Posts Tagged ‘obscenity

16
Apr
14

Isaacs Obscenity Case & Life Without Miller

In a not-so-surprising, albeit disappointing, decision affecting the adult entertainment industry, the 9th Circuit Court of Appeals recently upheld the obscenity conviction of fetish producer, Ira Isaacs. Isaacs was originally charged with violating federal obscenity statutes in 2007, after the distribution of several of his fetish films via U.S. mail.  Isaacs’s 2008 trial was placed on hold and eventually resulted in a mistrial, amid judicial controversy.  Judge Alex Kozinski, who presided over the obscenity prosecution, recused himself within days of commencing the trial, after it was discovered that the Judge had been maintaining a personal humor website exhibiting sexually explicit images.  After another attempt to try the case in 2011 was delayed when prosecutors added more charges, the Isaacs case eventually went to a full trial in March of 2012. For a second time, however, a mistrial was declared after jurors deadlocked on the verdict, 10-2 in favor of the government. The case was tried for a third time in April of 2012, which resulted in conviction and is the basis for the recent appeal.

In general, the Obama administration has been decidedly less interested in obscenity prosecutions than was its Republican predecessor. Since 2009, the administration’s prosecutors have tried only two adult obscenity cases, in contrast to the volumes of obscenity prosecutions that took place under President George W. Bush. Notably, Obama’s Department of Justice has not initiated any of its own obscenity prosecutions, but merely followed through with pending cases initially filed by the prior administration.

Isaacs’ most recent, unsuccessful appeal relied more on procedural due process arguments, as opposed to disputing his guilt of violating obscenity laws.  The numerous due process claims were rooted in allegations of uncertainty directly related to the Miller Test; specifically, the concept of “prurient interest” as set out in the first prong of the test. According to the ruling, the District Court adopted a proposed jury instruction defining an “appeal to ‘prurient interest” as “an appeal to a morbid, degrading, and unhealthy interest in sex.” After a question was posed by a juror, the Court revised the instruction to read “morbid, degrading or unhealthy.” Isaacs argued that the change “undermined the credibility of his lawyer,” as the attorney, in closing argument, referred to the original instruction. The District Court rejected this contention, finding that the attorney had in fact used both formulations of the instruction during argument so it was “unclear how the revision might have implied to the jury that Isaacs misled it as to applicable law.” Further, the District Court noted that while Isaacs argued that it was error for the Court to correct the instruction, there was an obligation on the Court to clarify issues for the jury, so that they did not abuse their discretion in doing so.

The 1973 case Miller v. California established the standard that is still used today for what defines obscenity. The Miller test, as it is known, has three essential prongs:

  1. Whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole appeals to the prurient interest
  2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law and
  3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value

Miller has been a source of controversy and debate in the adult industry, since its inception.  The difficulty with the average juror understanding and applying the inherently vague terms of the Miller test can produce unpredictable results.  Unfortunately for Isaacs, the odds were against him from the beginning, given the nature of the content at issue.  Scat material has typically been some of the most difficult to defend, and explain to juries who tend to be shocked when exposed to the content.  While some fetish material has survived obscenity prosecution, this case resulted in a conviction, and now an affirmance on appeal.

Any time an adult industry participant is convicted of obscenity, discussions ensue regarding the continued viability of the Miller test in today’s world, and whether the industry should support a constitutional challenge to the test.  Given the Supreme Court’s repeated validation of the Miller test for obscenity, even in recent years, it is unlikely to be changed any time soon. But even if the Court was inclined to replace the current obscenity test, the question becomes: With what? Outright abandonment of the well-entrenched concept of obscenity laws is an unlikely result of any such case brought to the Supreme Court, despite some of the encouraging language in Justice Scalia’s dissent in Lawrence v. Texas.  If the challenge was based on the claim that the Miller test was insufficiently clear for common understanding, one could envision the Court handing down a crystal clear, bright-line prohibition on the depiction of specific sex acts, fetish behavior, or BDSM activity, under the guise of more clearly defining obscenity for adult content producers.  In situations like this, it is always wise to reflect on what the parties are really asking for – because they might just get it.

While Miller suffers from its vague concepts and outdated language, it has provided opportunities for creative arguments, and stunning victories.  While the test is difficult on defendants, it is equally difficult for prosecutors, who are used to well-defined criminal offenses that are not dependent on notions of societal tolerance or considerations of literary value.  Obscenity prosecutions have dwindled to a virtual halt in modern times, and the difficulty in applying the Miller test in today’s society may be partially to thank.  The “community standards” element suffers from outdated concepts of unified values and social mores based on geography, which arise from something out of Andy Griffith or Leave it to Beaver.  Today, neighbors have more in common with their Facebook friends spread out across the world than they do with their neighbor – most of whom they never met.  Fortunately, the decision in U.S. v. Kilbride recognized this inherent weakness of using local community standards, and required juries to apply national standards – at least in online obscenity prosecutions.  With tweaks like these, Miller may be more of a benefit than a hindrance to producers of erotic content, as compared to some other bright line test.  Certainly, all obscenity laws are forms of censorship, and antithetical to First Amendment values.  The Miller test does little to logically separate specific types of content from constitutionally protected speech.  However, it may be as good as it gets for the time being, even if it results in the stray, unfortunate conviction.

So what’s next for Ira Isaacs and obscenity prosecutions?  Isaacs recently petitioned the 9th Circuit Court of Appeals to rehear his case, with his lawyer arguing, among other things, that the case was not given the “special care that the First Amendment requires.” The likelihood of Isaacs’ petition for rehearing being granted, however, is slim. Assuming it is denied, the chances of the Supreme Court accepting the case are not promising, either.   However, should the Court take interest in the case, it would likely be for the sole reason of again affirming the viability of the Miller obscenity test. For Isaacs and his counsel, they have every reason to try, and should not be faulted to doing everything in their power to undo the conviction.  But in the off chance that the Supreme Court takes the case, it’s time to buckle up.  If the decision results in anything other than a re-affirmance of Miller, things could get dicey.

Perhaps the Isaacs case will be the last federal obscenity prosecution for a while, as the futility of reigning in the human desire for sexual expression begins to set in for the DOJ.  But as long as we have laws on the books that permit the government to put people in cages for making movies involving consenting adults, the guardians of liberty must remain ever-vigilant.

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10
May
13

More of the Same from Polk County’s Thought Police

Sheriff Grady Judd and his crew is at it again. Now they’ve turned their sites on some hapless gas station owner in Dundee, Florida, for allegedly selling some girly videos. Little did she know that the all powerful local government knew better than her what kind of entertainment the delicate citizenry of Polk County could tolerate. So now Minakashiben Patel sits in jail, apparently on a no-bond status, facing charges of obscenity. This isn’t the first time that this Central Florida jurisdiction has tried to enforce its version of “decency” on its citizens. The following article gives a pretty good history of Sheriff Judd’s efforts to promote Christian values in Polk County government: http://orlandoweekly.com/news/church-and-state-1.1109454. The First Amendment never stopped a skilled politician like Grady Judd, however.  He takes pandering to a new level, and destroys lives in the process. Fortunately, the First Amendment protects the New York Times the same way as a small gas station owner, when it comes to dissemination of free speech. We shall see how this case plays out, but their random obscenity prosecutions are certainly a threat to civil liberty, and the whole effort demonstrates a fundamental misunderstanding of the changing societal mores in this country. Just look at how fast 50 Shades of Grey flew off the shelves. In year 2013, I think we can tolerate the sale of a few adult films sold in a local gas station.

19
Mar
12

The Sunshine State: A Ray of Hope for Content Producers

I. Mandatory Condom Law Spurs Potential Exodus from L.A. Area
In late January, 2012, the city of Los Angles passed a landmark law requiring all adult content producers to mandate the use of condoms by performers as a condition for obtaining a filming permit. This first-of-its-kind, mandatory condom law sent shock waves through the adult industry, and represented a huge victory for the AIDS Healthcare Foundation (“AHF”), which pushed for passage of the law by gathering a sufficient number of signatures to force the City to hold a special election on the issue. Instead of spending four million dollars on a special election, the City Council decided to pass the law on its own.
This concern may not be limited to the City of Los Angeles much longer. The AHF has already launched a similar petition drive, attempting to mandate condom use throughout Los Angeles County as a whole, in the hopes of getting the issue on the ballot for the November, 2012 general election. It is certainly possible that L.A. County could react the same way as the City, and simply pass the condom measure on its own without putting the issue to the electorate; effectively disregarding constituent input in its entirety.
Reacting to the rumors that the adult industry will move its operations elsewhere, the neighboring Simi Valley City Council reportedly plans to follow suit with its own mandatory condom ordinance. “We are not going to accept the pornographic purveyors from Los Angeles County,” Simi Valley Mayor, Bob Huber said when asked to comment on the issue. With the ordinance expected to be introduced in the very near future, Simi’s City Council is currently considering a slightly modified version of the L.A. measure. Under the potential Simi Valley law, content producers would be required to present proof of on-set health care professionals monitoring condom usage, as a prerequisite to receiving a permit to film within the city’s limits. As an additional precaution, the content producer would have a specific time period after completion of each project to submit an unedited copy of the content to the Simi Valley Police Department for confirmation of compliance.

II. Content Producers Consider Their Alternatives
Although the adult industry has been historically centered in the Los Angeles area, the recent, precedent-setting legislation has adult content producers considering a mass exodus to friendlier jurisdictions – even some outside of California entirely. Steven Hirsch, founder of Vivid Entertainment Group, stated that his company would simply move out of the city or the state and film elsewhere, as a likely alternative to complying with the mandatory condom law. Regardless of whether using condoms during erotic video production is a good idea or not, consumers seemingly prefer ‘bareback’ or condom-free content. Many adult performers also view condom usage as a personal choice that they should be allowed to make as opposed to something that should be mandated by the government. As far as the risk of disease, the current industry standard is for performers to be tested for STD’s at least every thirty days while they are working. One adult film star observed that people are more likely to catch a STD from someone outside of the adult industry, given the frequency of STD testing for adult performers. Thus, condom-free films will likely be made somewhere – even if prohibited in the Los Angeles area.
Since the adult industry generates an annual revenue stream of eight billion dollars, and 90% of U.S. adult films are currently produced in Los Angeles, the stakes are high. Local and state authorities stand to lose substantial tax revenue should the industry depart from California. However, since it appears that such departure is imminent, production companies are considering their options. Naturally, areas like Nevada or Arizona are under consideration, given their close proximity to California. However, upon getting wind of a possible migration to Arizona, state officials pushed back, and warned that adult content production may be deemed prostitution under state law. Therefore, the state of Florida stands to provide a viable opportunity for those considering a move to greener pastures.
III. The Climate in Florida
While Florida politics and law enforcement priorities are inconsistent throughout the state, certain areas of Central and South Florida have been a long-time home to some of the industry’s largest content producers. Several years ago, a Jacksonville newspaper reported on the growing popularity of both professional and amateur adult content production in the state of Florida. The story, which identified several local content producers, noted that Girls Gone Wild regularly visits Florida to capture the company’s world-renowned exhibitionist material. Another company referenced in the article, JacksVids, allowed customers to pay to have sex with a performer on tape, after which the video was uploaded to a site and sold to members. With local law enforcement recognizing that the monetary exchange was for filming, not sex, Sheriff’s deputies had difficulty identifying any actionable criminal conduct. “[T]here are so many constitutional protections, it’s extremely difficult to prosecute. It really has to go way outside society’s norms to come up to the level of criminal,” observed a sheriff’s deputy from the Jacksonville – notably one of the State’s most conservative areas.
In other locations, such as South Florida, adult content producers have been prospering for years. For over a decade, Miami-Dade County has been home to some of the largest adult content producers and website operators in the business. Also notable is that the high profile (and still controversial) .XXX registry operator, ICM Registry, Inc., calls Palm Beach Gardens, Florida, home.
Again, law enforcement in South Florida appears to have come to terms with the existence and legality of the adult industry. In fall of 2004, a local television network conducted an undercover “investigation” exploring the vast world of Miami’s adult content production, probing the amateur “gonzo” niche in particular. When asked to comment for the story, local police conceded that despite the raw, “uncut” nature of gonzo erotica, its production was not illegal. Perhaps the indifference to adult content production can also be partially attributed to Florida’s acceptance of nudity in general, exemplified by the State’s numerous clothing-optional beaches, resorts, and festivals. Offering a safe-haven for those looking to shirk traditional inhibitions, one Florida county has even been dubbed the “North American Capital of Nudism.” Florida is quickly becoming a seminal location for the naturist movement; a reputation that could easily benefit adult content producers. This, along with society’s increasing acceptance of the adult industry and erotica in general, bode well for content producers or webmasters considering Florida as a base of operations.
That’s not to say that all areas of the state are completely safe for adult industry producers to set up shop. Polk County, Florida for example, is notorious for its routine prosecution of obscenity cases against anyone involved with producing erotic content within its jurisdiction. Polk County Sheriff, Grady Judd, has even gone to the lengths of extraditing an individual from Colorado to face obscenity charges based on sending a book relating to pedophilia to the Polk County jurisdiction. The author has defended at least a dozen obscenity cases emanating from Polk County. Florida’s panhandle, spanning from Pensacola to Tallahassee, has also developed a reputation as a risky area in terms of obscenity prosecutions. In 2006, Pensacola-based webmaster, Clinton McCowen a/k/a “Ray Guhn,” was prosecuted by the State Attorney in that jurisdiction based on his alleged involvement with producing adult website material focusing on group sex themes. However, the obscenity, racketeering, and prostitution charges premised on content production were ultimately dismissed, in exchange for the defendant’s guilty plea to financial crimes. Aside from select areas of the State like the Panhandle and Polk County, Florida has generally adopted a ‘live and let live’ approach to the adult entertainment industry in recent times.
IV. Historical Basis for Locating in California
Historically, most adult film production has occurred in California as a result of a ruling from the Supreme Court of California holding that prostitution and “pandering” laws do not apply to the production of adult content in that state. This Court decision gave adult content producers a sufficient level of comfort to enable production of erotic material without fear of arrest for prostitution or “pandering” based on claims that they were paying individuals to engage in sexual activity. Since then, only one other state has been the beneficiary of a similar decision: In 2008, the Supreme Court of New Hampshire likewise held that its state prostitution statute cannot be legally applied to criminalize adult content production, under New Hampshire’s state constitution. While adult content producers did not go flocking to New Hampshire after that decision was rendered, the ruling might have given pause to prosecutors in other states who might have otherwise considered bringing charges against adult content producers under similar prostitution laws. No prosecutor wants to be responsible for bringing the landmark case resulting in their state becoming the latest safe-haven for adult content production. A state attorney who lets that happen on his (or her) watch can kiss any political or judicial aspirations “goodbye.” Therefore, a quiet detent has existed in the other forty-eight states (including Florida), where the applicability of prostitution laws to adult content production remains unsettled, with law enforcement generally looking the other way when it comes to such issues.
V. Why Florida?
Turning back to Florida, the adult industry has continued to grow and thrive in the Sunshine State since the early days of the Internet. Some of the reasons for this include the generally progressive community standards in South Florida, the warm climate, and the lack of any state income tax. The cosmopolitan makeup of Miami-Dade County, along with a strong presence from the fashion and modeling industries, results in ready access to many beautiful young women and men who are often willing to perform in erotic-themed material. Also an international travel hub, Miami fosters easy access to a constant supply of fresh faces seeking fame and fortune in the entertainment industry. Florida’s steady climb to the top of the list of locations piquing content producers interests has not gone unnoticed, as evidenced by the decision to hold the 2012 XBIZ Summit in Miami, Florida.
Few, if any, obscenity cases have been initiated in South Florida since the embarrassing loss suffered by former Fort Lauderdale Sheriff, Nick Navarro, who attempted to prosecute the producers of 2 Live Crew’s rap album, As Nasty As They Wanna Be, for violation of Florida’s obscenity laws. In that case, the Eleventh Circuit Court of Appeal ruled that the record, while sexually explicit, was not obscene as a matter of law. Other law enforcement officials in the area lost their stomach for obscenity cases after that high profile failure.
Similar censorship efforts, dating back almost twenty years, have failed from Tallahassee down to Daytona Beach, Florida as well. The unanimous acquittal of a video store owner brought up on obscenity charges in Tallahassee caused the prosecutor in that case to predict that the area would become a “porn haven.” In Marion County, Florida, prosecutors failed in their attempts to prosecute three separate store clerks from a local video store, based on their involvement with the sale or rental of allegedly obscene material. Several years later, in the same jurisdiction, jurors acquitted a man for wearing an allegedly “obscene” T-shirt depicting a nun masturbating. Another controversial state attorney was branded as having “skewed priorities” after losing several obscenity cases in both civil and criminal courts against local video store owners offering sexually explicit material. This failed “porn crusade” ultimately cost the “grandstanding” State Attorney his job, after he was voted out of office largely in reaction to concerns over censorship by the electorate.
While it is notable that Paul Little, a/k/a Max Hardcore, was prosecuted in Tampa, and convicted of federal obscenity violations (due to the presence of hosting servers containing the subject material in that jurisdiction), few other federal obscenity cases have been brought in Florida in the last two decades. Further, despite Little’s prosecution, the adult entertainment industry continues to thrive in the Tampa area, which reportedly has the most adult businesses of any metropolitan area in the country, and has been dubbed the “lap dance capital of the world.” Even in Orlando, Florida – home of Disney World – adult entertainment companies have prospered and generally been left alone by law enforcement after some unsuccessful attempts to censor adult video stores in the early Nineties. Perceived as the geographic happy-medium between South Florida’s overt sexual freedom and the Panhandle’s more conservative approach towards erotic material, Orlando adult content producers capitalize on what one local newspaper referred to as, “[…] the Florida lifestyle: sunny skies, sandy beaches, palm trees and tan girls in skimpy bikinis.”
Aside from a friendlier local political climate, Florida tends to afford content producers more bang for their buck – no pun intended – thanks to significantly lower operating costs compared to their West Coast brethren. “Our original plan was to go to California, but it would have been costly so we decided to set up shop here in Florida,” observed Leon Bryan of the Orlando-based Demon Seed Pictures. Industry veteran and publisher of AVN Online, M.J. McMahon, accredited Florida’s “large and willing talent base” for its ongoing adult content production success.
Moreover, Florida authorities have not targeted adult content producers for workplace safety violations as has CAL-OSHA in California. The well-publicized raids on West Coast adult content studios have threatened the “independent contractor” relationship that most producers have tried to maintain with their performers. There is no “FL-OSHA.” That said, in June of 2010, the Florida Department of Health initiated an investigation requested (not surprisingly) by the AIDS Healthcare Foundation, regarding the failure to use condoms in Florida’s “fast growing” adult film industry. The investigation was based on broad health regulations prohibiting the creation of a “sanitary nuisance.” Four Florida production companies were named in the investigation; however, the scrutiny appears to have run its course as no further action has been taken since the announcement of the investigation over a year and a half ago, and no new investigations have commenced. Notably, no city or county in Florida has considered any ordinance requiring mandatory condom use by adult content producers.
VI. Conclusion
While Florida may not have the established case law protecting content producers from prostitution charges, like California or New Hampshire, it certainly offers many other attractions: Beautiful models, dynamic cities, temperate climate and perhaps most importantly – no mandatory condom laws. As the Los Angeles area becomes less and less friendly to the adult entertainment industry, production companies are considering their alternatives. Some may discover a bright new future in the Sunshine State.

20
Apr
11

Back to the Future -Hatch Calls for More Obscenity Prosecutions Just in Time for the Presidential Bids

Gas up the DeLorean, because Orrin Hatch is taking us back to 1984. “As the toxic waste of obscenity continues to spread and harm everyone it touches, it appears the Obama administration is giving up without a fight.” The previous sentence is part of a statement issued by Senator Orrin Hatch last week in the wake of his very public, very brazen call to the Department of Justice to increase obscenity prosecutions.
Hatch, the Republican Senator representing Utah, along with House Representatives Mike McIntyre (D-NC) and Randy Forbes (R-VA), sponsored the letters to the DOJ, effectually calling out the Obama Administration’s lack of “vigorous enforcement” of obscenity laws; one to his legislative colleagues and one to Attorney General Eric Holder. The letter to Holder, signed by dozens of Senate members, demands that the Department of Justice and the FBI step-up their efforts in prosecuting producers and distributors of “hardcore adult pornography.”
The letter urges General Holder to examine the evidence gathered by sources like www.pornographyharms.com, in order to fully comprehend the “crisis” caused by adult obscenity and “urgent need” for action by the government. Incidentally, the website referenced in Hatch’s letter is operated by anti-porn crusader, Patrick Trueman, CEO of Morality in Media and Director of the War on Illegal Pornography Coalition. If you still think there’s a glimmer of possible impartiality located within the “evidence” (let’s use that term loosely, shall we) provided via www.pornographyharms.com, take a look at Trueman’s press release on Hatch’s letter where he references the “grave social costs documented by a plethora of researchers at http://www.pornographyharms.com and at a groundbreaking conference held by the Witherspoon Institute at Princeton University entitled, ‘The Social Costs of Pornography’.” The Witherspoon Institute? The same Witherspoon Institute that brought us such neutral and fair-minded studies and literary masterpieces like, ‘Politics & the Devil’, ‘Medieval Wisdom for Modern Universities’, ‘Where in the Constitution is the Separation of Church & State?’ and who can forget ‘Did Pius XII Lie to Save the Jews?’.

But as much as we’d like to pretend that this is yet another divine alliance between the consistently overlapping groups of Republicans and religious conservatives, it is most definitely not. Several democrats, including the unexpected addition of Dianne Feinstein of California, signed on in support of Hatch’s demands. Feinstein’s backing of the letter comes as a surprise given the fact that the adult industry companies the letter is targeting are the very same businesses comprising her southern California constituency. When asked to comment on Feinstein’s involvement in this new resurgence against obscenity, a spokesperson for the Senator pointed to her support of “several measures targeting child pornography in recent years” – which of course provides a crystal clear explanation for jumping on the witch-hunt bandwagon targeting completely lawful speech engaged in by adults.

Even more disturbing might be Hatch’s extremist allegations that “experts warn” pornography is related to sexual harassment, violence against women and sex trafficking. As if the Orwellian undertones of the letter aren’t enough, Hatch is channeling us back to the 80s with over-broad, feminist far-left propaganda, reminiscent of the Dworkin-MacKinnon Era anti-porn crusade. Note: unsuccessful anti-porn crusade.

An Assistant Attorney General has responded to the allegations of being “soft on porn” with a letter of reply, stating that the DOJ has made the realistic decision to focus its “limited investigative and prosecutorial resources on the most egregious cases, particularly those that facilitate child exploitation…” Given the DOJ’s unsuccessful attempt at its last high profile obscenity trial against Evil Angel owner, John Stagliano, it’s really no wonder that the DOJ decided to turn its attention to prosecuting media involving children as opposed to consenting adults. Stagliano’s obscenity trial last July, which resulted in a judgment of acquittal on all counts, was likely the final nail in the coffin for the now-defunct Obscenity Prosecution Task Force. The Task Force was a special Justice Department unit set up during the first Bush administration as a result of conservatives reacting to the abundance of allegedly obscene material available on the Internet. This recent disbanding of the DOJ’s ‘Porn Police’ may have been exactly what Orrin Hatch was waiting for to drop his bomb on Capitol Hill. Between Hatch’s demands for action on the DOJ and the fact that the 2012 presidential bids are being tossed around; is it possible the next year or so could provide the perfect storm for a resurgence of the Obscenity Prosecution Task Force?

Given the vagueness of the Obama Administration’s stance on obscenity prosecution, the possibility of a Republican taking over in 2012 leads to thoughts of a Reagan-era anti-pornography agenda renaissance. How likely is it that the incumbent will be able to stave off the Republicans for another four years; obviously everyone in every industry has their own prediction, but we all know it’s too soon to tell. However, with Obama’s approval rating plummeting daily and the GOP’s recent accusations that the democrats aren’t taking the budget crisis seriously enough, it’s not so far-fetched to see Obama throwing the conservatives a bone by entertaining Hatch’s demands in the near future. What would Trump do?

Notably, as this blog post goes to print, reports of adult filmmaker, Ira Isaacs, having been indicted on five new obscenity charges are hitting the newswire. These latest indictments join Isaacs’s three previous obscenity charges originating in 2006. Originally slated to go to trial in 2008, the case was postponed due to the controversial recusal of Judge Alex Kozinski. The trial, now set for May of this year, could commence within days of Isaacs’s arraignment on the new obscenity counts, unless his defense attorney can push off the trial again, in light of the new charges. Is this latest news pure coincidence or a knee-jerk reaction by Obama’s DOJ to the news of the day? Let’s sincerely hope that it’s the former because it’s a little disconcerting that the Attorney General might find it more damaging to be considered “soft on porn” than proceeding with a baseless fishing expedition against an easy target for the sole purpose of flexing his judicial muscles in some inter-branch, alpha-politician contest with Orrin Hatch.

So how does all this ambiguity ultimately affect the adult industry? This industry has traditionally been used as a tool in political agendas, unfortunately resulting in the First Amendment as the inevitable loser all too often. As referenced earlier in this post, Republican administrations going as far back as Reagan, have displayed blatant aggressiveness against the adult industry, citing the same ‘moral decay of society’-type rationale currently demonstrated by Senator Hatch and his supporters. On the other hand, the Democratic Party has traditionally been more receptive to the adult industry in general, but if recent years have shown anything, it’s that ‘liberal’ does not necessarily mean ‘libertarian.’ And now, especially with Capitol Hill reeling from some of the most volatile bipartisan infighting this country has seen in decades, one can’t help but wonder if adult entertainment is going to be a scapegoat yet again. So batten down the “Hatch’s” and get ready for another round.

*Note: This article was drafted with the purpose of addressing all political agendas affecting the adult entertainment industry and in no way was intended to act as a political endorsement of any candidate. It should also be noted that the author is not associated with any election campaigns or a member of any political party.

20
Dec
10

Polk County Goes Too Far With Obscenity Bust

Once again, Sheriff Grady Judd, from Polk County, Florida, is trying to grab some headlines by arresting Philip Greaves, for distributing his “last copy” of the book he authored entitled: “The Pedophile’s Guide to Love and Pleasure.” See:

http://www.theledger.com/article/20101220/NEWS/101229953/1410?Title=Polk-Sheriff-s-Detectives-Arrest-Author-of-The-Pedofile-s-Guide-Book&tc=ar

31
Aug
09

Sex, Lies and Children

A favorite trick of the censors in this country is to blur the lines between protected speech, in the form of adult erotica on the one hand, and patently illegal material, in the form of child pornography on the other, by mixing the two at every opportunity. Family Values groups and other opponents of free speech routinely use the terms “pornography,” “obscenity” and “child pornography,” interchangeably, in the attempt to cause confusion in the mind of the public, and intentionally link perfectly legal content with evidence of a horrific crime. The media often plays along, whether through ignorance or complicity, and refers to the new child porn arrest as a “Pornography Bust.”   All of this helps convince the public through confusion, that pornography has something to do with abuse of children, and that all of it is probably illegal somehow. In some jurisdictions, law enforcement investigators seize every chance to mix these concepts in a blender, by charging defendants with obscenity as well as child pornography, no matter how remote the connection, or how strong the evidence. Some evidence of this can be found in a couple recent cases initiated by the Polk County, Florida, Sheriff, Grady Judd.   This is the same Sheriff that was made famous by declaring that he had jurisdiction to regulate anything online, so long as it was available for download in Polk County, Florida.  According to Judd:

“But it makes no difference, because if you fed that server or you could receive information off that server in this county, then it gives us jurisdiction. … Technically I could charge someone in Kansas, if I received child pornography here, obtained a warrant and had him extradited from Kansas and tried here.” http://www.ojr.org/ojr/stories/051018glaser/

Note the stray reference to “child pornography” there. That particular case had nothing to do with children, but was an adult obscenity case against Chris Wilson, arising from his operation of a user-generated content site. This quote provides a unique glimpse into the strategy of many law enforcement agencies and anti-porn groups, who constantly mention child pornography whenever discussing adult erotica.

Judd’s office recently investigated an antique store owner by the name of John Denitto, who engaged in some adult content production on the side. See, here. Sheriff’s Deputies raided the business based on the claim of a “confidential informant” that a teenager was being photographed there. Leaving aside the fact that a teenager can be 18 or 19 and still legally participate in adult photography, this unconfirmed statement gave law enforcement the hook they needed to raid the modeling studio, under the guise of a child pornography investigation. However, no evidence of child pornography was ever found, and the “confidential informant” turned out to be a former “model” herself, who was trying to buy her way out of her own criminal problems by turning informant for the state. Not the most reliable informant, to put things mildly.

But what does a good Deputy do when his information results in the seizure of nothing more than a bunch of video tapes of adults having sex? File obscenity charges, of course! Not much is required to arrest someone for alleged obscenity. A charging document needs to be filed saying that a prosecutor believes in good faith that there is probable cause that the material is obscene. Polk County usually goes the extra step of getting a local judge to sign off on a confirmation that such probable cause exists, but that is all smoke in mirrors. Any erotic work might be obscene, simply based on its sexually-explicit nature.  The question of obscenity is for the judge or jury.   So just about anybody involved in the commercial production or distribution of adult material can be prosecuted for obscenity. That is one of the (many) reasons the obscenity laws are unfair, unconstitutional and inhumane on modern society. There is no fair warning as to what material might result in serious felony charges, with implications and innuendo of child pornography to boot. Denitto’s felony obscenity case remains pending, and no proof of child pornography ever came to light.

Law enforcement and prosecutors know that as soon as the specter of child pornography is raised, the defendant loses public sympathy, support of friends, and jury appeal. So they try to throw it in any time they can.

In another recent case from Polk County, Sheriff Deputies arrested Timothy Keck for numerous counts of obscenity depicting a minor.  This sounds like a valid offense, until the facts get in the way. Keck was a former Sheriffs Deputy himself, until he had a falling out with the agency. Oddly enough, he found himself was targeted for some Internet surveillance by the same agency, and a warrant was issued for offenses involving child pornography. Keck allegedly used Limewire, a popular file sharing service, to download various images, including numerous drawings of underage individuals engaged in sexual activity. That’s right, drawings.   Oh, and the investigators apparently also dug up a single image from a temporary cache file allegedly depicting only the genitals of an underage couple in the act of intercourse.  It has not been explained how one divines the age of models based solely on a depiction of their genitals engaged in a sex act. But Keck faces one count of possession of child pornography (for the temp file) and 26 counts of distribution of obscenity, for the drawings. This arrest has been described by Judd as the “largest roundup in the county,” and “horrific.” See: here and here ;

Given that Keck was lumped in with 45 other suspects, all of whom are referred to as a group despite the lack of any apparent connection, some of the other images involved in the other cases may well have been horrifying. Child pornography is a heinous, inexcusable crime, and legitimate cases should be vigorously prosecuted.   But when politicians or special interest groups start mixing in allegations of child porn with adult pornography, both children and adults are the losers.   Trying to force a tenuous charge of child pornography just to tarnish the reputation of a suspect in an adult obscenity case dilutes and reduces the importance – and indeed the ‘horror’ – of real child pornography cases.   Future child pornography investigations will not be taken as seriously by prosecutors, judges and juries, as a result.   Adults also lose, when important constitutional safeguards are dismissed or glossed over as a result of the forced connection with child pornography allegations in these cases.  Sexually-oriented media is entitled to full First Amendment protection. Ashcroft v. Free Speech Coalition, 534 U.S. 234 (2002). Protecting the most controversial and indecent speech is essential so that all other speech remains securely within the coverage of the First Amendment.

The tactic of mixing child pornography with adult obscenity has been used in countless other cases in the past, including the highly-publicized obscenity case against Mike Jones[1] in Chicago, and the federal obscenity case against certain written stories involving children by Karen Fletcher a/k/a Red Rose[2].   Child pornography was not the focus of either of these cases, but the concepts were thrown around by the prosecutors in court and in the public, in an effort to tarnish the reputation of the defendant, and make the obscenity charge more likely to stick.


[1] Jones was charged with several counts of both obscenity and child pornography, the latter involving dubious evidence of possession in temp files.  His attorney, J.D. Obenberger referred to the child porn charges as “concocted.”  All charges against Jones were ultimately dismissed after the court suppressed the state’s evidence resulting from an illegal search.

[2] Fletcher was indicted for federal obscenity violations, although the U.S. Attorney, Mary Beth Buchanan, referred to the material as involving “…the rape and torture of children.” C, Deitch, Dirty Words, Pittsburg City Paper, http://www.pittsburghcitypaper.ws/gyrobase/PrintFriendly?oid=oid:30196.  Of course, no children were raped or tortured by Ms. Fletcher, and she was never actually charged with child pornography.

Nowhere is the misuse of child pornography charges more apparent than in the case of ‘sexting.’ Countless articles, blogs and Op-Ed pieces have come out recently, decrying the use of harsh child pornography statutes against teenagers accused of sending racy photos of themselves. Eg. Provocative Photos: Don’t Overreact to “Sexting”   Several states are currently considering legislation to decriminalize the behavior, or reduce its severity to nothing more than a misdemeanor.   This is a step in the right direction.   Children convicted of child pornography are forced by a federal law, the Adam Walsh Child Protection Act, to register as sex offenders – a label that can deal damage for the rest of their lives. Teens impacted by this registration requirement cannot go to school, find jobs, or lead normal lives. Eg.: Sexting Teens Who Send Racy Photos Run Risk of Child Porn Charges. Oddly, this is the only instance where the child porn victim is also the perpetrator.

The end game for the activists and politicians here is to cause the public to immediately associate any incident involving pornography with the rape and abuse of children. If they can somehow work the word “child” into any sentence referencing “pornography” they have achieved a victory. But the misuse, and overuse, of child pornography statutes to prosecute these tangential cases involving cache files, young-looking adults, and sexting behavior, undermines the core policies of the child pornography laws for a cheap political purpose. Children will suffer when these cases are passed over by prosecutors, or dismissed by judges flooded with dubious claims of child exploitation. The censors may gain minor ground with some, but the voices opposing distortion of constitutional freedoms under the guise of protecting children are getting louder.

Lawrence G. Walters, Esq. www.FirstAmendment.com © 2009. All rights reserved.




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