Obscenity Trials in USA

Adult performer Kimberly Kupps and her husband both agreed to a plea deal after falling victim to obscenity charges.

A Florida circuit court accepted the negotiated no contest plea, adjudicating the pair guilty of a single misdemeanor offense and imposing a fine of $325. All remaining misdemeanor counts, along with the felony charge, were dismissed, pursuant to the plea agreement.

Cameras, video recorders and financial documents seized by the Polk County, Florida, Sheriff's Office during the arrest are to be returned to the couple. Kupps was charged in July with 13 felonies for violating the distribution and sale of obscene material and one for the wholesale promotion of obscene material for content on her website, KimberlyKupps.com.

Adult industry attorney Lawrence Walters, who defended the pair, told XBIZ:

While I believe that these charges were unwarranted and ill-conceived, I respect Theresa's decision to resolve the case in this manner, and move on with her life, Walters said. The entire prosecution was a waste of tax dollars and will have no impact on the availability of erotic materials on the Internet.

Polk County officials are fighting a losing battle with these obscenity cases, and hopefully they will realize that sooner or later.

After Kupps was arrested, the nutter Polk County sheriff Grady Judd declared war on the production and distribution of porn in his county:

We want a wholesome community here, we don't want smut peddlers. And if they try to peddle their smut from Polk County or into Polk County we'll be on them like a cheap suit.

 Adult film maker John Stagliano (Buttman) issued the following statement decrying the recent attacks on personal liberties by moral crusaders:

This week, the group 'Pornography Harms' continued its campaign to ban free speech and adult entertainment through a letter circulated around Capitol Hill with the goal of spurring elected officials into enacting the group's dangerous agenda. The letter cites worn-out and debunked claims that view.

Recent statistics show those claims simply are not true. A study from a Clemson University economist showed that violent and sexual crimes have actually decreased as Internet usages have increased. The study's author found that states whose Internet access expanded the fastest saw rapes and sexual crimes decline the most.

We are tired of being slandered. It is apparent that if people are left free to consume pornography, if they so choose, the world is a healthier, less violent place.'

In 2008, the Department of Justice's Obscenity Prosecution Task Force brought charges against Stagliano in a trial which gained national attention over its free speech implications. In July of 2010, the trial ended in a Judicial Acquittal after the Judge ruled there wasn't sufficient evidence presented by the prosecution to convict. Groups such as Pornography Harms have lobbied government agencies and elected officials to continue to stifle first amendment / free speech rights through similar prosecutions.

The recent Pornography Harms letter urges readers to donate to Morality in Media, an organization with a long history of First Amendment suppression tactics and alignment with other censorship driven groups. They have frequently used similar outlandish claims and factual distortions as part of their extremist agenda, such as claiming there's a link between gay marriage and mass killings. If these anti-speech activists are initially successful with their censorship agenda, they won't stop until they have turned all broadcasts and publications in line with their narrow worldview.

The only real violence involved is prosecuting someone like me with an obscenity law, a law that you can't know in advance when you are breaking it.'

Adult DVD Empire will plead guilty to an obscenity charge filed against the company by federal prosecutors.

Attorney Lawrence Walters told XBIZ that this appears to be a pre-arranged, pre-packaged deal where all the parties involved came to an agreement in advance.

Walters says the deal was structured in a way where the corporation was charged, not an individual, so no one will be doing time in jail.

As part of the deal, Adult DVD Empire will be on a three-year probation and pay a $75,000 fine.

Federal prosecutors filed the charges July 22 charging that the company, which operates AdultDVDEmpire.com, mailed four DVDs containing obscene material to an Erie post office box in May 2007.

Walters says the charges seems to have been initiated by Mary Beth Buchanan, the former U.S. District Attorney for the Western District of Pennsylvania, who was active in obscenity prosecutions

The four DVDs are identified as A Bounty of Pain, Shattering Krystal both from Dan Hawke Productions, Extreme Tit Torture 18 from Galaxy Productions and Pussy Torture 8 also from Galaxy and directed by Rick Savage.

A federal judge in Washington, D.C., refused to dismiss a case against pornography producers who were charged with trafficking hard-core porn films across state lines and displaying illicit movie trailers online.

U.S. District Judge Richard Leon rejected their claim that federal obscenity laws are unconstitutional.

John Stagliano and Evil Angel Productions Inc. claimed that federal laws criminalizing the interstate trafficking of obscenity were unconstitutional. They argued that the law barring a Web site from displaying obscene materials was unconstitutionally vague and overbroad, because made online material subject to the community standards of the most conservative jurisdictions in the country.

But Judge Leon said the law was confined to a very narrow legal definition of obscenity. He said he is certain that online material will be judged as a whole and not individually according to obscenity laws, quashing filmmakers concerns that the trailer would be taken out of context.

Federal obscenity statutes require items to be judged in context of surrounding work. The government will have to show that the trailer is obscene in the context of the Web page, Leon said.

He also rejected their claim of a right to sexual privacy, saying such a right does not cover the distribution of obscene materials. He said the producers' case pales in comparison and does not even remotely approach the sexual privacy cases concerning homosexual rights and rights to obtain birth control. However you look at it, obscene material is not protected by the First Amendment, Leon concluded.

Update: Trial Set

26th March 2010. See article from xbiz.com

A federal judge has set a July 7 trial date for the obscenity case against John Stagliano and his two production companies, Evil Angel Productions Inc. and John Stagliano Inc.

U.S. District Judge Richard Leon, at a status conference in Washington at 3 p.m., set the trial date one month and one day after he rejected Stagliano's claim that federal obscenity laws are unconstitutional.

Leon said last month that obscene material is not protected by the 1st Amendment: Having considered the defendants' overbreath of arguments, I am not convinced that such strong medicine is warranted in this case. Nor am I convinced that the federal obscenity statutes are unconstitutionally vague as applied to Internet speech.

One of the issues we've talked about repeatedly over the years is the question of what is the internet jurisdiction .

If you think that just because it appears on the internet, anyone's laws apply, then you reach an untenable situation where all online content is controlled by the strictest, most draconian rules out there. That makes little sense.

And yet some courts still think this is the appropriate interpretation of the law.

In the US it's already troubling enough that the issue of indecency is measured on an amorphous community standards basis, but when it comes to the internet, what community applies?

A recent ruling in the 11th Circuit Court of appeals on a pornography case, the court seems to have made a ruling that effectively says all online content should be held to the standards of the strictest communities. Thus, an erotica website targeting a NY subculture should be held to the standards of a southern bible belt rural community? That seems ridiculous, but it's what the court said.

In this case, a guy who produced porn content in California was tried in Tampa, Florida, because investigators downloaded his content there:

The Atlanta-based court rejected arguments by Paul Little (Max Hardcore)'s attorneys that applying a local community standard to the Internet violates the First Amendment because doing so means material can be judged according to the standards of the strictest communities.

Other courts, including one in California, have found differently on similar questions, so it seems likely that, at some point, this issue will finally go back to the Supreme Court. Unfortunately, it seems likely that the Supreme Court will focus on what counts as community standards rather than whether or not laws against obscenity even make legal sense under the First Amendment.

Barry Goldman, who operates Torture Portal, Masters of Pain and Bacchus Studios, has been charged by a federal grand jury in Newark, N.J. with distributing obscene DVDs through the mail.

Goldman was charged with eight counts of sending DVDs containing allegedly obscene films from Jersey City to addresses in Montana and Virginia.

The indictments for 18 U.S.C. § 1461 and § 1467 include the films Torture of a Porn Store Girl , Defiant Crista Submits and Pregnant and Willing . The videos all were mailed in 2006 and 2007.

The Justice Department is seeking forfeitures of all copies of the movies, as well as proceeds from the sale of the movies.

Regulators also are seeking the forfeitures of domain names MastersOfPain.com and TorturePortal.com, as well as an email address, SirBNY@aol.com.

Bonnie Hannon, the Justice Department's lead attorney in the case works for the agency's Criminal Division's Obscenity Prosecution Task Force. Investigation of the case was conducted by the FBI's Adult Obscenity Squad based at the Washington field office.

The obscenity case, originally filed in Montana, was changed to New Jersey, according to an XBIZ source. But in the midst of the appeal, the government dismissed the case, claiming it is not their policy to file obscenity charges in the place of receipt in the absence of other contacts by the defendant with the place of prosecution.

If convicted, Goldman faces a maximum penalty of five years in prison and a fine of $250,000 on each of the eight counts charged in the indictment.

Update: Painful Court Appearance

21st August See article from business.avn.com

Pornographer Barry Goldman's obscenity case has been put on a fast track, with a trial date set for Oct. 27

Rob Zicari better known as Rob Black and his wife Janet Romano (stage name Lizzie Borden) were each sentenced to one year and one day in federal prison after pleading guilty to once count of conspiracy to distribute obscene materials last March.

As part of the guilty plea, Zicari and Romano admitted that through the parent company of XPW, Extreme Associates, Inc., they mailed three obscene movies to Pennsylvania, where this whole thing started.

The movies that essentially brought down the company were Forced Entry - Director's Cut, Cocktails 2 - Directors Cut , and Extreme Teen #24 .

They also got in hot water for distributing the material through Internet streams.

As part of of their plea agreement the couple was also sentenced to a two year probationary term upon their release from prison.

Offsite: In Defense of Extreme Pornography

29th October 2009. See article from reason.com

In the longest running obscenity case in American history, Extreme Associate owners Rob Black and Lizzy Borden have each entered guilty pleas to one count of conspiracy to distribute obscene material. Trial had been scheduled to begin with jury selection on Monday.

The plea capped a legal battle, begun in 2003 with a 10-count indictment, that had promised to deal with cutting edge free speech issues.

In fact, just three videos were indicted - Forced Entry and Cocktails 2 , both directed by Borden, and Extreme Teen 24 , credited to Stanley Ferrara but reportedly the work of several directors - as well as six video clips.

But as noted in AVN's recent editorial , defense of obscenity requires huge amounts of cash, and with Extreme Associates long closed, and Black and Borden reportedly employed only sporadically - and with an almost universal lack of support from the adult industry - it was too much to expect that attorneys H. Louis Sirkin and Jennifer Kinsley would be willing to handle the projected two-week trial (and its subsequent appeals) on a pro bono basis.

Estimates of the possible sentences that could be imposed under the plea have ranged from as little as 10 months in prison for each individual defendant to as much as five years, and a possible fine of $250,000 for each individual and the corporation. The couple will be sentenced on July 1.

Can I just start by saying I am on the whole in agreement with you and your anti-censorship stance.

The one thing I do take issue with is your articles defending Max Hardcore as much as I enjoy porn etc.. he crosses the line of what is acceptable and is a very sinister character. I am very broadminded and all for as long as consenting adults etc.

The reason I take exception to Max Hardcore is I saw a documentary on Channel 4 about an English girl who travelled to the US to try make it in porn films. She met various porn producers and had some trials with them which were quite run of the mill adult affairs but the exception was Max Harcore. At first he came across quite friendly but the difference with him was come his trial he had the girl dress very child like and forced his penis down her throat literally choking her and making her vomit and she naturally became very upset, crying and had to stop. His reaction was utter fury and threatening and he had a couple of menacing nasty bouncer types there as well and the Channel 4 crew had to intervene as they feared for the girl's safety.

As I have said I am all for consenting adult porn etc.. but to me Hardcore crosses the line even for me.. wanting the women in his videos to appear in children's clothes suggest to me paedophile inclinations which I would hope you would absolutely condemn and to me he crosses and pushes the consent barrier and really does exploit women for money. I was overjoyed to see he has gone to jail as after seeing him and his attitude in the Channel 4 documentary that is where he belongs and I vowed never to buy anything associated with him!

Update: Appeal arguments refuted

3rd April 2009. See article from business.avn.com

Attorneys for Paul Little, better known in the adult industry as "Max Hardcore," H. Louis Sirkin and Jennifer Kinsley, filed their appeal of Little's conviction last June on ten counts of interstate transportation of obscene material and posting obscene materials on the Web on January 21 - and now, just over two months later, the Justice Department has responded, attempting to refute the perceived factual and legal errors identified in the appellant's brief.

Update: Appeal lost

6th February 2010. See article from xbiz.com

A three-judge panel of the 11th U.S. Circuit Court of Appeals on Tuesday affirmed Max Hardcore's convictions but remanded sentencing over punitive fines, which it said the lower court assessed in error.

As Max Hardcore prepares to begin serving his 46-month sentence for supposed obscenity crimes, his attorneys have filed an appeal to the 11th US Circuit Court of Appeal.

Hardcore attorneys point to a dozen issues of contention, including whether community standards should be applied to online material and whether a defendant’s sentence can be enhanced for sadomasochism when the evidence is that the acts were not painful.

The attorneys also want the 11th Circuit to weigh whether federal obscenity laws are unconstitutional when it comes to criminalizing the sale of adult material for private viewing, as well as whether  the government can prosecute an online adult company when it didn’t have proof that defendants knew their site was hosted in the district of prosecution.

They also claim that the Miller test requirement that material be taken as a “whole” is impossible in the context of the Internet.

Attorney Jeffrey Douglas, who represented Hardcore at U.S. District Court in Tampa, said at the time that it was a “sad day for America” when he was convicted.

Following his conviction in federal court on obscenity charges, Max Hardcore's legal battle moves on to the 11th U.S. Circuit Court of Appeals.

Hardcore, whose legal name is Paul F. Little, is free pending appeal, which his attorney Jeffrey Douglas told XBIZ would be filed sometime before the end of the business day Thursday. Douglas represented Hardcore in the obscenity case that resulted in a conviction carrying a sentence of 46 months in prison and fines of more than $1.4 million.

Attorney H. Louis Sirkin will represent Hardcore through the appeal, during which Sirkin will have to prove that Hardcore's First Amendment-given right to free speech was violated, Douglas said.

Update: Judge Rules Max Hardcore Must Begin Prison Sentence

31st October 2008. Based on article from xbiz.com

U.S. District Judge Susan Bucklew denied Max Hardcore's attorneys' request to delay the sentence while they appeal the conviction to the 11th U.S. Circuit Court of Appeal.

Bucklew ruled that Hardcore's attorneys did not present a compelling enough reason that his sentence would be likely overturned on appeal.

A federal judge has sentenced Paul Little, aka Max Hardcore, to 46 months in prison and fines of more than $1.4 million.

US District Judge Susan C. Bucklew allowed Hardcore to remain free pending appeal, w(ile sternly advising him against speaking to the press, Hardcore's attorney Jeffrey Douglas told XBIZ.

An appeal will follow and we're optimistic about [it], Douglas said: The appeal will be filed in the 11th US Circuit Court of Appeals.

Bucklew's recommended prison sentence and fines were at the minimum levels suggested by the federal prosecutors for Hardcore's 10 counts. Bucklew fined Hardcore $7,500 and Max World Entertainment Inc. for $75,000. The fines on all charges add up to about $1.4 million.

The federal government was asking for more stringent sentencing than what the judge ordered. In a memo filed Oct. 1, the Justice Department attorneys suggested the judge compare Hardcore's obscenity charge to child pornography, narcotics and fraud. The memo also included several quotes in the media given by Hardcore. The Justice Department argued that these were not indicative of an individual who possesses any level of acceptance of the crimes he committed.

Hardcore must file an appeal within six weeks or have to turn himself in to begin serving the sentence.

A Florida producer has been charged by a federal grand jury in Billings, Montana, with distributing obscene DVDs through the mail, Acting Assistant Attorney General William Mercer has announced.

In a sealed indictment returned by the grand jury on Aug. 20, 2008, and unsealed today in federal court in Billings, Miami resident Barry Goldman doing business using the names Torture Portal, Masters of Pain and Bacchus Studios, was charged with three counts of using the mails to deliver DVDs containing obscene films to an address in Billings and one count that seeks forfeiture of certain assets of the defendant.

The specific films named in the indictment are Torture of Porn Star Girl , Pregnant and Willing and Defiant Crista Submits .

If convicted, Goldman faces a maximum penalty of five years in prison and a fine of $250,000 on each of the three counts charged in the indictment.

A federal judge has denied a new trial for Max Hardcore, convicted last month of distributing obscene materials.

Hardcore requested a new trial on several grounds, but U.S. District Judge Susan Bucklew said that the issues relating to the firing of the juror and other instances of alleged irregularities involving jurors did not affect the outcome of the case and did not detract from Hardcore's constitutional rights.

With Monday's order, Hardcore is scheduled to be sentenced Sept. 5.

Update: Extreme Delay

5th September 2008

The sentencing of Paul Little a.k.a. Max Hardcore, originally scheduled for tomorrow before U.S. District Judge Susan C. Bucklew, has been postponed until October 3.

Attorneys for "Max Hardcore" (Paul Little) and Max World Entertainment yesterday filed a Motion for New Trial And/Or Judgment of Acquittal on behalf of both defendants in the U.S. District Court for the Middle District of Florida.

The motion, largely written by Max World attorney Jennifer Kinsley, cites six reasons for overturning the jury's verdict of guilty on all counts, including:

1. That the federal obscenity statutes are invalid under the Fifth and Fourteenth Amendment substantive due process rights, as well as being unworkable when applied to Internet speech under the current COPA holding that the "community" for the 'Net is the entire world
2. That the judge erred in allowing prosecutors to present only excerpts from the charged videos - the "Euro" versions of Max Extreme 20, Pure Max 19, Golden Guzzlers 7, Fists of Fury 4, and Planet Max 16 - thereby prohibiting the jury from considering the material "as a whole," as well as prohibiting the defense from playing some "extras" on four of the DVDs
3. That the Court should have recused herself from presiding over the trial after she made comments indicating that she had already formed an opinion as to the guilt of the defendants without having heard all the evidence
4. That the Court should have dismissed the counts involving mailing of the five DVDs to Tampa on the basis that the government presented insufficient evidence that defendants knew the mails would be used to send the videos, and also that the defendants did not in fact mail the videos at all
5. That the Court failed to properly handle several jury irregularities, including a note sent from one juror during the trial asking that only excerpts of the charged videos be played rather than the videos in their entirety, and the fact that on the evening of the first day of deliberations, one juror was informed that she had been fired from her job that day, and such firing was not brought to the attention of either the prosecution or the defense
6. That the government failed to show that the charged material met the federal standards for obscenity in relation to the material's target audience: the "dominant and submissive sexually deviant group."

The prosecution has 30 days to respond to the defense motion, and Judge Bucklew will rule shortly thereafter.

Producer Max Hardcore was found guilty today of 10 federal counts of distributing obscene materials over the Internet and through the mail. His company Max World Entertainment was also found guilty on 10 related charges.

It's a sad day for all Americans when they smash any kind of free speech and that's what happened in Tampa today, Max Hardcore told AVN. They trampled on free speech, and I intend to appeal.

The government had separately sought the forfeiture of Hardcore's home in Altadena, California, but the jury ruled against that sanction.

I'm full of good spirits and they didn't get my house, Hardcore said. We're talking to a couple of jurors and they felt very strongly for me, but the way the laws are formulated, they were boxed in to a corner. I should have got off for this nonsense; obscenity is an archaic term, it's not defined well. I received no warning and they attempted to put me behind bars; they've got a conviction, but we intend to fight on.

The jury returned its verdict after deliberating for a total of 14 hours in the past two days. After the jury returned its verdict, the judge dismissed the defense's motion to dismiss the case which had been held in reserve.

It was a travesty but we had no choice because of the way the law is written, one juror told AVN. Several jurors approached Max Hardcore and his attorneys to express their sympathy at having been forced to convict him on the counts due to the "poorly written" law regarding the transportation of obscene material via the internet and the mailing of the DVDs to the middle district of Florida. Another juror reportedly said that if two words in the law had been different, he would have held out for acquittal.

Max Hardcore will be sentenced September 5. He is free on bail until that date.

The Max Hardcore Obscenity Trial has begun in Tampa, Florida.

Practically from the moment court convened this morning before Judge Susan C. Bucklew in the case of United States v. [Max Hardcore] and Maxworld Entertainment, issues that could determine the entire course of the obscenity trial were hard-fought between the prosecution and the defense.

At primary issue was the government's contention that it was not required to show all of the footage on the five DVDs which it had charged as being obscene.

The middle portion of the day was taken up in selecting the jury itself. A panel of 40 Middle District residents was assembled in the courtroom, and Judge Bucklew, who had earlier denied the defense's request to submit a detailed questionnaire to the jury pool, herself asked the majority of the questions in determining which of the panel would sit on the trial jury.

The judge's questions covered such areas as the potential jurors' employment, their backgrounds, their religiosity, their membership in any religious or secular pro-censorship groups; whether any of them regularly listened to Rush Limbaugh or Howard Stern; whether any of them owned personal computers and had ever seen sexual material on the Web; whether any owned a VCR or DVD player (all did); and whether any regularly read newspapers or watched the news on TV.

In deciding what questions to ask, the judge disclosed her dislike of questions that began with, "Do you believe" and "Do you feel," and specifically rejected the defense's request that she ask whether any potential juror had any "moral convictions" regarding adult material.

But although she didn't ask the question, at least three jurors made their religiously-based dislike of the material known during the questioning.

One also said that since he had four daughters, he wouldn't be able to look at the movies and be impartial about the performers vomiting and drinking piss within them.

Another potential juror also disclosed that she was unable to look at anyone vomiting without getting nauseous herself, and she was eventually excused for that reason, with the judge agreeing with Kinsley's contention that if the woman vomited while the movies were being played, that that might prejudice the rest of the jury against the material.