Civil Liberties

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).

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.

Joey Silvera's Solidarity

In the courtroom yesterday to support Stagliano was Joey Silvera, who directed Storm Squirters 2, one of the films under indictment. Like many in the adult world, Silvera seemed shocked at the prosecution. "If they can do this to John Stagliano, they can pick anyone in the industry at any time," he said.

Silvera pointed out that Stagliano has been one of the most politically outspoken figures in adult entertainment, and that he has garnered a reputation as an auteur in his own work. According to Silvera, Stagliano has always made aesthetic ambition a top priority.

As Silvera said after watching in court yesterday: "I think that most of the people in porn just thought it was so crazy that they indicted Stagliano. We all thought there is no way he could get convicted of a crime. John Stagliano makes and distributes some of the highest quality work in the industry. I see now the industry has not supported him enough. No one has taken this prosecution seriously, because it is so wrong. But being in court and watching what is going on in this court, I am scared for him. This is really serious. I hope the industry starts rallying to his defense more at once."

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 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.