Adult film producer John Stagliano has been a critic of the government's prosecution of obscenity cases, championing libertarian causes and sexual expression.
At the annual Adult Video News Awards in Las Vegas in January 2008, Stagliano produced an erotic dance that his lawyers say condemned criminalizing erotic images and warned of government monitoring of private use of the Internet.
Now, Stagliano is just trying to stay out of prison. Stagliano and two of his companies were indicted in federal district court in Washington in April 2008 on seven counts of distributing obscene, sexually graphic videos that U.S. Justice Department prosecutors allege have no artistic or scientific value and cut against the community standard of what is acceptable. He faces up to 32 years behind bars if convicted.
Jury selection is under way and opening arguments are expected to begin this week in the first adult porn obscenity case in the U.S. District Court for the District of Columbia in more than 20 years. "There won't be any falling asleep in this courtroom," Judge Richard Leon said at a hearing in the case June 14. "I can assure you of that."
Stagliano and his companies -- Evil Angel Productions and John Stagliano Inc. -- assembled a legal team of First Amendment experts. His lawyers include Davis Wright Tremaine partner Robert Corn-Revere and H. Louis Sirkin of Cincinnati's Sirkin, Kinsley, & Nazzarine.
They're arguing that Stagliano has a right to possess and to distribute sexually explicit material. The lawyers contend federal obscenity standards are too vague to govern Internet speech. The sexual acts in the movies were lawful, the lawyers said, and the participants were consenting adults. "The right of sexual privacy has evolved as society's attitudes about sexuality have evolved," Corn-Revere said in court papers in July 2008. "Liberty now gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. This protection is broad enough to encompass a right to buy and sell obscene materials."
In declining to dismiss the indictment earlier this year, Leon said the federal obscenity statutes are not unconstitutionally vague as applied to Internet speech. "Although public morality may be an insufficient justification for regulating private conduct in some cases, it is certainly a sufficient justification for regulating the sort of public conduct at issue here," Leon wrote.
Corn-Revere and Justice Department officials declined to discuss the case, which stems from a crackdown on porn producers during the George W. Bush administration. Pamela Satterfield and Bonnie Hannan of the Criminal Division obscenity prosecution task force will try the case.
During the Bush administration, more than 360 defendants were charged with obscenity violations -- nearly double the number prosecuted under the same statutes under President Bill Clinton, according to Justice Department statistics. In 2009, 20 defendants were charged with obscenity crimes, compared to 54 the previous year.
The evidence against Stagliano is two DVDs -- "Jay Sin's Milk Nymphos" and "Joey Silvera's Storm Squirters 2" -- as well as a movie trailer downloaded from the Evil Angel site. An FBI agent bought the movies for $57.48 in December 2007.
In court papers, investigators describe the movies as having "numerous scenes of urination, use of enemas and violent bondage. In a number of scenes, participants ingested urine and excretion from the enemas."
Prosecutors will try to convince jurors that the videos, taken as a whole, lack serious literary, artistic, political or scientific value. On Friday, Leon ruled the defense would not be allowed to call two experts to testify about the scientific and artistic value of the movies, stating such testimony would likely lead the jury astray. Lawrence Walters, a First Amendment lawyer who specializes in representing clients in adult entertainment, said obscenity cases have historically been filed in districts that are generally viewed as conservative. "It may result in one of the first cases where a more cosmopolitan jury has made a determination of obscenity with regard to adult material," said Walters of Walters Law Group in Altamonte Springs, Fla.
In a May interview with Fox News, Stagliano called himself a mainstream pornographer who is "less on the fringe" than others. He described his movies as "fetishy" but not extreme. Stagliano criticized federal obscenity laws as "a bad law partly also because you don't know you're breaking it in advance."