BUFFALO, N.Y. - In our haste to inform readers of some of the arguments to be presented to Judge Richard J. Leon tomorrow when the defense argues its Motions to Dismiss obscenity charges against John Stagliano, John Stagliano Inc. and Evil Angel Productions, we neglected to make it clear that while each defendant filed its own Motion, all three were, to a greater or lesser extent, collaborative efforts. In other words, all of the attorneys - Al Gelbard for Stagliano personally; H. Louis Sirkin and Jennifer Kinsley for Stagliano Inc.; and Paul Cambria and Roger Wilcox for Evil Angel, with Robert Corn-Revere acting as local counsel for all defendants - contributed thoughts and strategy to each other's Motions.
Hence, we were happy to receive copies of Cambria's and Wilcox's Motions and briefs seeking dismissal of the seven counts in the indictment against Evil Angel. Those charges include knowingly transporting allegedly obscene motion pictures (Milk Nymphos and Storm Squirters 2) in interstate commerce for purposes of sale and distribution (Counts 1 & 2); knowingly using an interactive computer service for the purpose of distributing obscene matter (the trailer for Fetish Fanatic 5) (Count 3); knowingly using an express company or other common carrier to ship two DVDs from California to the District of Columbia (Counts 4 & 5); engaging in the business of selling and transferring obscene matter (Count 6); and using an interactive computer service to display an obscene image in a manner available to a person under eighteen years of age (Count 7).
The Cambria team first tackles Count 3, noting, "In striking down the Communications Decency Act ten years ago, the Supreme Court prophetically observed that application of a community standards criterion to the Internet 'means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.' That statement remains true today with respect to all online communications. The application of local community standards to Web publications under 18 U.S.C. §1465 subjects such communications to an Internet 'heckler's veto' and renders the statute unconstitutionally overbroad." [Citations removed here and below]
The Motion then delves into an analysis of the long-running Child Online Protection Act (COPA) case, quoting various Supreme Court justices who dissented from the idea that it would be possible to craft a "community" from all Internet users that would pass constitutional muster as not being overbroad. It also quotes from the now-controlling Third Circuit opinion in American Civil Liberties Union v. Mukasey, which itself reiterates several points from that court's prior COPA opinion, that, "We also found that 'COPA's application of "community standards" exacerbates these constitutional problems in that it further widens the spectrum of protected speech that COPA affects.' We stated that 'COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standards in order to avoid criminal liability.' Finally, we found that there was no available narrowing construction that would make COPA constitutional. These conclusions bind us here."
The Cambria/Wilcox Motion also targets the Miller v. California requirement that the work be "taken as a whole," and argues that "when, as in the instant case, only a portion of material available online is to be judged obscene or not, the question of what makes up the work 'as a whole' is much more difficult, if not impossible, to answer," and cites Justice Kennedy's statement in ACLU I (aka COPA I), that "[t]he notion of judging work as a whole is familiar in other media, but more difficult to define on the World Wide Web. It is 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." The attorneys note that further analysis of this problem definitely puts the "taken as a whole" requirement in direct opposition to the COPA text's mandate that the work in question by viewed in isolation rather than in context, and conclude that the two cannot be reconciled, leaving Miller inapplicable to Internet speech.
In terms of the obscenity issue vis à vis Miller, the attorneys employ similar arguments to dismiss Count 7, and also note that Evil Angel is not charged with either sending an obscene communication or child pornography to a specific minor, but only with "displaying" an obscene image in a manner that is "available" to a minor, a statute so vague as to fail the narrow tailoring test under strict scrutiny, as well as the least restrictive means test.
Regarding the counts involving transportation of obscene materials, either by common carrier or over the Internet, Cambria and Wilcox come down squarely on the side of substantive due process privacy rights, and link those Fifth (and Fourteenth) Amendment rights to the First Amendment's free speech rights through Stanley v. Georgia, where the attorneys argue that Justice John Marshall Harlan II's affirmation of Stanley's "right to receive" obscene materials "necessarily encompasses the right of E.A. Productions to distribute even allegedly obscene materials to willing adult recipients." They also trace a history of substantive due process rulings, starting with Lawrence v. Texas and working backwards through such cases as Meyer v. Nebraska (1923) (a parent's right to control the education of his/her children); Skinner v. Oklahoma ex rel. Williamson (1942) (the right to marry and procreate); Rochin v. California (1952) (right not to have one's stomach pumped); Griswold v. Connecticut (1965) (right to receive information about birth control); and Roe v. Wade (1973) (right to abortion). Cambria and Wilcox even go so far as to assert Evil Angel's right to challenge the prohibition on interested adults' ability to buy even obscene material, citing the company's derivative standing as similar to that of the Respondent in Carey v. Population Services International, "where the Supreme Court held that sellers of contraceptives had standing to challenge New York statute prohibiting distribution of contraceptives to anyone under the age of sixteen."
"Defendant contends that its adult patrons enjoy not only the First Amendment right to possess and view obscene materials within the home, but also the right to use obscene expressive materials as they see fit during private intimate conduct, notwithstanding the holdings of United States v. Reidel, supra, and related cases," the attorneys argue. "The Fifth Amendment substantive due process right to utilize obscene materials as defendant's adult patrons deem appropriate during private intimate conduct is impermissibly burdened by these obscenity statutes... Furthermore, older decisions prohibiting commerce in actually obscene materials should no longer be considered controlling on the subject."
What follows is a more in-depth consideration of Lawrence, as well as a notation that the Supreme Court itself, in R.A.V. v. City of St. Paul, Minnesota, warned that even allegedly obscene works are not "invisible to the Constitution":
"We have sometimes said that these categories of expression are 'not within the area of constitutionally protected speech,' or that the 'protection of the First Amendment does not extend to them.' Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity 'as not being speech at all.' What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.) - not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content." [Emphasis in original]
In other words, considering that the Supreme Court had already legalized the private possession of obscene material, one possible reading of the R.A.V. decision is that there may be situations where even admittedly obscene material must be legally recognized under the Constitution for characteristics other than its (alleged) obscenity - and one of those could be whether it can be bought or sold by willing adults to willing adults. It's a subtle point, but an important one.
But the legality of owning obscenity under Stanley, coupled with the rejection of the concept that the government can use "public morality" as an excuse for restricting the private, intimate activities of consenting adults under Lawrence, leads to one inevitable conclusion:
"Consequently, we are left with two potential reasons for banning the distribution of obscenity: protection the welfare of children and protection the interests of adults who have been unwillingly exposed to obscene material," the attorneys argue. "Neither interest is implicated in these charges of violating 18 U.S.C. §§1462, 1465 and 1466 ... Accordingly, there remains no valid basis on which to criminalize the transportation, transportation by express or common carrier or by interactive computer service, or the engaging in the business of selling or distributing even allegedly obscene materials so long as the expressive materials are directed to willing adult recipients."
The adult industry will have to wait at least until tomorrow, though, to see how these arguments fare in front of Judge Leon.
