WASHINGTON, D.C. - Evil Angel Productions owner John Stagliano will have his first formal chance to get the charges against him dismissed on Tuesday, Nov. 25, when his attorney Allan B. Gelbard will mount a multi-faceted attack on the government's contention that two DVDs sent by Evil Angel to FBI agents in the District of Columbia, and one trailer downloaded there, are obscene.
Gelbard's introduction to his Motion sets out the major arguments he will use before U.S. District Judge Richard J. Leon, who has recently been lauded by civil libertarians for his decision to release five Guantanamo detainees after the federal government failed to produce any credible evidence that the men had committed any crimes.
"Initially, all charges based on the downloading of the Internet trailer from the Evil Angel website are constitutionally impermissible as any finding of obscenity requires the work(s) must be 'taken as a whole' and evaluated based on 'contemporary community standards'," Gelbard summarizes. "Both terms have been found unconstitutionally vague as applied to Internet speech. Additionally, their cumulative effect, in combination with the government's ability to 'forum shop' the prosecution, further exacerbates the due process violation."
"Further, based on recent Supreme Court and Appellate Court decisions, the federal obscenity statutes have been fatally undermined as applied to distribution of sexually explicit materials by and between consenting adults for private viewing," Gelbard continues. "The central rationale relied upon by the Supreme Court in its initial assumption that sexually expressive speech could be prohibited - the regulation of majoritarian morality - has been expressly disapproved. There is no valid basis for restricting the distribution of sexually explicit materials between consenting adults sufficient to constitute a legitimate, let alone compelling government interest."
Gelbard's Motion then goes on to trace the history of obscenity prosecution in the U.S., beginning with Roth v. United States, and pointing out how the legal suppression of explicit sexual speech has consistently been based on an affirmation of the high court's "finding that government regulation based on majoritarian morality was permissible," a contention that should have finally been put to rest by the Court's landmark ruling in Lawrence v. Texas.
In the process, however, Gelbard delves deeper into more than a dozen obscenity cases, revealing that when it comes to details, the devil is definitely in them.
For instance, he emphasizes that Miller v. California, the case on which all modern obscenity rulings are based, involved the mailing of unsolicited hardcore sexual materials "thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials," and points out that even Miller does not define obscenity, but merely creates a test that a later case, Jenkins v. Georgia, noted had failed to "extricate us from the mire of case-by-case determinations of obscenity."
Similarly, Gelbard notes Justice William Brennan's dissent in Paris Adult Theater I v. Slaton, where Brennan concluded that, "the interests of the State - apart from the question of juveniles and unconsenting adults - are trivial or nonexistent ... these interests cannot justify the substantial damage to constitutional rights and to this Nation's judicial machinery that inevitably results from state efforts to bar the distribution even of unprotected material to consenting adults," and that the "right to receive information and ideas, regardless of their social worth ... is fundamental to our free society."
Additionally, in another section, Gelbard discusses the evolution of sexual privacy as a substantive due process right, citing such cases as Griswold v. Connecticut, which recognized the right to use birth control devices; Loving v. Virginia, which recognized the right to interracial marriage; Eisenstadt v. Baird, which recognized the right of single persons to obtain contraceptives; and Roe v. Wade, which recognized women's right to abortion. Moreover, he draws a parallel between the right to have access to contraceptives (already themselves legal under Griswold) recognized in Carey v. Population Services International, with what should be an obvious right to buy even obscene material, the right to own which had already been established under Stanley v. Georgia.
"The Court's explicit holding in Carey acknowledges that a Substantive Due Process right of privacy to use a sexually related product would be meaningless if the state were permitted to simply forbid the sale of the product to those who wish to use it," Gelbard argues.
Gelbard then moves on to Lawrence, and after quoting from Justice Harry Blackmun's dissent in Bowers v. Hardwick, which upheld the criminality of homosexual sodomy, noting importantly, "Justice Blackmun's dissent exposed the fundamental flaw in Bowers; that the Court had asked and answered the wrong question. He went on to identify the proper issue in all such cases: Is morality a sufficient government interest to deprive persons of a liberty interest protected by Substantive Due Process or other constitutional guarantees? Justice Blackmun argued it was not stating that 'the assertion that traditional Judeo-Christian values proscribe the conduct involved ... cannot provide an adequate justification' for such a prohibition. He wrote '[n]o matter how uncomfortable a certain group may make the majority of this Court, we have held that mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty'."
This, of course, was the central issue answered in Lawrence, and that Court agreed with Blackmun.
"The Lawrence Court held that while many considered sodomy unethical and immoral," Gelbard argues, "those considerations did not answer the proper question[:] whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. Justice Kennedy wrote '[o]ur obligation is to define the liberty of all, not to mandate our own moral code.'" [Emphasis in original Motion]
Then Gelbard puts it all together:
"The development of First Amendment and Substantive Due Process jurisprudence, and their convergence through the Bowers/Lawrence and Griswold/Carey lines of cases, require that this prosecution be dismissed," he writes. "Thirty years of increased societal acceptance and judicial protection of private and semi-private sexual practices requires reevaluation of the confluence of First Amendment Speech and Establishment and Fifth and Fourteenth Amendment Due Process protections vis-a-vis the government's interest in regulating sexuality and sexually explicit materials. Justice Kennedy made this clear when he wrote, in Lawrence, there is 'an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.' Clearly, viewing sexually explicit materials in the privacy of one home is a matter 'pertaining to sex.'" [Citations omitted here and below]
Gelbard bolsters this argument by citing the recent Fifth Circuit decision in Reliable Consultants v. Earle, which ruled, "[a]n individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right. This conclusion is consistent with the decisions in Carey and Griswold, where the Court held that restricting commercial transactions unconstitutionally burdened the exercise of individual rights."
It will be remembered that Texas recently decided not to seek Supreme Court review of the Reliable Consultants decision.
And if Texas' obscene device law burdens a citizen's right to use a (perfectly legal) "safe sexual device," certainly the federal interstate trafficking in obscene materials laws burden a citizen's right to use even (perfectly legal) (under Stanley) obscene materials!
Then, turning to the accused trailer, Belladonna's Fetish Fanatic 5, Gelbard puts forth another set of arguments, similar to those which H. Louis Sirkin and Jennifer Kinsley will be using when the Extreme Associates case comes to trial next spring.
For one thing, "The trailer in issue is indisputably just a minuscule portion of the Evil Angel website," Gelbard notes, arguing that the Miller test requires that the material claimed to be obscene must be considered "as a whole," which he further argues is at least the entire Evil Angel site, if not the entire Internet - and in any case, the concept of "taken as a whole" has been found to be unconstitutionally vague in last year's Third Circuit decision in the Child Online Protection Act (COPA) case. Similarly, Gelbard argues that the "community standards" test is equally inapplicable to material found on the Internet, and should be found equally unconstitutionally vague.
Finally, Gelbard makes an argument that is unique in federal obscenity litigation: That prosecuting Stagliano and Evil Angel in the District of Columbia "impermissibly chills the right to protect expressive works under copyright."
After noting that Evil Angel was awarded over $5 million in a piracy/copyright infringement suit in Los Angeles, Gelbard argues that it was the very fact that Evil Angel had copyrighted its works that led the government to decide to prosecute its case in the District of Columbia rather than its original intended locale, the Northern District of Alabama. Why? In part, Gelbard opines, it's because in order to register the copyright of any adult work, a copy of such work must be shipped to the Library of Congress - which, coincidentally, is located in the District of Columbia, where the current prosecution is taking place! Therefore, if the D.C. prosecution is successful, the Justice Department would no longer have to mount sting operations in order to charge adult producers with transportation of obscene materials; all they'd have to do is check out the filed copy of the work from the Library of Congress, and voila! Instant indictment!
"Allowing the government to prosecute works based on the community standards of the District of Columbia would allow a D.C. jury to be the final arbiter of what is appropriate for the rest of the country," Gelbard states. "Yet, '[p]eople in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity'," he continues, quoting from the holding in Miller v. California.
The Justice Department, of course, has filed a brief opposing Gelbard's motion, but its points are not well-taken. Sadly, however, to the extent that Gelbard's arguments encourage the district court to blaze new trails in obscenity jurisprudence, he may meet the same fate that Sirkin did when his Motion to Dismiss in Extreme was granted by Judge Gary Lancaster in the Western District of Pennsylvania, but overturned by a Third Circuit panel. It's worth remembering, however, that that panel did not deal with the merits of Judge Lancaster's opinion, but merely ruled that Lancaster had presupposed how the Supreme Court would apply the Lawrence decision to federal obscenity law, and that he was not allowed to do that.
In any case, Judge Leon's decision regarding the Evil Angel Motion to Dismiss is likely weeks if not months away - but Tuesday afternoon's argument is one that will surely be worth paying attention to.
