News
Civil Rights
Jun. 25, 2002
Porn Stars
Lawyers for the pornography industry don't necessarily get laid more than regular people - contrary to popular belief. "The perception is that every Friday night I'm at some swing party covered with porn stars. The answer is, unfortunately, no," says Allan Gelbard, porno-cameraman-turned-lawyer. "I take my ethical responsibility not to sleep with clients really seriously."
By Katherine Gaidos
Lawyers for the pornography industry don't necessarily get laid more than regular people - contrary to popular belief.
"The perception is that every Friday night I'm at some swing party covered with porn stars. The answer is, unfortunately, no," says Allan Gelbard, porno-cameraman-turned-lawyer. "I take my ethical responsibility not to sleep with clients really seriously."
Gelbard, who advises adult entertainment companies on their intellectual property rights and contract issues, created something of a stir when he first took over a spare office from an Encino probate firm and porn stars started coming through his door. But usually, Gelbard says, the stars are wearing sweatpants.
And John Weston, noted adult entertainment industry litigator with seven U.S. Supreme Court arguments under his belt, has never been on a porn set during filming, after 30 years of practicing in the area.
"I could have at any time," Weston said, "but it just was not something that I felt was appropriate. I was a lawyer. I gave licensed advice."
"At the time, it seemed not my place to be on a set," Weston says. "Now, I probably would be not nearly as concerned about it, but it's just something I haven't thought about doing in a lot of years."
Admittedly, Weston and his colleagues have been busy with other things, like keeping their clients in business - and out of jail. And after a period of almost no federal obscenity prosecutions during President Clinton's two terms in the White House, members of the adult entertainment industry are keeping a wary eye on the horizon, watching for a resurgence of obscenity prosecutions.
"I, for one, have been jumping up and down, screaming, 'It's coming, it's coming, it's coming,'" Gelbard says.
"Mr. [Attorney General John] Ashcroft, he's worrisome," says Kat Sunlove, legislative affairs director for the Free Speech Coalition, a national trade association for the adult entertainment industry.
Lawyers for the adult entertainment industry fill a specialized niche. Without telling their clients what they can and cannot portray in videos or on Web sites, adult industry attorneys are there to help them if they run afoul of federal or state prosecutors.
Most of these lawyers are well-versed in the world of adult entertainment. They are also members of the First Amendment Lawyers Association and are knowledgeable - and usually passionate - about freedom of speech.
Gelbard, for instance, decided to go to law school after he had his video camera confiscated at a Free Speech Coalition rally. He has the First Amendment tattooed on his right bicep, in 41/2 scripted circles. The procedure took four hours.
But although these lawyers for the adult entertainment industry are energetic in their defense of sexual subject matter and freedom of speech, they spent the 1990s battling largely zoning violations and secondary-effects cases on a local level. These cases involved individual bookstores or sex paraphernalia businesses being sued for doing business in areas not zoned for them. In recent history, these cases have been much more successful in reining in pornography than obscenity prosecutions, lawyers say.
"In my opinion, the cities and the government have given up on the obscenity angle. You don't see a lot of obscenity prosecution," Santa Monica sole practitioner Roger Diamond says. "There aren't the kinds of obscenity cases there were in the '60s. The porn industry today is regulated more by zoning and licensing than it is by criminal prosecutions."
But all that may be about to change. During Clinton's presidency, federal prosecution of adult pornography slowed almost to a stop. But with a new chief in town, pornographers, adult entertainment businesspeople and their lawyers are keeping a wary eye on the horizon, searching for resurgence in obscenity prosecutions.
Some in the adult entertainment community, like Weston, suspect that law enforcement is no longer interested in chasing adult entertainers.
"It's hard to tell. We have been in situations where I had thought federal obscenity prosecutions were dead, absent some really bizarre stuff. And they came back like the phoenix raised from the dead," Weston says.
But he also suspects that Sept. 11 has diverted the national focus from dirty videotapes and to national security matters.
"In the terrorist milieu ... they're going to divert FBI people from trying to keep terrorists off our soil and have them go after videotapes?" he asks.
Pornography lawyers say that child pornography is in a separate category from regular porn. They generally support child-porn prosecutions.
"The adult industry has no connection with the child-porn people. They're by themselves," Diamond says.
But the life of any adult entertainment business or adult moviemaker or porn site Web master is always about waiting for the other shoe to drop. The national litmus test for obscenity holds that, essentially, something is obscene if a jury says it is.
Since 1973, federal and state courts have used the Miller opinion as their obscenity crib sheet. The U.S Supreme Court opinion, from Miller v. California, 413 U.S. 15 (1973), sets out a three-pronged test for obscenity, something which historically had been a difficult quality to nail down. The first prong states that an "average person, applying contemporary community standards," must find the work of "prurient interest" - in other words, for erotic rather than educational value. The second prong says that the work must show sex in a "patently offensive" way. And the third prong, which lawyers say is the easiest to defend, says that the work must be without any artistic or social value.
Federal prosecutions, involving interstate commerce laws, carry heftier consequences than state obscenity prosecutions. On a local level, first-offense obscenity cases are misdemeanor trials, handled by the city attorney. A first-time conviction comes with a $1,000 fine and lands adult business proprietors in jail for up to one year.
Further obscenity convictions are felony crimes and can carry fines of $50,000 - as well as up to five years of jail time.
As for federal prosecutions, obscenity is part of the Racketeer Influenced and Corrupt Organizations statute, known as RICO. Because of obscenity's status as a RICO offense, someone convicted of obscenity will have his or her business shut down, in addition to jail time and fines.
"If it's obscene, they're then convicted, and they suffer very dire punishment," says attorney Jeffrey Douglas, chair of the board of the porn industry's Free Speech Coalition.
The potential consequences for a misstep in the wrong political environment keep pornography businesspeople and their attorneys on their toes.
"This is the ultimate risk-benefit analysis business. There are a gazillion people out there making what I call white-bread porn. But there's a market for edgier and edgier materials," Gelbard says. "And you can, as a one-man band or a very, very small company, make a good living making edgier stuff. But you run a greater risk of being prosecuted. And the likelihood of getting convicted may be small, but the prosecution will run you out of business."
In the 1970s, porn prosecutions were much more common, Weston says.
"That was either the zenith or the nadir, depending on your perspective," he notes.
The wealth of obscenity prosecutions corresponded with the increase of available materials - and their trend toward more and more explicitness.
"All of a sudden, we as a society went from gasping at the sight of a nipple or a bare buttock or whatever to having more and more full frontal nudity and even some explicit depictions."
The change was highlighted by the appearance of 1973's "Deep Throat." The movie was 58 minutes long. Forty-eight of those minutes were devoted to scenes of oral copulation and sexual intercourse. The film is widely regarded as one of the first true pornographic movies.
Weston was one of the first people to see "Deep Throat." A little groggy, he arrived at 9 a.m. at the deserted Pussy Cat Theater, at a client's behest. His client, the owner of the Pussy Cat, wanted his opinion on the film.
"I said to the client, 'Hey, whatever you have to pay, hawk, borrow, beg or steal, get the rights to this film," he recalls. "I ... had the sense that it would absolutely blow the conventions to smithereens, just blast them off their hinges. And I was right."
Deep Throat was prosecuted for obscenity in cities across the country, including Costa Mesa, Newport Beach and Beverly Hills. Weston's partner, G. Randall Garrou, represented the film's makers and director, as well as the owner of the Pussy Cat Theater chain, which showed the film.
The film was acquitted in Costa Mesa and Newport Beach. The Beverly Hills trial resulted in a hung jury.
"There were some early convictions. And then it began to result in a series of either hung juries or not guilties around the country," Weston says.
Deep Throat's run of good luck in the courtroom - and its ascent to the land of cultural icons outside the courtroom -changed the nation's attitudes, Weston says. "Deep Throat," he notes, was mentioned by Johnny Carson on national television and was mainstream enough to be the moniker for an anonymous White House informant in the Watergate scandal.
"That seemed to be the beginning of a sea change in the way things happened. It didn't happen overnight, but that in my judgment was the turning point," Weston says.
Deep Throat's acquittals and the mainstreaming of porn led to a slowdown in federal obscenity prosecutions. They didn't pick up again until the late 1980s, when the Department of Justice founded the National Obscenity Enforcement Unit.
From 1987 to 1991, the national unit made pornography prosecution a priority. In 1987, the Federal Bureau of Investigations conducted a nationwide mail order sting operation on pornographic materials, which led to several arrests across the country. In 1990, during George Bush's term, 30 manufacturers of pornographic videotapes - and videotape boxes- were prosecuted after a second FBI sting operation.
The number of less-elaborate prosectuorial efforts increased, as well. Between 1992 and 1993, federal obscenity prosecutions (not including child pornography) dropped by almost half, from 44 to 25, according to figures from the Department of Justice. Between 1995 and 2000, the federal government averaged 16 prosecutions a year - hardly more than the Los Angeles city attorney's office handles today.
The reason for the drop-off, attorneys say, was President Clinton. New York-based Morality in Media, an anti-pornography organization, says federal obscenity law enforcement declined by 80 percent during the first six years of Clinton's presidency.
"It was dispositive. You could almost trace the prosecutorial attitudes exclusively by who was in Washington and calling the shots," Weston says.
"As federal interest declined, so did state interests," Douglas says.
But Deborah Sanchez, supervising attorney for the special enforcement unit of the Los Angeles city attorney's office, says there's no connection between the frequency of obscenity prosecutions on a federal level and on a local level.
"We don't know what they're doing," Sanchez says of federal prosecutions. "Whatever we're doing, we're doing because it's affecting our community."
The city attorney's office learns about potentially obscene material through the Los Angeles Police Department, Sanchez says. The Police Department learns about the material either through anonymous tips or by searching around adult entertainment retail outlets or the Internet.
"They don't bring us stuff that's in the gray. They bring us stuff that is prosecutable," Sanchez says.
The city attorney's office prosecutes child pornography. In the recent past, it also has chased down porn that includes urination or defecation in connection with sex, rape scenes and bestiality, to name a few of the triggers.
Sanchez recently wrapped up a settlement in a case involving fisting - the insertion of all five fingers into the vagina - in which Diamond represented the defendant. People v. Glasser, 1CR02758 (L.A. Super. Ct., filed 2001).
But she says that the city attorney's office is reviewing whether its obscenity criteria will include fisting, or "footing," in the future.
Sanchez says the city brings about 12 obscenity cases a year, which usually settle before they go to trial.
Sanchez and adult entertainment lawyers disagree on the correlation between local and federal prosecutions, but its true that, in the past decade, the adult industry has had time to focus on other concerns - like clout on Capital Hill.
For instance, the Free Speech Coalition, which is the official trade association of the adult entertainment industry, has a legislative affairs arm. Sunlove, former publisher of Berkeley's sexuality-oriented Spectator Magazine, is in charge of the industry's policy efforts on a national basis.
The coalition has been active in Sacramento for several years and focuses on developing local centers in other states. It just formed a chapter in Virginia and is working on one in Massachusetts.
In Sacramento, Sunlove has tried since 1995 to educate members of the coalition on the finer points of lobbying state legislators for their cause. The culmination of their efforts comes every year with the association's Legislative Day.
Most groups in Sacramento sponsor a similar event, where they host a small reception, and lawmakers and their staffs are invited to attend. Sunlove says the reception, which is attended by 40 club owners, Web masters and some porn stars from the coalition, has become popular.
"The staffers love us, of course. They like to come over and meet some of the stars," she says.
When not working with lawmakers, some members of the adult entertainment community have kept busy with zoning disputes. The nature of the content may be on trial less frequently, but its methods of distribution are called into question as often as ever - often because neighborhoods don't want it distributed in their backyards.
"Zoning continues to be an area of popular interest out there in the state and local lawmakers' world," Sunlove says.
And with good reason, when adult entertainment businesses are not well-run, says Sanchez. She says she has seen the proverbial men with mops cleaning up inside adult arcade booths.
"I visited a lot of places because of my job," she says. "Thank goodness I was a sociology major."
Adult bookstores and live entertainment venues are subject to an array of space and time limitations. In some areas, they must close before a certain hour of the evening. In Los Angeles, they are not allowed to be closer than 950 feet to one another - the length of a Navy tanker. They are not allowed to be closer than certain set proximities to schools, churches and parks.
One recent Tuesday morning in Los Angeles Superior Court, Diamond dashed into a preliminary hearing to try and prevent a deputy Los Angeles city attorney from obtaining a restraining order against his client, an adult bookstore. Diamond argued that his client, who was also facing an administrative zoning hearing, shouldn't have to wrangle over the same issues against the city of Los Angeles in two different venues.
Diamond's case was the fifth in a row of contract and business disputes. During his turn in front of the judge, the attorneys sitting in the courtroom waiting to appear looked up from their notes.
"What case holds that this court has to defer to an administrative tribunal?" Judge David P. Yaffe asked.
"What case holds that you don't?" Diamond countered. "We can't fight the same battle on two fronts, involving the same party, the same evidence, the same issues."
Diamond arguably lost the hearing. Yaffe ordered the deputy city attorney, Gretchen Stein, to draft a proposed preliminary injunction against the bookstore, to which Diamond would have the opportunity to object.
Diamond dashed out directly after the hearing. He was due almost immediately in Pasadena for another hearing, and then he was headed to court in Orange County. The lawyer, one might say, is pretty busy - and he's not alone.
Weston has been up to the U.S. Supreme Court numerous times in his career, most recently for a zoning dispute in City of Los Angeles v. Alameda Books , 122 S.Ct. 1728 (2002). In that case, the Supreme Court ruled, in a plurality opinion, that cities wishing to restrict adult businesses through zoning laws will have to defend the foundations of those zoning laws - and may be called on to show that adult businesses do create negative secondary effects like prostitution or crime in their neighborhoods.
Some members of the adult entertainment industry consider the opinion a victory. Opinions like Alameda Books, Sunlove says, "give hope that the zoning will stop being just a knee jerk reaction ... [and] instead rather will require some data."
The U.S. Supreme Court handed the adult community another decision it approves of in April: Ashcroft v. Free Speech Coalition, 198 F.3d 1083 (9th Cir. 1999), cert. granted, 121 S.Ct. 876 (2002), which struck down the "virtual porn" section of the 1996 Child Pornography Act as being too restrictive of freedom of speech. The section, which outlawed simulated depictions of underage sex (created either by computer or with young-looking actors), was found to be too prohibitive of free speech. For instance, the justices noted that the love scene in "Romeo and Juliet" was illegal under the act.
"I am completely in favor of prosecuting child pornography, as long as it's real child pornography," Gelbard says, summing up much of the community feeling about the Free Speech Coalition decision.
Not all winds are blowing in the adult entertainment industry's direction, however. Some are concerned that the combination of a conservative president and easy access to pornography on the Internet will lead to more obscenity prosecutions - this time, not of mail order porn tape companies or moviemakers but of Web site operators.
"It's highly likely that there's going to be a great deal of litigation regarding adult Web sites," Douglas says.
Douglas will be handling one of these newfangled Internet obscenity trials, against a Redondo Beach Web site operator. Prosecutors claim that 32 of 3,700 images on the Web site are obscene. Twenty are allegedly child pornography. Another 12 contain images of bestiality, defecation and the like. People v. Shoemaker, 9SB04308 (L.A. Super. Ct. ). Locating offending Web sites is relatively simple for the FBI.
"Because of the accessibility of the Internet to anyone that has the minimum amount of equipment required, and because of the ... advertising by way of unsolicited e-mails and other things, the profile of the sexually oriented Web sites is as high as it can be," Douglas says. "So it's likely that they will be attractive targets for the federal government, except for the counterbalance of nobody knows the legal territory there."
The application of the Miller opinion to the Internet is brand new and uncertain. For instance, the first prong of the Miller opinion obscenity definition states that pornographic content must be patently offensive. The opinion leaves the definition of patently offensive up to individual communities - represented by juries - to decide. But on the Internet, where every Web site offers worldwide access, where is the community?
"We have access to images from outside the United States, which never existed before. There's a different set of cultural norms operating," Douglas says.
And because of the Internet, those cultural norms might be a little more inclusive than they were 20 years ago. The negligible distribution costs of the World Wide Web, combined with the ease of experimentation for users, mean that kinkier stuff is more common and more easily accessible.
For instance, someone with a pantyhose fetish, in the good old days, would have to scour bookstores and newsstands before finally locating one $40 magazine that catered to his tastes. Now, that person can do a Google search and probably pay only a few dollars.
But an FBI agent or prosecutor also can do that Google search.
"As difficult as it is to make the Miller definition of obscenity function in the real environment, trying to apply it to an Internet-based business is incredibly difficult. There are more unaddressed issues than you can shake a stick at. Virtually every component of the Miller definition is affected by the medium," Douglas says.
Lawyers for the adult entertainment industry are helping their clients prepare for the uncertain future. While predicting an obscenity prosecution is not always easy, making sure their clients at least comply with the law is an easy - although elaborate - preventative step.
For instance, Douglas says, actors in a porn film must disclose their full names and any pseudonyms or nicknames they've ever used. The disclosure requirements are incredibly thorough. Douglas says that, if he wanted to act in a porn film, he would have to fill out a form saying he was once known as "four eyes," even though the last time he heard the nickname was on the fourth-grade playground.
The adult entertainment industry is chock full of little guys, many of whom cannot afford to hire a production attorney to supervise the making of adult films - not to check up on the content but to make sure the production has all its paperwork in order.
Douglas estimates that 20 percent of porn production companies regularly consult with an attorney. For the other 80 percent, the Free Speech Coalition offers a "production package" of template forms. Members and nonmembers that can't afford a lawyer on set can request the package, which will help them make sure the actors are of age and that Occupational Safety and Health Administration standards are met.
Gelbard, who often works with his clients on intellectual property or contract matters, says helping pornographers and adult entertainers cover all their bases is a lot like standard entertainment law.
"It's unlikely that the federal government is going to knock on Sony Pictures' door anytime soon, but they may knock on Wicked or Vivid or one of the major players or one of the minor players, and while I certainly don't represent Wicked or Vivid, the little guys deserve the same amount of protection," Gelbard says.
But to provide his clients with that protection, Gelbard sometimes has to forget about some of his intimate experiences with the pornography industry, which he says have made him a little "jaded" when it comes to sexual entertainment.
"I forget that Joe America has never seen anything like that, and that Jane America - that's on a jury in Tennessee - her head's going to spin off when she even finds out that there's stuff like this available," he says.
Lawyers for the pornography industry don't necessarily get laid more than regular people - contrary to popular belief.
"The perception is that every Friday night I'm at some swing party covered with porn stars. The answer is, unfortunately, no," says Allan Gelbard, porno-cameraman-turned-lawyer. "I take my ethical responsibility not to sleep with clients really seriously."
Gelbard, who advises adult entertainment companies on their intellectual property rights and contract issues, created something of a stir when he first took over a spare office from an Encino probate firm and porn stars started coming through his door. But usually, Gelbard says, the stars are wearing sweatpants.
And John Weston, noted adult entertainment industry litigator with seven U.S. Supreme Court arguments under his belt, has never been on a porn set during filming, after 30 years of practicing in the area.
"I could have at any time," Weston said, "but it just was not something that I felt was appropriate. I was a lawyer. I gave licensed advice."
"At the time, it seemed not my place to be on a set," Weston says. "Now, I probably would be not nearly as concerned about it, but it's just something I haven't thought about doing in a lot of years."
Admittedly, Weston and his colleagues have been busy with other things, like keeping their clients in business - and out of jail. And after a period of almost no federal obscenity prosecutions during President Clinton's two terms in the White House, members of the adult entertainment industry are keeping a wary eye on the horizon, watching for a resurgence of obscenity prosecutions.
"I, for one, have been jumping up and down, screaming, 'It's coming, it's coming, it's coming,'" Gelbard says.
"Mr. [Attorney General John] Ashcroft, he's worrisome," says Kat Sunlove, legislative affairs director for the Free Speech Coalition, a national trade association for the adult entertainment industry.
Lawyers for the adult entertainment industry fill a specialized niche. Without telling their clients what they can and cannot portray in videos or on Web sites, adult industry attorneys are there to help them if they run afoul of federal or state prosecutors.
Most of these lawyers are well-versed in the world of adult entertainment. They are also members of the First Amendment Lawyers Association and are knowledgeable - and usually passionate - about freedom of speech.
Gelbard, for instance, decided to go to law school after he had his video camera confiscated at a Free Speech Coalition rally. He has the First Amendment tattooed on his right bicep, in 41/2 scripted circles. The procedure took four hours.
But although these lawyers for the adult entertainment industry are energetic in their defense of sexual subject matter and freedom of speech, they spent the 1990s battling largely zoning violations and secondary-effects cases on a local level. These cases involved individual bookstores or sex paraphernalia businesses being sued for doing business in areas not zoned for them. In recent history, these cases have been much more successful in reining in pornography than obscenity prosecutions, lawyers say.
"In my opinion, the cities and the government have given up on the obscenity angle. You don't see a lot of obscenity prosecution," Santa Monica sole practitioner Roger Diamond says. "There aren't the kinds of obscenity cases there were in the '60s. The porn industry today is regulated more by zoning and licensing than it is by criminal prosecutions."
But all that may be about to change. During Clinton's presidency, federal prosecution of adult pornography slowed almost to a stop. But with a new chief in town, pornographers, adult entertainment businesspeople and their lawyers are keeping a wary eye on the horizon, searching for resurgence in obscenity prosecutions.
Some in the adult entertainment community, like Weston, suspect that law enforcement is no longer interested in chasing adult entertainers.
"It's hard to tell. We have been in situations where I had thought federal obscenity prosecutions were dead, absent some really bizarre stuff. And they came back like the phoenix raised from the dead," Weston says.
But he also suspects that Sept. 11 has diverted the national focus from dirty videotapes and to national security matters.
"In the terrorist milieu ... they're going to divert FBI people from trying to keep terrorists off our soil and have them go after videotapes?" he asks.
Pornography lawyers say that child pornography is in a separate category from regular porn. They generally support child-porn prosecutions.
"The adult industry has no connection with the child-porn people. They're by themselves," Diamond says.
But the life of any adult entertainment business or adult moviemaker or porn site Web master is always about waiting for the other shoe to drop. The national litmus test for obscenity holds that, essentially, something is obscene if a jury says it is.
Since 1973, federal and state courts have used the Miller opinion as their obscenity crib sheet. The U.S Supreme Court opinion, from Miller v. California, 413 U.S. 15 (1973), sets out a three-pronged test for obscenity, something which historically had been a difficult quality to nail down. The first prong states that an "average person, applying contemporary community standards," must find the work of "prurient interest" - in other words, for erotic rather than educational value. The second prong says that the work must show sex in a "patently offensive" way. And the third prong, which lawyers say is the easiest to defend, says that the work must be without any artistic or social value.
Federal prosecutions, involving interstate commerce laws, carry heftier consequences than state obscenity prosecutions. On a local level, first-offense obscenity cases are misdemeanor trials, handled by the city attorney. A first-time conviction comes with a $1,000 fine and lands adult business proprietors in jail for up to one year.
Further obscenity convictions are felony crimes and can carry fines of $50,000 - as well as up to five years of jail time.
As for federal prosecutions, obscenity is part of the Racketeer Influenced and Corrupt Organizations statute, known as RICO. Because of obscenity's status as a RICO offense, someone convicted of obscenity will have his or her business shut down, in addition to jail time and fines.
"If it's obscene, they're then convicted, and they suffer very dire punishment," says attorney Jeffrey Douglas, chair of the board of the porn industry's Free Speech Coalition.
The potential consequences for a misstep in the wrong political environment keep pornography businesspeople and their attorneys on their toes.
"This is the ultimate risk-benefit analysis business. There are a gazillion people out there making what I call white-bread porn. But there's a market for edgier and edgier materials," Gelbard says. "And you can, as a one-man band or a very, very small company, make a good living making edgier stuff. But you run a greater risk of being prosecuted. And the likelihood of getting convicted may be small, but the prosecution will run you out of business."
In the 1970s, porn prosecutions were much more common, Weston says.
"That was either the zenith or the nadir, depending on your perspective," he notes.
The wealth of obscenity prosecutions corresponded with the increase of available materials - and their trend toward more and more explicitness.
"All of a sudden, we as a society went from gasping at the sight of a nipple or a bare buttock or whatever to having more and more full frontal nudity and even some explicit depictions."
The change was highlighted by the appearance of 1973's "Deep Throat." The movie was 58 minutes long. Forty-eight of those minutes were devoted to scenes of oral copulation and sexual intercourse. The film is widely regarded as one of the first true pornographic movies.
Weston was one of the first people to see "Deep Throat." A little groggy, he arrived at 9 a.m. at the deserted Pussy Cat Theater, at a client's behest. His client, the owner of the Pussy Cat, wanted his opinion on the film.
"I said to the client, 'Hey, whatever you have to pay, hawk, borrow, beg or steal, get the rights to this film," he recalls. "I ... had the sense that it would absolutely blow the conventions to smithereens, just blast them off their hinges. And I was right."
Deep Throat was prosecuted for obscenity in cities across the country, including Costa Mesa, Newport Beach and Beverly Hills. Weston's partner, G. Randall Garrou, represented the film's makers and director, as well as the owner of the Pussy Cat Theater chain, which showed the film.
The film was acquitted in Costa Mesa and Newport Beach. The Beverly Hills trial resulted in a hung jury.
"There were some early convictions. And then it began to result in a series of either hung juries or not guilties around the country," Weston says.
Deep Throat's run of good luck in the courtroom - and its ascent to the land of cultural icons outside the courtroom -changed the nation's attitudes, Weston says. "Deep Throat," he notes, was mentioned by Johnny Carson on national television and was mainstream enough to be the moniker for an anonymous White House informant in the Watergate scandal.
"That seemed to be the beginning of a sea change in the way things happened. It didn't happen overnight, but that in my judgment was the turning point," Weston says.
Deep Throat's acquittals and the mainstreaming of porn led to a slowdown in federal obscenity prosecutions. They didn't pick up again until the late 1980s, when the Department of Justice founded the National Obscenity Enforcement Unit.
From 1987 to 1991, the national unit made pornography prosecution a priority. In 1987, the Federal Bureau of Investigations conducted a nationwide mail order sting operation on pornographic materials, which led to several arrests across the country. In 1990, during George Bush's term, 30 manufacturers of pornographic videotapes - and videotape boxes- were prosecuted after a second FBI sting operation.
The number of less-elaborate prosectuorial efforts increased, as well. Between 1992 and 1993, federal obscenity prosecutions (not including child pornography) dropped by almost half, from 44 to 25, according to figures from the Department of Justice. Between 1995 and 2000, the federal government averaged 16 prosecutions a year - hardly more than the Los Angeles city attorney's office handles today.
The reason for the drop-off, attorneys say, was President Clinton. New York-based Morality in Media, an anti-pornography organization, says federal obscenity law enforcement declined by 80 percent during the first six years of Clinton's presidency.
"It was dispositive. You could almost trace the prosecutorial attitudes exclusively by who was in Washington and calling the shots," Weston says.
"As federal interest declined, so did state interests," Douglas says.
But Deborah Sanchez, supervising attorney for the special enforcement unit of the Los Angeles city attorney's office, says there's no connection between the frequency of obscenity prosecutions on a federal level and on a local level.
"We don't know what they're doing," Sanchez says of federal prosecutions. "Whatever we're doing, we're doing because it's affecting our community."
The city attorney's office learns about potentially obscene material through the Los Angeles Police Department, Sanchez says. The Police Department learns about the material either through anonymous tips or by searching around adult entertainment retail outlets or the Internet.
"They don't bring us stuff that's in the gray. They bring us stuff that is prosecutable," Sanchez says.
The city attorney's office prosecutes child pornography. In the recent past, it also has chased down porn that includes urination or defecation in connection with sex, rape scenes and bestiality, to name a few of the triggers.
Sanchez recently wrapped up a settlement in a case involving fisting - the insertion of all five fingers into the vagina - in which Diamond represented the defendant. People v. Glasser, 1CR02758 (L.A. Super. Ct., filed 2001).
But she says that the city attorney's office is reviewing whether its obscenity criteria will include fisting, or "footing," in the future.
Sanchez says the city brings about 12 obscenity cases a year, which usually settle before they go to trial.
Sanchez and adult entertainment lawyers disagree on the correlation between local and federal prosecutions, but its true that, in the past decade, the adult industry has had time to focus on other concerns - like clout on Capital Hill.
For instance, the Free Speech Coalition, which is the official trade association of the adult entertainment industry, has a legislative affairs arm. Sunlove, former publisher of Berkeley's sexuality-oriented Spectator Magazine, is in charge of the industry's policy efforts on a national basis.
The coalition has been active in Sacramento for several years and focuses on developing local centers in other states. It just formed a chapter in Virginia and is working on one in Massachusetts.
In Sacramento, Sunlove has tried since 1995 to educate members of the coalition on the finer points of lobbying state legislators for their cause. The culmination of their efforts comes every year with the association's Legislative Day.
Most groups in Sacramento sponsor a similar event, where they host a small reception, and lawmakers and their staffs are invited to attend. Sunlove says the reception, which is attended by 40 club owners, Web masters and some porn stars from the coalition, has become popular.
"The staffers love us, of course. They like to come over and meet some of the stars," she says.
When not working with lawmakers, some members of the adult entertainment community have kept busy with zoning disputes. The nature of the content may be on trial less frequently, but its methods of distribution are called into question as often as ever - often because neighborhoods don't want it distributed in their backyards.
"Zoning continues to be an area of popular interest out there in the state and local lawmakers' world," Sunlove says.
And with good reason, when adult entertainment businesses are not well-run, says Sanchez. She says she has seen the proverbial men with mops cleaning up inside adult arcade booths.
"I visited a lot of places because of my job," she says. "Thank goodness I was a sociology major."
Adult bookstores and live entertainment venues are subject to an array of space and time limitations. In some areas, they must close before a certain hour of the evening. In Los Angeles, they are not allowed to be closer than 950 feet to one another - the length of a Navy tanker. They are not allowed to be closer than certain set proximities to schools, churches and parks.
One recent Tuesday morning in Los Angeles Superior Court, Diamond dashed into a preliminary hearing to try and prevent a deputy Los Angeles city attorney from obtaining a restraining order against his client, an adult bookstore. Diamond argued that his client, who was also facing an administrative zoning hearing, shouldn't have to wrangle over the same issues against the city of Los Angeles in two different venues.
Diamond's case was the fifth in a row of contract and business disputes. During his turn in front of the judge, the attorneys sitting in the courtroom waiting to appear looked up from their notes.
"What case holds that this court has to defer to an administrative tribunal?" Judge David P. Yaffe asked.
"What case holds that you don't?" Diamond countered. "We can't fight the same battle on two fronts, involving the same party, the same evidence, the same issues."
Diamond arguably lost the hearing. Yaffe ordered the deputy city attorney, Gretchen Stein, to draft a proposed preliminary injunction against the bookstore, to which Diamond would have the opportunity to object.
Diamond dashed out directly after the hearing. He was due almost immediately in Pasadena for another hearing, and then he was headed to court in Orange County. The lawyer, one might say, is pretty busy - and he's not alone.
Weston has been up to the U.S. Supreme Court numerous times in his career, most recently for a zoning dispute in City of Los Angeles v. Alameda Books , 122 S.Ct. 1728 (2002). In that case, the Supreme Court ruled, in a plurality opinion, that cities wishing to restrict adult businesses through zoning laws will have to defend the foundations of those zoning laws - and may be called on to show that adult businesses do create negative secondary effects like prostitution or crime in their neighborhoods.
Some members of the adult entertainment industry consider the opinion a victory. Opinions like Alameda Books, Sunlove says, "give hope that the zoning will stop being just a knee jerk reaction ... [and] instead rather will require some data."
The U.S. Supreme Court handed the adult community another decision it approves of in April: Ashcroft v. Free Speech Coalition, 198 F.3d 1083 (9th Cir. 1999), cert. granted, 121 S.Ct. 876 (2002), which struck down the "virtual porn" section of the 1996 Child Pornography Act as being too restrictive of freedom of speech. The section, which outlawed simulated depictions of underage sex (created either by computer or with young-looking actors), was found to be too prohibitive of free speech. For instance, the justices noted that the love scene in "Romeo and Juliet" was illegal under the act.
"I am completely in favor of prosecuting child pornography, as long as it's real child pornography," Gelbard says, summing up much of the community feeling about the Free Speech Coalition decision.
Not all winds are blowing in the adult entertainment industry's direction, however. Some are concerned that the combination of a conservative president and easy access to pornography on the Internet will lead to more obscenity prosecutions - this time, not of mail order porn tape companies or moviemakers but of Web site operators.
"It's highly likely that there's going to be a great deal of litigation regarding adult Web sites," Douglas says.
Douglas will be handling one of these newfangled Internet obscenity trials, against a Redondo Beach Web site operator. Prosecutors claim that 32 of 3,700 images on the Web site are obscene. Twenty are allegedly child pornography. Another 12 contain images of bestiality, defecation and the like. People v. Shoemaker, 9SB04308 (L.A. Super. Ct. ). Locating offending Web sites is relatively simple for the FBI.
"Because of the accessibility of the Internet to anyone that has the minimum amount of equipment required, and because of the ... advertising by way of unsolicited e-mails and other things, the profile of the sexually oriented Web sites is as high as it can be," Douglas says. "So it's likely that they will be attractive targets for the federal government, except for the counterbalance of nobody knows the legal territory there."
The application of the Miller opinion to the Internet is brand new and uncertain. For instance, the first prong of the Miller opinion obscenity definition states that pornographic content must be patently offensive. The opinion leaves the definition of patently offensive up to individual communities - represented by juries - to decide. But on the Internet, where every Web site offers worldwide access, where is the community?
"We have access to images from outside the United States, which never existed before. There's a different set of cultural norms operating," Douglas says.
And because of the Internet, those cultural norms might be a little more inclusive than they were 20 years ago. The negligible distribution costs of the World Wide Web, combined with the ease of experimentation for users, mean that kinkier stuff is more common and more easily accessible.
For instance, someone with a pantyhose fetish, in the good old days, would have to scour bookstores and newsstands before finally locating one $40 magazine that catered to his tastes. Now, that person can do a Google search and probably pay only a few dollars.
But an FBI agent or prosecutor also can do that Google search.
"As difficult as it is to make the Miller definition of obscenity function in the real environment, trying to apply it to an Internet-based business is incredibly difficult. There are more unaddressed issues than you can shake a stick at. Virtually every component of the Miller definition is affected by the medium," Douglas says.
Lawyers for the adult entertainment industry are helping their clients prepare for the uncertain future. While predicting an obscenity prosecution is not always easy, making sure their clients at least comply with the law is an easy - although elaborate - preventative step.
For instance, Douglas says, actors in a porn film must disclose their full names and any pseudonyms or nicknames they've ever used. The disclosure requirements are incredibly thorough. Douglas says that, if he wanted to act in a porn film, he would have to fill out a form saying he was once known as "four eyes," even though the last time he heard the nickname was on the fourth-grade playground.
The adult entertainment industry is chock full of little guys, many of whom cannot afford to hire a production attorney to supervise the making of adult films - not to check up on the content but to make sure the production has all its paperwork in order.
Douglas estimates that 20 percent of porn production companies regularly consult with an attorney. For the other 80 percent, the Free Speech Coalition offers a "production package" of template forms. Members and nonmembers that can't afford a lawyer on set can request the package, which will help them make sure the actors are of age and that Occupational Safety and Health Administration standards are met.
Gelbard, who often works with his clients on intellectual property or contract matters, says helping pornographers and adult entertainers cover all their bases is a lot like standard entertainment law.
"It's unlikely that the federal government is going to knock on Sony Pictures' door anytime soon, but they may knock on Wicked or Vivid or one of the major players or one of the minor players, and while I certainly don't represent Wicked or Vivid, the little guys deserve the same amount of protection," Gelbard says.
But to provide his clients with that protection, Gelbard sometimes has to forget about some of his intimate experiences with the pornography industry, which he says have made him a little "jaded" when it comes to sexual entertainment.
"I forget that Joe America has never seen anything like that, and that Jane America - that's on a jury in Tennessee - her head's going to spin off when she even finds out that there's stuff like this available," he says.
#299399
Katherine Gaidos
Daily Journal Staff Writer
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com