Last month the adult entertainment industry received a great victory and was able to take
a great sigh of relief. The case of the United States v. John Stagliano John Stagliano, Inc. and
Evil Angel Productions, Inc. went to trial in the District of Columbia before U.S. District Court
Judge Richard J. Leon for charges that they had sent obscene material by common carrier across
state lines to the District of Columbia.
At the inception of this case, the case had all of the trapings of being a hallmark, if not a
landmark decision, in obscenity prosecutions. The case was brought by the Justice Department’s
Obscenity Prosecution Task Force Representing the defendants were represented by some of our
personal friends, H. Louis Sirkin, Paul Camberia, Alan Gelbart and Robert Corn-Revere.
The reason why this case could have been, if not a landmark decision, but a hallmark
decision, was depending on the verdict this case would have made a statement to either the pro-
censorship people within the government or to First Amendment advocates outside of the
government. The defendants were represented by fine attorneys defending the material and
claiming that they were not obscene in Washington, D.C. Supposedly a crack government legal
team was on the other side. The case was being watched by the adult entertainment industry
along with prosecutors nationwide. A victory for the prosecutors would have sent a chilling
effect throughout the adult entertainment industry. A finding that the material was not obscene
would have emboldened those of us who champion the First Amendment and believe in the right
of adults to view contents that they desire.
As any trial attorney will tell you, the future of a case can never be predicted and cases
take on lives on their own. During this trial, there were missteps by the United States
Government such as a corrupted recording of a DVD that caused the Judge to throw out counts
that dealt with the “trailors” of the movies. There also was a misspoken statement by one of the
federal agents while testifying, where the agent testified that the Judge had told him to review the
evidence before he testified. This made the Federal District Court Judge irrate and required an
affidavit to be signed by the U.S. Attorneys for the jury’s review stating in fact their own witness
However, the biggest shock came when the defense argued their Rule 29 motions. These
are motions in Federal Court after the government rests its case, to have the charges thrown out
because the government has not put on a prima facia case to the standard where a reasonable
juror could come back and find guilt beyond a reasonable doubt. These motions are seldom
granted but to everyone’s surprise Judge Leon in fact granted the Defendant’s motions and threw
out all of the charges. His ruling was not based upon the fact that the material was not obscene
but rather that the defendants could not be hooked up and linked to the interstate transportation of
the matter. Regardless of why he ruled, this case was a great victory for the First Amendment
and First Amendment advocates and a crushing defeat for the U.S. government in its war on
After the trial, John Stagliano apparently voiced some misgivings of the proceedings. He
was certainly thrilled that he was no longer facing time in jail, but as a fighter for the First
Amendment it seemed that he very much wanted a victory wherein the jury would have found the
matters to not be obscene. If that occurred, it would have sent shockwaves throughout the United
States government that adults want to be left alone, that adults want the rights to view and not
have the government interfere in what they watch.
Again, a victory is a victory. Those of use who champion First Amendment freedoms
could not be happier and could not be more proud of our compatriots who went through the fight.
Having been involved in cases with Paul Camberia and H. Louis Sirkin we know what quality
work was done on the defendants’ behalf and we know what passion was given in that
representation. We send our truest congratulations and appreciation to the defendants and to the
In order for material or even performances to be obscene they must fail the Miller test.
The essence of the test is that the: average person applying contemporary community standards
finds the matter taken as a whole appeals to the prurient interest; it depicts sexual activity in a
patently offensive manner; and lacks serious artistic, literary, scientific or political value.
To many of us, this definition is no definition at all. It gives no guidance and we believe
it is unconstitutionally vague. Because of this belief, we were waiting for the Supreme Court to
weigh in on their belief of the constitutionality of the “honest services fraud” cases. We had
hoped that if the Supreme Court struck down that crime on vagueness grounds, we would have
ammunition to do the same for the obscenity test.
Unfortunately in the case of Skilling v. United States the Supreme Court did hold “honest
services fraud” to be vague, but its reasoning does not help our First Amendment fights against
the Miller test. The Supreme Court seemed to indicate that a definition as vague as the Miller
test would have saved the “honest services fraud” statute.