Last week, adult entertainment website XBIZ.com broke the story that is reverberating throughout the “other Hollywood.” Producer John Stagliano and two of his companies were indicted by a federal grand jury for, according to the FBI press release, operating an obscenity distribution business and related offenses. Stagliano, Evil Angel Productions and John Stagliano, Inc. were charged with a total of eight counts that relate to the distribution “of films to the public by means of a common carrier and the Internet.” The charges are troubling for an industry that has heretofore legally operated within the confines of federal law.

The First Amendment of the Constitution guarantees, among other things, freedom of speech and freedom of the press. Pornography, which falls within the definition of speech, is protected. Obscenity is not. Therein lies the rub. Why, the adult entertainment industry wonders, are the works in question (two movies and a trailer) being singled out as obscene and what does this mean in terms of pornography’s status as constitutionally protected free speech?

The definition of obscenity, as established and interpreted by the U.S. Supreme Court, is vague and ambiguous. It was the 1973 case of Miller v. California that lead to the three-pronged test that the Court still uses when attempting to define obscenity. The test dictates that a trier of fact decide:

• Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest:
• Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
• Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The purpose of this test is to aid state courts in defining obscenity. Therefore, the onus is on the state courts to clarify terms such as “average person,” “contemporary community standards” and “patently offensive.” The Supreme Court seems to make it clear in Miller that lawsuits related to obscenity are best heard at the state level.

Why, then, is the federal government pursuing Stagliano and his companies (all of which are based in the County of Los Angeles and would seemingly be tried by a California court)? Several counts in the indictment allege that the accused sold, distributed and conveyed obscene material via facilities of interstate commerce. In other words, the material in question was transferred from one state to another—or several others—by means of the internet or the postal service. Once more than one state is involved, the matter moves into the domain of the federal government. (Look up “commerce clause” if you want a better understanding of interstate commerce.)

According to insiders in the adult entertainment industry, Stagliano is far from being on the fringe of the industry. His works are said to be less extreme than those that often tiptoe along the thin line between pornography and obscenity. Stagliano, the father of “gonzo” pornography, is one of the most successful and respected directors and studio owners within the industry. His attorney, Al Gelbard, told XBIZ.com he believes the charges are “a waste of the government’s resources.” By all accounts, Stagliano is a savvy businessman who well knows (and does not make) the kinds of works that would be deemed obscene.

It is necessary, however, to look at the broader picture when attempting to understand the reason for the indictments. The Miller decision came long before the advent of personal computers and the internet. At the time of the decision, “contemporary community standards” and “average person” could be defined by geography. This is no longer the case given the fact that the internet allows people all over the world, people with shared interests, to come together as an online community. This type of community was not envisioned by the Miller court. (Stay with me, I’m getting to my point.)

Gelbard made a telling statement when he told XBIZ.com that “all obscenity prosecutions are inherently political.” Think about it. The Miller decision is over three decades old and was handed down by the Supreme Court in the same year as Roe v. Wade. Conservatives look upon that Court, and its decisions, with derision. The current Supreme Court is much less tolerant and more likely to interpret the First Amendment more narrowly than it did in 1973. It would seem, then, that these indictments are an attempt to bring the issue of pornography back into the federal court, specifically the current Supreme Court. Why else would the federal government bother to indict the distributor, rather than the owner or director, of the films?

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