AEE Legal Seminar Addresses Obscenity, 2257

LAS VEGAS – Even Art Schwartz showed up for the third annual Arthur Schwartz Legal Seminar, but the heavy lifting was done by two other prominent names in First Amendment law, H. Louis Sirkin and Paul Cambria.

The seminar was subtitled "Recent Developments in Obscenity Law and Adult Recordkeeping," but those topics mainly served as a jumping-off point for each attorney to summarize the legal issues that have kept the attorneys hopping over the past year – although each made one point very clear: No adult businessperson can afford to be without a good, knowledgeable First Amendment attorney on retainer.

"You have to be rough and tough and know your business," Cambria declared, in describing the qualities necessary to carry on today's legal battles. "We haven't seen any bloodbaths like [Operations] MiPorn or Woodworm [recently] … but there are significant issues out there."

Sirkin began the talk by noting that, "It's been an interesting year," and that this month in particular was the fourth anniversary of Sirkin's most famous current case, the obscenity prosecution of Extreme Associates and its owners Rob Black and Lizzy Borden. While indicating that Judge Lancaster seemed in no hurry to move the case to trial as the two sides continue to litigate what constitutes the "community" (as in "community standard") of the case, Sirkin observed that some of the same issues would be involved in his defense of another producer whose case would be coming to trial in Tampa in May, Max Hardcore.

For Sirkin, it had been a year of several victories, including a directed verdict of not guilty in his defense of JM Productions and its principal Jeff Steward in Phoenix, and a jury verdict of acquittal for Russell Van Wie after three mistrials in the Love Stuff Boutique case in Henry County, Kentucky.

However, Sirkin was not above tooting other attorneys' horns as well, terming J. Michael Murray's stunning win in the Connection Distributing case, which invalidated the 2257 regulations in the Sixth Circuit, as an "absolutely unbelievable job," as well as lauding Jeffrey Douglas and Dick Hertzberg on getting their individual clients dropped from the Five Star case, leaving the Phoenix jury to convict just the corporation of transporting obscene material – which Hertzberg found that most of the jurors would have acquitted as well if they had been aware of some of the evidence that had been kept out of the case.

Sirkin also delivered a stern warning to retailers to make their employees aware of an ominous development on the horizon involving the Adam Walsh Child Protection and Safety Act and the National Sex Offender Registry. He announced that his home state of Ohio was the first to implement a requirement that anyone convicted of pandering obscenity be place of the Sex Offender Registry for 15 years (see story here.)

"Hopefully, we'll be able to get a couple of declaratory judgment actions" to stay the registration requirement, he said.

Finally, Sirkin too recommended that adult retailers and content producers retain a First Amendment attorney with a criminal law background for the inevitable battles to come.

Cambria, after noting that his own practice is limited to New York and California, began his presentation by pointing out all the other First Amendment attorneys in the audience – Clyde DeWitt, Jennifer Kinsley, Reed Lee and Luke Lirot – and suggesting that audience members who lived in those attorneys' areas contact them and talk about representation.

Besides having emailed congratulations to the attorneys in the JM/Five Star defense, Cambria noted that he too has a connection to that prosecution: After prosecutor Raymond Robertson tried (and failed) to get Cambria banned from representing Rick Krial and his store, After Hours Video, on obscenity charges in Staunton, Va., on the basis that Cambria also represented California-based production companies that might later be added to the indictment, Robertson himself tried to bring Five Star prosecutor (and federal obscenity unit attorney) Ken Whitted into the case as his own co-counsel – a move that Cambria graciously did not oppose.

Cambria too has had a full year, having accepted as clients the Harb brothers after they and their Internet company, Movies by Mail, were indicted for interstate transportation of obscene material in Salt Lake City. Cambria will also represent the Movie Gallery's Kilmarnock, Va. outlet, which is facing prosecution as a "public nuisance" simply for having an adult section in its store, and he noted in passing that the Justice Department is currently looking harder than ever for material to prosecute, especially in what they perceive as friendly venues like the "Bible Belt" states, Indiana and Utah.

However, one of the biggest dangers facing the adult industry in California, he said, is the state's own Occupational Safety and Health Administration – Cal-OSHA – which has already visited several companies' sets and cited the company owners for multiple violations, including the failure to have performers use dental dams, goggles and condoms during sex scenes.

Noting one citation for a makeup artist's failure to sterilize her combs, Cambria warned, "If regulations like that were to be passed, it would all be over" for adult video production. He said that he and AIM Healthcare founder Sharon Mitchell had been in discussions with the agency to try to resolve the situation, but that it was too soon to predict how those negotiations would end. Cambria said that he was appealing existing citations on First Amendment grounds, and would not rule out litigation if talks with the agency broke down.

Later, attorney Clyde DeWitt, declaring "This Cal-OSHA stuff is nuts," added that the agency already has a web page listing its requirements for adult productions, and providing a form where anyone can file a complaint … and noted that he's aware of at least one case where the agency is claiming international jurisdiction over an adult production.

"This is an extremely dangerous area," Cambria agreed.

A lively question-and-answer period followed Cambria's presentation, and to no one's surprise, several of the questions revolved around the 2257 regulations. Audience members wanted to know where producers stood legally in light of the Sixth Circuit ruling, and Sirkin noted that for Free Speech Coalition members, the injunction in the organization's Colorado lawsuit was still in place, but Cambria warned that "it would be very unwise" for anyone to rely on the Sixth Circuit decision and stop keeping talent records. Cambria also recommended that any producers who were considering using third-party recordkeepers should make sure that the indexers work with the producer's attorney to make sure that if the recordkeepers found any violations, that such information would not be able to be used against the producer in future litigation.

One content producer expressed concern about providing identification information about her performers to secondary producers, and Cambria said he shared her concerns about performers' privacy rights.

The 2257 discussion led Sirkin to mention the Michael Williams virtual child porn case that had recently been argued by a non-First Amendment attorney in the U.S. Supreme Court, which pointed up the need for First Amendment attorneys to be involved in all cases that could affect the future of the adult industry.

Inevitably, the subject of the infamous "Cambria list" came up, with Cambria called upon once again to explain that the "list" had only been meant as a guideline of what subjects had most frequently been prosecuted in the past, and that in any case, his original list had been expanded by his client into something that he himself barely recognized anymore. Sirkin added that it would be virtually impossible to come up with a comprehensive list of "prosecutable" subjects.

In response to a question about whether the feds were "forum shopping" for obscenity prosecutions, Cambria refused to venture an opinion, but noted that, "We believe there should be a national standard" for what constitutes "obscenity."

The seminar lasted its full 90 minutes, and at its conclusion, many of the approximately 200 attendees crowded to the front of the room to continue asking questions of the attorneys … and most will likely return for Friday's legal seminar as well.