The Case Against Max Continues

SCOTTSDALE, Ariz. – James Dobson may have stepped down as head of the ultraconservative religious group Focus on the Family (FotF), but his legacy of intolerance toward sexual freedom lives on.

Recently,  FotF hired former Meese Commission counsel Alan Sears' conservative legal group, Alliance Defense Fund (ADF), to compose a "friend of the Court" (amicus) brief in opposition to the appeal of the convictions of Paul D. Little, better known to the adult world as Max Hardcore. That brief, with the consent of the Department of Justice (DOJ), was filed with the Eleventh Circuit Court of Appeals on March 31, and AVN has obtained a copy of the pleading.

Drawing heavily on the long-running "Alabama vibrator case" begun by retailer Sherri Williams, ADF attorneys Benjamin W. Bull and Patrick A. Trueman, a former DOJ obscenity prosecutor, argue that, "Lawrence [v. Texas, which legalized sodomy nationwide] did not create a 'pre-existing, fundamental, substantive-due-process right to sexual privacy.'" (That, of course, is self-evident: A "pre-existing right" can hardly be "created" by a later court decision.)

The ADF attorneys' statement was supposedly in response to appellant Little's claim, ably asserted by his attorneys H. Louis Sirkin and Jennifer Kinsley, that "practically all choices made by consenting adults regarding their sexual practices are a matter of personal liberty beyond the reach of government," and that therefore, Little should not have been convicted either of conspiring to send allegedly obscene videos to the Middle District of Florida, nor for allowing trailers for those videos to be accessible to subscribers from his website.

The appellant's position was/is based in the substantive due process rights recognized by the Fifth and Fourteenth Amendments to the Constitution – the same rights that forbade the Texas (or any) government from interfering in John Lawrence's choice of sexual practices – but the Lawrence decision goes even further in its opening paragraph, authored by Justice Anthony Kennedy: "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." [Emphasis added]

The ADF attorneys also quote from Lawrence, finding significance in the majority's finding that, "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," and from that deducing that, "The Lawrence Court explicitly eschewed the idea that the case involved public conduct, conduct in which an individual may be injured; and prostitution, strongly signaling its reasoning would not apply in those cases. In all these respects, obscenity is distinct from conduct in Lawrence." [Emphasis added by ADF]

"First, as noted above, this Court has recognized that commercial activity is inherently public and not private," ADF's brief continues, again referring to the Williams case. But this is clearly incorrect: No one had access to Little's posted trailers without first having purchased a password to the site, and no one saw the allegedly obscene DVDs except those who ordered them to be sent to a specified address – neither of which is truly "public conduct." And while there are many reasons why the Williams case was wrongly decided by the Eleventh Circuit, there's no question that it involved, at least in part, the public sale of vibrators in retail stores – quite different from mail-ordering a DVD. (The case also involved the private use of vibrators in the home, and therefore the decision violated the Lawrence dictum, but that part is not at issue here.)

Another fallacy promoted in the ADF brief is that people can be injured by watching porn.

"Pornography has been shown to contribute to violence in its viewers," the brief claims. "A study of two Australian provinces found that liberalizing pornography laws in one province resulted in a 284% increase in rape; during the same time period, another province that did not liberalize its laws experienced only a 23% increase in rape." The citation given is to an article, "Sex and Violence: a Ripple Effect" by John Court in "Pornography and Sexual Aggression," edited in 1984 by Neil Malamuth and Edward Donnerstein. However, a few moments' checking reveals that Court was hardly a disinterested researcher, but rather a "Christian psychologist" who, five years after the article's publication, went to work for Tabor College, an "evangelical charismatic theological institution." Moreover, in 1979, the UK Committee on Obscenity and Film Censorship dismissed Court's "evidence," and in 1990 Court was forced to admit, when pressed by the New Zealand Indecent Publications Tribunal, that there was no proven link between sex crimes and pornography.

Other researchers quoted to similar effect are Catherine A. Simmons, who interviewed residents of a women's shelter (with, apparently, no control group even attempted) and "found" that "male domestic violence offenders who utilize the sex industry use more controlling behaviors than male domestic violence offenders who do not"; Elizabeth Oddone-Paolucci and Claudio Violato, whose "meta-study" of the relationship between porn and violence managed to exclude all the Danish studies that showed a decrease in violence in males exposed to non-violent porn; and Neil A. Malamuth, who in 2007 stated, "The main focus of the present study was to examine the unique contribution (if any) of pornography consumption to men’s sexually aggressive behavior. Even after controlling for the contributions of risk factors associated with general antisocial behavior and those used in Confluence Model research as specific predictors of sexual aggression, we found that high pornography consumption added significantly to the prediction of sexual aggression. Further analyses revealed that the predictive utility of pornography was due to its discriminative ability only among men classified (based on their other risk characteristics) at relatively high risk for sexual aggression." (In other words, the only real predictive correlation between porn and sexual aggression was in men who were at "relatively high risk for sexual aggression" already.)

The ADF attorneys also take Sirkin/Kinsley to task for their Lawrence arguments because Lawrence allegedly doesn't protect "conduct amounting to prostitution." While that might be true in Arizona (where ADF is based) and many other jurisdictions, in California, where Little shot his movies, making an adult movie is not considered prostitution; hasn't been since 1988 when People v. Freeman was decided by the California Supreme Court.

Finally, regarding Lawrence, the ADF attorneys argue that the Eleventh Circuit shouldn't use Lawrence to overturn Little's convictions until the Supreme Court says it's okay. They prominently cite Agostini v. Felton, the same case the Third Circuit used in overturning the dismissal of the Extreme Associates charges by Judge Gary Lancaster.

Turning to the "community standards" issue, the ADF attorneys argue against using a national standard for Internet postings, claiming that "with new advancements in technological media, the Court has rejected a national standard." Trouble is, their cited case is Sable Communications, a phone sex case, where the Court allegedly "rejected a national standard because Sable was capable of tailoring his [sic] pornographic phone messages to the various communities he targeted." But phone calls can easily be screened by area code; Internet geo-locations can be hidden by any half-decent hacker. They also cite Nitke v. Gonzales, the challenge to the Communications Decency Act's obscenity prohibition, which the Supreme Court said was not overbroad – but also failed to say how adult Internet companies can overcome a determined user's attempts to block his/her physical location when attempting to access their adult material, nor whether incorporating geo-locators into their website software would be cost prohibitive. In fact, the amici shoot themselves (or their argument, at least) in the foot by noting that in the United States v. Thomas decision, it is "recognized that 'venue for federal obscenity prosecutions lies "in any district from, through or into which" the alleged obscene material moves.'" Considering how pervasive and ubiquitous the Internet is in America today, if that fact doesn't argue for a national standard, what does?

The following section of the amicus brief is humorous to those who've been following the Child Online Protection Act case from its beginning. In that case, which has been before the Supreme Court twice, both the government and amici like Focus on the family had argued that filtering technology was insufficient to protect children from seeing adult material on the Internet, and argued for blanket censorship of the 'Net as the only way to protect kids.

Here, however, the ADF attorneys cite Justice Anthony Kennedy's opinion in COPA II to the effect that filtering in fact trumps the Act's censorship as "the least restrictive means available to protect minors from online pornography" – and use that holding as an argument against what the district court and the Third Circuit twice held in COPA: That as applied to the Internet, the Miller test's reliance on "community standards" to define what is "obscene" is completely unworkable, since it would force the entire Internet to kowtow to the "heckler's veto" of the most conservative communities. But since Justice Kennedy's decision didn't rest on that Third Circuit finding, the amici argue that its truth is inapplicable to Little's case.

"In reality, the Third Circuit [in its second COPA decision] was careful to avoid placing major emphasis on community standards, having just been reversed by the Supreme court on that very issue," the amici claim. "Instead, the Third Circuit held that COPA's overbreadth was mainly due to its burdening of too much protected 'adult speech'."

"In reality," the Third Circuit's COPA II decision reiterated its "community standards" problem at every turn, and used it as a building block for its additional finding that COPA was overbroad – as the amici's own quote reflects! ("The 'community standards' requirement, when viewed in conjunction with the other provisions of the statute ... adds to the already wide range of speech swept up by COPA ... [making] the limitations that COPA purports to place on its own reach ... that much more ineffective.") The Third Circuit, even on reconsideration, never backed away from its finding that "community standards" were worthless in the Internet age.

And the amici's claim that "only three Justices have endorsed a national standard" applies only to the COPA decision and ignores history; notably, Justices William Brennan, Hugo Black and William O. Douglas, when they weren't condemning the concept of "obscenity" altogether, understood that piecemeal "community standards" were a roadmap for censors and deplored their use.

The amici claim that, "[i]ndeed, a majority of today's Justices likely agree with the District Court in this case when it called an Internet standard 'impossible to ascertain.'" But if that's the case – and it likely is – isn't that yet another argument for a "national standard" against which adult Internet providers can measure the strength of their content? And the amici's virtual deification of the "average person" upon whose tastes the "community standards" are based is an obvious fiction, and in no way "avoid[s] wholly subjective and personal opinions" about what's acceptable.

"The 'average person' is meant to be a generic synthesis of all the average qualities of people generally, much like the 'reasonable person' of tort and criminal law," the ADF attorneys write. But there's nothing reasonable about the "average person"; "average" is a question of taste, not intellect, and taste is no basis upon which to adjudicate criminal law.

"[A] 'cyberspace standard' would be unworkable because it would require jurors to reconcile the views of billions of people worldwide," the amici claim. "This intractable standard underscores the fact that the Internet is not a community of persons; rather, it is a technological medium. Just as there is no discernable 'cell-phone community,' there is no ascertainable 'Internet community.'" But with today's ever-increasing social isolation, where many people need not even leave their houses to shop, eat, work and entertain themselves, it's arguable whether a geographical "community" even exists. Hell, those "average" people, even ones who live next door to each other, don't even talk to their neighbors about sex!

Particularly laughable is the amici's claim that, "There is no evidence that juries across the United States vary wildly in applying the Miller test to hard-core pornography." Obviously, the amici want to ignore Paul Cambria's win in southern Virginia a few years ago, where he defended a Max Hardcore tape, Lou Sirkin's wins for retailer Elyse Metcalf and producers Jennifer and Alan Dute in Cincinnati, the string of acquittals Andrew Chatham scored in local obscenity cases in Dallas starting in 2004, and the jury that dismissed most of the charges against Five Star Video in Phoenix just last year.

The amici make similar arguments regarding Miller's "taken as a whole" standard, claiming that extracting five trailers – roughly eight minutes' worth of footage – from the hundreds of hours of material available on the Max Hardcore website somehow constitutes a "whole." They use a 1980 case, Penthouse International Ltd. v. McAuliffe, which found that any single issue of the magazine would be the "whole" for Miller purposes, and attempt to analogize a single trailer posted on a website to a complete issue of a magazine.

Even more outrageous, however, is the amici's contention that "the District Court was correct in holding that the 'taken as a whole' standard did not require the jury to view the entirety of all five videos in open court."

"This case requires the Government to prove that obscene materials were mailed as alleged," the amici state. "The Government does not have a separate burden to prove the obscenity of the materials, Once the videos are admitted, they are the best evidence of their own obscenity and speak for themselves. The prosecution may prove elements of the Miller test without any extrinsic evidence or testimony beyond the materials themselves. The jury is charged with the task of determining obscenity."

Talk about putting the cart before the horse: How could the jury possibly decide if the five Max Hardcore videos constituted "mailed obscenity" without viewing the DVDs to determine, first, if they were obscene? And how could it do that without viewing the movies "as a whole"?

"So long as the material is available to jurors during their deliberation, allegedly obscene material need not be shown in open court in its entirety," the amici claim, ignoring the fact that on the second day of testimony, one juror sent a note to Judge Susan C. Bucklew asking if it were actually necessary to show the movies in their entirety, or could the jury just view excerpts (as the prosecution wanted)? The possibility that that jury, left to its own devices, would actually view the entire movies in the jury room approaches zero. The prosecution knew it, Judge Bucklew knew it – and the amici can't help but know it as well.

The ADF/Focus on the Family amicus brief was filed on March 31, but at press time, the Eleventh Circuit had not yet scheduled oral argument in the Little case – but look for a report here when they do.