Legalese: Putting the Evil Angel Obscenity Prosecution in Perspective

In light of the Stagliano/Evil Angel trial, it perhaps is a good time to take a step back and put all of this in perspective. It is a sad state of affairs.

First and foremost, every reader of this publication owes a debt of gratitude to John Stagliano for handing the government a well-earned “fuck you” and standing up for the First Amendment. It can be proudly said here that John, a fellow Chicagoan and Cubs fan, has long been regarded as a dear friend. The only scar in a wonderful longtime relationship is that the Cubs lost on the last outing at Dodger Stadium. John and Karen are wonderful people and should be greeted with a round of applause wherever they go.

This column long has described obscenity prosecutions as acts of terrorism against the First Amendment, and for good reason. And to explain why, it is back to basics.

In Constitutional Law 101, every law student learns that regulations of speech based upon content are presumptively invalid, and can be sustained only when the “strict scrutiny” test can be met. What that means is that the regulation is invalid unless the government can establish that it is the least restrictive means of dealing with a compelling governmental interest. For example, for obvious reasons, the test can be satisfied for regulations that prohibit disclosing troop movements in wartime, yelling “fire” in a crowded theater (unless the theater is actually on fire), and selling child pornography. As to the latter example, the Supreme Court said that prohibitions against visual depictions of minors engaged in sexual activities consisted of the least restrictive means—because it was limited to visual depictions of actual minors—as well as furthering a compelling governmental interest: protecting minors from sexual exploitation that would follow them around for life.

So, you might think, obscenity regulations should be required to pass the strict scrutiny rules. Nope! In 1973, the Supreme Court handed down the single deviation from the strict scrutiny rule, in a 5-4 decision. What had been in place up to then was the Roth-Memoirs test, which started out with the 1957 Roth v. United States case. The Supreme Court’s decision in Roth said, in essence, that sexy speech could be regulated only to the extent that it was so worthless as to not be speech at all. The Supreme Court ate holes in that to the point that, by 1973, it was not difficult for the Court to reach the unprincipled decision that it did in Miller v. California.

The Miller test is a far cry from strict scrutiny. Without getting into the particulars of it, suffice it to say that, for any speech that is sexy—including the sacred printed word—it can be found obscene if it is too sexy for community standards and lacks serious value. And since a jury can rarely be convinced that anything sexy has serious value, it amounts to 12 people who could not find a way to evade jury duty deciding what is OK with them. What in the world is the compelling governmental interest in preventing people from watching in their own bedrooms what might offend the average local citizen?

In the final analysis, the Miller test amounts to a jury deciding whether the materials are too sexy for the community. Can you find out in advance whether something is obscene in a given locale? No. If you are a national distributor or deliver adult entertainment over the internet, are you responsible for knowing the community standards everywhere? Yes. Is the obscenity standard so subjective that two juries in the same city might arrive at different results for the same movie? Not only is that theoretically possible, it has happened. That’s right! In the early 1980s in Houston, they had a trial for the poor guy who was the projectionist at an adult theater when the cops watched the movie. Then they had another trial for the projectionist who was there when the cops seized the movie. One guilty; one not guilty.

Now, let’s not overlook what is at stake here. The two projectionists noted above were facing misdemeanor convictions and likely only fines. But when the feds get involved, it is a whole different kettle of fish.

When Republican administrations have been in power over the past 30 years, they have gradually enacted laws increasing punishments for federal crimes in general—and obscenity in particular. As it stands, a typical federal obscenity defendant is facing three to four years in federal prison if convicted. Max Hardcore’s 46-month sentence is not at all out of the range that can be expected for a conviction.

Now, the Constitution requires that criminal laws generally be sufficiently specific so that the citizenry can know in advance what is legal and what is illegal. Once again, obscenity laws provide an exception to the rule. If you are in what the Supreme Court has termed the “dicey” business of distributing erotica, because of the “dim and uncertain line” between First Amendment protection and the hoosegow, you take your chances.

Explaining all of this to a British attorney once brought about a predictable response: “You have got to be kidding!” And he was right.

Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected] More information can be found at This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.

This article originally ran in the September 2010 issue of AVN.