Extreme Associates Obscenity Case Ends in Guilty Pleas

Jacob Sullum | March 18, 2009

Last week, after fighting federal obscenity charges for more than six years, Extreme Associates impresarios Robert and Janet Zicari, a.k.a. Rob Black and Lizzy Borden, each pleaded guilty to one count of conspiracy to distribute obscene materials. Sentencing is scheduled for July 1, and they could face up to five years in prison for selling dirty movies, a considerable improvement on the 50 years they could have gotten on the original charges.

Greg Beato chronicled the Extreme Associates case in a 2004 Reason article. I mentioned it in my 2008 story about drug paraphernalia prosecutions, an area where the Zicaris' adversary, U.S. Attorney Mary Beth Buchanan, also has been active. Buchanan, who seems to be a sincere moral crusader and therefore a public menace, is one of several U.S. attorneys hoping to keep their jobs in the Obama administration.

In 2007 Radley Balko questioned Buchanan's priorities. In November I considered Attorney General Eric Holder's record on obscenity prosecutions, and last month I noted the reassuring "porn ties" of David Ogden, who was confirmed last week as deputy attorney general.

[Thanks to Charlie Deitch for the tip.]

Comments

OO===D|3.18.09 @ 5:15PM|#

Damn!

|3.18.09 @ 5:26PM|#

Last week, after fighting federal obscenity charges for more than six years, Extreme Associates impresarios Robert and Janet Zicari, a.k.a. Rob Black and Lizzy Borden, each pleaded guilty to one count of conspiracy to distribute obscene materials.


What is an obscene material? How is that different from, let's say, straight porn?

VM|3.18.09 @ 5:33PM|#

ya know it when ya sees it...

that's how.

Preacher|3.18.09 @ 5:37PM|#

"What is an obscene material? How is that different from, let's say, straight porn?"

e.g., http://free2g1c.com/

|3.18.09 @ 5:38PM|#

What is an obscene material? How is that different from, let's say, straight porn?

Material is obscene if its predominant theme is prurient according to the sensibilities of an average person of the community, it depicts sexual conduct in a patently offensive way, and taken as a whole, it lacks serious literary, artistic, political, or scientific value.

Anonymous|3.18.09 @ 5:38PM|#

I don't know what the editorial policy is for titles, but it would have been a lot less confusing on the first seven and a half read-throughs if the name of the company had been in quotes.

Granted, I eventually turned to the text to give grammatical context, which it did; and I hadn't read previous stories about the subjects. But come on.

Also: has any paraphernalia law been seriously challenged in a federal court? It seems like a blank check to me. All you have to do is to "document" the use of the types of your property as used in conjunction with something illegal by somebody who uses it that way a lot, and that itself is reason to arrest or illegal itself. This is not how property rights work, people.

|3.18.09 @ 5:38PM|#

Material is obscene if its predominant theme is prurient according to the sensibilities of an average person of the community, it depicts sexual conduct in a patently offensive way, and taken as a whole, it lacks serious literary, artistic, political, or scientific value.

How is that different than most porn out there today?

Anonymous|3.18.09 @ 5:41PM|#

ChicagoTom, I think the key word would be "patently offensive," which is a way to nullify the intent of the law -- which would have indeed made a chunk of the current porn industry illicit -- so that it can be used as a tool for political means.

Ah, selective enforcement. Is there anything it can't do?

Bill O\'Reilly|3.18.09 @ 5:42PM|#

Look, I enjoy lesbian fisting videos as much as the next stainless steel-perforated and tattooed carnival-ride jockey, but The People­™ just aren't ready for this kind of Extreme Freedom.

And that's a memo.

|3.18.09 @ 5:42PM|#

As a federal case, couldn't Obama or one of his civil rights friendly DOJ folks just drop this case? Recommend a suspended sentence? Something?

Speaking of having a new administration, why is Mary Beth Buchanan still a US Attorney? How long would it take to fire her?

|3.18.09 @ 5:44PM|#

Material is obscene if its predominant theme is prurient according to the sensibilities of an average person of the community, it depicts sexual conduct in a patently offensive way, and taken as a whole, it lacks serious literary, artistic, political, or scientific value.

The only part of that which doesn't apply to all porn on the planet is the "patently offensive" part, and that is so hideously subjective that I can't believe it is actually a legal standard.

|3.18.09 @ 5:47PM|#

Material is obscene if its predominant theme is prurient according to the sensibilities of an average person of the community,

Ok, I do not know how can a courts or lawmakers get away with such language - what's an average person of the community? Where can one call to talk to that person? I only know individuals, not an average of all individuals. That's fucked up.

|3.18.09 @ 5:49PM|#

How is that different than most porn out there today?

I put sixteen years into that damn obscenity thing. I tried and I tried, and I waffled back and forth, and I finally gave up. If you can't define it, you can't prosecute people for it. And that's why, in the Paris Adult Theatre decision, I finally abandoned the whole effort. I reached the conclusion that every criminal-obscenity statute -- and most obscenity laws are criminal -- was necessarily unconstitutional, because it was impossible, from the statute, to define obscenity. Accordingly, anybody charged with violating the statute would not have known that his conduct was a violation of the law. He wouldn't know whether the material was obscene until the court told him.

Bill O\'Reilly|3.18.09 @ 5:52PM|#

Coming up next: Blond bimbos debate freedom-of-choice issues
while I clandestinely stare at their tits.

|3.18.09 @ 6:05PM|#

"patently offensive"

There should be an affirmative defense. If people pay to see more of the same, it can't be patently offensive.

|3.18.09 @ 6:12PM|#

Hey, that's not the whole Miller test. You left out the part where that average person is "applying contemporary community standards." That's the kicker. On the web, those standards are mostly nonexistent. On a billboard in a small town, they may be different. Or not.

Here's the whole test:
(1) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

(2) Whether the work depicts/describes, in a patently offensive way, sexual conduct (and scatological stuff, I think) specifically defined by applicable law; and

(3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

BlueBook|3.18.09 @ 6:13PM|#

and taken as a whole, it lacks serious literary, artistic, political, or scientific value.

So a bespectacled MILF straddling a Sybian and jacking off a couple of Japanese men dressed in Godzilla suits is obscene, but if said MILF is simultaneously lecturing the audience on the ecological and economic impacts of desertification in northern China, that gives it value and makes it OK.

|3.18.09 @ 6:16PM|#

BlueBook,

You've obviously represented adult industry clients before.

|3.18.09 @ 6:17PM|#

if said MILF is simultaneously lecturing the audience on the ecological and economic impacts of desertification in northern China, that gives it value and makes it OK.

I dunno about you, but I'm turned on.

|3.18.09 @ 6:18PM|#

Speaking of having a new administration, why is Mary Beth Buchanan still a US Attorney? How long would it take to fire her?

No shit. I remember the Obamatarians waving the bloody shirt on a similar thread in October, and saying the prospective shit-canning of MBB was another reason to vote for Him.

Kolohe|3.18.09 @ 6:33PM|#

@bluebook
There was a strip club in Central Florida that started doing Shakespearean plays naked after the county banned nudity in anything but an 'artistic performance'.

Tangental|3.18.09 @ 7:02PM|#

About 35 years ago, the City of Burnsville, MN attempted to write a statute that would place restrictions on what soft-core magazines could be displayed (based on the cover) on the racks at convenience stores. But they scrapped the idea when it was pointed out that the graphic descriptons in the statute were filthy as sin.

Sen. Larcenia Bullard|3.18.09 @ 7:03PM|#

Appeals to the purient interest? So they survived even after Plymouth Rock landed on them??

Naga Sadow|3.18.09 @ 7:07PM|#

Just as long as my girl Eva Angelina keeps putting on her show I have no problem with this ruling. Though I do sympathize . . . the dirty smut peddler!

*shakes fist in direction of dirty smut peddler*

MNG|3.18.09 @ 7:32PM|#

"what's an average person of the community? Where can one call to talk to that person? I only know individuals, not an average of all individuals."

Well, it's OK for you to know only individuals, not averages of all individuals, because the test calls for an average INDIVIDUAL.

Actually what the test is looking for is the "sense of the community." Now, before you shit your diapers FTG what they mean is what sense the general community, yes, yes, made up of individuals, would hold on the matter. It is something like "the norm." I imagine even you can conceive that if we had 500 people we could ask them all whether they find something obscene or not and there may be a modal answer. That's what the hell their talking about. It's not Chinese to most people.

Having said that I think obscenity laws are "uncommonly silly laws." They involve things that have at best the most attenuated harms associated with them. They often force a judgment on the aesthetic importance of a work which I think objectively cannot be done. And they create the asburd situation of a person in rural NY being convicted of something that, if in NY City, would not be even prosecuted...

Mark Kernes|3.18.09 @ 7:41PM|#

I wrote pretty extensively about the case here:

http://business.avn.com/articles/34645.html

and here:

http://business.avn.com/articles/34653.html

But I must say, there are few things more unconstitutional than the obscenity laws. If these censor types want to target porn, let them amend the First Amendment!

Naga Sadow|3.18.09 @ 7:49PM|#

MNG,

Explain. The "norm" is different everywhere. Does the first amendment apply differently in different localities, states, or regions? Just by being here you are setting yourself aside from the "norm".

Prurient Interest|3.18.09 @ 8:47PM|#

"Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest"

Why does everyone hate me? What did I ever do to deserve this?

|3.18.09 @ 8:48PM|#

I dunno, I always thought "community standards" were some kind of regularized orgy.

Prurient Interest|3.18.09 @ 8:49PM|#

"So a bespectacled MILF straddling a Sybian and jacking off a couple of Japanese men dressed in Godzilla suits is obscene, but if said MILF is simultaneously lecturing the audience on the ecological and economic impacts of desertification in northern China, that gives it value and makes it OK."

It does in my book.

|3.18.09 @ 9:45PM|#

I consider myself to be terribly average in the community. That being stated, I offer to inspect All materials in question and give, for a nominal fee, my opinion concerning the prurience of said materials.

MNG|3.18.09 @ 9:45PM|#

"Does the first amendment apply differently in different localities, states, or regions?"

Whatever unit we are talking about as a community, we are talking about the majority opinion within that unit.

As I said, I think the fact that this test would make for a different result for the same thing for two places in the same state absurd.

But, to posit, like FTG, that the idea of the average member of the community is some bizarre incoherent abstraction is goofy.

T|3.18.09 @ 10:30PM|#

But, to posit, like FTG, that the idea of the average member of the community is some bizarre incoherent abstraction is goofy.

In this day and age, I'm betting the average member of my community has porn on their hard drive. Kinda nullifies the intent, doesn't it?

|3.18.09 @ 10:53PM|#

They've been fighting it for 6 years, max sentence of 5...

prosecutor gets a conviction, they get to not spend any time in jail (time served).

Rick H.|3.18.09 @ 10:57PM|#

Is my "community" the posters on H&R? Is it my immediate neighbors in the East Hollywood area? (If so, how large of a perimeter?) Is my community comprised of all the other pornographers in the San Fernando Valley? Is it skinny bald white guys?

Please let me know whose norms I am violating, or, conversely, which of my personal pet peeves I may consider an obscenity infraction perpetrated by someone else in "my community." Gotta define our terms.

MNG|3.19.09 @ 6:23AM|#

It's actually simple. Community is just defined as the prosecutorial district, in practical terms the jury pool for that area.

Again, I'm not saying this is fair or the way it ought to be, but these concepts are all understandable; we're not dealing with the Chinese language here. Plenty of ways to say stupid things in English.

T makes a good point. I have heard of defense lawyers wanting the community standards to be set by the number of ISP's accessing porn in the district rather than what 12 randomly chosen people willing to serve on a jury who survive voir dire are willing to say with the spotlight on them. But that kind os honesty will never get accepted sadly. These laws should be gutted at the state level they are passed at, or nullified on 1st Amendment grounds in the "activist" courts that conservatives always bitch about.

|3.19.09 @ 6:29AM|#

of ISP's accessing porn in the district rather than what 12 randomly chosen people willing to serve on a jury who survive voir dire are willing to say with the spotlight on them.

Good point. I'm sure many people would be embarrassed to admit that they don't think a chick taking a dump in a dude's mouth is that big a deal. I find such behavior appalling, of course. :*

|3.19.09 @ 6:31AM|#

And space-docking, especially. :::shudder:::

|3.19.09 @ 6:40AM|#

And pegging. Yuck, how terrible. And I don't think about this stuff because I'm weirdly transfixed, tantalized even. No, I think about it because I have to know what terrible stuff is out there so I can protect teh children from it.

Anonymous|3.19.09 @ 6:52AM|#

"Space-docking"? You're just trying to get us to look up slang that doesn't exist, aren't you? I'm working under that assumption, and I'm not going to fall for it.

But if you, perhaps, have laminated literature for sale...?

|3.19.09 @ 11:05AM|#

Here's the thing I don't get.

How is it that a "community standard" as defined by some arbitrary locality is used as the measuring stick for what a private citizen wanks to inside of his own home?

JB|3.19.09 @ 11:53AM|#

I find every politician obscene. I want them removed from my planet and I want it now!

Will|3.19.09 @ 1:11PM|#

So every sincere moral crusader is a public menace? Sorry, I'm just trying to make that connection. I mean, I understand how they Can be, but not how they All are.

|3.19.09 @ 1:37PM|#

I've worked as a journalist within the adult entertainment industry for nearly 2 decades and I've learned a lot while doing so.

What I haven't learned is why on earth "simulated" acts depicting rape and murder become "obscene" when real sex is included... but not when they appear in a huge blockbuster film that pulls the camera away from genitals but not from those "simulated" acts of rape and murder.

Buchanan and her ilk claim they're offended that an erotic production could have a plot that includes fake violence... but apparently they have no problem with that same fake violence as long as there's no real sex around.

Fake violence okay.
Fake sex okay.
Fake violence with real sex not okay.
Huh?

If shame is our standard for making laws then we have a lot to be ashamed of.