge’s argument, which seemed at variance with the actual evidence and which clearly misled the jury just as the “summary” had.. It is, of course, possible that Moreledge just could not see what unbiased observers could see for themselves, and that he was out of touch with the actual evidence and the character of the jury that sat before him and the values prevalent in the community from which they came. At one point in trial, he had asked the Manager if she would take her Grandmother to see what was being sold in the store concerned here, reflecting, perhaps, some basic misunderstanding of freedom of speech. Anyway one might slice it, his argument was a series of queer misfires that damaged the prosecution case. 

Mr. Ziegenhorm began with a concession that the videos were sold by his corporate client. He built credibility when he said that. Then he said that the depictions at issue were all “standard stuff”. 

Jamie Benjamin came to his feet. He emphasized common sense and described that as the jury’s best guide. He reminded the jury that people just don’t talk about sex and that it is hard to know what one’s neighbors actually think about this kind of material. He described America as a nation built of small towns in which adult materials are enjoyed without much discussion with the neighbors.  He said that it was not up to Fletcher Long to determine what people get to see, and that, contrary to prosecution themes in this case, what Wal-Mart chooses to sell cannot be the arbitror of what is fit to be sold and used an viewed in a community. He emphasized that all of the material was for private use by individuals and their companions. 

Then came Lou Sirkin. He is one of the legends of obscenity defense, 70 years old but possessing the energy and looks of a man at least fifteen, maybe twenty years younger. His style was close and intimate, casual and charming. With very little material and evidence to work with, his creative energies cascaded and he crafted a compelling argument. [Two sentences consisting of sixty-one words deleted at Lou Sirkin's request.] He had evidence of copyright registration and he used that to paint the legitimacy and acceptance of the material. He urged the jury not to speculate on things not proven – for, he argued, it was the prosecutor who had the burden of proving facts to them. He argued, too, that patent offensiveness and prurience must be observed in their context, in this case a context of intent for private use, just as the First Amendment protects some speech in some contexts but tolerates their criminalization in other contexts. He said, with a smile, and somewhat apologetically, that the material has political and scientific value because it helps people imagine what they might do and fantasize about it. He said Wal-Mart was a foreign company and that it should not control what people in Forrest City might accept. He asked the jury to tell Fletcher Long that he was not their censor. He asked the jury to accept different strokes for different folks several times and smiled each time. And finally, he told the jurors that the issues they were called upon to decide affected their own freedom. 

Finally, Fletcher Long, with the passion and style of a country preacher, settled into his pulpit. During the first four minutes of his opening argument, the Defense team objected and moved for a mistrial three times in the presence and hearing of the jury. He gravely announced, “These Defendants brought us this ‘artwork’. When they leave, they won’t take it with them. They will leave it with us, only taking the money with them. The filth we’ll keep.” Objection, defense motion for a mistrial, denied. Then, “I’ve said what I said and I’ll stand by it.” He went on, observing that the jury heard a lot about Las Vegas and he wonders if Forrest City is to become the Porn Capital of East Arkansas. Objection, defense motion for mistrial, motion denied. He said the prosecution does not need to prove community standards, because the law tells you what they are. “Do they argue to you that this material is accepted as standard for Arkansas?” Objection, defense motion for mistrial, motion denied. Fletcher Long said that Lou Sirkin was right, that no one would invite a friend or another couple over to watch this stuff. He said that proves the material is not accepted. He said that mortgage payments and utility payments and taxes and salaries are not a defense to obscenity – and he invited the jury to look for any language so stating in the instructions. He said that the First Amendment just does not protect the obscene – and that Arkansas has the power to keep it out of commerce. He said that our society cannot tolerate “anything goes”, and that Lou Sirkin’s arguments would lead to the open sale of tapes depicting dogs killing dogs. There was an objection to the last comment, it was overruled, and the jury filed out to deliberate. 

Sirkin then went to work online and located this year’s decision in United States v. Stevens, overturning a federal statute banning videos of animal cruelty, including depictions of dog fights. Judge Olly Neal finally said that he didn’t have to read the case because he’d heard about it, that Fletcher Long was wrong to so argue, but that he didn’t think it important enough to call back the jury and tell them so. 

I left Forrest City about the time that the jury went out; the sun went down over Crowley's Ridge in my rear view mirror; I drove north along the Mississippi and crossed into Illinois; after a few hours, my cell phone rang in the dark night. I heard the excited voice of Lou Sirkin.

About four hours later, last Friday night, as the Labor Day Weekend began, in a small town with an old history of lynchings, vigilanties, and castrations, up against Crowley’s Ridge, in Northeast Arkansas, this jury returned with a verdict acquitting Wayne and Jimmy Philpot and their remaining corporation. It might have started with the juror who was seen to visibly clap his hands and give a “thumbs up” when the videos were done playing, but he obviously was not alone by the time the verdict was announced. The prosecutors likely misjudged the tolerance of the people of St. Francis County. It’s probable that the jury felt misled by the prosecution. Finally, it’s quite likely that this jury understood that the trial was indeed about their own freedom of choice. 

The County Fair came to an end that night, and so did this trial, at about the same time. Only time will tell whether this verdict also ends the campaign against them, their store, their employees, and their Manager. It is most remarkable to observe that in the Bible Belt of rural Arkansas, despite a trial that denied the defense any opportunity to place evidence of comparable sales into evidence and which unfairly denied them accurate jury instructions that evenhandedly explained the law, a jury of their peers intervened to acquit Wayne and Jamie Philpot.  

Lou Sirkin says, “These trials are for real and can result in horrible consequences for our clients – like prison. Wayne and Jimmy Philpot are to be praised for their courage.” 

Fletcher Long was quoted in the local press accounts as accepting the verdict as the voice of the people: "That's the jury's verdict. This case was about community standards, and they determined that those movies met the standards in Arkansas." 

The Brothers Philpot are not speaking for publication. The book store in question continues to operate and its billboards still becon motorists on the Interstate, night and day..

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Copyright 2010-2011 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 obiwan@xxxlaw.net. 

J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.