Porn Over National Security, Vice Squad Overreach, and Censorship in the Courtroom

More dispatches from the John Stagliano obscenity 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.)

From National Security to Porn Prosecution

The first day of testimony in the John Stagliano obscenity trial quickly made clear that the U.S. government intends to transform jurors into movie critics.

In her opening statement, prosecutor Bonnie Hannan declared that "This case is about crossing the line." What's an example of Hannan's crossed line? "Frequent use of close-up shots of sex." So, would a tracking shot be okay?

The riddle over how this case wound up in Judge Richard Leon's Federal District courtroom in 2010 also became clearer with the testimony of the first witness, FBI Special Agent Daniel Bradley. After originally working on national security issues, Bradley testified, he was transferred to the obscenity desk and assigned to an already open investigation into Stagliano. How's that for government priorities?

The prosecution revealed that the case began when the Los Angeles Police Department Vice Squad sent themselves to the porn industry's biggest annual convention, Adult Entertainment Expo, in my home town of Las Vegas in 2007. Left unaddressed was why California law enforcement was working so far outside its jurisdiction, particularly given that Southern California is the production center of the porn industry. Similarly revealing was that after deciding to target Stagliano, whose residence and business do fall in L.A. County, Los Angeles police chose not to investigate him, and instead contacted the FBI's obscenity crew to step in. 

Defense attorney Paul Cambria in his opening statement suggested an explanation. The movies in question, he noted, "do not contain illegal sex acts." There were no depictions of force or violence. Every participant was a consenting adult. In other words, since Stagliano was not violating any California laws, the local vice squad, rather than respect his right to keep working legally, chose to punish him by tipping off the feds.

That contact was the catalyst that ultimately lead Special Agent Bradley to go "undercover" to order Milk Nymphos and Storm Squirters 2 from Stagliano's distribution company so that the DVDs would cross state lines (from Maryland to D.C.) and therefore enter the FBI's jurisdiction. Now, three years later, the government is offering arguments about the director's choice of close-up shots as evidence of a crime.

More Censorship in the Courtroom

Judge Leon's restrictions on the public's ability to know what is transpiring in his courtroom continues apace. Of course, it is not supposed to be his courtroom at all, only where he acts as a steward for democracy by assuring a fair and open trial. On both these counts, Judge Leon is an embarrassment to watch.

The crucial jury questionnaire, which would allow reporters to assess whether the pool has been skewed in any particular direction, remains hidden from the public.

And yesterday, Judge Leon issued a ruling that, according to longtime legal correspondent Mark Kernes of the respected adult industry trade magazine AVN, could "set First Amendment jurisprudence back at least a half-century."

In the ruling, Judge Leon declared that the movies under dispute do not need to be shown in full at trial. This is a serious problem, because the three prongs of the Miller test, which is the backbone of jury instruction under current obscenity law, explicitly require that jurors evaluate and make decisions on a wide range of issues (including artistic intention and merit), which can only be determined by viewing films in their entirety.

The judge had previously indicated he was going to make this ruling, so there was no shock in the courtroom. But perhaps even worse than the precedent-shattering ruling was the way Judge Leon presented the decision. As Kernes writes: "Sadly, the judge recited his ruling quickly, and there is currently no written copy of it available to the press." Once again, Judge Leon has deprived the media and public of crucial information for evaluating the fairness and openness of this trial.

There have already been plenty other examples. The video monitors are not arranged to allow for sightlines for observers. In fact, only one monitor can be seen at all, with some difficulty, from the public seating section, and it is the one placed farthest away from those seats.

On top of that, the judge ruled that the audio on the DVDs will not be played out loud in the courtroom. Instead the sound can only be heard through headsets supplied by the court. Those headsets are not available to the public viewing the trial. It is bizarre to look over at Karen Stagliano, the defendant's pregnant wife, and notice that she can't hear what the jury is listening to and reacting to, in a case that bears such a huge impact on her family.  

For the press, Judge Leon offered only two sets of headphones, with the priority going to local media. He allowed that local media could share if they felt like it, but were not obliged to. As a result, on behalf of Reason, I wrote a note of protest that was given to the judge just before lunch break, after which the videos were to begin airing. Before the jury was brought back, the judge addressed my protest by declaring that two sets of headphones was a generous allotment. I have reached out to the Reporters Committee for Freedom of the Press for further assistance.

One thing I was not clear on, though, was why the audio was being played through headphones at all. But I learned that answer in the Washington Examiner's reporting on the trial. Seems the judge said that "the sound was turned off to preserve the dignity of the proceedings."

But so far throughout this trial Judge Leon has been finding ways to compromise the dignity of the proceedings far more seriously than any moaning on a DVD ever could.

Richard Abowitz has chronicled the rise and continuing fall of Las Vegas for the Las Vegas Weekly, Vegas Seven, and the Los Angeles Times, most notably at the Movable Buffet blog. He now blogs chiefly at GoldPlatedDoor.com. He will be covering the Stagliano trial for Reason, and can be followed on Twitter at @RichardAbowitz.

Full disclosure: John Stagliano has been a donor to Reason Foundation, the nonprofit that publishes this website.