Stagliano Responds to DOJ's Attempts to Squelch His Speech

WASHINGTON, D.C.—One of the interesting things about the law is that even when one party files a motion that seems to have come completely out of left field, the other side nonetheless has to respond—and that's what the attorneys representing John Stagliano have done with the Justice Department's attempts to restrict what Stagliano can say at his as-yet-unscheduled trial.

As AVN has previously reported, federal prosecutors Channing Phillips and Pamela Satterfield recently filed a Motion in Limine aimed at restricting some of the evidence defendants Stagliano, John Stagliano Inc. and Evil Angel Productions might introduce at trial; notably, an interview that Stagliano gave for as well as statements he made in an interview with the Los Angeles Times.

But while this is certainly the time for pre-trial motions, the last of which before this one were filed over 10 months ago, as the defense attorneys point out, "the government’s motion could not possibly be a serious attempt to exclude evidence from trial, for a trial is neither scheduled nor imminent," and go on to note that the defense's Motions to Dismiss the indictments, filed on October 30 and 31 of last year and argued in November, have not yet been ruled upon.

Instead, the defense suggests, the government may have a "more pernicious motive" for filing the Motion at this time.

"[T]he motion appears to be a thinly veiled attempt to discourage Stagliano from speaking openly about his business, his personal and political beliefs, and to preclude him from testifying in general," the Defendants' Response to Government's Motion in Limine reads.

"There's a concern that this is an attempt to let John know that the government is watching him and his public statements and to discourage him from making those kinds of statements in the future," said defense attorney Jennifer Kinsley. "And certainly, he has a constitutional right to speak about his political beliefs and what he thinks the law should be and how he feels as a human being going through this situation. He's very articulate and has some very well-settled, well-formed and well-thought-through opinions about obscenity laws and free speech."

The Response goes on to argue that even though the Government's Motion is premature, it should nonetheless be denied since it appears to be an attempt to preemptively squelch Stagliano's political views about free speech in general, and specifically about the federal obscenity laws.

"Particularly in an obscenity case, what the government characterizes as Stagliano’s personal opinions are in fact evidence that a crime was not committed," the Response says. "Stagliano's testimony as to the artistic value of the material is undoubtedly relevant to the third prong of Miller [v. California] and therefore would be admissible for this purpose. So too are Stagliano’s statements as to his knowledge of the character and content of the material relevant to the required mens rea for obscenity.  As Smith v. California makes clear, Stagliano cannot be convicted of obscenity offenses if he was unaware of the nature of the material he allegedly distributed. As such, he may clearly testify as to his knowledge and beliefs as to the character and content of the material." [Citations omitted]

That last argument is in direct response to the government's claim that Hamling v. United States would preclude such a defense on the ground that, "To require proof of a defendant's knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law." As such, the Stagliano case might provide a venue for the overturning of Hamling as a violation of the established legal precedent in almost all other crimes that the defendant performed the alleged illegal actions with a "guilty mind."

As for why the government's Motion in Limine was filed now, and in a sense, "out of the blue," Kinsley said that such actions are not uncommon.

"The case has been dormant since shortly before Thanksgiving of '08," Kinsley reminded. "Lawyers frequently, if there has been a period of inactivity on a case, will think of a way to send a gentle reminder to the court that the case still exists. That's not an infrequent occurrence in the law, that lawyers will do something like that."

In fact, one might say it's their duty to do so in a criminal case, since a defendant who faces over 10 years in prison has a right not to have such a fate hanging over his head while a judge is busy with other matters—even, as in Judge Richard J. Leon's case, when it involves the rights of detainees at Guantanamo Bay.