Polling the audience at the immensely successful Internext show revealed that about six of maybe a couple of hundred adult Webmasters in the audience came from any other facet of the adult entertainment industry. The rest of them - and, by extrapolation, probably a comparable 97% of the readers of this magazine - entered the erotic media industry for the first time by way of an Internet Website. That means probably 97% of you have come into this world well after 1992, and have never seriously faced the specter of experiencing first hand the inside of a jail cell. Well, prepare yourself for a shock. In a federal obscenity prosecution, generally the minimum sentence that a judge can mete out is over a year in Club Fed. And if things go badly for you, you could do a good deal more time than that and your entire business is subject to forfeiture. Since the new administration in Washington has raised the specter of federal obscenity prosecutions, it is time to talk about it.
The line between what is obscene and what is protected by the First Amendment has been acknowledged - even by the United States Supreme Court - as "dim and uncertain" and, by definition, varies from one community to another. We are not talking about child pornography, COPA, labeling-and-record-keeping, access by minors, or anything like that. We're talking about erotic materials depicting only consenting adults, delivered only to consenting adults and viewed only by an adult that wants to view them. But the Supreme Court has said - in its 1973 landmark Miller quintet of obscenity decisions - that if erotic material offends local community standards and is without serious literary, artistic, political or scientific value, then it is not protected by the First Amendment. The Miller test is a little more complicated than that, but for purposes of this month's article, you can assume that to be it. What is important is that, if erotic materials are not protected by the First Amendment, they can be regulated. And "regulated" means subject to seizures, huge criminal penalties, forfeitures and other ills. During the Reagan Administration, the Congress substantially raised the stakes for those in what the United States Supreme Court once described as "the dicey business of marketing films subject to possible challenge."
Anti-obscenity statutes exist in most every state, strongly supplemented at the federal level. They all embrace materially the same test for determining what is obscene and what is protected by the First Amendment - the test articulated in Miller v. California, described above. So how might one of these terrorist attacks begin?
Since there really have never been any Internet obscenity prosecutions, it is necessary that this story use brick-and-mortar examples to illustrate how obscenity prosecutions transpire.
At the state level, obscenity cases usually are brought by the local district attorney, city attorney, county attorney, or whatever agency acts as the prosecutor for criminal cases. Occasionally, statewide obscenity cases are brought by a state attorney general, but that is rare. Indeed, states seem to recognize the fact that, so long as obscenity - or not - is a function of local community standards, it makes sense for prosecution decisions to be made locally. The federal government has not always embraced that philosophy.
Local prosecutions generally arise from complaints by a group of local citizens, a sole complainer or an industrious vice cop. The prosecutions sometimes target specific categories of materials that someone in the vice squad thinks should be stopped. Other waves of obscenity prosecutions arose over the years in an effort to drive away local adult businesses. The latter category has diminished in view of the popularity of adult product in general video stores coupled with the great success that local governments have experienced in stifling adult businesses utilizing zoning, licensing and regulatory ordinances.
There is, of course, the question of whether local governments can regulate the Internet at all. There is an emerging body of case law which holds that the Commerce Clause of the National Constitution relegates regulation of the Internet to the federal government. Also, local obscenity prosecutions have for the most part (but by no means always) been targeted against local retail outlets, rather than, for example, mail order companies.
Federal obscenity prosecutions also can arise at two different levels. Once, they all emanated from the local United States attorney - there are more than ninety of them around the country; between one and four in each state. As an example, in the 1970s, the United States Attorney's Office in Memphis (infamous for obscenity prosecutions) indicted a list of people involved in the production and distribution of Deep Throat, which had found its way to that locale. However, during the Reagan Administration, the Attorney General augmented that with a centralized National Obscenity Enforcement Unit, which engaged in coordinated, widespread attacks on the adult video industry, first against mail-order companies and then targeting the Los Angeles video companies. All of that came to a close when Bill Clinton and Janet Reno took office in 1992.
The nightmare begins when you find out that there is an obscenity prosecution in the works. At the state level, this usually means that some employee is arrested or, in more civilized places, issued a criminal citation - and/or perhaps the execution of a search warrant. Typically, other than the purchase of a video or two, not much has happened in the way of police investigation before that event.
Federal obscenity prosecutions typically are predicated by more sophisticated investigations. They usually begin with undercover "buys," perhaps by a postal inspector or a dummy retail outlet. And this will not be, for example, in Los Angeles, where the target distributors are located. Rather, the cases inevitably are brought in far-away "communities" which tend to have profoundly more conservative standards. The spate of obscenity prosecutions in the mid-late 1980s were in places like Oklahoma City, Tallahassee, Memphis, Harrisburg and Dallas, for example.
Once the prosecutors have the materials in hand, a federal obscenity prosecution typically will move along to a thorough investigation to identify those at the bottom of the target business. Unlike local obscenity prosecutions, which most often have been against some poor store clerk who sold the X-rated video to an undercover vice cop, federal obscenity prosecutions typically have shot straight at the ownership and management of the company. Accordingly, first news that a federal obscenity prosecution is afoot often arrives when the target learns that the government is seeking to force testimony from lower-level employees. (They can accomplish that by "immunizing" their testimony, which is tantamount to agreeing not to prosecute them.)
Whatever it is that sends a signal that an obscenity prosecution - or any kind of prosecution, for that matter - is in the wind, the first thing that should be done is to employ a lawyer. This in itself can be tricky when employees are being targeted, because the lawyer who defends your employees generally cannot defend you. The lawyer strategy early-on is critical. Moreover, there are rare instances where early contact with the prosecution by an attorney might make the whole thing go away, or accomplish substantial damage control, nipping the problem in the bud. It does not happen too often, but it absolutely is worth the effort.
If both sides are doing it right, there should be two investigations going on at the same time. The prosecutor is investigating the target company and the target company's lawyers are investigating the community where the prosecution is looming. A local attorney should be on board, and investigation should be underway of what is and isn't cool there. Evidence that comparable materials have been widely consumed in the relevant community is good trial evidence - evidence that sometimes needs to be garnered before vendors take it off the market, having gotten wind of the prosecution.
In a federal case, the grand jury investigation often includes questioning of employee or ex-employee witnesses (under a grant of immunity) and the issuance of subpoenas for documents. A grand jury supposedly has two functions. One is to protect the citizens from unwarranted indictments; the other is to investigate crime. (Guess which is the real function of the grand jury.)
One of the problems which now exists is finding an attorney with any meaningful experience in defending obscenity prosecutions. As a result of the drying up of these cases over the last decade, there aren't many of us left. But this isn't just any garden-variety criminal case; it is very much a specialty.
The prosecution starts officially by an indictment, complaint, criminal information, or whatever instrument initiates criminal prosecutions in the relevant jurisdiction. And then, usually, arrests. What alone justifies retaining an attorney early in the game is to avoid sitting in jail while you are arranging for bail. If you are going to have to defend this nonsense, you at least should be able to avoid starting out in jail.
Once the accused(s) have either bailed out of jail or surrendered and posted bail, there is a first appearance in court, usually called arraignment. There, the defendant pleads not guilty (that can be changed later) and the judge establishes a schedule and accomplishes other housekeeping functions.
Next, both sides file pretrial motions, usually more from the defense than the prosecution. If there are obscenity prosecutions against Webmasters, there is fodder for some interesting motions. In state cases, there is the emerging issue of whether the states can regulate the interstate-commerce Internet. In federal cases, there is the issue in Reno v. ACLU II, where a United States Court of Appeals held that the notion of "community standards" cannot apply to the World Wide Web, invalidating the COPA law.
And then it all boils down to D-Day - the trial. Perhaps the following will help you understand why obscenity cases never are fair.
To begin with, trials are held in courtrooms that bear a remarkable similarity to churches. One person, on an elevated stage and wearing a robe, is before an audience sitting in an arrangement closely resembling pews. Given that the origin of Anglo- American Jurisprudence is the church, this should be no surprise. And at the outset of the proceeding, the jurors and witnesses all are sworn in - so help them God - though a few of the hearty ones may request to simply affirm.
Thankfully, the defendant in a criminal obscenity trial has a right to a jury, and the prosecution cannot do anything about it. But forget the notion of a jury of your "peers" which represents the "average person" in the community (which is key to determining obscenity).
The parties to a criminal trial do not "select" a jury. Rather, they merely are given the right to challenge a few of the panel that is chosen from those who respond to a jury summons. So, consider this:
Those who respond to their jury summons tend to be conformists. They are far more likely to be married with children, live in houses with white picket fences (so to speak), attend church, work in structured environments, and generally embrace the Ward Cleaver model of American life. They are the ones who can participate in jury duty and nonetheless get paid for the day. They are more likely to be women who "do not work outside the home," which means less consciousness of what goes on in the world. They are not likely to be bikers, or in any other category of persons who eschew mainstream etiquette.
The jury-selection process begins by swearing in the panel of prospective jurors. The procedure after that, which differs form place to place, is an attempt by both sides to weed out unfavorable jurors. The jurors are questioned, in some places only by the judge; elsewhere, the attorneys question them also. Hopefully, the defense has persuaded the judge to utilize a jury questionnaire, so as to increase the likelihood of receiving straight answers from the members of the panel.
During the course of, or after, the quizzing of the jury panel has concluded (this procedure also varies from place to place), each side is permitted to challenge jurors for "cause" - such as to one who cannot speak English, is related to the defendant or will not agree to follow the law - and is allowed a small number of "peremptory" challenges, so each side can challenge a few without assigning a reason. The result is a jury of six or eight or 12, depending upon where the trial is being conducted. Federal cases always have 12 jurors, as do most states for felony prosecutions. (Obscenity is a felony in about 15 states.)
Next, the jury is sworn - so help them God.
"Call your first witness," says the judge. In response, the cop who made the undercover purchase is sworn in - so help him God.
Rarely is there an issue in an obscenity case of whether the defendant was involved in selling, renting or furnishing the material. The only issue is whether the erotica on trial is obscene under the Miller test - that is, for the most part, whether it violates "community standards."
So, the only evidence that means anything is the material: the video or the Website. But a videotape will have to suffice as an example, since that was the medium de jour during the last series of serious prosecutions.
Think about this: They summon 12 relatively straight-laced people from around the community, bring them into a room that bears a scary relationship to a church, show them a sexually explicit videotape with some word like "cumshots" in the title and activities depicted that they may not do in their own bedrooms, and then send them back into a little room together and order them to talk about it. You are an adult Webmaster, right? How do you feel about sitting in a room with 11 strangers and talking about a video entitled Cumshot (Something), which includes wall-to-wall sex scenes? And unless someone in there says, "This is okay; the community accepts this," a conviction will result. Now do you understand why defending obscenity cases is such an art?
Fortunately, juries do perform their functions of preventing prosecutors from stamping out the First Amendment, and they actually do it with some regularity - but not always. Enough of them say, "No", and a guilty verdict results. And, then, sentencing.
Historically, in the local misdemeanor prosecutions for obscenity, it was unusual for anyone to actually serve a jail sentence. The defendant would be some unfortunate, minimum-wage store clerk who couldn't figure out how the business could stay open, selling the same thing which resulted in his or her conviction. Judges usually are not inclined to incarcerate such individuals.
Obscenity sentencing, however, is where the federal government has really kicked the table over. During the Reagan-Bush years, Congress enacted the federal sentencing guidelines, which assigned sentencing "ranges" for each federal crime. The United States Sentencing Commission - which first was created and staffed by the anti-porn Reagan Administration - was assigned the responsibility of writing the United States Sentencing Guidelines, which it did. It came down hard on crime in general, and obscenity in particular. And a federal judge is required by statute to assign a sentence within the guidelines unless there exists some factor that the Commission did not consider - and rest assured, the Commission considered everything!
A few years after the original Guidelines were promulgated by the Commission, it was persuaded to rachet up the guidelines for child pornography and, along with it, obscenity. (They always use an anti-child pornography campaign as a vehicle to sneak in more punitive obscenity laws.) And that's what they did.
As a consequence of all of this, the sentencing range for a garden-variety federal obscenity conviction begins at over a year in jail. Get convicted, go to jail.
Worse, the federal law allows forfeiture of a defendant's business that enabled what resulted in the conviction, either under RICO or by way of a special federal obscenity-forfeiture statute. Case in point: In Alexander v. United States, the United States Supreme Court approved the forfeiture of an entire chain of adult bookstores, inventory, bank accounts and real estate, all because a jury found obscene some of a handful of adult videotapes. Even Reagan-appointed Justice Anthony Kennedy flipped out over this.
As you can see, the specter of federal obscenity prosecutions doing violence to the First Amendment is bloodcurdling. But the truth of the matter is that obscenity prosecutions have never succeeded in eliminating from circulation the targeted materials. As the Reagan-Bush Administration pounded the adult video industry with prosecutions, the industry nevertheless flourished. Isn't this absurd?
Clyde DeWitt is a partner in the Los Angeles, California law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
