by Charles Platt
Send a drunken email from the UK to the White House, calling the president a prick, and you’re banned from the United States for life. Or so it says here.
by Charles Platt
Send a drunken email from the UK to the White House, calling the president a prick, and you’re banned from the United States for life. Or so it says here.
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.
By J. DeVoy
As a genre, black metal tends to forego verses, choruses and traditional concepts of consonance and tonality to create an atmosphere of fear and terror. Predominantly originating in Scandinavia, it is an art form with a violent history, and its very existence is opposed around the globe today.
In 2004, Polish authorities confiscated concert video recordings of Norwegian band Gorgoroth, which were to be used in a forthcoming live DVD. The police based this seizure on the concert’s content, as the band played while flanked by sheep heads on stakes, four nude, crucified models, and numerous satanic symbols, all of which were covered in blood. The concert’s organizer was fined approximately $3,000 as a result. The band later recreated this incident in its Carving a Giant music video, available below.
The phenomenon is not limited to Poland or Gorgoroth. British cultural commissars charged Swedish metal band Dismember with obscenity in the early 1990s for the contents of its song “Skin Her Alive.” In America, GWAR was arrested and charged with obscenity law violations in North Carolina during its 1990 tour; the band was able to reach a plea bargain that included not playing within the state for one year. Rapper Ice-T’s side metal band, Body Count, was threatened with legal action over the inclusion of the song “Cop Killer” in its self-titled album. This excludes the civil actions brought against Slayer, Ozzy Osbourne and Judas Priest by the families of those killed – by others or their own hand – allegedly due to the artists’ music.
Beyond the music’s grim subject matter, the musicians who create metal – and specifically black metal – make themselves easy targets. Gorgoroth’s former singer, Gaahl, was sentenced to 14 months in prison and $32,424 in restitution for allegedly kidnapping a man, torturing him for several hours and collecting his victim’s blood in a cup, which Gaahl threatened to make his victim drink. Going back farther in time, Norwegian band Burzum’s bassist, Varg Vikernes, a/k/a Count Grishnackh, was convicted of burning down four historic churches in Norway — even using the charred rubble of one such burning as the cover artwork for a Burzum album. Vikernes also murdered his bandmate, Øystein Aarseth, by stabbing him almost two dozen times. Though the reason for the murder is still unclear, tension between Vikernes and Aarseth as to whether Burzum should promote Satanism or Norse religious beliefs is believed to be an underpinning cause.
As bizarre and repulsive as these events are, they do not bear on the quality of the perpetrators’ speech. The Miller test is, thankfully, created to focus on speech and not the characteristics of those who made it.
It is unpopular to stand in solidarity with Satanists, church-burners, torturers and murderers. In the interest of free speech, though, it is important to see their unique vulnerability because of their prior acts, even if they were criminal and we find them despicable. In light of increased pressure on Eric Holder and the DOJ to stop up obscenity prosecutions and “protect” America’s families and children, more vigilance is needed in protecting free speech — even if it isn’t porn.
Federal prosecutors have filed obscenity charges against Adult DVD Empire in the Western District of Pennsylvania. (source) This is the same district where Mary Beth Buchanan held her little reign of terror. It appears that
her successor, Robert Cessar, is just as much of a petty little control freak as his predecessor. this was a left-over case from her obnoxious and un-American ass. Time will tell if her successor, Robert Cesar, is as much of a petty little control freak as Buchananan or if he’s just cleaning out the old files and saving face.
Nevertheless, prosecutions like this, my readers, is why I will not be voting for Obama in 2012. I don’t give a shit if “Bible Spice” Palin is the Republican nominee. At least with her, as with George W. Bush, there was truth in advertising. They both ran as bat-shit-crazy religious fundamentalists, and you got (or you’ll get) what is on the packaging.
UPDATE: The case has apparently already ended in a plea bargain. The defendant is to plead guilty, pay a $75,000 fine, and will be on probation for three years.
Xbiz reports that the government’s case, failing to meet its burden of proof on any of the counts against Stagliano, has been dismissed.
The trial, pending before Judge Richard Leon in the United States District Court for the District of Columbia, was dismissed on the defense team’s Rule 29 motion at the end of the government’s case. And what a team it was: H. Louis Sirkin, lead counsel for John Stagliano Inc. and Paul Cambria Jr., lead counsel for Stagliano. A solo practitioner, Allan Gelbard, represented Evil Angel Productions. Davis Wright Tremaine partner Robert Corn-Revere served as local counsel. (source.)
The proceedings came to a jarring halt when the government’s star witness, an FBI agent, impeached his own credibility while calling the judge’s and prosecutor’s into question. From that point onward, the government could not surmount the burden of proof it bore under the constitution.
Beginning in 2008, the government’s case against Stagliano accused him of enough crimes to put him in prison for more than 30 years. Despite running Evil Angel for two decades, the case against Stagliano rested upon mere minutes of footage, with the remainder of his natural life potentially in jeopardy.
UPDATE: Additional coverage available at AVN, courtesy of Mark Kernes.
By Tatiana von Tauber
Envision spending a nice sunny Saturday downtown when suddenly a crowd of women come at you – topless! Do you gasp? Quickly grab your children and cover their eyes? Do you think, WTF, laugh or grab your camera? Portland, Maine had plenty of diversified reactions to just such an event.
About two dozen women participated in a march on Congress Street to bring attention to breast equality: women can go topless too and in Maine it’s legal. Of course this half-naked public and free event sparked a lot of onlookers and unsurprisingly, amateur photographers yet the coordinator of the march, Ty MacDowell, 20, was upset about its progression:
“I’m amazed,” she said, and “enraged (at) the fact that there’s a wall of men watching…”
“A lot of people were taking pictures without even asking,” she said. “Even if you’re somewhere where people are fully clothed, you should ask.”
Hold on a minute here. Ask for permission? In a public place there is no privacy and besides, what exactly is the point of a partial nude protest march?
Attention, right? Bare breasts make people look but according to MacDowell,
“The point of the march was that a topless woman out in public should attract no more attention than a man walking around without a shirt on”.
That’s rather an ambitious “should” but youth is drenched in potential. Here’s a lesson from science: There are very distinct biological differences between the male and female brain. For example, according to Dr. Louann Brizendine, author of The Female Brain*:
1. Women use about 20,000 words per day versus men’s 7,000.
2. Men think about sex once a minute and women once every couple of days! (yeah, that is depressing for both sides)
3. Men have 2.5 times more brain area for sexual thoughts than women.
4. Women need their amygdala – the brain’s worrying and critical thinking system - “turned off” to ironically become turned on or sex will either be faked or a raincheck.
There are just some things that are too difficult to change when they are deeply etched into social perception or nature’s biology. The results of the bare breasted protest barely registered on the feminist Richter scale. A 24-woman march just isn’t good enough breast coverage.
I agree with MacDowell’s idealistic intent. Topless women should attract no more attention than men. However, in reality this courageous 20-something just learned one of women’s hard lessons: when there are bare breasts, there will be a wall of men, paparazzi picture taking and objectification; therefore, what should be isn’t.
One step to change such realities is to simply expand our views of the opposite sex while we come to deeper understandings of our own. Brizendine’s books The Female Brain and The Male Brain are a good beginning towards understanding why men and women do what they do and hence what’s possible to change and what seems enslaved to hardwiring. In the process maybe bare breasts in public might become less taboo. I don’t exactly recommend topless outside seating but it would be nice if America could ease up on the stigma associated to public display of those dangerous female nipples.
*The Male Brain is Brizendine’s newest release I’ll comment on in the future
By J. DeVoy
At True/Slant, there’s speculation that noted celebrity blogger Perez Hilton may have violated Federal obscenity laws. The upshot:
According to AVN.com [WYB], the online home of Adult Video News, the adult movie industry’s trade publication, Hilton’s March 15 post, “Chuy Is an Official Porn Star!” [WYB], does not follow 18 U.S.C. § 2257 guidelines. The code requires websites that post explicit sexual content to comply to various regulations and rules, including a link to a “2257 compliance statement containing the name and address of the custodian of records, who is required to keep records relating to the age and identity of the performers in the content, as well as other information,” writes AVN.com’s Tom Hymes. Hilton’s post doesn’t.
2257 regulations were born out of the Child Protection and Obscenity Enforcement Act of 1988, and it may behoove Hilton to note that “Federal inspectors may at any time launch inspections of these records and prosecute any infraction.” The vast majority of producers of adult content are intimately familiar with the finer nuances of the regulations and follow them dutifully so as not to be targeted by the Feds. And it’s not only those who produce adult content that must comply; it includes so-called “secondary producers,” defined as “anyone who ‘publishes, reproduces, or reissues’ explicit material.” Including Perez.
The post further notes that Obama’s administration, notably Attorney General Eric Holder, lacks the zeal of former AG’s Alberto Gonzales and Ed Meese in prosecuting pornography crimes. From my volunteer stint at a United States Attorney’s Office, Gonzales’s crusade seemed to consume a significant amount of office resources. But, those days appear to be over.
Nevertheless, obscenity charges against Hilton would be a just dessert for the kind of degenerate crap he’s pushed on mainstream culture over the years, pulling it deeper into the cesspool of meaningless distraction — even though his day job is lawful. Something similar happened to O.J. Simpson. In the end, hubris betrays all who fancy it.
By Tatiana von Tauber
When I was a kid I was mad that anyone would laugh at or with Benny Hill. The idea of making fun of T & A sickened me. Then I grew up and discovered that if one can’t have fun with sex one is just lacking the humor around the absurdity of seriousness society has placed on gender and sex. Meaning, we’re merely living in a more modern fashion of Puritan times. Clearly the sex industry is winning and one doesn’t need to go far to see how sex has jumped into the mainstream. Why? People want it.
Some people are offended by sexist humor or sexist anything that depicts the stereotypes we know we don’t fit into, but when stereotypes are created, they are so clearly because of those few generalities which stand out to the masses. The uncomfortable nature of feeling victimized to stereotyping and thus judgment is to simply accept that sex can be funny just as easily as it can be serious and just as easily as it can be sexually stimulating. In other words, it seems wise to open up to its many possibilities rather than forcing them into the closet based on out of date ideology rooting in shame and fear. Sex has many sides but ultimately sex is the pursuit of pleasure. It is typical that society attempts more than anything to control the pleasure of others, especially those which are natural.
The most common characteristic I see in women I photograph boudoir with is their initial discomfort about the entire “pornography” thing but once they realize they’re in control of their own “on camera” sensuality, an hour into the session they let go and have fun. It opens a new perception on the fact that the erotic need not be scary. Suddenly what they were most afraid to do became something exciting, fun and pleasurable to them. And there begins the transition from sexual repression to sexual awakening. At its end, sex is a human benefit despite its shadows and now studies are finally showing what too many would rather not know or deal with: pornography is good for you! Time to take that secret out of the closet and look at it in the light.
By: Zac Papantoniou
For most people, the hurried rush of their everyday lives allows them to bustle about their routine, often taking for granted the protections afforded to them by our country’s Constitution. In the good ol’ U-S-of-A, most people wouldn’t think twice about criticizing the government; because here, in the land of freedom and opportunity, there really aren’t any repercussions to be faced when we express our point-of-view with regard to the way things are being run. This type of willful blindness allows us to forget that people in other parts of the world are being tried as criminals for simply trying to raise awareness on a matter that is crippling their country’s healthcare system.
In Zambia, a ban on pornography is apparently being used for the purpose of personal retribution and political oppression, where Chansa Kabwela (the news editor of the country’s largest independent newspaper, “The Post”) has been arrested and put on trial for “distributing obscene images.”
Kabwela, in an attempt to call for an end to a nurses’ strike that has crippled Zambia’s healthcare system, sent two photos to the country’s vice-president, its health minister, and various human rights groups. The two photos were of a woman, who had earlier been turned away from two medical clinics, giving birth without medical help. The “obscene images” contained in the photos were of the woman’s baby in the breech position, with its shoulders, legs and arms emerging from the woman’s vagina, but with the head still inside. By the time the woman was finally admitted to a hospital, it was too late for their surgeons to save the child, which died of suffocation.
Kabwela, who states she was given the photos by the woman’s relatives, sent the photos to the aforementioned government officials. Within a short matter of time, Zambia’s President Rupiah Banda demanded a police investigation, calling the pictures “pornographic.” Quickly thereafter, Kabwela was arrested for “distributing obscene material with intent to corrupt public morals,” a charge that carries a possible five-year prison term.
However, multiple organizations are claiming that the trial is likely not about the photographs at all. According to a “BBC News” story, the independent newspaper that Kabwela works for, “has relentlessly pursued the government with allegations of corruption, and the president has made no secret of his dislike of the paper.”
After reading this story, I stopped for a moment and took note of all the freedoms I have nonchalantly taken for granted on daily basis; freedoms, that I generally don’t think twice about, like expressing my opinion about the government without fear of criminal charges being brought against me, and being able to look at porn if I should so choose (though I can’t ever recall an instance where I looked at images of a woman in need of serious medical attention, due to a breeching infant, and considered those images “titillating,” “pornographic,” or “obscene” . . . usually I see those images on “Lifetime” when I’m trying to eat dinner, which I subsequently lose my appetite for, which leads me to quietly remind myself never to flip past that channel at 7 pm again . . . EVER).
Since last year’s Valentine’s Day post about the film 2 Girls, 1 Cup was such a hit, we’re revisiting the “ain’t love grand” hit of the decade – Two Girls One Cup! (2G1C)
Last Valentine’s Day, I discussed obscenity risks in the specific context of 2G1C. This year, I’m going to show you how 2G1C proves that the Miller test must finally die, and the obscenity laws must be abolished.
The inspiration for this post comes from a fellow Satyriconista who sent me the following email:
As a matter of personal-professional opinion…. is there anything that you think should qualify, legally, as “obscene.”
I am not in bad company. My jurisprudential hero, Justice Brennan, called for an end to obscenity prosecutions in a scathing dissent he wrote for Paris Adult Theatre v. Slaton:
[T]he effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion. The existence of these assumptions cannot validate a statute that substantially undermines the guarantees of the First Amendment…Paris Adult Theatre v. Slaton, 413 U.S. 49, 109-110 (U.S. 1973) (Brennan, J. dissenting)
However, Brennan did not come to this mode of thought without some agony. In fact, it was Brennan’s opinion in Roth v. United States, 354 U.S. 476 (1957) that eventually evolved into the “Miller Test.” That test, currently used to determine whether or not material may be deemed “legally obscene” was what Brennan was attempting to repudiate in his dissent in Paris Adult Theatre.
According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:
I do not recommend that anyone actually watch the film. I have watched the first 11 seconds of 2G1C — and after that I puke. Every time. The last time I tried to watch it, I showed it to my wife, who is an elementary school teacher. One would presume that I could out-last her. But, after five seconds, I gagged and had to turn away. She hung in for the whole thing, and she laughed most of the time. She’s sicker than I am. See why I love her?
Needless to say, it did not appeal to either of our prurient interests. But, does it lack serious literary and/or artistic, political, or scientific value? How are we to define “serious _____ value?” Does “Dancing with the Stars” have serious value? If you think so, you need to be sterilized. Does that mean that we could ban Dancing with the Stars? No freakin’ way. If freedom of expression means anything to us, then we must leave the marketplace of ideas to decide what expression should live or die. Sometimes, even often, we must pay an unfortunate price for holding on to that ethic. It means that both the evil Mein Kampf and the vacuous America’s Next Top Model get to exist, despite the damage they may do to our collective psyche.
Asking six (or 12) people who couldn’t get themselves out of jury duty to determine whether a work has “serious value” — and to not only make that decision for themselves, but for the rest of us, is horribly inconsistent with any intellectually honest theory of free expression. Nevertheless, until we can dispense completely with the Miller test, we still need to find a yardstick with which to measure “serious value,” or we need to accept the fact that that the third prong of the Miller Test actually encompasses everything - thus rendering the Miller Test functionally dead.
What alternatives do we have? Should we base “value” upon the popularity of the work? Well, if that were the case then movies about gay cowboys eating pudding would miss the mark, despite being critically acclaimed by “the experts.” On the other hand, based upon how many google searches have been conducted for “Two Girls One Cup,” I’d say that the much maligned film gives Martha Stewart a run for her money. No. Popularity wouldn’t satisfy anyone. And, as much as I am uncomfortable with six morons deciding what I can and can’t watch, I would rather have six random idiots decide than the collective idiocy that forms the American public.
My suggestion for determining “serious value,” (at least one test) would be to let the Marketplace of Ideas determine whether the third Miller factor has been met. The “value” of a work is difficult, if not impossible, to determine until we watch the cultural paint hit the societal canvas — then, and only then, should we examine what value the Marketplace assigns to the work.
[T]he ultimate good desired is better reached by free trade in ideas…that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. – Oliver Wendell Holmes
2G1C can actually make you physically ill — and it would disgust any sane juror. Nevertheless, it is impossible to say that the Marketplace of Ideas has determined that 2G1C as has no serious value. On the contrary, 2G1C launched a thousand internet memes, crawled up the pant leg of our collective psyche, and infected pop culture to such an extent that its serious value has been unquestionably proven. The Marketplace has spoken: 2G1C has serious artistic value.
Go to YouTube and search for “Two Girls, One Cup.” (or just click here). Trust me, you won’t find anything pornographic nor even likely unsafe to watch at work. Working with the raw material of this disturbing film, amateurs have put it on their screens and created an entire genre of work known as the Two Girls, One Cup Reaction Video. People, usually just-past-adolescence boys, love to put unsuspecting friends in front of webcams while making them watch 2G,1C. One guy had his grandmother watch it. (click here to see it). In fact, there appears to be an entire sub-genre of grandma reactions to 2G1C.
I have yet to see a 2G1C reaction video that is not utterly hilarious. “Serious value?” There is no serious value to oil as it bubbles out of the ground, but mill it about in a refinery for a little while and it becomes gasoline. You may watch 2G1C and react with disgust (like I did) or dismiss it as “stupid,” (like my wife did). However, I challenge you to not get lost in the reaction videos. They will make you laugh, make your day, and without 2G1C as their raw material, this entire class of expression would have never existed in the first place. The same can be said of Tubgirl, Goatse, Meatspin, Lemon Party, and every other disturbing porn image that later became an internet meme.
I really don’t need another 2G1C to be produced. However, after watching the reaction videos, I can honestly say that 2G1C has contributed mightily to the American artistic landscape. It formed the raw material for this hilarious Family Guy clip, this one with Kermit the Frog, or … well I’ve made my point.
Nevertheless, your Department of Justice (well rather, George W. Bush’s Department of Justice) decided that you couldn’t handle 2G1C, and that its distributor should be prosecuted as a criminal. He eventually accepted a plea bargain and was sentenced to three years probation and a $98,000 fine. I’m not shedding any tears for him, but I do resent the fact that some dickwad vetted by Monica Goodling decided for me that the work has no “serious value.” I am even more offended that said dickwad did so despite the clear voice of the Marketplace of Ideas screaming at us that 2G1C has serious value.
And frankly, if 2G1C has serious value, then everything does. Miller delendum est.
Happy Valentine’s Day.
The Lakeland Ledger reports that an antique store owner who used his business premises to take nude photographs has been busted on obscenity charges in Polk County, Florida. However, the story seems a bit fishy.
Sheriff’s officials said a confidential source told detectives that within the last 30 days a teenager had been paid $40 to pose nude for photographs taken at the business.
“Detectives were told the confidential source asked the girl her age and she replied 14,’’ a sheriff’s report said. “Detectives learned that Denitto uses the same side room to manufacture films that include males and females engaged in sexual acts.’’
Undercover detectives visited the business Friday and saw a hand-written sign on the counter advertising “Models Wanted Paid Hourly.”
“When the undercover detectives asked what types of models were being sought, Denitto said he was looking for nude, female models and would pay $20 an hour,’’ the sheriff’s report said.
On Tuesday, detectives served a search warrant at the business.
“During the search several photo albums of nude women were discovered in various locations throughout the store. In a room adjacent to the southeast side of the business, detectives discovered a video camera, several photography books, a 35 MM camera, a Polaroid camera, and several nude photos of women. In addition six VHS tapes were seized,’’ the report said. (source)
Note how the story starts by setting up the story as a child porn investigation. However, John F. Denitto, the store owner was only charged with producing “obscenity.”
Polk County Judge Kevin Abdoney determined the tapes to be obscene, according to the Sheriff’s Office.
In his post on the story, Mark Kernes asks “What; they don’t have child porn laws in Florida?” This very astute observation reveals a possible flaw in the original reporting, or perhaps misinformation put out by the Polk County authorities (and it wouldn’t be the first time). If they searched the premises and found child porn, I imagine that Denitto would have been appropriately charged. Instead, they got a Polk County judge to determine that the materials are “obscene”?
There may be more to this story than appears on the surface. If it were anywhere else, I wouldn’t be so suspicious. However, Polk County is absolutely batshit crazy when it comes to bringing citizens up on obscenity charges. Innocent until proven guilty is particularly applicable when we’re talking about this kind of charge in this particular place. There is a reason why this blog has a “Polk County” category.
Hat Tip to Mark Kernes.
In the latest case involving the absurd and unconstitutional obscenity statutes, the Fourth Circuit has upheld a conviction of a man for mere private possession of allegedly obscene material. See United States v. Whorley, __F.3d__ (4th Cir. 2008). While the facts may not fit any conduct in which you might engage, the logic could very well ensnare you one day.
You should be outraged.
The facts of the case are this: Mr. Whorley was using a computer at the Virginia Employment Commission (Virginia’s unemployment bureau). Apparently, Mr. Whorley was not looking for a job, but downloading anime porn cartoons from his Yahoo email account. An employee of the Commission caught him, and booted him from the premises. Mr. Whorley apparently forgot to log out of his account, so the employees clicked on a few of his email messages and printed them out for police. See Op. at 4.
Counts 1-20 charged Whorley with using a computer on March 30, 2004, to knowingly receive obscene cartoons in interstate and foreign commerce, in violation of 18 U.S.C. § 1462. The 20 cartoons forming the basis of those counts showed prepubescent children engaging in graphic sexual acts with adults. They depicted actual intercourse, masturbation, and oral sex, some of it coerced. Based on the same cartoons, the jury also charged Whorley in Counts 21-40 under 18 U.S.C. § 1466A(a)(1) with knowingly receiving, as a person previously convicted of illegally downloading child pornography, obscene visual depictions of minors engaging in sexually explicit conduct. In addition, the grand jury charged Whorley in Counts 41-55 with knowingly receiving, on March 11 and 12, 2004, 15 visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). These counts were based on lascivious photographs of actual, naked children. Finally, the grand jury charged Whorley in Counts 56-75 with sending or receiving in interstate commerce 20 obscene e-mails during the period between February 5, 2004, and April 2, 2004, in violation of 18 U.S.C. § 1462. The e-mails described sexually explicit conduct involving children, including incest and molestation by doctors. Op. at 4-5
Lets just agree that Mr. Whorley is not the most sympathetic character. He was on probation for child porn charges in 1999. Additionally, he appears to have frequented forums for questionable material, and is reported to have been searching for terms such as “child sex play.” I’m not playing a violin for Mr. Whorley. Nevertheless, when we allow cases like this one to be decided based upon the status of the defendant, all of our constitutional rights are burned under the flame of hatred for sexual deviants.
You can Possess any Materials You Want – But that Doesn’t Mean that You Can Receive Them
Whorley challenged the constitutionality of 18 U.S.C. § 1462 because “it makes no exception for the private receipt, possession, or viewing of obscene material.” He argued that Stanley v. Georgia, 394 U.S. 557 (1969) renders any laws that criminalize the mere possession of obscenity unconstitutional.
“If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Stanley v. Georgia at 568.
Section 1462 provides:
Whoever brings into the United States . . . or knowingly uses any express company or other common carrier or interactive computer service . . . for carriage in interstate or foreign commerce (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or
* * *
Whoever knowingly takes or receives, from such express company or other common carrier or interactive computer service . . . any matter or thing the carriage or importation of which is herein made unlawful Shall be fined under this title or imprisoned not more than five years . . .
And the Fourth Circuit held that Stanley v. Georgia might have said that a person may possess obscene material in the privacy of his or her own home, but that right did not mean that the person has a right to receive such materials. The Fourth Circuit did not hack this constitutional Catch-22 out of whole cloth. Rather, the Fourth relied upon a string of cases supporting this illogical result.
See United States v. Reidel, 402 U.S. 351, 354-55 (1971) (explicitly rejecting the notion that Stanley’s recognition of the defendant’s right to possess obscenity meant that “someone must have the right to deliver it to him” through the channels of commerce (internal quotation marks omitted)); see also Smith v. United States, 431 U.S. 291, 307 (1977) (“Stanley did not create a right to receive, transport, or distribute obscene material, even though it had established the right to possess the material in the privacy of the home”); United States v. Orito, 413 U.S. 139, 141 (1973) (holding that Stanley’s tolerance of obscenity within the privacy of the home created no “correlative right to receive it, transport it, or distribute it”); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376 (1971) (“That the private user under Stanley may not be prosecuted for possession of obscenity in his home does not mean that he is entitled to import it from abroad free from the power of Congress to exclude noxious articles from commerce”). (Op. at 7)
So kids, get out your pencils and note pads. Under Stanley v. Georgia, you can possess obscene materials all you like, in the privacy of your own home. While the First Amendment recognizes this fact and provides that the government can never tell you what you can read or watch in your own home, you can’t actually get those books or pictures from other people, carry them in your pocket, or send them to anyone else.
Cartoons and Text Can be Legally “Obscene”
Under Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:
Under this test, it seems like a constitutional impossibility that the written word or drawn cartoons could be legally “obscene.” If something is written or drawn, it would seem to be imbued with “literary or artistic value.” Even if it had none, rendering private correspondence between two people “obscene” seems to fly in the face of everything that the First Amendment stands for. Nevertheless, the majority in U.S. v. Whorley not only disagreed with Mr. Whorley, but seemed to be downright flippant about it:
In essence, Whorley argues that text, standing alone, may not constitutionally be prohibited as obscene. He never explains why, however, nor does he cite any authority for his argument. Indeed, he overlooks the traditional formulations of obscenity, which have never depended on the form or medium of expression. (Op. at 12)
The Court’s attitude can be somewhat excused if Mr. Whorley’s attorney truly did fail to cite a single bit of authority in his support — especially in light of Kaplan v. California, 413 U.S. 115 (1973) which says that the medium is not relevant to the obscenity analysis.
The Virtual Child Porn Case Doesn’t Mean What You Think
Right after I was in law school, the big First Amendment issue of the day was Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). That case struck down a law prohibiting “virtual child porn,” as violative of the First Amendment. Ashcroft v. FSC held that if an image was not of an actual child, then it was not child porn. However, the language of that decision said that the government could not criminalize images that were neither obscene nor involving actual children. Congress reacted to this case by passing the PROTECT Act of 2003, Pub. L. No. 108-21, § 504, 117 Stat. 650, 680-82 (2003) — which makes it illegal to possess, sell, distribute, “sexually explicit drawings, cartoons, sculptures, or paintings that A) depict minors engaging in sexually explicit conduct, *and* are obscene. “It is not a required element of any offense under this section that the minor depicted actually exist. ” 18 U.S.C. § 1466A(a), (c).
Although I wish to keep this post limited to the free speech issues in this case, some procedural matters are worth mentioning. Whorley objected to the search of his email as a violation of his Fourth Amendment rights — but his objection came too late to help him. More importantly, he challenged the objectivity of the trial judge since he was a member chairman of the Meese Commission:
Whorley contends that the district judge, who in 1986 chaired the Federal Attorney General’s Commission on Pornography while serving as a Commonwealth’s Attorney for Virginia, abused his discretion in denying Whorley’s motion that the judge recuse himself. The district judge denied the motion as untimely. (Op. at 19)
This certainly seems to be an awfully flippant dismissal of the accused’s rights. However, the opinion makes it clear that during arraignment, the judge advised Mr. Whorley’s attorney that he chaired the Meese Commission and directly asked him whether he would seek recusal.
Whorley’s counsel subsequently notified the court that Whorley did not intend to request recusal. But then, on the last business day before trial, some seven months after Whorley’s arraignment, Whorley filed the motion to recuse.
Every normal man must be tempted at times to spit on his hands, hoist the black flag, and begin to slit throats. -H.L. Mencken
This is one of those cases that gives rise to such a temptation.
Like I said above, Mr. Whorley isn’t the most sympathetic defendant, and from the looks of it, his attorney was not exactly on his “A game” in this case. Unfortunately, this is how our freedoms are lost, little piece by little piece. An unsympathetic defendant here, an inexperienced lawyer there, and then all of a sudden we all find ourselves surrounded by walls that were built by Meese Commission chairmen turned judge along with fringe defendants and bumbling attorneys with no experience in these kinds of cases.
And then what?
Then you send a sexually-charged email to your girlfriend or boyfriend. Or your college buddy sends you Tubgirl or Meatspin as a gag. Someone who doesn’t like you finds it. You happen to be on the local prosecutor’s shit list for some reason – or maybe he just came from a sermon by his Southern Baptist preacher that “obscenitah must be stamped out.” Or maybe the cops come to your house to check out a noise complaint and just see it up on the screen. You give them a little attitude. You’re hauled off and charged with violating the obscenity laws.
You know what? The logic in this case fits your scenario perfectly, and you are now a criminal.
A swingers club in Connecticut was the subject of a police investigation and raid. Nothing too unusual there. It happens all the time. A bunch of consenting adults rented out a bar, only allowed people to attend if they signed up and joined their group, and the
fucking jackbooted nazis police couldn’t stand the thought of consenting adults fucking at a private party.
What I find remarkable about the case is that the police have charged a photographer at the event with obscenity. (source)
David and Tania Shadowfax were the photographers at the event.
The couple led a game of “rings” at the November event attended by undercover local police and liquor control agents. The objective of the game was for a woman to grab the most men she could and get five sexy pictures taken with them, according to an arrest affidavit. According to his arrest affidavit, David Shadowfax has thousands of photos stored in his computer showing women, including his wife, engaging in sexual activity at one or more “swingers” parties. (source)
The Shadowfaxes were charged with violating Connecticut’s obscenity statute. Let us presume, for the sake of argument, that the Shadowfaxes photographs were, indeed, legally obscene. I question whether the Shadowfaxes could be properly charged with violating the obscenity laws for possession of photographs that they took themselves — obscene or not. See Stanley v. Georgia, 394 U.S. 557 (1969). Under that case, the Supreme Court held that the First Amendment prohibits a state from making mere possession of obscene photographs a crime. “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”
An Indiana man was sentenced to 33 months in prison for shipping movies of consenting adults having sex with other consenting adults to other consenting adults who paid for the movies to be shipped to them.
Land of the free, my ass.
In 1998, Holder wrote a memo to all 94 U.S. Attorneys:
“As you are aware within the past few years there has been increasing concern about the distribution of obscenity and child pornography both by traditional purveyors of “adult material” and in particular by those who distribute such material over the Internet. As a result of this unprecedented growth, I wish to remind you of the Department’s policies and priorities in the prosecution of federal obscenity cases… Thus, priority should be given to cases involving large-scale distributors who realize substantial income from multistate operations and cases in which there is evidence of organized crime involvement. However, prosecution of cases involving relatively small distributors can have a deterrent effect and would dispel any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations… In particular, priority also should be given to large-scale distributors of obscenity over the Internet. Because of the nature of the Internet and the availability of agents trained in conducting criminal investigations in cyberspace, investigation and prosecution of Internet obscenity is particularly suitable for federal resources.” (primary source emphasis added)
Kernes reports that a letter from Holder to Paul McGeady, the founder of Morality in Media, is even more troubling. This letter “references a meeting apparently attended by Holder, McGeady and representatives of various religio-conservative pro-censorship groups:” (source)
“I appreciated having the opportunity to meet with you recently to discuss the prosecution of obscenity cases,” Holder wrote. “Your commitment to this important issue is commendable, and I fully share your concerns about the distribution of obscenity and child pornography, whether it is over the Internet or by more traditional purveyors of such material. I encourage you, and the other organizations with whom I met, to continue working closely with the Child Exploitation and Obscenity Section of the Department of Justice as we work aggressively to address this troubling problem. Based on the many insightful comments and observations made by representatives of the various groups who attended our recent meeting, I determined that it was appropriate for me to send a memorandum to all United States Attorneys reminding them of the Department’s policies.” (source - primary source unavailable)