Legal Update - The Health of Obscenity Law, Williams, and Other Matters

Legal Update - The Health of Obscenity Law, Williams, Connections and Ira Isaacs

By Attorney J. D. Obenberger

1. HINTS FROM THE SUPREME COURT ABOUT THE HEALTH OF OBSCENITY LAW.

Signs of the Times. The lawyers of the First Amendment Lawyers' Association continue to fight hard for the reversal of obscenity laws in the United States, and they deserve commendation for keeping the flame of Liberty alive. But to suppose that victory will come any time soon is probably not an accurate reading of our times and the developments which define them. It is wise to consider that in Phoenix, a city far outside the Bible Belt, two trials were conducted during 2007 involving different defendants and different materials, and that obscenity convictions resulted in each case. Meanwhile, in Pittsburgh, Extreme Associates is still pending, Harub/Movies by Mail is still pending in Salt Lake, and John Stagliano was indicted in April for distributing “ Milk Nymphos ” , “ Storm Squirters 2: Target Practice ” , and the trailer for “ Fetish Fanatic Chapter 5 ”. Ira Isaacs in LA faces either a new trial or a continuation of his trial for his extreme content centering on sex, animals and things that usually go on in a bathroom or deep in the woods, which is actually not a bad description of where he finds himself. An assortment of obscenity charges are pending in Kansas and Virginia. Michael and Sharon Corbett (“ girlspooping.com ”), Chris Wilson (“ nowthatsfuckedup.com ”), Karen Fletcher (“ Red Rose ”), and the Cum on Her Face defendants (each and every one of these four defended by the same well-known firm) each took a plea. And, in San Jose, in the Northern District of California, of all places, Robert Allan Thomas was just recently indicted on three counts of mailing obscene (bestiality) videos and one count of running an obscenity business. This is the same Thomas who was indicted in Memphis, Tennessee, arising out of the operations of a California BBS in 1994, giving rise to one of the earliest online obscenity cases.

In short, there have not been so many obscenity-related prosecutions brought – and so many results disheartening to the Industry in such quick succession - in many years. Something in the air feels different to this observer, and while a large-scale campaign may never come, the chill we feel may be the first signs of a cold front moving in during the waning days of the Bush Administration.

Hints From the Supreme Court? In each of the cases I've mentioned, the lawyers have challenged the constitutionality of the obscenity statutes or they will. Some lawyers have found grounds for hope in Lawrence v. Texas , the 2003 right to privacy case that overturned Texas's sodomy statute, a case that is all about the legitimate scope of government regulation of private sexual practices. The lawyers in Extreme Associates convinced one judge that the sexual privacy holding in Lawrence doomed the obscenity statutes, but he was reversed by the Third Circuit. The Supreme Court declined to review that reversal – which is always said to mean nothing about the merits of the request – but it did so rapidly. Though the United States Supreme Court has not directly tackled the constitutional scope of the obscenity statutes in about twenty years, the High Court has twice quite recently alluded to obscenity law - in comments that suggest its continuing health and vitality. First, in United States v. Williams , concerning pandering for Child Pornography and decided on May 19, 2008, Justice Scalia, writing for a seven member majority, began his analysis by noting that “ We have long held that obscene speech—sexually explicit material that violates fundamental notions of decency—is not protected by the First Amendment .” Slip Opinion at 1. Five weeks later, on June 26, 2008, Justice Scalia again, writing for a five member majority in Heller v. District of Columbia , a case that for the first time comprehensively assessed the Second Amendment and declared the laws of the District of Columbia that banned private handgun ownership in the home unconstitutional, could not resist the urge to mention the obscenity exception to the First Amendment in support of his position, noting that “The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity , libel, and disclosure of state secrets . . .”. Slip Opinion at 63. These statements passed without comment in any dissent or concurrence. Other lawyers may try to dilute the significance of these texts by calling them impertinent asides regarding inadequately briefed issues that were not central to the decisions, but, after assessing the placement and purpose of each, my hunch is that Justice Scalia used these words to telegraph the position of the Court with regard to the continuing vitality of obscenity law. I don't see the Supreme Court enlarging the holding in Lawrence to invalidate obscenity statutes any time soon.

2. US V. WILLIAMS – BAN ON DISTRIBUTION OF MATERIAL DRESSED AS CHILD PORN UPHELD.

On May 19, 2008, the United States Supreme Court, in United States v. Williams , reversed the Eleventh Circuit and upheld the constitutionality of a law related to pandering material as “child pornography” even if it wasn't really child pornography. The law, contained in Title 18 United States Code Section 2252A, criminally penalizes the knowing advertising, promoting, and distributing (among other activities) of material – or “purported matter” in a manner that reflects a belief that the material is child pornography or is intended to cause another to believe that it is child pornography. This statute has the power to reach material that 1) does not actually even exist (“purported material”) 2) obscene material made exclusively with adults who are depicted as minors engaging in actual, explicit sex, and 3), last but surely not least, minors depicted in actual, explicit sex. This is all punishable between five and twenty years in prison.

Congress passed this law in reaction to the decision in Free Speech Coalition v. Ashcroft (2002) which invalidated Congress's earlier attempts to proscribe materials put forward as child pornography. The Free Speech Coalition opinion was grounded on the proposition that a flat prohibition of material depicting underage sex can be banned, when it is not obscene, only when real children were involved in the creation of the material. The Williams case highlights that the statute invalidated in Free Speech Coalition banned possession of such materials without regard to whether real children were involved, while the more recent statute relates exclusively solicitations and transfers rather than possession. The Court held that the law was neither constitutionally overbroad nor impermissibly vague.

An important principle articulated in Williams is that speech which proposes illegal transactions enjoys no constitutional protection. It is not important to the Court whether the material exists or whether or not it depicts underage performers; Justice Scalia writes that Congress may properly create crimes that involve fraudulent offers and also those which propose an illegal transaction. The Court views this statute as including both, such as a fraudulent offer to enter into an illegal transfer, making it doubly punishable.

At the root of prosecutions under this statute, there must be a transactional statement, conversation and/or circumstances from which it is evident that the defendant either believed or intended others to understand that the material transferred or to be transferred was:

1) Actual child pornography or -

2) An obscene and sexually explicit depiction of a minor having sex, performed by an adult.

Accordingly, webmasters need to scour their sites and promotional materials and otherwise positively act to assure that they 1) do not appear to express a belief that the materials depict minors, 2) do not appear to lead others to understand that the materials depict minors, 3) do not appear to express a belief that the materials are obscene, and 4) do not appear to lead others to understand that the materials are obscene. An appopriate Notice may be of tremendous help and all producers and webmasters should consult an attorney if youth has anything whatsoever to do with the material in order to formulate that Notice.

3. CONNECTIONS DISTRIBUTION V. KEISLER – THE STATUS OF SECTION 2257.

On October 23, 2007, a three-member panel of the Sixth Circuit sitting in Ohio, invalidated Section 2257 and its supporting regulations, determining that they violated the First Amendment. None of the judges saw the case quite the same way, but two of them agreed that it was wholly unconstitutionally and that they could not fix it by interpretation. The third judge, too, who dissented from the determination of invalidity, agreed that serious constitutional defects existed, but he felt that the court could fix the statute by limiting it to commercial situations. (Even that dissenter proposed excising out language applying to Secondary Producers in the statute to save its constitutionality, thereby undoing an important part of the Adam Walsh Act.) The others disagreed with the dissenter for a variety of reasons, including a legislative history that plainly shows that Congress intended to reach non-commercial distribution , because that's where the bulk of child porn is made and moved. My sense is that, were the statute limited to commercial photography and commercial distribution, this panel would have come to a different result upholding Section 2257, because the most serious unconstitutional obnoxiousness they found in the statute related to personal and private images that enjoy an expectation of privacy in the home. They were concerned with the chilling effect upon the creation of noncommercial images when the age of the model was actually known by the photographer. The court seemed appalled that a government inspector could come in under the law to view video records of the most intimate moments of a married couple. There is not a syllable in the decision suggesting that the compliance obligations are impermissibly overburdensome on commercial producers, but this is not a case involving images made for profit: It is a swingers case.

This comes in the wake of the determination in the United States District Court at the tail end of 2005 in Denver, in the case brought there by the Free Speech Coalition, that essentially none of its constitutional arguments broadly attacking the regulatory scheme held water. In contrast with Connections in Cincinnati, the Denver case was all about commercial producers - and the burden of their compliance requirements occupied center-stage. The judge found just a couple of its provisions to be unduly burdensome, most notably the requirement that camgirls expensively archive all of their presentations. The court did follow the much earlier decision of its own supervising Tenth Circuit in invalidating the Secondary Producer obligations on non-constitutional grounds of statutory interpretation. Since the time of that decision, the case has been in a kind of stasis. The FSC might have appealed to the Tenth Circuit and risk losing again on the constitutional issues. But they gave the impression of being immobilized by fear or apprehension without any significant public explanation of why the case was in the doldrums. The following Summer, Congress responded to the FSC's lawsuit – and the Tenth Circuit - with provisions contained in the Adam Walsh Act that demonstrated its resolve to impose the burdens on Secondary Producers, and thereby eliminating the non-constitutional arguments.

Meanwhile, back in Cincinnati, April 10, 2008, the Government's Petition for rehearing en banc was granted by Sixth Circuit. This means that all of the active judges of the Sixth Circuit will reconsider the three-judge panel's result. While they might affirm, the granting of en banc review suggests that a number of the other judges are troubled by the decision, and that's not good news. A decision should come in late 2008 or in 2009 . Regardless of outcome, this decision marks only the third time that Section 2257 will have a chance to come before the Supreme Court. The last time that happened, in the Tenth Circuit many years ago, when the Government lost, it did not seek review in the Supreme Court.

Since the Connections decision was announced, the FBI has suspended records inspection. The adult industry has had many opportunities to get its records in shape. It would be prudent were webmasters and producers to use this time to review their records and correct any defects.

The Connections decision is not the law of the land. Even in the Sixth Circuit, the granting of a petition for rehearing en banc had the legal effect of vacating the opinion and judgment , which now has no legal effect (6 th Cir. Rule 35 (a.)); It would be a serious mistake, even within the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee) to treat the opinion as anything more than a tentative analysis, which, for the time, has been overtaken by events. 2257 remains the fully enforceable law of the land. You should also understand that no injunction or other order exists that compels the Government to suspend 2257 Inspections. DOJ may conduct inspections without prior notice under the law – and seems to forbear from doing so because, so long and uncertainty about the validity of the statute exists, it assesses some risk to itself in doing so. That judgment is subject to change without any prior notice to you, too.

UPDATE to CONNECTIONS

En Banc Reversal in Connections Case.

On October 23, 2007, a three-member panel of the Sixth Circuit sitting in Ohio invalidated Section 2257 and its supporting regulations, determining that they violated the First Amendment. None of the judges saw the case quite the same way, but two of them agreed that it was wholly unconstitutionally and that they could not fix it by interpretation. The third judge, too, who dissented from the determination of invalidity, agreed that serious constitutional defects existed, but he felt that the court could fix the statute by limiting it to commercial situations. (Even that dissenter proposed excising out language applying to Secondary Producers in the statute to save its constitutionality, thereby undoing an important part of the Adam Walsh Act.) The others disagreed with the dissenter for a variety of reasons, including a legislative history that plainly shows that Congress intended to reach non-commercial distribution , because that's where the bulk of child porn is made and moved.

The Government sought and obtained review en banc, that is from all of the judges appointed to the 6th Circuit, and on February 20, 2009, the 6th Circuit reversed the three-member panel, affirming the constitutionality of Section 2257's regulatory scheme. The only place left to go now is the Supreme Court of the United States - and the Connections team is sure to knock on that door. It's anyone's guess as to whether the Supreme Court will take the case, but if it does, it will be the first time that Section 2257 has been before the high court.

It seems obvious enough to this observer that the initial decision of the three judge panel was the direct and immediate catalyst causing the Government to take the position (in its new regulatory amendments) that Section 2257 does not apply to images created without an intent for sale, commerce, or trade, and because no commercial child pornography exists within the United States, the Statute now cannot meaningfully be said to relate very well to fixing the problem which justifies its existence. That development may become the very undoing of Section 2257

4. THE IRA ISAACS MISTRIAL.

In one of the most mucked-up situations ever to arise in an obscenity trial, the presiding judge of the Ninth Circuit, Alex Kosinsky, somehow got himself designated to act as trial judge for Ira Isaacs, he began the Isaacs trial, then he got “outed” - probably by someone with a personal or philosophical animus against him – as having some soft but definitely “adult” images on a server under his control and associated with a personal web site, and then he recused himself from further proceedings in the case, declaring a mistrial. The trial began on June 9, 2008 and Judge Kozinski suspended it on June 11th after the jury was empanelled and heard a couple of technical witnesses. The legal effect of all of this is unclear, and his attorney, who opposed the recusal, is taking the position that no mistrial is necessary and the trial which was begun simply should proceed to its termination. He has filed a motion objecting to the setting of a new trial date, contending that Double Jeopardy bars anything but the trial which was begun.

Judge Kozinski got out of the kitchen just as soon as the temperature went up a few degrees, doing so even before the Government had taken a position on the subject . It got clouded further when, after the judge acknowledged his responsibility for the material, his grown son started clamoring to take responsibility for the materials stored in the judge's server space.

The recusal itself is highly controversial. I wrote an article for AVN Online a few years back (“Here Cum da Judge!”) taking the Kansas Supreme Court to task for removing a judge – for the third time in Kansas history - because he watched porn in chambers. http://www.avn.com/video/articles/25063.html . What message about community acceptance and toleration is communicated to potential jurors and to other judges when someone is prohibited from acting as a judge because he/she looks at porn? How is a trial judge to assess contemporary standards without knowing what is out there? No one could imagine a judge disqualifying himself from a DUI case because he drives a car. Or because he drinks. Or because he is a drinker sometimes who drives a car. How is the appearance of impropriety to the public to be judged? By the loudest, most intolerant and repressive and tight-assed voices? The recusal makes no real sense to me and it seems to be one of those quiet defeats for liberty that Americans seem to accept with alarming regularity in this age. The mistrial makes even less sense.

Now Mr. Isaacs is slated to go to trial with U.S. District Court Judge George King presiding, who as a federal prosecutor in the late '60s won a conviction against adult producer William Pincus, a conviction that was later overturned by the U.S. Supreme Court. It seems mildly ironic to me that no one sees an appearance of impropriety in that!

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.

Isaacs and his lawyer have been characterizing the coprophilic- and equine-interest videos in the media as “shock art”. Paul Thomas at Vivid is having none of it. He was quoted on the LA Weekly website, in an article written by Steven Mikulkan, as stating: “" We at Vivid applaud his prosecution. Freedom of speech carries with it responsibility. It was never intended for there to be videos of people shitting in each other's faces. " Isaacs shot back: "What Mr. Thomas fails to realize, is the US government is not only coming for me, but will soon becoming for him and Vivid as well as others in the adult industry. This is made evident by the obscenity prosecutions of Extreme Associates, JM Productions, Max Hardcore and most recently John Stagliano from Evil Angel. Vivid may feel they're safe in Los Angeles; however, community standards in places like West Virginia, Utah and Mississippi may not be so understanding of his brand of porn - and I'm sure Vivid's product and Websites go to those places. The Internet goes everywhere; no one can hide from these ultra-conservative venues."

No work can be determined to be obscene in an American court if it possesses serious artistic value. The assessment is made objectively by juries and judges. It is not enough that a producer calls his work serious art. It's not enough even if he really means it. Society makes the call through its juries and judges. In the end, a jury will determine whether it finds a serious artistic purpose amidst the feces .

Isaacs was initially indicted with two counts alleging violations of 18 United States Code Section 2257 , but those counts were dropped without explanation in Spring, 2008. It is likely that the DOJ does not wish to see the Ninth Circuit weigh in on Section 2257 if it can be avoided.

Copyright 2008-2011 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.