Judge Denies Stagliano Motion To Dismiss (v2.0)

WASHINGTON, D.C.—After considering defense motions to dismiss for more than a year, today U.S. District Judge Richard J. Leon has denied the motions to dismiss filed by attorneys for John Stagliano, John Stagliano, Inc. and Evil Angel Productions.

"He's just given some reasons very generally on the record, and he's going to give out a much more formal opinion within the next three to four weeks, so we'll just have to see from there," said First Amendment attorney H. Louis Sirkin. "He's not said any other thing. He wants to formalize it. We're going to get a copy of the transcript, and it'll probably take a week to 10 days to get that. Nothing has really been completely set yet."

However, although Leon denied the defendants' motions to dismiss, he suggested from the bench that it might be a good idea for the defendants to file an interlocutory appeal from his ruling once they see the particulars of it when the judge formally issues his opinion.

"He said we should be thinking about that between now and the time he issues the written opinion," Sirkin explained. "And if he granted the motion to certify, that would obviously take it into the D.C. Circuit Court of Appeals on the issues that we raised in the pretrial motion to dismiss. He didn't want to consider any of the other outstanding motions, saying that he still thinks that's premature. If he doesn't allow us to do the interlocutory appeal, then he said we can deal with those other issues and talk about setting a trial date, which at the earliest would probably be the summer."

Questions had been raised late last week about why Judge Leon had denied requests by attorneys to appear by telephone, and why he wanted all counsel as well as John Stagliano himself present in court for this hearing.

"He was very, very pleasant about all of it," Sirkin said. "He emphasized that he feels that this is sort of a special case, in the sense that he's been on the federal bench for eight years; it's the first time there's been an  obscenity prosecution here, and he indicated that he thought his ruling today would be important enough for us to all hear it coming from him, and so that he could express some of his feelings about the importance of the issues that have been raised."

Although the judge apparently did not mention in his ruling from the bench just which issues from the motions to dismiss he felt might be ripe for pretrial consideratiion by the Court of Appeals, three main areas of dispute stand out: 1) Which "community" will form the basis of the jury's consideration of the allegedly obscene internet trailer, for Belladonna's Fetish Fanatic 5, when it comes to assessing the "contemporary community standards" to be applied; 2) Whether, after the Supreme Court's landmark decision in Lawrence v. Texas, there still exists a legal basis to criminalize the consensual sale from one adult to another of any sexually explicit material that doesn't involve minors; and 3) How adult content producers will, in the future, be able to copyright their works, since they must mail copies of those works to the U.S. Copyright and Trademark Office, located in the District of Columbia, and in so doing, would expose themselves to possible prosecution for mailing obscene material into the District.

According to a post on the Blog of the Legal Times, however, Judge Leon reportedly had some harsh words regarding the defendants' legal issues.

"He [Judge Leon] said that the federal obscenity statutes provided 'sufficient guidance to Internet publisher,'" wrote correspondent Jordan Weissmann, "and that the right of two adults to have a consensual relationship was vastly different from the right to own an adult video."

"The liberty interest the defendants claim pales in comparison to the liberty interest announced in Lawrence," the judge said.

"The definition of the 'community'—he acknowledged that the Supreme Court discussed that issue in ACLU I [COPA I], that in and of itself, that wasn't enough to throw the statute out," Sirkin added. "In ACLU, even though there was a splintered opinion, he talked again about the context and what the community would be, but he didn't blow us off and he really showed a great deal of sensitivity to the issues and he understands that these are issues that needed someday to be really affirmatively resolved by the upper courts. He said the substantive due process—he didn't blow us off and say, 'You guys are crazy'; he said that dealing with one thing, sexual behavior in private by homosexuals basically is what Lawrence dealt with, and his opinion didn't say that public morality wouldn't be sufficient to be the rationale for the public dissemination of obscene material, because obscene material is not protected in and of itself."

Sirkin noted that the substantive due process issue has not previously been dealt with in the Third Circuit, recalling that in the Extreme Associates case, Judge Gary Lancaster had based his initial dismissal of the charges on Lawrence, but when the Third Circuit reinstated the charges later, it did not deal with any of the substantive issues raised in the dismissal order; it merely castigated Lancaster for assuming that the Supreme Court would apply Lawrence to sales of obscene materials to consenting adults, saying that he had overreached in dismissing the case.

One outstanding defense motion which was not ruled upon today seeks to discover whether the U.S. Department of Justice had previously attempted to have the same defendants indicted in the Commonwealth of Virginia, and other information about such an attempt.

"He put all that aside," Sirkin said. "He just wants to get past this hurdle."

Judge Leon did not set any firm scheduling dates during today's hearing, but indicated that after his written opinion is released, the defense could filed its interlocutory appeal if it chose to do so; that the government would then have two weeks to reply to the notice of appeal, and the defense would have 10 days after the Justice Department filed its response to file a brief dealing with the points raised by the government.

"We have to wait for him, and in the meantime start doing some serious research into what are truly our rights in doing an interlocutory appeal on these issues and his ability to be able to certify them," Sirkin said. "He made no definite commitment on that; he wants to see what our motions look like, and if we file a motion for that after he files his written opinion, then he'll set it down for oral argument on the motion to certify."