LOS ANGELES - Asserting that obscenity prosecutions typically don't occur "unless you have an interaction between genuine ideological commitment and a political payoff," defense attorney Jeffrey Douglas considers the recent federal indictments targeting his client, Paul F. Little (Max Hardcore), and the proprietors of Cleveland-based distributor Movies by Mail to be "the first stage of the 2008 presidential election."
"Why target Max now? It's good politics and would have happened earlier except for pure allocation of resources" after September 11, 2001, Douglas said during a wide-ranging interview conducted at his Santa Monica office on July 6, just over a month after the 10-count obscenity indictment in United States v. Paul F. Little was unsealed in Tampa, Fla.
Although the ideology-plus-politics formula is familiar, Douglas contends there's a dramatic shift this time around in the nature of the content targeted by the government across the prosecutions of Extreme Associates, JM Productions, Max Hardcore and Movies by Mail.
"In past federal sting operations against the adult industry . . . there clearly was a deliberate effort to seize and prosecute a cross section of commercially available materials," Douglas said, pointing out that "the ideologues wanted to send the message that there was no such thing as safe porn."
Today, however, Douglas contends that the prosecutors' focus is on "material that can argued to be misogynist - aggressive sex, Bukkake and the like."
For Douglas, this shift suggests that the government's underlying theory in court will be that the "material is obscene because of how it depicts women." It's a theory that Douglas intimates could well backfire under the test for obscenity created by the U.S. Supreme Court in 1973 in Miller v. California.
"Since the third prong of Miller requires that the material lacks serious political value, among other things, then the government itself is turning this into a political issue," Douglas said.
"They are, in essence, saying, 'You may not demean women in a sexually explicit environment.' Why is it, then, OK to create demeaning portrayals of men?," Douglas asked, emphasizing that "for every one of these titles that is demeaning to women, there is bondage and discipline material where men submit to equally demeaning behavior at the hands of a dominatrix."
Douglas pointed out another problem with the government's tack of targeting material it finds misogynistic, contending that "most labels do something that could fall into the same category without any difficulty at all. And when the category is something as subjective and as arbitrary as whether the content is demeaning to women, then distinctions become meaningless."
Although this new focus on allegedly misogynistic content surprises Douglas, he is not at all shocked that his client of some 15 years, Max Hardcore, is the target of a federal obscenity indictment.
"For the last decade, if you had asked people - consumers or people in the industry - what lines of materials were the most likely to be targeted because of the content, Extreme Associates would have taken up seven of the top ten and Max Hardcore would have filled out that list," Douglas said
In addition, Hardcore's status as one of the veterans in his niche of content makes him an easy target, Douglas suggested.
"He was the first of the labels associated with that kind of crude, aggressive depiction. That's another reason why he was on the top of the list," Douglas noted, adding that "even if his material had been substantially softer than his competitors in that genre, he would still have the label for historical reasons."
Hardcore himself was not surprised by the indictment, Douglas said, especially after the government's search of his Altadena home in October 2005.
"He had always been less optimistic than I was, and he assumed an indictment was just inevitable," Douglas said. "To him, it was just a matter of time. From the time that Bush was elected president, Max assumed he was going to be indicted. And then, when Extreme Associates and JM were indicted, it seemed inevitable to him. I had all these reasons, on the lawyerish side, why it wasn't inevitable, but he never believed that."
In a somewhat ironic way, Douglas feels that Hardcore's prior experience as a defendant in an California obscenity case may just be a good thing, at least to the extent that it helps Hardcore to weather the current legal storm.
"Thank God he's been through a state obscenity trial - sort of obscenity light, as it were - so that he knows a lot more about what to expect and he has an appreciation of the vulnerability and arbitrariness of incredibly important rulings," Douglas said, observing that the judge in the state trial "refused to allow me to quote from a U.S. Supreme Court opinion in closing argument. How can you conceivably justify that? He also wouldn't allow me to show a scene from a DVD player because the titles were purchased on video. It helps a lot that Max has been through this, then, because he has a much more realistic picture."
Beyond the randomness of coping with such random rulings, Douglas observed that Hardcore also must grapple with a much larger philosophical strain that every adult content producer or distributor faces in an obscenity prosecution.
"There is, essentially, an unbearable tension for an obscenity defendant between the expansive, lofty language of the First Amendment, including the idea that, until the jury returns a verdict, you are creating First Amendment protected material - you have more protection than if you were selling shoes or some other product - and the fact that if you are convicted, you are go to be a sex offender facing many years in prison," Douglas said. "You have to find ways to manage that tension."
Among the things that could complicate the government's case against Hardcore is the fact that the Max Hardcore titles the government purchased from JadedVideo.Com were all marked for European sale only.
"Jaded chose, independently of Max, to sell them within the United States. That's a significant hurdle for them," Douglas said.
Another problem for the government will be that the DVDs in question include promotional extras that must be considered, along with the movie itself, under the Miller obscenity test's requirement that a work be taken as a whole.
Those extras, Douglas said, make it clear that none of the female talent were forced or coerced in any way to participate in any of the movies.
"One of the helpful things associated with the emergence of the DVD are the extras," Douglas remarked, noting that "extras often include behind-the-scenes shoots or the performers talking about it. When you see that for a very short amount of time, if you hadn't figured it out before, you realize they're making a movie, that this is fiction and that they are acting."
In terms of whether the adult industry will rally around Hardcore or abandon him, Douglas recognizes that "nobody wants to stand next to a lightning rod."
Douglas believes "there will be support for Max, but there won't be the kind of support that, from a political perspective, there should be, simply because of the tendency of people to try to distinguish themselves from his content and to find some justification why they didn't get hurt and someone else did."
As for Max Hardcore and the time being, it's now a matter of getting back to business and letting his lawyers take care of the case.
"Max's job is to be a businessman and to continue to create films, distribute them and market them. The lawyer's job is to do the work behind the case, and there is a lot of work," Douglas said, adding that the Fort Lauderdale-based law firm of Benjamin & Aaronson will work with him as local counsel in the case.
Clay Calvert and Robert D. Richards are co-directors of the Pennsylvania Center for the First Amendment at Pennsylvania State University in University Park, Pa. They are in Los Angeles conducting research for a series of projects on the adult entertainment industry.
All models were at least 18 years old at the time of their performance. 18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement.
