Stagliano Indictment Raises Unique Questions Regarding Minors' Internet Access

WASHINGTON, D.C. - AVN has received a copy of the eight-count indictment filed yesterday against John Stagliano, John Stagliano Inc. and Evil Angel Productions Inc., charging the usual offenses of "transportation of obscene matters for sale or distribution," "using a common carrier or interactive computer service to transport obscene matters," and "engaging in the business of selling or transferring obscene matter," plus, of course, "criminal forfeiture."

The movies in question are Milk Nymphos, Storm Squirters 2: Target Practice, and the trailer Fetish Fanatic Chapter 5.

One charge, however, that hasn't been seen before in a case involving adult material accessible from a Website is under Chapter 47 of the United States Code, Sec. 223(d), "sending or displaying offensive material to persons under 18."

That section reads, in pertinent part, "Whoever, in interstate or foreign communications, knowingly ... uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that is obscene or child pornography, regardless of whether the user of such service placed the call or initiated the communication; or knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18 or imprisoned not more than two years, or both."

Sec. 223 was originally part of the Communications Act of 1934 and has since been amended, and it forms the basis of a U.S. Supreme Court case known as Sable Communications of California v. Federal Communications Commission (FCC). In that case, which was decided in 1989, just as the Internet was beginning to become available for public use, and long before adult Websites even existed, the Supreme Court ruled:

"Section 223(b) does not unconstitutionally prohibit the interstate transmission of obscene commercial telephone messages. The protection of the First Amendment does not extend to obscene speech. In addition, 223(b) does not contravene the 'contemporary community standards' requirement of Miller v. California, since it no more establishes a 'national standard' of obscenity than do federal statutes prohibiting the mailing of obscene materials or the broadcasting of obscene messages. There is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others. Sable, which has the burden of complying with the prohibition, is free to tailor its messages, on a selective basis, to the communities it chooses to serve." [Citations removed here and below]

That same ruling, however, did find that the statute's prohibition against indecent telephone messages was unconstitutional, "since the statute's denial of adult access to such messages far exceeds that which is necessary to serve the compelling interest of preventing minors from being exposed to the messages."

Sec. 223(d) essentially translates the language of Sec. 223(b) to apply to "interactive computer services," also known as the World Wide Web. The Supreme Court has not yet ruled on that section of the law.

In the present case, the indictment charges, in Count Seven, that, "[o]n or about January 21, 2008, in the District of Columbia and elsewhere, defendants John Stagliano, John Stagliano, Inc. and Evil Angel Productions, Inc., aided and abetted by each other, knowingly used an interactive computer service to display an obscene image, that is, a motion-picture trailer identified as 'FETISH FANATIC CHAPTER 5,' in a manner available to a person under 18 years of age."

"Forty-Seven U.S.C. Sec. 223 is the 'dial-a-porn' law, and let me tell you what I think is up here," offered prominent First Amendment attorney Greg Piccionelli, whose practice deals extensively with the adult Internet. "COPA [the Child Online Protection Act] was ruled unconstitutional in the Third Circuit, and this administration has to deliver some prosecutions, and it has to do so, I predict, in a way that shows that it's 'protecting the kids.' Well, if it's pure obscenity - that's consenting adults to consenting adults - that's not politically real good for them. Twenty-two fifty-seven [the recordkeeping and labeling law], which is also arguably a 'protect the kids' thing, currently is in a lot of trouble because of what went down in the Sixth Circuit, so if they want to say, 'We're doing this to protect the kids,' then they should have had a 2257 count at the very least, or a child pornography count. Well, they don't have that available to them; all of this material is labeled correctly and there aren't any kids in them. So how about a 'protect the kids from harmful matter' charge? Oops, can't do that either because all of those laws [CDA and COPA] are unconstitutional except for one; the one that started the whole regime of taking the credit card to access the web to begin with."

 "Back in '95 and '96, before the CDA [the Communications Decency Act], my partner Bob Sarno and I had to counsel our clients, and we said, 'Gee, the Internet is effectuated by telephony means, so the dial-a-porn laws could conceivably apply here.' So we told all of our clients, 'Get a credit card [number] before you let people get into the hardcore stuff,' and that's the way the business was for many years. As a matter of fact, it spawned the whole AVS [adult validation system] regime, right? Now, assuming the government wants a 'protect the kids' count here, what the hell are they going to do? What they did is, they went back to the dial-a-porn laws."

Piccionelli noted that this is the first case in which the government has attempted to use 47 U.S.C. Sec. 223(d) to target adult material on the Web, although the law has been on the books for several years.

"[This case] begs the question, why didn't the government do this before?" Piccionelli asked rhetorically. "Why did Congress feel compelled to have to pass the CDA and then COPA? Because most constitutional scholars would say that the dial-a-porn laws are probably not the right vehicle for the Internet since they were passed before the World Wide Web, right? So what does that mean? It means that Allan [Gelbard] or whoever else is going to represent Stagliano has got an appeal on their hands, because what's likely to happen is that there's an interlocutory appeal to say that this count's got to go away? Why? It doesn't apply to the Internet. Oh, yes, it does, says the government, and so the judge will probably rule in favor of the government - but even if it doesn't, it's going to go up on appeal to the D.C. Circuit. Oh, now we know why they filed it in D.C.: Because the D.C. Circuit is the most conservative circuit in the country for regulatory issues, especially communications law issues."

Piccionelli believes that the government is anxious to have a federal appeals court say that 47 U.S.C. Sec. 223(d) applies to adult Websites in part because of a case that his firm is handling on appeal, U.S. v. James Schaffer and Jeffrey Kilbride, the first conviction of adult entrepreneurs under the CAN-SPAM Act.

Piccionelli was able to get the defendants in that case out on bail, in part by arguing that the obscenity provision of the CAN-SPAM Act was unconstitutional, because with respect to his clients' emailing activities, a national standard for obscenity should have been used to decide the case, rather than a local one, as the trial judge had instructed.

Much to Piccionelli's surprise, since he had estimated that his appeal had "less than a 5 percent chance" of success, he got back a ruling from the Ninth Circuit Court of Appeals which read, in part, "by clear and convincing evidence ... the appeal raises a 'substantial question' of law or fact that is likely to result in reversal, an order for a new trial, or a sentence that does not include a term of imprisonment on all counts on which imprisonment has been imposed."

"The government knows this too; they've received the same order from the Ninth Circuit," Piccionelli explained. "So what they are doing is setting up another case in the most conservative appeals court which will come out the other way; that will set up a classic split in the circuits that will have to go to the Supreme Court. And they've got to do it fast before the Supreme Court's complexion changes under Obama or Clinton, see? So that is what is really underlying all of this; which is why they brought it, in my opinion, in D.C.; the only reason it's in D.C. is because they want that D.C. Circuit appeals court to set up a split in the circuits on the community standards issue, because they're battling us in the Ninth Circuit, where we're probably going to win, and they're also rolling the dice here with the dial-a-porn law trying to claim that it applies to the Internet. This is big-time stuff. This is a titanic battle the way they've set this up. It may very well be that they have figured out what their necessary play is here."

"What we believe is that when there is Internet distribution of material, the community should be the whole country," Piccionelli continued. "Tiny little communities should not be allowed to drive Internet commerce... so the government now wants to have, in a conservative appeals court, a contrary ruling so that they can get this thing to the currently configured Supreme Court before it gets any more liberal. That would be the way they could ensconce the continuing community standards rather than a national community standard, which would be a big defeat for the religious conservatives because everything's moving to the Internet; a national standard would just about eviscerate obscenity prosecutions for all time; it will be the end of the religious right being able to moralistically say 'that's obscene' and 'that's not'."

What Piccionelli intends to argue in the Schaffer/Kilbride appeal is that the Supreme Court's test for obscenity, as reflected in its decision in Miller v. California - which test, incidentally, was taken largely from his partner Robert Sarno's original brief for petitioner Marvin Miller - is outdated; that back in 1973, when the Miller decision came down, the Internet was barely a glint in some computer programmer's eye, and that the "community standards" prong of the Miller test cannot stand against the modern reality of the World Wide Web, which makes almost any material accessible almost anywhere in the world.

As things currently stand, the government can "shop" for a conservative venue in which to bring its obscenity case, although Piccionelli argues that in the modern world, there are no actual local standards, at least for Internet content - a position consistently taken by the Third Circuit Court of Appeals in the COPA case, and one which Piccionelli believes will eventually be upheld even by the current Supreme Court.

"I think what this case is, is a set-up for a titanic battle over two major constitutional issues," Piccionelli summarized. "One is, can they use 47 U.S.C. Sec. 223 to resurrect what COPA was supposed to do, and number two, can they use this case to get an appeals court ruling that the community standards in itty-bitty communities still stand in the age of Internet commerce, to stand as a buttress for the government against what may very well be the ruling in my case, which will be that the Ninth Circuit adopts a national standard."