That this will happen to some of you is a near certainty, unfortunately. Although you should do whatever you can to avoid it, it’'s also best that you be ready for it.
The grim likelihood is that a bunch of people are likely to go to jail before we get rid of President Bush and his administration’s unmitigated terror attack on the First Amendment. Who will be the targets of obscenity prosecution? What will happen to them? Most importantly, is there a way to avoid it? For answers, read on (and please don't shoot the messenger).
At the inception of the prosecution process , the ultimate victim does not know that it is happening. Some federal person somewhere is surfing on his or her computer, looking for a juicy target. This is akin to the Highway Patrol sitting at the side of the road with radar, looking for speeders. But the difference, of course, is that you can escape CHiPs by learning the posted speed limit and setting your speed control for a lower number. If you read the articles on the Miller test for obscenity (see the May–July 2002 issues of AVN), you know how difficult it is to adhere to community standards, especially those of every district in every state. So it’s like the sign on the highway says only, "No Speeding," according to local community standards of speed.
Thankfully, most people know how to dodge the Highway Patrol's radar (which can be used only sparingly in California): If the posted speed limit is, say, 70 mph and you set your speed control for 75, CHiPs is likely to wait for easier and more worthy prey, say, a guy going 80 or 85 mph. After all, that guy is more dangerous and somewhat easier to convict.
Now, when it comes to the Department of Justice surfing the Internet for objectionable pornography, it seems clear from recent cases that they are choosing targets that they perceive are going way over the line. Technically, all they need to have to obtain a federal indictment (12 out of 23 votes in a grand jury, which is required for federal cases) is probable cause. And the Supreme Court in Paul Cambria's P.J. Video case held that "probable cause" for obscenity is quite easy to come by.
In that case, New York vs. P.J. Video Inc. (1986), the Court said that a magistrate could determine probable cause for obscenity of a video essentially by just knowing that there was hardcore sex in it, without any information about the movie as a whole. To set the record straight, it is duly noted that Cambria did win the case on remand based upon the New York Constitution, although that doesn't get you anywhere in a federal case.
The Hills Have Eyes
A decision to prosecute is made after the DOJ finds a particular website and/or DVD distributor that appears to be a good target, according to whatever criteria they use to determine that, which they decline to reveal, opting for the ludicrous public position that everything sexy is fair game. Then, they start doing research about who is responsible for purveying the material upon which they are focusing. Meanwhile, the target has no idea that any of this is going on.
Once they garner all of the information that they can from conventional investigatory techniques, which is quite a bit, they will obtain a search warrant. That process consists of presenting an affidavit to a United States magistrate judge (sort of a junior judge, appointed by the United States district judges to help them out). If the FBI comes in with a search warrant affidavit, it is effectively unheard of for a magistrate to decline to issue the warrant being requested.
Now, this is the stage in which the victim is finally involved. An army of FBI "special agents" (nobody has ever heard of an FBI agent who wasn't "special"!), typically assisted by local vice cops, shows up at the victim's business one morning – and usually his or her home, too – announcing that they are there to execute a search warrant. It's always in the morning because they want the luxury of having all day to dig around. They will seize everything that is evidence of violation of the federal obscenity laws with respect to the particular content that the magistrate judge found probable cause to be obscene. Figure that your business will be pretty empty, other than inventory, by the time this process has concluded.
Now it’s time for two digressions. First, the morning the FBI shows up at your door with a search warrant is a lousy time to first develop a relationship with an attorney. If you are in this business, you should have a lawyer (better still, a law firm, because particular attorneys are sometimes caught up in court). And it would be a good idea to find out in advance if the firm is likely to be available to you, has dealt with federal criminal cases before, and has experience in obscenity law. Don't be ashamed about asking your attorney point blank: "How many times have you handled federal search warrants?" "How many times have you posted bail for someone arrested by the feds?" and "How many obscenity cases have you handled?" You should find someone with an answer other than zero, one, or two.
Second, shut up! Whatever the feds ask you, other than who you are (just show them your driver’s license), tell them that you need to speak with your attorney before responding to any more questions. No matter how many more questions they ask, the answer is always that you need to speak to your attorney first.
Now, once you have spoken to your attorney, he or she will in all probability tell you to say nothing (that is, unless there is a 2257 inspection, and you better have had a 2257 inspection drill already prepared and be responding accordingly!). Let the attorney speak for you; they cannot use the attorney's statement against you, but they can use yours.
Mondo Trasho
After the FBI has spent the better part of the day trashing your business and seizing all of your records, they will leave, but usually without you or any of your staff in tow. (The arrest is later.) Typically, they only take a few copies of any media items, because if they take them all they can face problems in court.
It may have occurred to you that some kind of hearing should be required to determine whether the targeted materials are obscene before federal agents are allowed to seize vanloads of your stuff. Sorry, but the Supreme Court rejected that in the Heller case, long ago (Heller vs. New York, 1973). In fact, assume that most of the defenses that seem obvious to you have long been thought about by inventive First Amendment attorneys and rejected, usually by the Supreme Court. This war has been going on for decades, you know!
The next step in the process is a prompt and serious meeting with your attorney about your dilemma. No matter what the searching feds tell you, if they took the trouble to execute a search warrant, then the prosecution decision already has been made.
The attorney meeting will be a real eye-opener. But, at the outset, you should be the one asking the questions if you, unfortunately, have not already done so: "Have you tried federal criminal cases before?" "Have you tried obscenity cases before?" "How many?" You first need satisfactory answers to those questions.
The next topic will be some real sticker shock. Any attorney who has any significant experience in this area is not going to be cheap. How much will it cost? Well, brace yourself for significant six figures. If the answers to your questions are right, and the attorney is good at this stuff, that's just how much it costs.
And it should not be a flat fee. Why? You see, if it is a flat amount for defending the whole case, then your attorney has an incentive to spend as little time on it as possible. Is that what you want? And a flat fee almost always is a bad deal for someone. Either it is a bad deal for you, because the lawyer collects a bunch of money and does little work, or it is a bad deal for the attorney, because the lawyer does a ton of work that is uncompensated. Remember, it is the attorney setting the flat fee. So, who do you think comes out on top? This is not a drunk driving case, where everything is rather routine.
Now, attorneys have an ironclad rule in criminal cases: Be paid in advance! Sorry, that's just the way it is. But how can you do that if it is not a flat fee? Well, the attorney will collect an appropriate amount of money – a big bunch – to be deposited in the firm's trust account (sort of a client-escrow account), and be paid from that. If the fund starts running dry, the attorney will need more money. Pay it. You don't want your lawyer all pissed off at you because he or she isn't getting paid and most concerned about how to get out of the case, rather than how to win it.
Spinning records
The first step in the process is usually your attorney trying to get enough of your records back so that you can resume your business. That usually is not a problem, although if you have backups of your most important records where nobody can find them – particularly 2257 records – that will make your life less chaotic during the circumstances described above.
The next step will be grand jury subpoenas. Expect that they will send subpoenas to nonkey employees to testify before the grand jury about who really runs and owns the place. How that works is that the prosecutor signs and issues a subpoena for those people to come in and testify before the grand jury. This means more lawyers (and more money), because if you send the attorney you want defending you to the grand jury to defend an employee, the lawyer will develop what is called a conflict of interest because that person likely will testify at the trial against both you and the other main targets.
The prosecutor certainly will give immunity to the employee-witnesses, which means that they won't be prosecuted and they cannot take the Fifth. They will be brought in front of the grand jury – and they can't have an attorney with them in the grand jury's room – and asked questions. (The attorney representing them will garner immunity and prepare them.) This is the investigative function of the grand jury, long approved by the Supreme Court.
The grand jury assuredly will return an indictment (which allows the prosecutor to bring the case to trial), probably against the corporation, the money people, and key management. Your employees, your records, and the movies and/or Web content will constitute most of the evidence against you.
The indictment usually will be sealed, so you won't know about it until the inevitable Friday morning, when the FBI shows up with a batch of arrest warrants. (It always is a Friday; the FBI is hoping you will be stuck in jail all weekend.) Then, it is trial-preparation time. Expert witnesses charge more per hour than attorneys, and the wisdom or not of retaining them and which ones is beyond the scope of this article. In general, the prep period means more checks to write.
Another facet of this process that you should keep in mind is that the federal obscenity crew is in love with 18 U.S.C. §1467, which allows forfeiture of the instrumentalities of the offense—bank accounts, buildings, computers, whatever you happen to own. If you don't have an attorney all locked up by the time an indictment is returned, you face the problem of having to pay the attorney with assets that could be subject to forfeiture. The only sound strategy is to have all of those arrangements in place as soon after the search warrant as possible, not when you are hauled off to jail after an indictment.
The nuances of an obscenity trial are beyond the scope of this article, other than to say it is very expensive and will be the most gut-wrenching experience of your life.
Common misconceptions 101
"My business only brings in X dollars a year, so I can't justify an expensive attorney." Wrong! You are facing a significant prison sentence. This is not about operating your business at a profit; this is about keeping your freedom!
"Why should I have to spend all this money? I didn't do anything wrong!" Well, the grand jury and the government both think that you did, and you are now faced with a prison sentence and forfeiture of many or all of your assets.
"I can just make a deal for probation." In the federal system, no such deals exist these days for obscenity cases.
"Why me? There is content like this all over the Internet!" The fact of the matter is that you just happen to be the car that ChiPs decided to pull over, even though everyone else was doing 85, too. It wasn't your day.
The grim reality is that if you are caught up in one of these prosecutions, your life will change forever. This is about circling the wagons to defend your freedom. It is not just a cost of doing business.
So, how do you avoid this dilemma? Well, set your speed control for 70 mph, not 85. Unless you feel comfortable standing in front of a jury in some small city in the Bible Belt and saying with a straight face, "People in this community on average accept the content on my site as not offending their standards of decency," it may be time to review your content with your attorney. (Note that elaboration on some of these topics can be found in previous Legal Commentary columns: October 2003, April 2004, and July 2004).
Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since the early 1980s. He can be reached through AVN Online's offices or via email: [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information, all of which is received with interest. Books are encouraged to be submitted for review but 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.
