America Wins, Government Loses Huge Obscenity Trial

John Stagliano was set free last week when a federal judge ended his obscenity trial on procedural grounds. If convicted, John would have been jailed for 32 years and had his home and business confiscated.

Instead, a few million dollars of your tax money was wasted by a Department of Justice investigation, purchase, viewing, and indictment of Milk Nymphos, Storm Squirters, and Fetish Fanatic. These are DVDs that depict legal activity, whose actors are all certified as over 18. Neither of these facts was challenged by the government.

The charge was simply that the DVDs appealed to the average person’s “prurient interest,” were “patently offensive,” and “lack serious literary, artistic, political, or scientific value.” These are the actual words of the Miller Test that guide the law. If you can get a jury to agree that a given recording, painting, book, DVD, or stage show meets these three tests, the government can declare the thing “obscene.” It then loses its First Amendment protection, and it creator and distributor can be sent to jail.

That’s right—the depiction of a legal activity can be illegal. Sex is so special, that we’re not allowed to see or hear about things that we’re allowed to do. I don’t know why more people aren’t outraged about this.

The first consideration—“prurient interest”—is not only archaic (do you know what “prurient” means?), it’s completely subjective. How are people supposed to judge whether a film or song appeals to their neighbors’ healthy or unhealthy interest in sex?

The second consideration—“patently offensive”—is equally subjective. Along with “prurient interest,” this is a bizarre standard of lawfulness. If being “offensive” is illegal, there are some Congressmembers who shouldn’t be allowed to wear shorts in public. And Joan Rivers should be executed immediately.

The third consideration—“lacks value”—elevates the personal opinions of a dozen random people to god-like status (especially if you’re the defendant), and begs for carloads of experts. Is Milk Nymphos satire? An indictment of sexist prohibitions against breast-feeding in public? A documentation of creative use of enemas, or associated paraphilias?

When the Supreme Court first described the Miller Test in 1973, it was intended to codify the chaotic state of American censorship at that time. But it is shockingly subjective. It asks a jury of lay people to discern what their neighbors think about sex—a subject about which people are notoriously shy discussing seriously.

And so here was John Stagliano, in the year 2010—a year in which the planet is melting, and the Taliban wants to destroy our country, and millions of Americans have lost their jobs and are losing their homes—here was John Stagliano on trial in federal court for producing and selling adult videos to adults. Not one single customer had complained. The government had decided to go after him.

After an 18-month investigation, months of trial preparation, and days of courtroom activity, Judge Richard J. Leon, appointed by President George W. Bush, threw the case out on procedural grounds. The government’s star witness and the government’s lead prosecutor couldn’t get their stories straight. They indirectly raised the question of the judge’s own ethics, a question the judge firmly denounced.

I’m thrilled that John walks free, because he clearly did nothing wrong. But I’m disappointed that the jury did not get a chance to rule the DVDs not obscene. Judge Leon’s decision demands that the government do a more thorough, professional job when censoring what we can watch in the privacy of our homes. I wish instead he had told the government to stay out of our homes and our bedrooms. I wish the jury had had a chance to say the same.

Instead, people like John Stagliano—yes, who are in it for the money, not for public service— will have to risk everything so we can enjoy the American freedoms we take for granted. Next time you watch a porn video, or The Daily Show or a violent video game, next time you listen to a rap music on a CD or at a concert, give silent thanks to John. He almost went to jail for you and me.

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