By Marc J. Randazza
In St. Francis County, Arkansas, local prosecutors are apparently the kind who think that the whole “First Amendment thing” is a bit over-blown. Despite taking oaths to uphold and defend the Constitution, they brought the owners of “Adult World” up on two felony counts of “promoting obscene material” for selling a couple of movies starring consenting adults to consenting adults. (source)
These prosecutors alleged that Jim Philpot and Wayne Philpot, as owners of the store, violated state law by selling “obscene materials” in their stores. Prosecutor Fletcher Long told the media that he devoted a lot of time and resources to shutting down this “threat.”
“We have made cases in the past against the clerks and the manager out there, and for the last year we’ve been investigating the gentlemen who own those businesses,” prosecutor Fletcher Long told the Times Herald. (source)
Long compared the stores to methamphetamine dealers. I guess that is why he devoted so much of his office’s resources to trying to put an end to the sale of dirty movies.
“I’ve heard the argument that these people are operating a business, and with the tough economic times we’re facing we should just leave them be, but my issue is with the law,” he said. “If someone was operating a business which sold marijuana or methamphetamine and the times were tough, would they have a problem with it? What is being sold out there is just as illegal as marijuana and methamphetamine, and is no less against the law to promote, sell or possess.” (source)
I’ll give him a pass on the “sell or promote” part, but apparently this dumbass doesn’t know about Stanley v. Georgia, 394 U.S. 557 (1969). “If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.”
Sometimes, when a public official places his hand on the Bible and swears to uphold the Constitution, sometimes he bungles that equation up and seems to think he is supposed to do the opposite. This happens most often in the former Confederacy, but this disease is not unique to the South, nor is the South without its patriotic citizens who understand what the Constitution is all about. That is particularly apparent today, as twelve Arkansans chipped away with that stereotype.
Fellow First Amendment Lawyers’ Association member, JD Obenberger was there to observe the trial, and he provided an account of the proceedings: Obenberger reported that the prosecution put on a case against the Philpots for selling two DVDs. One called “Reality” featured double penetration, some multiple ejaculations, some ass-to-mouth content. Another, called “Grudgefuck” included choking, throwing of a female onto a bed, stuffing a female’s mouth with underwear, ass to mouth, facial ejaculation, choking, and other material going to a fantasy of hostility.
Obenberger said (in an email), “The judge gave the defense almost no breaks and gave the prosecutor just about everything he wanted. The instructions included some way-over-the-line language including morality and decency. The judge denied the defense the opportunity to put on evidence of comparable material being sold elsewhere in the state because, apparently, he felt the sales were not so open and obvious as to make them relevant as to what the community knows about and accepts.” In other words, the judge didn’t seem too disposed toward the defendants.
One of the corporations got tossed out of the case because there was no evidence that it was involved in the sale of either video, but the rest of the charges and defendants were placed at the mercy of the jury. After four hours of deliberation, the jury acquitted all defendants on all counts.
Obenberger reported that this trial, aside from being an affront to liberty, was part of an ongoing vendetta:
This drama has been going on for years and it reflected a crusade by local politicians to close the remaining store down. There had been raids on the store with multiple arrests of clerks and the manager. At trial, the manager was given immunity and compelled to testify, fairly dramatic stuff, especially because she apparently is facing allegations of probation violation for continuing to work at the store, the probation being the result of a nolo plea and an arranged disposition.
One of the most important issues in an obscenity prosecution is the rule laid down in Miller v. California, 413 U.S. 15 (1973) that the work must be “taken as a whole.” Government zealots usually like to cut out the most disturbing scenes and show those to the jury. Some shitty judges allow that. This judge may not have been friendly toward the defendants, but he allowed the movies to be shown in their entirety. This turned out to be key, because the films included documentary-style trailers. The prosecution only put in its “shorter summary” which conveniently omitted those parts. After the movies were shown, one juror applauded.
In the closing argument by D.A. Fletcher Long, after he announced that these out of state defendants took all their money out of the state, leaving the residents of St. Francis County with only the filth, Fletcher went on to say that [the defense's] arguments arguments would lead to the destruction of civilization – and the availability of videos showing dogs killing dogs. [Defense Attorney Louis Sirkin] objected at a sidebar and the jury went back to deliberate. [Sirkin] was then able to get access to the Internet in the courtroom and obtain a summary of [United States v. Stevens] which he read to the court, and he told the judge that though he could not print it out, the court could read the text of the opinion acknowledging First Amendment protection with respect to such materials. Judge Neal said that he’d heard about the case, and the Prosecutor was wrong to so argue, but he didn’t think it important enough to pull the jury out and tell them so.
In the end, the jury of six blacks, six whites, six men, and six women, acquitted on all counts. These twelve people, whoever they are, are hereby awarded the First Amendment Bad Ass award.
I am certain that aside from the guy who clapped, most of these jurors did not like the material they saw. Hell, even I don’t like the material they saw, and I’m about the most disgusting libertine that most of my acquaintances have ever met. But, that is not what freedom means. Freedom does not mean that a zealot prosecutor gets to look at material he does not like and decide that since his imaginary friend would disapprove, that his fellow citizens belong in prison for selling it. Freedom means being able to make the choice to watch “Grudgefuck” or to boycott it. To buy it and throw it in the trash, or to protest outside the store that sells it. These 12 Arkansans apparently understood that.
While we’re handing out First Amendment Bad Ass awards, I would like to hand a couple out to Louis Sirkin and Jamie Benjamin, both brothers of mine in the First Amendment lawyers’ association. They were defense counsel in the case, and because of them, and these 12 Arkansans, you are more free today than you were yesterday.