Stanley v. Georgia v. John DeNitto

WINTER HAVEN, Fla.—At the risk of appearing to have succumbed to the siren song of the corrupted media beautifully dissected in Charles Pierce's Idiot America, AVN must apologize to Florida antique dealer John DeNitto.

AVN's gaffe? We believed local newspaper reports which had accused DeNitto of manufacturing obscene material—and which had implied that he'd photographed underage girls in sexually explicit situations.

As it turns out, the child porn allegations are complete horseshit, while the obscenity laws under which DeNitto actually was charged appear to be unconstitutional.

"It started out as a child pornography investigation, which I'm totally against that type of thing," DeNitto told AVN in an exclusive interview. "So when they came in here and served a search warrant, I said, 'Hey, I'm happy to cooperate with you.'"

Eight hours later, when the police finally stopped rummaging through DeNitto's store and home, he was somewhat less happy.

"They knew, the day they arrested me, that there was no child porn," DeNitto said. "They were in here and in my house for hours and hours. They got here at like 11:30 in the morning and I was here until like 7 o'clock at night and then they decided to arrest me. In all that time, they never found any child porn. They got a confidential informant who's got a lengthy drug arrest record, and she has just been rearrested. She is back in jail. It's the second time she's been arrested since she acted as an informant against me, and she's done it against several other people too, mostly in drug situations. They're going crazy down here."

"Down here," of course, is Polk County, Florida, whose current sheriff, Grady Judd, appears to crave national attention—and who, according to First Amendment attorney Lawrence Walters, seems to think that "pornography," "obscenity" and "child pornography" are interchangeable terms.

"My hobby was taking pictures of nudes," DeNitto admitted. "We did do videos and stuff like that, but nothing was ever sold; it was always for my own use, and up until that day, nothing had ever been seen outside of the people that were involved. I had a little sign on the counter of the store that said, 'Models wanted; hourly pay,' and if somebody asked about it, I would tell them about it. And it was actually just for classical nude photos. If something else happened—people weren't compensated for that. If it happened, it happened, and the majority of times, it didn't. That's why out of thousands of photos and hundreds and hundreds of videotapes, they found objectionable material on six tapes."

Three of the charged tapes were labeled "Anal Exam," and depicted women having their anuses probed with a finger, while the rest were simply women standing on a pedestal and talking about their bodies.

And none depicted children.

"I checked IDs on everybody; everybody," DeNitto assured. "If they looked young, I got a picture of their ID. And they said I sold the tapes. I never did. And in discovery, they could find no such places [where they were sold]. As far as giving them away, to the people who participated, if they wanted a copy, yes, I would give them copies."

"To me, it was a vendetta," he continued. "They smeared me in all the newspapers with the child pornography allegations, and only in one of the newspaper accounts at the time did a reporter ask and get an answer, 'Well, did you find any evidence, any photos, any films with children?' And the sheriff sent the spokesperson there who said, 'No, but the investigation is still ongoing.' The simple fact is, they thought they would find something and when they didn't, they turned it from a kiddie porn case into an obscenity case. And I'm scared to death, because I've never been in trouble for anything."

And apparently despite the U.S. Supreme Court's ruling in Stanley v. Georgia that Americans have the right to possess sexually explicit, even obscene, material in their own homes, Polk County has charged DeNitto with six counts of manufacturing obscene materials and one count of felony wholesale promotion of obscene material.

One would think DeNitto's defense would be a slam dunk. First Amendment attorneys have been arguing for the past six years that in light of Stanley, the Supreme Court's decision in Lawrence v. Texas means that private consensual sales of even obscene materials that don't involve minors should now be legal. Even though most federal courts have rejected that argument—Judge Gary Lancaster in the Extreme Associates case was the notable exception—no one has challenged Stanley's holding on possession of the material, so that begs the question that should be primary in DeNitto's case: If citizens can own obscene material but apparently aren't allowed to buy it, how are they supposed to get it if not by making it themselves?

"Stanley is a very limited ruling," cautioned Walters, who's consulted with DeNitto's defense attorney. "In a number of other cases that have come close to this, the Stanley situation where somebody is downloading, for example, obscene material into their computer in their home, they're charged with receiving obscene material, so we've struggled with how Stanley could really ever protect anybody, because you have to either produce it or get it to your home somehow. But there are production statutes in Polk County, and those haven't been challenged; that wasn't the situation or the evidence in Stanley. So the question is how broad is Stanley? And if you read it, it is a fairly narrow situation and has been expanded at least by the lower courts beyond its facts; I don't know what the Supreme Court would do. My guess is, it wouldn't do anything to expand Stanley."

"I think DeNitto has all kinds of defenses," he continued. "I've met with him and his lawyer and I was preparing to attend the trial. We're following it very closely because the material involved is very tame; it's just him taking pictures of these girls, and them [the girls] ultimately engaging in sexual activity on occasion, and he's taken the position that this was his private material and for his personal use; he never made it for sale; there was no underage involvement, and so it's very close to the edge. One of the other problems is, this [material] was not made in his home; this was at a commercial location, so Stanley's protection for personal possession in the home wouldn't necessarily apply in the business. So there's all kinds of distinctions that could be drawn."

A pretrial hearing had been set for September 14, but upon motion from DeNitto's attorney, John Ligouri, a hearing on the pretrial motions is now scheduled for November 3.

"In discovery, it says they were looking at me since 2005," DeNitto noted. "You know, they send plants in here every once in a while to try to throw me off. They're trying to get something on me. I should be a billionaire with all the crimes I've committed. I even heard they were trying to set me up for a RICO charge. That sheriff is just always trying to get coverage on TV. I didn't even know what the last sheriff looked like and he was in there for 12 years. This guy is still in his first term and you see him every day on TV."

AVN will be following DeNitto's case closely, so check back to this site for further developments.