CASE LAW – Federal Judge Declines to Dismiss Obscenity Case – Trial Set for July 2010

WASHINGTON, D.C.—It only took U.S. District Judge Richard Leon a month longer than he had promised to release his written opinion overruling the various Motions to Dismiss filed by John Stagliano and his companies, but the opinion that was filed on Friday will serve as red meat for courts considering similar rulings for years to come.

Judge Leon writes on several key areas of obscenity law that Stagliano’s attorneys had raised in attempting to get the seven count indictments thrown out, most notably the substantive due process privacy claims from the U.S. Supreme Court’s ruling in Lawrence v. Texas, as well the “internet community standards” issue upon which the Ninth Circuit Court of Appeals opined in U.S. v. Kilbride—and which Judge Leon described as the defendants’ “best” argument but spent most of the opinion finding fault with it anyway.

As far as Judge Leon is concerned, Miller v. California is the last word when it comes to defining “obscenity,” and even though that decision was handed down well before the World Wide Web as we now know it came into existence, Judge Leon spent fully three-quarters of his 24-page opinion dealing with why, in his view, a national “community standard” should not be applied to a medium which has no local boundaries and where, as in this case, the government can choose any location where it thinks it can find a conservative jury pool to give an official stamp of approval to its “heckler’s veto” of Web content.

Judge Leon places great stock in the Supreme Court’s admonition in Miller that, “Beyond dispute … obscene material is unprotected by the First Amendment,” and its reiteration in COPA I that obscene material “has long been held to fall outside the purview of the First Amendment,” even while acknowledging that, “Of course, courts have long struggled to draw the line between protected expression and unprotected obscenity.”

The result was the three-prong “Miller test,” which Judge Leon uses to “reject” out of hand the defendants’ argument that Section 223(d)(1) [the Communications Decency Act (CDA)], which prohibits use of the Internet to display ‘obscene’ material in a manner available to minors, is a content-based regulation that cannot survive strict scrutiny.” Basically, Judge Leon’s argument is that because the high court has banned obscenity, any law which invokes the specter of “obscene material” is by definition “content neutral” and therefore not subject to the “strict scrutiny” which applies to many speech disputes, and that the only questions left are whether the material in question has been “taken as a whole”—Miller‘s first and third “prongs”—and whether it violates the community standards (first “prong”) of whatever community within which the government decides to prosecute it.

Judge Leon first sets out to dismantle the defendants’ argument that because of the use of local community standards, its adult videos and trailers are “subject to the community standards of the most conservative jurisdictions in the country. Thus, to avoid criminal liability, the publishers must either tailor their speech to conform to those standards or abstain altogether from using the Internet as a medium for their speech.”

The judge first cites Ashcroft v. ACLU, the COPA I decision, where the Supreme Court had rejected the Third Circuit’s conclusion that the Child Online Protection Act was invalid as a bar to sexual speech because it was impossible to determine which “community standards” applied to internet content—a position the Third Circuit never backed away from, even though it added other reasons for COPA’s invalidity on remand.

The judge next tackles the recent Ninth Circuit decision in U.S. v. Kilbride, the CAN-SPAM case, where he spends one very long footnote discussing why the highly fractured opinions in COPA I didn’t really mean that the in-part disssenting opinions of Justices Sandra Day O’Connor, Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg and David Souter, all of which either stated or implied that local community standards were unworkable when applied to the internet—and that in any case, he concludes in the following footnote, just because local standards might not work for the internet, that doesn’t mean that the obscenity statutes themselves are overbroad because if there are places in the country where the material would be found obscene, that satisfies the Supreme Court’s original rationale for establishing local standards in the first place!

Moving on to the defendants’ argument that Miller is unworkable as applied to the internet because it requires that targeted Web-based speech be considered “as a whole,” Judge Leon retorts that the obscenity statutes—both the CDA and the more typically used 18 U.S.C. §1465, “Production and transportation of obscene material for sale or distribution”—can be limited in their construction “to remove the seeming threat or deterrence to constitutionally protected expression.” he finds similarly that some words used in the statutes such as “lascivious,” “filthy” and “vile” couid also be construed generically to avoid a constitutional conflict.

In his final consideration of this topic, Judge Leon tackles the defendants’ claim that the term “as a whole” is unconstitutionally vague as applied to the internet, where the defense pointed to Justice Kennedy’s admonition in COPA I that it was “unclear whether what is to be judged as a whole is a single image on a Web page, a whole Web page, an entire multipage Web site, or an interlocking set of Web sites.”

“Even if, as Justice Kennedy suggested in ACLU I, it is less than certain whether the ‘whole’ work is a single image or the entire website, the ‘as a whole’ requirement is no less clear in this case than in countless other cases where courts have applied that requirement in a new factual setting,” the judge writes. “Far from exposing the defendants to wholly subjective judgments,  Miller‘s definition of obscenity and, in particular, the ‘as a whole’ requirement are sufficiently definite, even in the context of the Internet, to survive yet another constitutional challenge on vagueness grounds. As the Supreme Court itself announced when it decided Miller, the obscenity test ‘provide[s] fair notice to a dealer in [pornographic] materials that his public and commercial activities may bring prosecution.'”

“Even though the defendants invite this Court  to revisit that determination, I will not do so just because a new medium is in play,” the judge unhelpfully concludes. “As a constitutional matter, I am confident that the relevant obscenity statutes, when read against the backdrop of a long line of Supreme Court cases defining obscenity, provide sufficient guidance to Internet publishers that whatever arguably obscene material they distribute on the Internet will be judged, not in isolation, but in context.”

Call that the “faith-based Miller defense.”

Still, Judge Leon does rule here that “as a whole” under Miller means “at a minimum, the Web page on which the trailer was posted,” but according to him, the government isn’t even required to prove that everything on that page is obscene because “[t]he obscenity test, after all, is not quantitative.” How this caveat doesn’t defeat the entire meaning of “as a whole” in staggeringly unclear. [Emphasis in original]

Finally, Judge Leon tackles the defendants’ Fifth and Fourteenth Amendment substantive due process claim, but it meets the same cynicism that greeted their Miller-based claims. The judge begins by noting that while Stanley v. Georgia decriminalized private possession of obscene material in the home, it did not grant a corresponding right to buy or sell the material, as noted in the 12 200-Foot Reels of Film case.

“Faced with this insurmountable case law, the defendants, like alchemists of old, have conjured up an alternative theory based on evolving developments in the Supreme Court’s substantive due process jurisprudence,” Judge Leon disparagingly claims. “Relying on a long line of privacy cases beginning with Griswold v. Connecticut, and culminating with Lawrence v. Texas, they advance two basic contentions: (1) the sum of these cases establishes a constitutionally protected liberty interest in sexual privacy, which includes the right to possess and the correlative right to distribute or obtain obscene materials; and (2) morality is not a rational, much less compelling, basis for overcoming that liberty interest.”

Charging that the defendants “misconstrue the nature of the liberty interest at stake” in Lawrence, Judge Leon opines that the only right Lawrence recognizes is “to prevent the state from burdening certain intimate, consensual relationships by criminalizing the private sexual acts that are instrumental to those relationships.”

“The possession and use of obscenity are hardly analogous to the sexual acts that the Lawrence Court found to be so instrumental to the relationships of homosexual persons,” the judge declares. “Indeed, the liberty interest that the defendants claim pales in comparison to the liberty interest at stake in Lawrence. Similarly, the purported right to obtain or distribute obscenity does not remotely approach the fundamental liberty interests implicated in Griswold v. Connecticut, and Eisenstadt v. Baird, where the Supreme Court held that the right to decide whether to bear or beget a child includes the right to obtain contraceptives. As a result, I reject the defendants’ contention that Lawrence and its predecessors created a so-called right to sexual privacy so fundamental and so sweeping that it includes the right to obtain, as well as the correlative right to distribute, obscene materials in the public marketplace, which the post-Stanley cases repeatedly rejected.”

Similarly, the judge finds that the government’s “public morality” basis for obscenity laws is not implicated in the Lawrence decision since “[t]he obscenity statutes, unlike the statute invalidated in Lawrence, do not target purely private activity.”

Stagliano’s attorneys were of course disappointed with the judge’s ruling.

“How do you like that he says I came up with an argument that’s a ‘gold-toned constitutional concoction,'” attorney H. Louis Sirkin told AVN, referring to Judge Leon’s rejection of the substantive due process claims. “The reason I point to that particular quote is my fear to go forward with what makes sense, because I really think we’ve reached the point where they seem not to care about what makes sense. People enjoy looking at adult material, and it doesn’t have all those bullshit effects that they claim that it does or that some right-wing zealots think that it does. It’s a matter of censorship, and nobody seems to appreciate the importance to the right to privacy and individual liberties, and that’s what’s really disappointing about this decision.”

But although Judge Leon had suggested that the defendants mount an interlocutory appeal from Friday’s ruling, Sirkin said the law of that Circuit won’t allow it.

“We talked about it and we researched it, and we came to the conclusion that it’s not authorized in criminal cases,” he explained. “The law does specifically provide that interlocutory appeals can be taken on issues that are certified by the trial court in civil matters, but it isn’t really authorized in criminal matters other than … in matters like double jeopardy and some issues like that, that would entirely prevent a trial, but not evidentiary issues that may be important to the ultimate outcome. The preferred method seems to be, try it first and see what happens.”

“I’m disappointed in the wording of [the opinion],” Sirkin concluded, “but we still have other issues to resolve before we get to trial, and we’ll be filing motions on them in the near future.”

Allan Gelbard, who represents Stagliano personally in the case, agreed.

“It’s disappointing, obviously,” Gelbard reflected. “We thought he had given us a much better hearing on our arguments [but] he seems to make short shrift of them here, and I don’t think that that’s appropriate, but he’s obviously entitled to his opinion and we’ll address that to the court of appeals if necessary. It looks like we’ll have to go through the trial and then reserve the issues for appeal, which we have done.”

Gelbard expects that the next step will be to set some status conferences to decide when the next round of motions will be, and that there likely will be a tentative trial date set at that time.

“We do have some other motions that we’ll be bringing, but I don’t feel at liberty to discuss what they are just yet,” he said

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