FIRST AMENDMENT LAWYERS ASSOCIATION 2009 Winter Meeting New Orleans, Louisiana Extreme Content: Projecting the Risk of Obscenity Prosecution 2000 to 2008 J. D. OBENBERGER. Esq. J. D. Obenberger and Associates 3700 Three First National Plaza 70 West Madison Street Chicago, IL 60602 312.558.6420
[email protected] http://www.xxxlaw.com 2000 - 2008 Obscenity Prosecutions: Categories of Risk Adapted for the First Amendment Lawyers’ Association Winter Meeting February 7, 2009 – New Orleans, Louisiana A. Introduction. Sources This effort is not intended to identify what is and what is not obscene under the law. Instead, it is intended as an effort to identify and categorize depictions of certain acts as they may increase the risk of obscenity prosecution – an assessment based on state and federal prosecutions during the period 2000 to 2008. It certainly does not claim to directly assess the chances of conviction or acquittal. In preparing this List, I have considered obscenity arrests and prosecutions reported in AVN, XBIZ, Free Speaker published by the Free Speech Coalition, Department of Justice press releases, and other online sources, looking for and identifying any repeated indicators of risk. Because there have been few prosecutions, the dots which need to be connected are necessarily widely spread. The result is that the categorization possesses a fair amount of speculation; I cannot claim any particular precision or anything approaching scientific method in the categorization. The List is simply my best judgment. The most important data points I relied upon are set forth after the List and after a listing of in this Memorandum of other factors which may influence prosecution decisions.