LOS ANGELES - Attorneys for John Stagliano have filed motions to dismiss the federal obscenity charges against the director and his companies, arguing that the Supreme Court test for obscenity is outdated and unconstitutional.
Attorneys Allan Gelbard and Paul Cambria filed their respective motions on Oct. 30 and 31 in reply to the federal government's opposition to the Stagliano defense team's original motions to dismiss the charges.
"These motions were basically filed to reinforce the original motion to dismiss," Gelbard explained. "The government filed what's called an omnibus opposition to those original motions, and the defense has an obligation to reply."
Stagliano and his companies, Evil Angel, and John Stagliano, Inc., were indicted by a federal grand jury in April on charges related to the distribution of obscene material through the mail and the Internet. The indictment hinges on two movies - Jay Sin's Milk Nymphos and Joey Silvera's Storm Squirters 2 - and an online trailer for Belladonna's Fetish Fanatic 5.
Cambria, representing Evil Angel, and attorney Robert Corn-Revere, EA's counsel in Washington, D.C., contend in their motion that the First Amendment "prohibits prosecution of E.A. Productions for use of an interactive computer service to distribute on-line communications because, unlike many off-line publishers, Internet publishers cannot control the geographic reach of their communications."
Stagliano's attorneys have also challenged the government's use of local community standards to judge material distributed on the Internet.
"[T]he use of local community standards to judge the lawfulness of such on-line communications invariably subjects those communications to the restrictions of the most conservative communities in the nation," Cambria wrote. "E.A. Productions submits that this reality unconstitutionally chills speech by allowing an Internet heckler's veto to these conservative communities."
The Miller test determines obscenity based on whether or not "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest." Stagliano's attorneys argue that the language "taken as a whole" is unconstitutionally vague and overbroad as applied to Internet communications.
In the online portion of the Stagliano case, the government has attempted to focus on a specific Internet trailer as "the whole" of the allegedly obscene work. Stagliano's attorneys argue that even if one accepts this requirement of the Miller test, common sense dictates that the entire Evil Angel website is "the whole" of the work.
"The Evil Angel Web site exists as a single entity composed of multiple elements like a magazine or book," Cambria wrote. "It is more insular than iTunes.com or Amazon.com in the sense that it exists to present and promote unique Evil Angel-themed or produced content, not unlike many brand magazines.
"The trailer being prosecuted in this case is merely a sample of the many Evil Angel products offered for viewing on the site or for purchase. It is no more permissible for the Government to treat this video clip as the whole of the matter than it would be for the Government to, for instance, divorce a portion of a photo shoot from the context of the whole magazine in which it was presented (or select for prosecution only one reel of a three-reel motion picture)."
Using the prosecution's argument in the Evil Angel case, Cambria wrote, the government "would be permitted to pick apart even books and magazines, prosecuting only those portions it believes are obscene. A magazine with dozens of articles and hundreds of photographs would be divisible to the smallest unit, and all context of the presentation of the charged portion of the work would disappear. Obviously, this is simply not permitted."
The motion to dismiss also challenges legal statutes regarding the transportation of adult material. The defense cited the Supreme Court decision in Lawrence Vs. Texas as a precedent establishing that adults have the right to sexual privacy in their own homes. Under the law of "substantive due process," Stagliano's attorneys argue that the same protection should apply to the person distributing sexually oriented material.
"E.A. Productions maintains that the First Amendment and the Due Process Clause protect defendant's right to distribute obscene material to adults for viewing and use in private," Cambria wrote. "[I]n addition to having a First Amendment right to possess obscene materials in private...it is clear after Lawrence v. Texas that adults enjoy a substantive due process right to obtain such materials for private use, and that the challenged statutes impermissibly burden these rights."
A hearing in the case is set for Nov. 25 in Washington, D.C.
