Closed Court, Miller Time, and Joey Silvera's Solidarity

Dispatches from the John Stagliano trial

(Editor's Note: Richard Abowitz is covering John Stagliano's obscenity trial in Washington, D.C. for Reason. Follow Abowitz on Twitter for breaking news, and keep up to date with Reason's Stagliano coverage at this link.)

Judge Leon’s Closed Court

The freedom and opportunity supported by an open government—from lawmakers to the courts—are a large part of what makes citizenship in United States the dream of oppressed people the world over. It is therefore a near perfect irony that opening statements in the John Stagliano obscenity trial will be delayed this morning so that presiding Judge Richard Leon can have the honor of overseeing a citizenship ceremony for immigrants who have achieved that dream.

The case against Stagliano concerns the selling of movies performed by consenting adults to entertain adult DVD viewers who have chosen to watch these films. In a free and open society this is exactly the kind of prosecution that should not happen. And this selling out of our national values has not come cheap—the case has already eaten up years of government resources, including everything from Justice Department attorneys down to the $60 or so of taxpayer money used by a special FBI agent to purchase the films from Stagliano's company.

But other Judge Leon ironies abound. First, he is putting great effort into limiting public access to how justice is being administered in this case, starting with preventing the material under question from being viewed by the public and the press. If this had been a video of a privacy-violating crime such as a rape, an argument might be mounted that keeping the evidence off-limits was necessary to protect the victim.

But since no one is alleging that there are any victims on the DVDs (only professional performers), the strategic placement of monitors outside public sightlines reeks of the abandonment of the presumption of innocence. The implication the jury is almost certain to understand from this approach is that the public can't see the evidence because it is obscene. Which, of course, is the very question jurors are being asked to decide.

This adds to Judge Leon's earlier decision to keep secret from the press and the public even the questionnaire used for jury selection. We are reaching the point where these proceedings are only ostensibly open to the public. As Bob Dylan sang, "Makes you feel ashamed to live in a land where justice is a game."

Miller Time

Judge Leon indicated in court yesterday that his jury instructions will include the Miller test. This was hardly a surprise. The result of a 1973 Supreme Court case, the Miller test famously offers three prongs on which to distinguish obscenity from protected First Amendment expression. In order for a work to be obscene all three Milller requirements must be met. But the judge has been directly preventing Stagliano's ability to defend himself on two of those prongs.

According to Miller, for a work to be obscene, it must first and foremost violate community standards. But despite adult stores selling hardcore porn of all kinds all over Washington, D.C., there has not been an obscenity prosecution here in more than two decades. Washington is not a community that seems to be at all concerned that adult films are being watched by local adults.

Another way of looking at the community standard is one that Judge Leon has explicitly rejected. For example, a piece of evidence the prosecution apparently wants to share with jurors is a scene from the film Milk Nymphos which shows a milk enema being administered to an actor. Yet jurors will not be allowed to learn that you can find literally hundreds of similar enema scenes for sale at, for example,

Another prong of the Miller test is whether "the work, taken as a whole, lacks serious literary, artistic, political or scientific value." Here, too, the judge has helped the prosecution.

Last week, Judge Leon ruled that jurors could not hear from Stagliano's two expert witnesses on the films' merits, on the grounds that they wouldn't have added much scientific value, and that the underlying material is the best evidence for whether a piece of work is obscene. One expert, Dr. Lawrence Sank, a respected clinical psychologist from Cognitive Therapy Center of Greater Washington, was expected to testify to the therapeutic and scientific value of the movies. The other denied expert, University of California Santa Barbara Film Studies Professor Constance Penley (see's interview with Penley here), would have testified to the artistic value of the indicted films.

And then in a shocking development late yesterday afternoon, Judge Leon indicated that he intended to issue a long ruling in support of his decision that the movies not be played in their entirety for the jurors in the courtroom, in apparent contravention of what Miller has traditionally required. The opinion is a strong signal that the judge is hoping to make lasting case law in this trial.

Of course, though all of these decisions hurt Stagliano in the short run, they also offer him strong grounds for appeal, which would move the case closer to the Supreme Court. But to appeal, first there must be a conviction. And that means not only labeling Stagliano a felon for making and distributing movies, but also continuing to force him to pour his money into his legal defense (while wasting taxpayer dollars on the prosecution).

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • The Libertarian Guy||

    This trial is just as pointless as the Citizens United case. Neither should have gone to any kind of trial or hearing.

    Nosy busybodies with way too much time on their hands. Not a productive use of energy and time.

  • Tim||

    One might even call it "Obscene".

  • ||

    It is by our little community's standards.

  • ||

    I thought that Max Hardcore is in prison for his oeuvre....

  • ||

    Two predictions -
    1) Stagliano get convicted in this show trial.

    2) It's overturned on appeal and back to square one we go.

  • Jurist||

    Possible questions on the jury questionnaire:

    1. At what age did you stop breastfeeding?
    2. Do you consider yourself a "leg man"?
    3. Do you consider the private actions between consenting adults 'interstate commerce'?
    4. Are you a former staffer for the SEC?

  • ||

    This adds to Judge Leon's earlier decision to keep secret from the press and the public even the questionnaire used for jury selection:
    5. Got milk?
    6. are you allergic to milk?
    7. Have you ever had a "milk" mustache?
    8. Does milk do a body good?
    9. Do you know what an anus is?
    10. Have you ever had an orgasm during anal sex?
    11. Do you think people should have orgasms during anal sex?
    12. Have you ever given an orgasm during anal sex?
    13. Does watching the evidence give you a woody (or female equivalent)?

    If you answered yes to any of the above questions, get out of my courtroom you sick, depraved, perverted puppy!!!

  • LarryA||

    You guys are getting this way to complicated. The jury questionnaire has one question:
    Have you ever had an orgasm?

    If so, you’re dismissed.

  • ||

    No it's "Have you ever had an orgasm that wasn't the result of punishing someone?".
    If so you're dismissed.

  • ||

    I really need to move to the Czech republic. If you can't get through the firewall, the article is about a political party many of whose candidates are gorgeous women. They made a pin up calender of them. Contrast that to the above posted bullshit. I need to leave the country.

  • ||

    You have to see the slide show. Wow.

  • Warty||

    Jesus Fuck, I hate our residual Puritanism. Why do we still have to be afraid of tits?

  • Citizen Nothing||

    Does this answer your question?

  • People for Milk Enemas||

    This is more John Stagliano's thang:

  • Jesus Fuck||

    Tits can be dangerous weapons.

  • ||

    Those are fictional this is real

  • People for Milk Enemas||

  • Jordan||

    Careful, or Alan Vanneman will wine about you posting picture of hot white chicks.

  • Jordan||

    Whine, even.

  • The Gobbler||

    He can't right now. He's at home writing another Nancy Drew mystery.

  • Tim||


  • People for Milk Enemas||

    For years John Stagliano was a pioneer in the world of consensual Analingus.
    Now, they shut him down for Milk Enemas?

    In Germany it's legal to pay a girl to squirt anything you'd like into your preferred orifice.

    The next time some Preacher gets caught with his secretary what should we do?

  • ||

    Lactating Statue in Nuremburg:

    One in Bologna: Italy Lactating Statue.jpg

  • Bob||

    Those are obscene!

  • Bwahahahaha!||

    I just had an e-mail conversation with a friend of mine who is pastor of a large church in the southern US. He informed me that the proper role of government was to enforce the moral viewpoint of the majority of voters. He has quite the cult of personality surrounding him as well, and so didn't take too kindly to my suggestions that he might be in error.

  • Jordan||

    He informed me that the proper role of government was to enforce the moral viewpoint of the majority of voters.

    What's funny is that our resident regressives probably think he's a loathesome human being, even though he's one of them.

  • ||

    Ask if him if he thinks its OK then if public schools in Detroit have call to prayer 5 times of day instead wanting them to have a Christian prayer. After all, some parts of Detroit are already a muslim majority. I'm sure he'll be consistent in his view.

  • Bwahahahaha!||

    I'm sure he will be. Actually, I don't know if I can really communicate with him because he moves quite from "theory of government" to "Southern Baptist view of the Bible" as though they were synonymous. They probably are, to him.

  • Virginia||

    Strip his tax-exempt status to pay for his big govt.

  • LarryA||

    I just had an e-mail conversation with a friend of mine who is pastor of a large church in the southern US. He informed me that the proper role of government was to enforce the moral viewpoint of the majority of voters.

    That sounds like a great idea. Why don’t you suggest that he get a big Baptist convention going to come up with “the moral viewpoint of the majority of voters.”

    No, not just Southern Baptists, include all those other Baptists. In one arena. At the same time.

    What could go wrong?

  • ||

    And if the majority vote that it's moral to kill annoying, interfering god-botherers on sight? Will he stand by his principles?

  • People for Milk Enemas||

    FREE BUTTMAN !!!!!!!!

  • ||

    One expert, Dr. Lawrence Sank, a respected clinical psychologist from Cognitive Therapy Center of Greater Washington, was expected to testify to the therapeutic and scientific value of the movies.

    Scientific value of porn? I had no idea. When do we see a porno titled "Big Hadron Collider"? "Full Curves and Sta-tit-stical Anal-sis"?

  • People for Milk Enemas||

    Psychology and Biology are Sciences Smartass.

  • insurgent||

    Buttman Goes to Washington! He's got my vote.

  • ||

    I like Mister Buttman Goes to Washington a little better, but that's just me.

  • ||

    The Jerker (to one of his henchmen): Where does he get those wonderful toys?

  • LarryA||

    All of this effort, remember, is to protect the people of Washington, D.C. from movies this community appears to have a robust track record in consuming.

    Money shot.

    If porn violated "community standards" Hartmann wouldn't have a kazillian-dollar business.

  • kinnath||

    -- thread jack of sorts --

    FCC indecency rule struck down by appeals court

    A three-judge panel in New York says a rule on unscripted expletives on live broadcast TV and radio creates a 'chilling effect' in violation of the 1st Amendment. The ruling is a major victory for broadcast networks.

  • ||

    I was going to buy a video to show my support, but after hearing the milk thing, I'll probably pass, lol

    To each his own I suppose.

  • People for Ethical Analingus||

    His website is still open. Most of it devoted to the feminine posterior. Why not take a look before deciding?

  • People for Ethical Analingus||

    I couldn't help but notice the complete absence of Chad and Tony from these Buttman posts. I wonder why that is? Guesses anyone?

  • ||

    I think should play the videos in question to spite the judge.

  • ||

    "...Stagliano has been one of the most politically outspoken figures in adult entertainment..."

    And there's the reason for this trial.

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  • ||

    This will give "the hundreds of similar enema scenes" more public exposure. I can imagine the other producers saying, "Thanks for the free publicity, yer honor!"

  • ||

    When enema videos get free publicity it really gives me the s**ts. And you can see me getting the s**ts on my new website... [sounds of a severe beating administered by the spam police]

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