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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.

The Basis for a Prosecutorial/Investigational Assessment of Prurience

I suspect that the chief factors in a decision to investigate and to prosecute explicit and graphic depictions and descriptions are the depictions themselves and the perceived prurience of their predominant appeal; In particular, I believe that a work will be judged for obscenity prosecution by what it depicts and how it depicts those things, measured against a yardstick of prurience in the understanding of investigators and prosecutors of their own community’s values.

Investigators and prosecutors should also know that the work is judged in our courts as a whole and not by selected extreme parts; It is unclear the extent to which this is widely known, assessed, and applied in the conduct of investigations for obscenity.

Copyright 2007 – 2009 J. D. Obenberger and Associates 1 www.xxlaw.com At least some investigators realize that the work must be taken as a whole and in its context in assessing whether it is obscene. (In the recent Salt Lake City complaint brought against Movies by Mail/Harb, the Miller three-part test is articulated together with a summary of both conduct and dialog, scene by scene. This suggests at least some understanding that works are judged for obscenity as a whole work. The complaint notes that none of the three videos reviewed had a plot line, illustrating at least a curtsy to the Serious Value Prong of the Miller Test.

I’ve included in this work – immediately after the List - both positive and negative thematic and other circumstantial factors that I think are likely to influence a charging decision: I think that they each make a potentially significant difference to those who make the decisions.

Patent Offensiveness/Explicitness

The risk factors listed below generally assume that the conduct and/or theme is depicted graphically and explicitly in center field, focused, and not hidden or occluded, and that it remains topically in focus for more than a fleeting or rapidly changing moment. It should be clear that there is no American notion of “topical” or “thematic” obscenity and that the explicitness of a depiction or description and its place in the context of a work are essential in assessing obscenity or nonobscenity. It is an open question with an unknown answer as to whether law enforcement and prosecutors will require less explicit depiction or description in the case of topics or themes that are especially socially repugnant in making charging decisions. Investigators and prosecutors should know that the three elements of obscenity are distinct and that extreme prurience should not lower the bar nor diminish the evidentiary standard applied to patent offensiveness, but it is quite unclear that they all do, in light of the charging decision in U.S. v. Fletcher. Fletcher, arising in the Western District of Pennsylvania and now concluded with a guilty plea, is the only text-based prosecution identified in this Memorandum: No pictures, videos or even drawings appeared on the defendant’s site, just stories. Those stories, however, involved the seduction, forced sexualization, torture, and murder of little children. The decision to prosecute a person for text alone seems to say something about the “explicitness” deemed to be adequate for descriptions or depictions of certain themes and topics in the decision maker’s mind, and this would suggest healthy caution regarding text stories or depictions of simulated sex dealing with topics and themes addressed in the List which follows, especially in respect to what I have called Death Wish material.

Limited Scope

It should be obvious that, given the wide range of human sexual conduct and fantasy, no one could ever conceivably list and evaluate all possible

Copyright 2007 – 2009 J. D. Obenberger and Associates 2 www.xxlaw.com sexual depictions and themes. The omission of any of them means only that it was/they were not considered, and it does not mean that it/they possesses/possess no risk or little risk.

No Censorial Intent

It should finally be noted that we are not censors and that we personally believe in the abolition of all obscenity statutes or a determination that they all violate the Constitution. We respect our clients and their autonomy, and in the end, it remains their choice as to what kinds of material they will produce or handle. That decision should be based on objective assessment of the risk of prosecution, and this Memorandum is written to provide that kind of information. It is not the intent of this Memorandum to stifle constitutionally protected expression. For reasons set out above, there is no category of erotica and no kind of erotic depiction or description that is always and everywhere criminalized, with the solitary exception of child pornography. That is not to say, however, that the risk in all kinds of sexual depictions and descriptions is the same, because the risk importantly varies by the predominant appeal of the work, as presented by its depictions in their context. Nor is it sure that all prosecutors look much beyond the most extreme or socially offensive depiction or description in a work. For those reasons, it is useful to compile a list such as this.

The “Cambria List”

Finally, I’ve included the so-called Cambria List for easy reference. That List came to reflect the dominant content limitation for mainstream Porn Valley video businesses and, though it has much influenced content shot for videotape and DVD release, a significant amount of online content now diverges from its textual warnings. Cambria’s List is the obvious inspiration for this effort; Some have claimed that it chilled expression by inspiring fear, that it might be used by the government to measure best practices standards in the industry or as evidence, or that it unreasonably simplified the complex task of identifying obscenity. Those who advance an agenda of normalizing ever-more-deviant sexual conduct, of course, hate any such list, because it is antagonistic to their agenda inasmuch as it encourages thoughtful consideration of comparative risk in deciding what depictions to create and publish and this process may result in choices not to express, based on risk. The simplest response to all such complaints is that Paul Cambria’s List was a thoughtful and honest response to a client request for guidance about risk, just as this work was first written. Paul Cambria believes that his List has made money for his clients and has kept them out of court. Those are worthy goals for any legal work.

The list which follows is broken into four parts according to my own sense of the risk of investigatory and prosecutorial interest entailed.

I. Death Wish Material. If you are looking for a convenient, “No” list based on the content possessing extremely high risk, this is as close as you may find to such a list, though it really isn’t that. This Death Wish category is derived mainly from official statements of the Justice Department and prosecutions which were commenced, with a minimum of inference or interpretation on my part.

II. Dare Devil Material. My judgment is that material depicting or describing these matters is almost as risky as Death Wish Material. The official statements about material containing only these kinds of acts and themes are less explicit and the federal prosecutions less frequent for material that depicts or describes these matters exclusively. It should be noted that some of the works prosecuted, which possess Death Wish Material, also contain Dare Devil Material.

III. Above Average Risk Material. This consists of material “harder” or more “extreme” than the center of gravity of the adult Internet and sometimes forms the basis of a prosecution.

IV. Average Risk Material.

There is no category of sexually explicit material distributed online that is prosecution-risk-free. However, the matters listed in this category form the center of gravity of contemporary adult Internet depictions that normally pass in the marketplace of images without significant comment, notice, arrest, prosecution, conviction, or other trouble and only rarely drives a prosecution.

B. The List

CATEGORY I. - Death Wish Material.

This material invites prosecution because it has been (at least approximately) identified in policies articulated by the Justice Department and/or in indictments or complaints. This is material clearly avoided by the mainstream Porn Valley community and the large majority of American web content producers. High priority for aggressive investigation by the FBI and prosecution by US Attorney or sent to state authorities for prosecution. Cases involving this kind of content have been prosecuted during the Bush II years. The caution here expressed extends to text stories and simulated depictions of the material described.

Radioactive. Lethal. Requires something akin to a death wish to handle. Prosecution: Expected.

a. Any sexual or parasexual conduct achieved by force, compulsion, or threat of force.

Rape, the more realistic, the greater the risk.

Crying, Begging/Pleading with ensuing or simultaneous sexual conduct.

Killing or conduct immediately prepatory to killing – shooting, stabbing, hanging (any use of a noose or loop around the neck of person standing on chair, table or other elevation, suggestive of the possibility of hanging), strangling, holding club, axe or baseball bat over the head poised to bring it down and smash, or in near proximity to suggest imminent use, etc.

Menacing any person with a weapon such as knife, gun, scalpel, dental instrument, axe, pipe or club, etc.

Ripping or cutting of clothing. Cutting to provide access or cutting them off entirely.

Stripping a person of either sex without consent.

Compelling a straight performer to engage in a Gay sex act or a Gay performer to engage in a straight sex act.

b. Urination, human, dog, or other animal – in sexual context or on or into another person, or such a person in immediate proximity, or into bowl, glass or other container. Drinking, pouring, etc.

Forced or compelled urination or defecation.

c. Scat, essentially anything depicting feces or other anal discharge.

Enemas especially when directly sexualized.

Felching, and autofelching, by straw or tube.

Drinking out of toilets.

Consuming anything discharged from the anus.

d. Vomiting – emetophilia self induced, induced by other by object, hand, or penis.

Use of vomit. Drinking or eating, rubbing, etc.

e. Realistic depiction of sex or sexual or parasexual behavior with performers in the role of underage persons, of apparent extreme youth, in circumstances appropriate to children. E.g. Teddy bears and other childhood toys and bedroom furniture in significant view creating a mood and theme of juvenile molestation, or through portrayal as a juvenile runaway, or in or around locations predominantly visited by juveniles, such as school busses and playgrounds and video arcades. Real or simulated juvenile sexual contact. Explicit description or narration of child sex, especially with significantly older persons or with figures of power, control, or authority. f. Torture of any kind.

Electrical shock as torture.

Copyright 2007 – 2009 J. D. Obenberger and Associates 6 www.xxlaw.com Insertion of electrodes into bodily orifices, attachment of clip electrodes to sensitive areas in preparation for torture, especially when bound, shackled, or suspended.

Piercing of sensitive skin and flesh, needles through nipples or labia or penis, etc. Piercings by grotesque objects and/or in sensitive places.

Injection

Burning and branding

Fire and threat of burning, branding, scalding

Water torture

Ball torture, including kicking, repeatedly tapping, squeezing, etc.

Cock and ball restraint by chains, ligatures, etc.

Insects and animals– torture or harassment by.

Attachment of clamps or other constricting hardware, wires, ropes, or ligatures, especially when apparently painful, unconsented, or producing discoloration.

Hard Biting and/or twisting of breasts and sex organs.

g. Bestiality – human actor or animal actor in dominant position. Includes all animals – e.g. goats, dogs, horses, snakes, and eels, with or without condom.

h. Animal torture or death – Zoosadism.

i. Necrophilia.

j. Cannibalism.

k. Asphyxia and smothering, especially with apparent lack of consent, but not exclusively so.

l. Persons with disabilities, mental or physical, deformities, amputees and little people, in a context of abusive sexualization, especially with humiliation, derision, or ridicule.

Copyright 2007 – 2009 J. D. Obenberger and Associates 7 www.xxlaw.com m. Restraints, Straight jackets, spreader bars, duct tape, ropes, suspension torture, when accompanied by sexual molestation, and/or penetration. Risk increases as the appearance of consent diminishes and the suggestion of sexual assault against an unwilling victim increases.

n. Hard striking, hard beating, hitting, hard, slapping, whipping, hard spanking with display of red welts that remain.

o. Throwing and tossing of persons.

p. Bags, Transportation by bags, in carpets or containers or trunk of car with sexual contact.

q. Sleeping or unconscious or hypnotized or drunk with sexual contact.

r. Speculum examination of orifices

s. Introduction of objects probing into the urinary tract of either sex.

t. Blood, menstrual blood, licking, dripping, pouring, drinking rubbing. Menstrual themes, tampons.

u. Fisting

CATEGORY II. – DareDevil Material

Serious and Significant risk of prosecution when detected, but only if and when they get around to it. They may never do so. This is material is usually avoided by the Porn Valley community and most web content producers. The large majority of operators with this material will never be prosecuted because they fly under the radar or because of manpower allocation and priority issues. Some criminal complaints for obscenity under Bush II have included content with these issues, but often (though not exclusively) in conjunction with Category I depictions as well. In state prosecutions in conservative regions, such as Dallas, Texas, St. Martinville, Louisiana, and even in such less conservative venues such as Northern Virginia, these kinds of depictions alone have given rise to prosecutions. The distribution of this material is likely to be investigated and prosecuted when circumstances force the matter to the attention of investigators and agents and when they have resources to peruse it.

Very dangerous. Walking a tightrope without a net. Prosecution Risk: A Very Serious “Maybe”. No surprise if it happens.

a. Anything involving an apparently significant amount of pain or discomfort with or without apparent consent. Any depictions accompanied by what appear to be grimaces and sounds of a person in pain.

Sadism in general, the greater the apparent cruelty, the greater the risk.

Masochism in general, the greater the apparent cruelty, the greater the risk.

Trampling, especially with the use of stiletto heels pushed into the abdomen and deforming its contour, obvious pain, and the like.

Fellatio, forceful or psychologically degrading, face-fucking.

Gagging, guagging or quagging- quacking and gagging at the same time from fellatio.

Anal – Painful, forceful or psychologically degrading

Use of Drill, rotary device or other power tool with dildo and other power tools with dildo

Expulsion of copious amounts of clear fluids from the mouth

Crushing or constriction or smothering

Restraints – shackles, ropes, spreader bars without direct sexual contact.

Donkey Punches

Insertion of large objects, especially with apparent discomfort to insertee.

b. Anything short of the depiction of rape or molestation that suggests that the will to resist has been broken by despair or inevitability of sexual conduct by abductor, prison guard, or other person controlling a person.

Confinement in cage or cell with sexual or parasexual conduct but with seduction rather than rape . Prisoner seduction rather than rape.

Abduction, capture, confinement with seduction rather than rape.

The use of animals to intimidate.

c. Anything suggesting the futility of resistance or the immobilization of a person so that consent or the lack of consent cannot be expressed.

Gags, ball gags and others.

Elaborate restraint devices, especially with the appearance of no consent.

Suspension by rope, chain, etc.

d. Drug use and possession in a sexual context and simulation of the same. Joints, needles, rolling papers, mj, baggies and aluminum foil. Snorting, whether of drugs or bodily emissions such as semen.

e. Serious degradation intimidation, humiliation, or embarrassment of a performer or other person.

Serious and not merely trivial humiliation, embarrassment of performer by words.

Eating or drinking out of animal bowls.

Racially or ethnically derogatory terms such as Nigger, Wetback, Spick, Wop, Cracker, Honky, etc. especially when uttered by a person of a different ethnic group and for an apparently derisive purpose. Any serious (rather than humorous) allusion to the effects of racial prejudice on others close to one of the performers, such as topics in which a parent or spouse’s potential reaction to interracial sex is highlighted, exploited, or depicted.

Public assaults and forcible disrobing– trains and busses or elsewhere in public, frotteurism (rubbing up against and/or

Spitting upon a performer or at a performer. Consumption of spit/sputum. Spitting into mouth, eyes, mouth, nose.

Bag over the head of a person in sexual conduct when played seriously

Turkey slapping

Hitting, striking, slapping without visible pain or discomfort or audible cry.

Calling the performer a slut or whore or the equivalent. f. Virginity/Defloration of model apparently 18+, portrayed with blood and/or as a documentary. g. Incest, especially when played realistically and believably h. Anal creampie i. Pregnant and lactating females. j. Urination in a nonsexual context, and in an appropriate location and circumstance. k. Attachment of clamps or other constricting hardware, wires, ropes, or ligatures, especially when apparently without significant pain, consented to, and producing no discoloration. l. Double or triple penetration. m. Anal penetration of a male by female with strap-on. n. Diapers and infantilism o. Religious Sex with nuns, priests, monks, ministers, rabbis, the desecration of religious places or ceremonies without satiric purpose, when it plays simply to outrage. Satanic or Wiccan or pagan rituals involving sex. p. Bukkake.

Copyright 2007 – 2009 J. D. Obenberger and Associates 11 www.xxlaw.com q. Introduction of penis with grotesque body art device (“Prince Albert”) or piercing into vagina or anus, even if desired, by the insertee recipient.

CATEGORY III. – Above Average Risk Material.

Some Serious risk of prosecution. As it appears today, the large majority will never be prosecuted or experience adverse investigatory efforts because they fly under the radar, because prosecutorial and investigative resources are allocated to higher priorities, or because prosecutors and investigators judge this material to be unworthy of their attention. Some unknown number will probably be prosecuted. It is unknown the extent to which these cases would be investigated, but the presence of other kinds of criminal issues – including tax fraud, organized crime connection, rapacious off-camera behavior, etc. – is likely to increase the chances of prosecution.

Prosecution risk: Maybe.

a. Insertion of large objects in vagina or anus without pain or discomfort.

b. Special Anal orientation.

Anal intromission by finger or fingers, especially when followed by introduction of the same finger orally. Butt plugs, anal beads, dildos, vegetables, etc.

Ass to Mouth

Analinctus/analingus

c. Vaginal intromission by fingers of more than one person.

d. Special graphic orientation to semen.

Creampie

Facials, non-Bukkake.

Semen licking, drinking, display on the tongue before swallowing.

Cum swapping, snowballing

Semen up the nose

e. Teabagging

f. Saliva swapping. Spitting on sex organs or anus.

g. Handcuffs, furry and otherwise, but risk very much depends on the apparent degree of consent and mutual pleasure depicted and can be more or less risky depending on context. Any suggestion of lack of consent makes it far more risky. Enthusiastic consent still renders handcuffs marginally higher risk than content without it.

h. Wrestling, consensual, with sex. i. Pony girls, Forniphilia, use of females as furniture or other objectification.

j. Intergenerational sex k. Gangbang, multiple males on female partner l. Transsexual/crossgenered sex m. Domination and sadomasochism in costume or in dungeon, without penetration or directly sexual contact.

n. Bisexual sex involving intercourse, anal, and oral.

o. Racially or ethnically derogatory terms such as Nigger, Wetback, Spick, Wop, etc. especially when uttered by a person of a different ethnic group but without an apparently derisive purpose.

CATEGORY IV. – Average Porn Risk.

Normal risk associated with explicit adult depictions. It would be a surprise to find these depictions at the center of an obscenity prosecution in all but the most conservative regions of the county. We have no evidence or information directly or by inference informing us of active federal interest in the prosecution of these kinds of depictions. My best guess is that more than 95% of the operators creating and distributing this kind of content will not have any prosecution or adverse investigatory contact related to obscenity, but that some few, here and there will be prosecuted, either randomly, or in view of their size and influence, or because of the parallel purposes mentioned above. From time to time, especially in the more Copyright 2007 – 2009 J. D. Obenberger and Associates 13 www.xxlaw.com conservative parts of the country, state and possibly federal prosecutors will bring criminal charges. In the majority of such instances, I suspect that there will be collateral charges and parallel purposes, such as political gain, the appeasement of social conservative/religious groups, the desire to compromise a witness against other persons, such as in an organized crime investigation or tax fraud conspiracy, and the like.

Normal risks associated with the skin trade.

Prosecution Risk: It would be a surprise, but several of the categories below will inevitably lead to obscenity charges against someone, somewhere.

Sexual Intercourse Fellatio and cunnilingus. Handjobs Masturbation – mutual, solo, with vibrator or dildo, with sybian Sex with Realdoll, fleshlight, penis pump, or device. Swallowing Tickling Anal tickling Tongue Fetish Femdom, if mild. Spanking, light Restraints that don’t really restrain.

Prostitution Adultery

Big or Massive cocks

Interracial sex

Latex and Spandex Corset and Garter belt Pantyhose Smoking Foot fetish Clothing fetish Nylon fetish Automatic weapon fetish

Blindfolds while hands are not restrained.

Sex with outer space aliens

Sex basket. China basket

Bodyshots

Gay content along the lines of hetero practice including anal and fellatio. Tribidism, pussy to pussy grinding

C. Additional Factors Likely to Influence a Decision to Prosecute or Not Prosecute

The following listed matters almost certainly exert an influence in charging decisions concerning the intermediate categories of depictions. The positive factors, where there are one or more that very strongly exist may result in a pass for a high-risk site that would otherwise be prosecuted, and the negative factors, where there are one or more that very strongly exist, may cause prosecution of a site with fairly unremarkable content. Prosecutors know that they will have to prove the predominant prurient appeal and the absence of serious scientific, literary, artistic, comedic, social, medical, or artistic value and the patent offensiveness of the content. It takes all three, and they know that. Few prosecutors would desire to invest time and effort in a case where they understand that a defendant has a serious, nontrivial defense (though this sometimes takes place where the Powers That Be may have an ulterior purpose in making life hard for a defendant).

1. Positive Factors Reducing Risk of Prosecution

Comedy

Satire/Parody

Social Commentary

Political Theme and Purpose

High Production Values, technical excellence, Attractive Talent

A plot or a moral.

Documentary or docudrama format. Interview format.

Taste/Restraint

Brevity of the risky depiction

Enthusiastic Consent

Smiling and hugging at the end and suggesting that it was simply a performance.

Courtesy and respect.

Financial and practical ability of a defendant to mount a vigorous defense.

2. Negative Factors Enhancing Risk of Prosecution

Distribution in unsolicited email advertising – spam.

Pandering, advertising, and promotion of the material: “Real” rape, emphasizing extreme youth and inexperience, e.g.

“These videos depict those cases as brutally and accurately as they actually happened. The people appearing in these videos are amateurs. The men are FORMER CONVICTED RAPISTS”,

“Want a video of a REAL RAPE? This is no joke, they actually raped a girl and made this video. She is about 20 yrs. old, a very loud screamer, and cries like a baby.”

“Folks I must tell you that this is the most bizarre dog meets girl video I have seen in a long time. Would you believe BIG REXXX fucks her 12, 13, 14, times… (the staff lost count.) And she squeeeels (sic) with delight (or is it pain?)! Ol’ Rex is well endowed and relentless. That dog LOVES TO DRIVE HIS KNOT DEEP INTO HER YOUNG, TIGHT AND SHAVEN PUSSY.”

“FOR THE BEST ANAL FUCK SITE EVER TO BE RELEASED ON THE WEB!!! FUCK MY ASS UNTIL IT BLEEDS,PLEASE? THEN I'LL LICK THE SHIT

Copyright 2007 – 2009 J. D. Obenberger and Associates 16 www.xxlaw.com OFF YOUR DICK. HOW I LOVE IT IN THE ASS, AGAIN AND AGAIN!!!!!! COME AND ENJOY A FREE TOUR NOW!!!THIS IS HOT XXX RATED SHIT MY PERSONAL FAVOURITE!!!!!!! IF YOU WANT THE YOUNGEST TEEN FUCK SITE ON THE NET!!!!! I AM A LOW SLUT, I WILL DO ANYTHING FOR CUM. ANYTHING!!!! PISS ON ME, SHIT ON ME, BUT MAKE SURE YOU TREAT ME LIKE THE FILTHY WHORE I AM, I'LL EVEN BLOW YOUR FRIENDS AS YOU WATCH!!!!!!!”

“NOTHING IN THE WORLD TASTES AS GOOD AS VIRGIN PUSSY! SOMEONE'S GONNA BE BUSTIN' OPEN SOME TEEN CHERRIES! WATCH VIDEOS OF BIG COCKS POPPING BALD VIRGIN PUSSY!”

AT PINKB”WE UNDERSTAND WHAT WOMEN ARE REALLY FOR: FUCKING, SUCKING, LICKING, SWALLOWING AND CLEANING UP THE MESS AFTERWARDS!!”

“THE ONLY TIME A BITCH SHOULD OPEN HER MOUTH IS WHEN SHE’S GIVING A BLOWJOB.”

“Shutting your eyes won’t stop the pain you’re about to feel, Bitch. She lays back and waits for the pain this monster dick will inflict. Having her pussy eaten for the 1st time will lube her up for the big bang. She looks down as his hard shaft punches through her hymen.”

“Defenceless girls are cruelly raped!” [sic, UK spelling].

“This is a VERY VERY HARDCORE S&M and bondage video. Mountains of action. Watch these women get beat hard. Tied up and needle tortured. Watch a girls ass get about 30 needles stuck in her ass, hips and thighs.....and they are left in. Watch as THICK rods are shoved completely through the middle of the breast. From one side of her tit all the way through to the other side. Also see women get there nipples pierced over and over with needles....again the needles stay in. A guy even shoves a thick gauge nipple right through the middle of a girl clit. Watch as a guy takes a pair of wire cutting pliers and tear a girl's pussy and lips apart. Blood pours from different torture cuts to her pussy. See a girl hanging from the air suspended by there [sic] tits! Women get beat and slapped repeatedly. One girl squats over another girls face and pisses in it as the chick on the

“IF IT BLEEDS! YOU CAN F#$K IT!!!!!! Totally young girls with barely f#$kable holes are waiting for you! They are fresh and ready to experiment. They are naive and totally innocent.”

Degradation, dehumanization, insult to performer or persons close to her/him, objectification.

Disrespect, insult, taunt, derision.

Low Production Values, technical grittiness

Unattractive Performers. The performance of homemade or “prison” tattoos and extensive tattoos covering a substantial part of the body or areas not frequently tattooed.

Grotesque piercings and/or tattoos, especially on sensitive skin areas.

Realism in depiction of the molestation or victimization of a person without apparent consent and foreknowledge.

Cruelty. Mean spirit.

European look and feel.

The belief of prosecutors that the work created is the product of 1) predatory and/or abusive behavior or 2) the use of alcohol or drugs with models to overcome their wills or to entice, or otherwise, in reality, off camera, by the producer. A belief that the producer has a close association with the models off camera via prostitution.

Size counts. Visibility counts. Suspect tax practices count. The phony appearance of operating offshore counts. The financial inability to vigorously defend counts, too.

Challenging the government to come and get you, stop you, prosecute you, or lock you up, especially with taunts directed to the Attorney General personally.

Operating a studio near a school or church and/or adjacent to residences.

* * *

The issue is not directly whether it is good or poor acting, or even whether the performance appears real or contrived, the ultimate issue is whether it has an appeal to prurience and is so graphically depicted as to offend the tolerance of the community. The apparent realism or actual reality of the matter depicted does make a difference in the establishing the appeal of a work; Poor acting or “camp” acting or “over the top” acting may, under the right circumstances, suggest that the appeal was really satirical or humorous rather than prurient. Also, while, strictly speaking, it is not a defense to obscenity that “it was all a performance”, the inclusion – after the main feature but in the same presentation -of bloopers and bonus material illustrating and documenting that it was a performance, that no actual harm was done, that no real degradation was intended, that no one was forced to do anything, especially as it may document laughter, humor, and willingness to perform in such material again, may throw a bucked of ice water on an investigation that otherwise might lead to prosecution.

D. Datapoints – Official Statements, Indictments, Complaints, Pleas and Trials

1. Factors Articulated by the Government

“October 20, 2005 - Attorney General Alberto Gonzales has announced that his office will specifically target "bestiality, urination, defecation, as well as sadistic and masochistic behavior" in pursuing new obscenity prosecutions. The Department of Justice began recruiting in late July for a new anti- obscenity squad to pursue obscenity prosecutions, and the FBI announced in September that it was forming an anti-obscenity task force to crack down on pornography.”

USDOJ Press Release. October 20, 2005. Reprinted on NCSF website. * * *

We're focusing our resources on the most egregious offenders. So, we're looking at the producers and distributors who are producing the worst material, the largest quantity of material, the largest area of distribution. … [I]t is not the Justice Department's intention to shut down the adult entertainment industry or eliminate all sexually explicit material, even if it could. The point is to enforce some standards. As for the big corporations that are now distributing pornography over cable, satellite, and the Internet, … they need to exercise discretion. The Justice Department is currently investigating 50 cases across the country.

USA Mary Beth Buchanan, 60 Minutes, November 12, 2003.

* * *

Early last month, the bureau's Washington Field Office began recruiting for a new anti-obscenity squad. Attached to the job posting was a July 29 Electronic Communication from FBI headquarters to all 56 field offices, describing the initiative as "one of the top priorities" of Attorney General Alberto R. Gonzales and, by extension, of "the Director." That would be FBI Director Robert S. Mueller III. …"Based on a review of past successful cases in a variety of jurisdictions," the memo said, the best odds of conviction come with pornography that "includes bestiality, urination, defecation, as well as sadistic and masochistic behavior."

The Washington Post, September 20, 2005.

* * *

Given the Miller test, in pursuing obscenity prosecutions we proceed on the premise that all hard-core pornography is potentially obscene and judge each potential prosecution individually on its own merits. Since community standards play a key role in applying the Miller test, in our approach we take care to consider the views of the local community as we make these prosecution decisions. Typically, Criminal Division prosecutors ensure that they take local community views into account by teaming with prosecutors from the United States Attorney's Office

Copyright 2007 – 2009 J. D. Obenberger and Associates 20 www.xxlaw.com on these cases. As local federal prosecutors are familiar with the standards of their own communities, this team approach ensures that we properly apply the Miller test when evaluating potential obscenity cases for possible prosecution. . .

Perhaps because obscenity is now so widespread, there is a trend among offenders to differentiate themselves from other suppliers by offering more and more extreme material. Obscenity offenders essentially are now competing to offer the most egregious material in hopes of selling material to consumers who seek the most shocking items. This is an alarming trend that we are working hard to curtail. . .

In response to the explosive increase in obscenity offenses and as part of this Administration's firm commitment to enforce the Nation's obscenity laws, over the past five years the Department of Justice has revived and significantly enhanced its obscenity enforcement program. Specifically, there have been 47 obscenity convictions of persons or entities Department-wide since 2001, and we currently have obscenity indictments pending against 12 persons or entities. CEOS has led the Department's efforts in this area, prosecuting high-impact obscenity offenders and businesses using Internet web sites to distribute obscenity with the inherent capacity to afford widespread access to the public. . .

Laura H. Parsky Deputy Assistant Attorney General, Criminal Division Before The Committee On Commerce, Science, And Transportation, United States Senate, Concerning Protecting Children On The Internet, Presented On January 19, 2006

* * *

. . . Prosecution of large scale distributors of obscene material who realize substantial income from their multi-state operations also is encouraged. Prosecution priority should be given to cases in which there is evidence of involvement by known organized crime figures. However, prosecution of cases involving relatively small distributors can have a deterrent effect and would dispel any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations. Therefore, prosecution of such distributors also may be appropriate on a case-by-case basis. In evaluating obscenity cases, substantial

Copyright 2007 – 2009 J. D. Obenberger and Associates 21 www.xxlaw.com deference should be given to the United States Attorney's determination of the viability of the case based upon the factors set forth in Miller v. California, 413 U.S. 15 (1973). Under the legal test of obscenity set forth in that case, material is obscene if, taken as a whole, the average person in the community would find that the material appeals to the prurient interest of its intended audience, depicts sexual conduct in a patently offensive way, and a reasonable person would find the material, taken as a whole, lacks serious literary, artistic, political or scientific value.

U. S. Attorney’s Manual, 9-75.020 General Prosecution Policies and Priorities

2. Convictions, Acquittal, and Trials of Suppliers/Distributors/Producers: (Some descriptions are set forth verbatim from various online sources and/or congressional testimony.)

a. U.S. v. Gary Farris, doing business as (d/b/a) “taboomovies.net, offered videotapes some of which included bestiality, defecation, urination, vomit and mutilation.” Farris forfeited his domain name and was sentenced on July 24, 2003, to five years probation, six months at a community confinement facility, and six months home incarceration.

TabooMovies.com promoted many extreme videotapes. Three of the descriptions are set out here verbatim:

#90 Extreme Underground This is a hardcore bondage and S&M movie. This woman sees her uncle beat women with a whip until they glow red and then he ties his neice up in some veryodd and painful positions. Lots and lots of very unique tit tying and bondagepositions. She gets fucked by a dirty plunger through her panties, her tits, ass, back and belly are beat repeatedly beat while she is gagged and tied. Watch her scream as the electric nipple clamps come closer and closer to her large puffy nipples. She screams and whimpers through the entire movie. She even does a forced glory hole scene. Excellent picture quality.

#92 Rape This is a movie of a young lady who has her hands and feet tied to a chair. A man with a mask does several extreme things to her. He rips both of her nipples with pliers till they bleed then he squeezes them for even more blood to come out. He bruises her breast badly as well. He also tortures her pussy and beats and pinches her cunt lips with pliers till she bleeds. He keeps putting a plastic bag over her head at different times through the movie so she can not breathe. He even breaks her nails off with the pliers. I will be honest I had to fast forwardthrough that part. Then he

Copyright 2007 – 2009 J. D. Obenberger and Associates 22 www.xxlaw.com puts her on the floor and pisses on her and fucks her. Movie also has a scene in black and while where a woman is in a dog cage and is beaten and tortured. Good/fair picture quality.

#6 DB-04 This video stars a young legal teen. This kid is a doll baby. She starts out eating bananas and yogurt and then she gags herself and throws ups 4 or 5 times in a plate. She shows it to the camera then rubs in on herself and then sits in it andrubs it on herself. She then pisses and shits in her vomit and then rubs it all over her. She then pisses directly into a guys mouth two or three times and he drinks it like water. He then sticks a funnel up her ass and gives her a piss enema. He "eats" the enema and chews on her shit, then she sits on his face and he eats her ass-hole. Then he rubs it all over her body and eats it off. This guy is a hardcore shit eater. She pulls out a big dildo and fucks him with it then puts down the dildo and shoves her fist in his ass!!! Another young lady shits, eats it, and has dry heaves....wild. Also has many scenes of different women shitting outdoors....really nice scenes. (Recommended) Excellent picture quality. b. U.S. v. Ragsdale. A former Dallas police officer and his wife were convicted by a jury on October 22, 2003, of operating an Internet Web site through which they distributed obscene videos “depicting rape scenes.” The investigation, according to the report, “into other potential targets, continues.” The conviction was affirmed by the Fifth Circuit in a reported decision. The Fifth Circuit described the content as:

One tape, an hour long Japanese language video entitled “Brutally Raped 5,” was touted as being the actual rape of a young woman. In the first half of the video, the woman seems to consensually engage in various sexual activities with as many as three different males. In addition to the protracted depictions of intercourse between her and the men, the remaining half of the video depicts in graphic detail, among other things, her being hoisted up by her ankles upside down with chains and then being sodomized with various objects and seemingly tortured with hot wax. She is also flogged with a whip by a female dominatrix and subsequently sodomized with a baseball bat, which is secured in place with heavy rope. The female and male participants then seem to taunt her while she cries. The second tape, “Real Rape 1,” is an hour long Dutch video that depicts a young woman hitch hiker being picked up by a male in a car. She eventually flees from the car into a wooded area where she is pursued by the driver. The man catches up to her and ties her up–first on the ground and later to a tree. There are lengthy zoom lens pictures of her being sodomized. The prosecution Copyright 2007 – 2009 J. D. Obenberger and Associates 23 www.xxlaw.com argued that what the viewer sees in the next scene is the woman being forced to fellate and then being raped. The video abruptly changes to an indoor location and the woman, who is now tied to a chair, has changed her attire. It then looks as if the man hits her and cut her with a knife. Thereafter, the video shows protracted close up shots of male and female genitalia engaged in a variety of sexual acts that the prosecution argued was again non-consensual by the female.

The Fifth Circuit said that the movies were advertised as follows:

“Want a video of a REAL RAPE? This is no joke, they actually raped a girl and made this video. She is about 20 yrs. old, a very loud screamer, and cries like a baby. In the beginning of this bootleg sex video the girl is a willing participant but quickly realizes she is in way over her head. She pleads for mercy and begs the men to stop. The men tie her up and have their way with her . . . The tape is about an hour long, although I seriously doubt you could stand to watch it that long .”

c. U.S. v. Gartman and McDowell, Dallas. March 14, 2006. This case arose out of the same investigation that spawned the Ragsdale case, supra. In their own trial, the rape videos at issue in Ragsdale led to an acquittal on obscenity charges. An acquittal was also obtained concerning a work featuring urination and defecation. The defendants were convicted in connection with a work that depicted the piercing of nipples by needles billed as sexual torture without accompanying sexually explicit acts. On August 24, 2007, the Fifth Circuit reversed McDowell’s conviction because there was no evidence that the defendant knew the US Mails would be used by his partners and associates and no reasonable inference of that knowledge arose from the evidence.

d. U.S. v. Vetter, d/b/a blondestrippergirl.com. Christin Vetter “ran a business which included fulfilling customers’ fetishes, and mailing the end ‘product,’ …including used anal beads, dildos with menstrual blood, etc. No photographs or videos are involved.” Vetter’s plea agreement includes five years probation and participating “in a mental health program.” This was not actually an “obscenity” case in the common understanding: It was a prosecution for criminally mailing indecent/obscene articles.

e. U.S. v. Wasserman and King. Convicted by a plea on December 3, 2001, on obscenity charges, Wasserman was

Copyright 2007 – 2009 J. D. Obenberger and Associates 24 www.xxlaw.com sentenced to five years probation and a $490,000 fine, and King to two years probation and $10,000 fine. The defendants unknowingly sent porn via e-mail to a federal magistrate.

f. U.S. v. Corbett, d/b/a, girlspooping.com. Michael and Sharon Corbett, Joseph Tanner, and Randall Rogers all entered guilty pleas on August 25, 2003, to distributing “obscene videotapes depicting graphic sexually explicit scenes of defecation.” In December 2003, Michael Corbett was sentenced to 18 months in federal prison, a $30,000 fine and three years of supervised release. “Sharon Corbett received 13 months prison time, a $10,000 fine and three years probation. The couple further agreed to pay $60,000 in lieu of forfeiting their home. The judge also sentenced Joseph Tanner and Randall Rogers, of Tdigital Services Inc., who maintained GirlsPooping.com and shared in the profits. Tanner received 13 months in prison and a $20,000 fine, while Rogers received three years probation. (While giving Rogers a lighter sentence, Judge Faber cited his lesser role in the activities and the fact that he is confined to a wheelchair.) Tanner also agreed to forfeit $80,000, the offending material and the equipment used to produce said material. The Corbetts had previously forfeited $15,010, which was seized from their bank accounts. In addition, Corbett had to relinquish his Web site.”

g. U.S. v. Marcus, New York: “A man dubbed an ‘S&M Svengali’ by the tabloids was convicted Monday of sexually abusing a woman he photographed for his sadomasochism Web site, but cleared of a charge that the site was obscene.” “A jury deliberated seven days before finding Glenn Marcus, 53, guilty of sex trafficking and forced labor. He was acquitted of obscenity — a charge that's been brought more frequently under the Bush administration.” Associated Press, March 5, 2007

h. U. S. v. Wedelsted ( N.D. Tex.). Goalie Entertainment Holdings, Inc. In the Wedelstedt case, was prosecuted by CEOS and the U.S. Attorney's Office for the Northern District of Texas in substantial cooperation with the Tax Division, the Criminal Division's Asset Forfeiture and Money Laundering Section and Organized Crime and Racketeering Section, the Internal Revenue Service, and the Bureau of Immigration and Customs Enforcement, seven individuals and a company were indicted on March 11, 2005 for numerous crimes including racketeering, conspiracy, obscenity, and tax offenses. The indictment addressed the criminal activities of Edward J. Wedelstedt and his wholly-owned, multi-million dollar corporation, called Goalie Entertainment Holdings, Inc., related to the operation throughout the country of

Copyright 2007 – 2009 J. D. Obenberger and Associates 25 www.xxlaw.com adult pornography bookstores with video arcades where customers could pay to view clips of obscene videos or DVDs. Several convictions have already resulted from this indictment, including that of lead defendant Wedelstedt, who pled guilty on November 4,2005, to transporting obscene matters for sale or distribution (in violation of 18 U.S.C. 5 1465) and engaging in a conspiracy to defraud the United States by frustrating, impeding, or hindering the Internal Revenue Service (in violation of 18 U.S.C. § 371). Wedelstedt's plea subjects him to a 13-month prison sentence to be followed by one year of supervised release. and forfeiture of businesses and property located in Texas. Further, Wedelstedt already forfeited $1.25 million to the United States government in connection with this investigation. Wedelstedt is scheduled to be sentenced on February 9, 2006.

"The videos are the kind of hard core pornography anybody can buy right off the shelf; they don't involve no sort of bondage, rape and excretory subjects that DOJ has been focused on," she says. "They've gotten the bar down." Memphis Business Journal, March 16, 2005.

The titles named in the indictment are “American Bukkake 7,” “American Bukkake 8,” “Cumshots 4,” “Gangbang Angels 11,” “1 In The Pink, 1 In The Stink 5” and “Tits and Ass 8.” Feeds4all.com, October 10, 2006.

i. U.S. v. Lambert and Wasserman. Guilty pleas in the District of Montana on December 2, 2005. Wasserman had been previously convicted of distribution of obscenity (see e. infra, above) and was sentenced to the maximum five year term. Lambert was sentenced to 2 ½ years. The depictions contained in various charged tapes included eels in the rectum and vagina (condom used in the latter), sex with donkeys, dogs, goats, pigs, and horses, abduction of women, ripping their clothes off, turkey slapping, breast twisting, gangbang/Bukkake, lesbian sex between nuns in front of an altar mopping the sanctuary floor, including penetration by mop handle followed by sex with dog followed by heterosexual sex. Fisting. Insertion of an artificial airway gag. Insertion and inflation of objects in the vagina. Metal clips applied to labia and weights applied. Restraint in harnesses, ball torture, insertion of thermometer into penis meatus. Butt plugs, scrotum twisting, hot wax. Urination, defecation, enemas. Handicapped male in wheelchair.

Copyright 2007 – 2009 J. D. Obenberger and Associates 26 www.xxlaw.com j. U.S. v. Kilbride, District of Arizona, June 25, 2007. This case arose out of a porn spam operation and included prosecutions under CAN-SPAM, Money Laundering, Section 2257, and four counts of distribution of adult obscenity. The federal jury in Phoenix convicted on all obscenity counts. It is not clear what the email images depicted, but one report suggested images of fisting.

k. U. S. v. Coil (W.D. Tex.). From the DOJ press release: This investigation began over five years ago under the Clinton/Reno administration. A federal grand jury indicted seven individuals on “all or some of the following charges: racketeering, numerous obscenity offenses, fraud, and income tax evasion.” The charges stem from involvement in an organization established in 1981 that owns and operates numerous adult bookstores and arcades in seven states “that sold obscene and pornographic materials.” The indictment includes “a forfeiture charge seeking more than $9.7 million in proceeds from the racketeering enterprise.” In Coil, CEOS partnered with the U.S. Attorney's Office for the Western District of Texas in the investigation and prosecution of a major supplier of adult oriented materials. Seven individuals were charged in a multi-count indictment with fraud, tax, obscenity, and conspiracy offenses related to the operations of adult-oriented businesses in three states. All seven defendants have pled guilty, and significant criminal penalties were imposed. The lead defendant, John Kenneth Coil, agreed to forfeit all his enterprise properties within the state of Texas, amounting to over 40 pieces of realty and 20 stores throughout the state. He was sentenced to 63 months imprisonment to be followed by three years of supervised release, a $5,000 fine, and forfeiture of an estimated $8.1 million in property.

l. U.S. v. Little, Tampa, Florida. May, 2007 indictment of Max Hardcore for distribution of obscene video via mail order and distribution over an Internet web site. The content is reported to include fisting and hard anal. The case was tried to a jury during the Summer of 2008, the defendants were convicted on all counts, the domain names were forfeited, and Little was sentenced to 46 months incarceration. As of February, 2009, he has begun serving his term. Max Hardcore has previously been tried in L.A. County for material featuring urination, fisting, and depictions of adults performing as children, leading to a hung jury.

m. U.S. v. Fletcher. Federal prosecution brought in Pittsburgh, in 2006 by ASA Buchanan, who also brought the Extreme Associates case. The content was exclusively text, particularly stories

Copyright 2007 – 2009 J. D. Obenberger and Associates 27 www.xxlaw.com concerning the seduction, torture, rape, of children of very tender ages, including violence and murder. On August 7, 2008, the defendant pled guilty and was sentenced to five years probation, the first six months of which was to be served on house arrest, and a $1,000.00 fine. n. Florida v. McCowan. 2006 state criminal complaint filed in North Florida against three operators of an adult website, “Cum on Her Face”, www.cohf.com, which featured Bukkake, group sex, and gangbangs with numerous male performers and typically one or two female performers. The site’s content was particularly hard oral gangbang in nature and arose in the conservative Florida PanHandle. The website is no longer operated by the persons charged, but by foreign operators. McCowen was sentenced to 48 months in state prison on August12, 2008. Two employees were also sentenced: Andrew Craft, 40, was given to 34½ months in prison, while Kevin Patrick Stevens, 38, received 40 months. Published accounts disclosed that the prosecutors believed that the operators ran pre-shoot parties at which drugs were supplied. o. Kansas. At least four brick and mortar adult operators were indicted for obscenity in September 2007 by a Kansas special grand jury in Johnson County, convened as the result of a petition drive organized by moralizer Philip Cosby and his Kansas City chapter of the National Coalition for the Protection of Children and Families (NCPCF). Amazingly, the indictments included Halloween costumes and devices designed to preserve penile rigidity. Spirit Halloween was indicted for the costumes on September 26, 2007 but the charges were dismissed on the State’s motion on October th 10 ,apparently because the prosecutor felt that the State could not meet its burden of proving the costumes obscene.. Priscilla’s was indicted for various sex aids, including the vibrating ring, and possession with intent to sell the sex video “Teen Cum Targets”. Hollywood at Home was indicted for promotion of four video titles: “Real Female Masturbation 13” (New Machine), “Anal Machines” (Vamp), “Hellcats 12” (Evil Angel), and “Don’t Kiss Me, I’m Straight”. (HIS) A writer familiar with the content observed that Hellcats twelve featured solo female urination in panties without accompanying sex, oral, vaginal, anal, and group anal sex. Gringo Loco was indicted for the sale of one. At least some of those cases remain pending. p. Ira Isaacs was indicted in the United States District Court for the Central District of Florida in Los Angles. The February, 2007 indictment relates to video titles described as "Gang Bang Horse”, 'Pony Sex Game", "Mako's First Time Scat", "Hollywood Scat Amateurs No. 7", "Laurie's Toilet Show" Copyright 2007 – 2009 J. D. Obenberger and Associates 28 www.xxlaw.com and "Bae 20". The tapes were apparently promoted at the following sites, whose domains the government seeks to forfeit criminally: www.scatmovies.com, www.scatcinemax.com, and www.stolencarfilms.com. On June 13, the trial judge declared a mistrial, sua sponte, as a result of allegations that he maintained a personal web page with allegedly indecent images. Litigation concerning whether a new trial may commence is pending.

q. U.S. v. Five Star Video and JM Productions. This federal prosecution in Phoenix arose from the operation of an allegedly - obscenity business and delivery of four DVD videos, first from producer to retailer and then from retailer to a Postal Inspector in Northern Virginia, “Gag Factor 15”, “Gag Factor 18”, “American Bukkake 13”, and “Filthy Things 6”. One report suggests that a parody/satire of throat gagging torture in Abu Ghraib Prison was depicted.

The case went to trial during October 2007. At trial, the individual defendants were dismissed by the judge because the government was unable to lay the foundation for the introduction of documents as business records necessary to establish their knowledge concerning the allegedly-obscene material. The obscenity case then went to the jury with respect to certain corporate defendants. Five Star Video LC and Five Star Video Outlet LC were convicted after five hours of deliberation with respect only to Gag Factor 18, and acquitted with respect to Filthy Things 6 and American Bukakke 13. Gag Factor 18 was described by someone familiar with its content as consisting of repeated scenes depicting female performers engaged in oral sex on male performers until they gagged and in some cases vomited, the copious display of facial saliva and semen, and accompanying harsh language towards the female performers.

r. Virginia v. Rick Krial and After Hours Video. After Hours and its owner Rick E. Krial, which recently opened as the first adult business in Staunton, Virgina was indicted on 16 felony and misdemeanor charges related to selling obscene movies by the grand jury on November 1, 2007. The titles included: "Sugar Britches", "City Girls-Exxxtreme Gang Bangs", "The Video Adventures of Peeping Tom", "Tag Teamed 3 -The Art of Double Penetration", "Teen Angel - The Search for Snatch", "Teens Cumming of Age#4", "Erotica", "Teanna Kia is the Bitch", "5 People You Meet in Porn", "Big Loves - Thick for Dick", "A Group Thing #1", and "Hog Farm". This prosecution was commenced

Copyright 2007 – 2009 J. D. Obenberger and Associates 29 www.xxlaw.com shortly after the operator opened his store against protests and community agitation against its establishment. The indictment discloses that material was purchased on three different dates – so that the subsequent purchases might be charged as a second or subsequent offense – and thereby become punishable as felonies.

Published accounts indicate that, at trial, Sugar Britches and City Girls Extreme Gang Bangs went to the jury. The counts arising from Sugar Britches resulted in acquittal. Krial and After Hours were convicted based on the content of City Girls Extreme Gang Bangs. According to Commonwealth’s Attorney Ray Robertson, “There was a guy having sex with a girl in her vagina and another guy having sex in her anus,” he told the jury during closing arguments. “There were two guys with their penises in the same vagina. Six times a man pulled his penis out of a woman’s anus and put it directly in her mouth.” Published accounts explaining the split verdict attribute the conviction in the Gangbang video to its depiction of multiple simultaneous sexual partners.

The jury of four men and three women recommended a fine of $1,000 against Krial and $1,500 against the corporate defendant.

s. United States v. Evil Angel and John Stagliano. On April 8, 2008 in Washington, D.C. Stagliano and his companies Evil Angel Productions and John Stagliano Inc. were indicted.. The videos cited as obscene are Jay Sin's Milk Nymphos, Joey Silvera's Storm Squirters 2 and an online trailer for Belladonna's Fetish Fanatic 5. The material reportedly includes depictions of the forceful expression of breast milk onto others, establishing here a uniquely apt characterization as a “free expression” case. “Stagliano and his companies are charged with ‘three counts of using a facility of interstate commerce to sell and distribute DVDs containing obscene films’ together with a movie trailer in violation of 18 U.S.C. SS 1465; two counts of using a common carrier for the conveyance or delivery of DVDs containing obscene films in interstate commerce in violation of 18 U.S.C. SS 1462; one count of engaging in the business of selling or transferring an obscene film and a movie trailer in violation of 18 U.S.C. SS 1466; one count of using an interactive computer service to display an obscene movie trailer in a manner available to a person under 18 years of age, in violation of 47 U.S.C. SS 223 (d); and one count seeking forfeiture of certain assets of the defendants under 18 U.S.C. SS 1467."

3. Convictions of Individuals for distribution/receipt:

Copyright 2007 – 2009 J. D. Obenberger and Associates 30 www.xxlaw.com a. U.S. v. Cauble. Indicted October 9, 2002, on 13 counts of receiving and possessing child pornography and four counts of receiving obscenity, “including images depicting bestiality,” Cauble pleaded guilty to two counts of receipt of child porn, one count of possession of child porn, and one count of receipt of adult obscenity. His sentence includes 41 months imprisonment and three years of supervised release.

b. U.S. v. McClure. McClure uploaded approximately 300 images to an electronic photo album. “The images selected for prosecution included both child pornography and adult obscenity.” After pleading guilty, McClure “was sentenced on July 22, 2003, to 51 months imprisonment, followed by three years of supervised release.”

c. U.S. v. Funderburk. On December 13, 2002, a judge sentenced Funderburk to 27 months imprisonment, three years of supervised release, and ordered to pay for his mental and drug counseling after pleading guilty of distributing “an obscene video which depicted bondage and rape.”

4. Indictments of Suppliers/Distributors/Producers:

a. U.S. v. Zicari (a/k/a Rob Black) and Janet Louise Romano (a/k/a Lizzy Borden) and Extreme Associates, a corporation. All three defendants were indicted on 10 counts of violating federal obscenity laws. The investigation began “after a special report aired on PBS’ Frontline, on February 7, 2002, entitled ‘American Porn.’ … in which Rob Black reportedly was filmed consensually beating a female and inviting the Attorney General to get him. Extreme Associates is a significant producer and distributor of hard pornography, including video tapes depicting the rape of women.” Reportedly, the material also included depictions of adult performers in the role of sexualized children. Case pending and set for trial on March 16, 2009.

b. People of the State of Illinois v. Michael Jones. Web content photographer was prosecuted by the State of Illinois in an exurban Chicago Collar County for possession of child pornography and distribution of heavy duty S & M bondage material. The case was ultimately dismissed for technical reasons after this firm prevailed on a motion to suppress all evidence, which stemmed from an illegal search and seizure under a warrant.

c. U.S. v. Croce d/b/a Vomitbrazil. Prosecution brought federally in Orlando. The defendant produced content in South

Copyright 2007 – 2009 J. D. Obenberger and Associates 31 www.xxlaw.com America and fulfilled orders from the United States. His videos and websites included scat, piss, vomit, Bukkake and fisting. Croce was the operator of vomitbrazil.com, among others. He pled guilty on June 8, 2007.

d. U.S. v. Harb (D.Ut., 2007). The operators of “Movies by Mail” were federally charged in Salt Lake with one count of conducting an obscenity business. The matter charged in the pending case derives from both Max Hardcore (“Pure Max 18” and “Extreme 12”) and Extreme Associates (“Cocktails 5”). According to the complaint, there are explicit depictions of gagging, coughing, the expulsion of fluid from the mouth, crying, forceful face-fucking by grabbing female’s hair, anal intromission of tubes, vaginal intromission of straws, use of straw to suck vaginal fluid contents, autofelching, continuing sexually after a performer’s request to “please stop”, and pig-tailed performers dressed in a pre- adolescent fashion being picked up at a playground and used sexually in these works. The case is pending.

According to U.S. Attorney Brett Tolman, these movies have no artistic value. "The U.S. Department of Justice and U.S. Attorneys' Offices nationwide have stepped up the prosecution of obscenity cases, as evidence increases of the harm of obscenity to American children and families," Tolman said. "As obscene materials continue to proliferate, they are becoming more accessible for the young and the innocent among us. At the same time they are becoming more extreme and degrading in content and present a growing threat to the well being of American families and our society as a whole." Xbiz, 6.29.07

e. Louisiana v. Le Video Store. This pending case is defended by my office in St. Martinville, Louisiana. At the core of the material charged, there is Double Penetration, interracial sex, female urination on a concrete floor, and very gritty amateur swinger interracial orgy material with individuals who would not be considered attractive in mainstream pornography.

5. Indictments of Individuals:

a. U.S. v. Rice. “While working as a contract employee for the IRS, Robert Rice downloaded numerous images of both child pornography and obscenity (bestiality and S & M) images onto his work computer. A federal grand jury indicted Rice on charges of possession and attempted possession of child pornography and transportation of obscene matter.

Copyright 2007 – 2009 J. D. Obenberger and Associates 32 www.xxlaw.com b. Florida v. Chris Wilson. 2006 state obscenity prosecution of webmaster carrying user-submitted content in the context of an anti-Iraq War website, probably primarily precipitated by its political orientation. After initial charges were brought and his release on bail, the webmaster continued operations in an adjoining county and was re-arrested for violation of bail on that ground, a hearing was held, and he was incarcerated. Ultimately, the webmaster gave up operations. The content included nailing a breast to a picnic table, fake snuff, blood, urination, and depiction of a female hanging herself, urinating, followed by a close shot of her face, apparently dead.

E. The “Cambria List”

No shots with appearance of pain or degradation No facials (bodyshots are OK if shot is not nasty) No Bukkake No spitting or saliva mouth to mouth No food used as sex object No peeing unless in a natural setting, e.g., field, roadside No coffins* No blindfolds No wax dripping* No two dicks in/near one mouth No shot of stretching pussy No fisting No squirting No bondage-type toys or gear unless very light No girls sharing same dildo (in mouth or pussy) Toys are OK if shot is not nasty No hands from 2 different people fingering same girl No male/male penetration No transsexuals No bi-sex No degrading dialogue, e.g., "Suck this cock, bitch" while slapping her face with a penis No menstruation topics No incest topics No forced sex, rape themes, etc. No black men-white women themes

The so-called Cambria list was prepared quickly for a client at the client’s request and that the client added an unspecified number of entries to the list. The marked items (*) were specifically mentioned by Cambria as items he did not list, but which were the product of other hands, but he did not claim to recall all of additions to his list. Since his involvement in writing part of this list, it has developed a life of its own.

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