Government Files Trial Brief in Goldman Obscenity Case

NEWARK, N.J.—U.S. Department of Justice attorneys Bonnie Hannan and Pamela Satterfield yesterday filed their trial brief in the case of United States v. Barry Goldman, claiming that three DVDs allegedly sent by Goldman to undercover FBI agents in Virginia and Montana contained obscene material.

The movies in question are Torture of a Porn Store Girl, Defiant Crista Submits and Pregnant and Willing, which were allegedly mailed in a package bearing a return address of "B. Goldman" in Jersey City, N.J.

Since it has reportedly been several years since a federal obscenity case has been tried in New Jersey, Hannan and Satterfield have used the brief to set forth what the government believes are the benchmarks of obscenity prosecution, including an overview of the test derived from Miller v. California, as well as their definitions of certain "terms of art" in obscenity law. The brief also anticipates some defenses Goldman's attorney, Lisa Mack, may use at trial and attempts to foreclose some of the defendant's possible defenses.

Of interest is the government's admission that, in deciding the "prurient interest" prong of the Miller test, the jury should consider whether the "dominant theme" of the charged videos would appeal to a "shameful or morbid interest[] in nudity, sex or excretion" of the "deviant group" to which the videos were targeted.

"Thus, material can have prurient appeal to some even when it repulses others," the brief claims. "There is no requirement that the average person be sexually aroused by the material. What matters is that the material is intended to appeal to a prurient interest, not that it is successful in accomplishing its goal. Also, it is important to note that the jury does not determine whether the material would appeal to the prurient interest of the average person. Rather, the proper inquiry is whether the average person, applying contemporary community standards, would find that the material appeals to a prurient interest, that is, someone's prurient interest."

In other words, the prosecutors are asking that the court require a jury of presumably average citizens to speculate as to what would arouse a "shameful or morbid interest" in the minds of bondage and dominance aficionados, when it's likely that the jury would have no clue as to what play interests B&D fans, nor what depictions those fans would consider to be "beyond the pale."

On the other hand, when it comes to the question of whether the charged videos are "patently offensive," the government has no problem using the contemporary community standards of the average person to determine that prong, even though the average person would likely have no interest in such videos.

Still more confusing, the government claims that, "it is not the type of sexual conduct, but rather how it is portrayed, which will render the material obscene." So these average citizen-jurors are now supposed to figure out not whether any bondage or dominance depictions are patently offensive, since the type of conduct is not at issue, but rather whether the specific depictions of bondage/dominance in the charged videos are somehow worse than any other B&D portrayals, none of which the jurors are likely ever to have seen. And on top of that, the prosecution seeks to prevent those jurors from seeing any comparable B&D videos which may be readily for sale in the community, claiming, "The availability of similar materials in the community, however, does not make those materials automatically admissible to prove the non-obscenity of the charged materials," because "the danger in admitting allegedly comparable materials in an obscenity trial is that this evidence will 'create more confusion than enlightenment in the minds of the jury.'"

In other words, "Take our (your government's) word for it: This stuff is worse than everything else available in the local market."

The government's attempt to ban comparables goes hand in hand with its claim that, "Contemporary community standards are set by what the adult community accepts, not what a community will tolerate, put up with, permit or allow." As far as Hannan and Satterfield are concerned, it doesn't matter that DVDs similar to the charged videos may be freely available at adult outlets in the District of New Jersey, because as the Supreme Court ruled in U.S. v. Pryba, "[t]o consider community toleration as synonymous with what a community will put up with skews the test of obscenity and invites one to consider deviations from community standards, because a community can be said to put up with a number of disagreeable circumstances that it cannot stop." (Like overreaching obscenity prosecutors?)

And yet, in another section of the brief, the government argues that "expert testimony is not required in obscenity cases because the films are 'the best evidence of what they represent.'" But analysis of the videos themselves are hardly the only relevant evidence an expert could relate; he/she could also easily opine that what the community will "tolerate" is in fact hardly different from what it will "accept," given that it is legal throughout the country to sell sexually-explicit movies, and the local citizens are free to buy or not buy such products at their discretion.

Early in the brief, the prosecutors lay out what they say is a "statement of facts," which includes the admission that two FBI agents either called Goldman on the phone or emailed him to order the charged videos to be sent to them, or in one case, to see the videos' box covers by going to a particular website.

Bearing those admissions in mind, it's difficult to understand why the government later argues that "evidence of pandering is admissible," and that "the government is allowed to present evidence to the jury of the circumstances and methods the defendant used to create, market, promote or disseminate the obscene materials," when clearly, the FBI itself sought out the material and tricked Goldman into sending it to them.

Finally, in an attempt to shortcut Goldman's attorney from arguing, as several prominent First Amendment attorneys have, that the U.S. Supreme Court's decision in Lawrence v. Texas recognizes a "right of sexual privacy," and that the Fifth and Fourteenth Amendments guarantee a right of "substantive due process" regarding the sale of sexual material to "consenting adults," the government here argues that those don't matter, because "Federal obscenity laws prohibit the interstate transportation of obscene material to any person, whether that person is an adult or child, even where it may be feasible to implement safeguards against exposure to juveniles and to passersby."

Of course, even federal statutes passed by Congress can't violate constitutional rights, despite the Supreme Court's previous (incorrect) decisions that they can, at least in the area of obscenity law—and this is despite the Supreme Court's own holding in Stanley v. Georgia that citizens have a right to possess obscene material in their own homes.

Perhaps this federal district court will be able to figure out how this legal-at-home obscene material is supposed to be created in the first place, and once created, how it's supposed to get into the home in order to be transformed from an illegal sale to a legal possession. The world of adult entertainment eagerly awaits that revelation!

Significantly, despite the fact that the caption of the case lists the defendant as "Barry Goldman dba Torture Portal dba Masters of Pain dba Bacchus Studios," the trial brief makes no mention of the fact that neither of the websites it seeks to forfeit through Goldman's conviction— and—are registered to Goldman. Perhaps they'll wait for the actual trial to clear up that discrepency.

In short, there's no shortage of issues that can be brought up at Barry Goldman's trial, which is unlikely actually to start on its planned Oct. 27 trial date. But check back with for future updates as both sides of this case begin to lay out their strategies.