July 17, 2010

Porn Under Persecution

The First Amendment to the United States Constitution is supposed to protect freedom of speech, no matter how reprehensible. Yet because of the legal maze that is obscenity law, an American pornography producer and director now finds himself indicted on an array of charges that could put him in prison for the rest of his life.

John Stagliano is the founder and owner of the Evil Angel pornographic film studio. His company, based in southern California since 1989, is successful. Indeed, it is ranked among the top ten of adult film producers in the country and certainly among the most profitable. Dozens of people are employed by Evil Angel and hundreds work for it on a regular basis, including several hired specifically to handle the incredible amount of paperwork a business of its kind has to cope with due to extensive legal interference from different layers of government.

Evil Angel works rather differently than most of its competitors. Richard Abowitz at Reason Magazine, which has been covering Stagliano's trial expertly, explains:

Before Evil Angel, traditional adult companies gave directors a flat budget for making a movie, then pocketed the profits. What was not spent on the actors, set, and production became the director's take-home pay. Once the director turned in the completed movie, he no longer held any financial stake in the project. The obvious economic incentive was to make the cheapest porn movies possible.

Stagliano changed that. He entered into partnerships with his directors. They paid to make their own movies, Evil Angel paid for distribution and marketing, and the profits were split between the two. Many of the industry's top directors quickly partnered with Stagliano's company. The quality of their films readily improved and so did sales.

Although Evil Angel diligently complied with all red tape it had to handle and although all of its actors are condescending adults, federal prosecutors found reason to charge John Stagliano nonetheless; because pornography, they argue, is obscene.

Throughout the past fifty years, courts have struggled with defining just what "obscenity" means. Currently on the books is the so-called Miller test, which dates back to 1973's Miller v. California. The Supreme Court at the time devised a set of criteria which must be met in order for a work to be legitimately subject to state regulation. Foremost among them was "whether the average person, applying contemporary community standards [...], would find that the work, taken as a whole, appeals to the prurient interest." Just what "community standards" are remains a matter of dispute.

In fifty years' time, few justices have dared argue that perhaps the "average person" is best served by relying his own judgement. The trial of John Stagliano is but the latest example of the government knows best mentality that appears to have taken hold of America. Notably, not a single complaint was ever lodged against him or his company by a private citizen or corporation. That citizen is supposedly protected from "unlawful exposure to obscene materials" by the Obscenity Prosecution Task Force (OPTF) formed in 2005.

In Stagliano's case, an FBI special agent ordered films which Evil Angel distributed and purchased them at the taxpayer's expense. Why his business is suddenly deemed criminal is difficult to ascertain for the presiding District Court judge on the case, Richard Leon, shut the press out of the jury selection process while the courtroom monitors that will display the crucial evidence are all arranged to be out of the sightlines of journalists and interested parties, viewable only by jurors and lawyers. Stagliano, moreover, has been denied the use of expert witnesses. So much for fair trial.

The problem won't go away when Stagliano's ordeal comes to an end. If he is released as innocent, the OPTF will still be there, deciding arbitrarily which pornographic content is to be considered obscene and which is not. If a jury finds him guilty, nearly all adult movies may become taboo with porn actors, directors and producers fearing for their freedoms.

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