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. Copyright 2007 – 2009 J. D. Obenberger and Associates 3 www.xxlaw.com The Categorization 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.