Vice Squad
Saturday, October 20, 2007
Federal Obscenity Trial in Phoenix

The FBI ordered some sexually-explicit DVDs from a website; the DVDs were duly shipped from Phoenix to Virginia. The Phoenix distributors are now on trial for four of the DVDs, which the government maintains are obscene. Adult Video News (not safe for work!) has been providing accounts of the trial, and I have to say, they are fascinating. The report from October 17 (not work safe, remember) charts the jury selection last Tuesday -- 12 jurors and three alternates, who had to be sufficiently familiar with Phoenix at the time of the DVD mailings to be credible judges of what would violate Phoenix community standards, which are key to the Miller test that provides standards for what qualifies as obscene. One potential juror, a libertarian, asserted his belief that jurors were allowed to judge the facts as well as the law, but agreed that he could follow the judge's instructions. One potential juror claimed that she would be unable to watch the videos at issue. The same day also saw the dismissal of all charges against the producer of the DVDs, who was accused of sending them to the Phoenix store that allegedly sent them on to Virginia -- the government needs his testimony about the origin of the DVDS in their case against the retailers, but with charges pending against him, he could withhold that testimony on the grounds that it would amount to compelled self-incrimination. Whew. The last hour of Tuesday's courtroom activity was devoted to watching part of one of the four DVDs. Each of the jurors (and the judge) has their own personal monitor; there's also a large screen version for all the spectators. (Didn't a defendant in another federal obscenity case memorably note that the only people who would be forced to watch his videos would be the jurors in his trial?)

If anything, things got more interesting on Thursday (here's AVN's October 18 report). It was learned that the reason that the DVDs were ordered via the Phoenix retailer as opposed to the California-based producer is good old-fashioned forum-shopping: the feds did not want to try an obscenity case in LA County. The display of the videos continued, and it seems as if the four DVDs have to be shown in their entirety at the trial: another element of the Miller test is that two of the three conditions that must be met for a work to be legally obscene involve the work "being considered as a whole." These hardcore DVDs have "extra" segments that might take some of the edge off the nastiness that the feds hope will shock the Phoenix jury into a conviction. Here's the description (some fairly explicit language ahead) from AVN's correspondent, Mark Kernes:
Among other things, the extras showed Audrey and Otto preparing for their scene, setting up the giant plastic dildo that would be shoved up her ass, discussing how the d.p. with Rick would be choreographed, and perhaps most importantly, letting the audience know that she and Otto were married. They showed director Jim Powers relating his conception of the video as a whole, explaining how the Cindy Crawford scene might seem familiar because it was essentially a restaging of a scene from Filthy Things 1 which Powers felt hadn't come off just as he'd planned, so he wanted to try it again. They showed him discussing the impending sex with various performers, giving suggestions as to how it should be staged, and expanding the audience's point of view to show some of what goes on behind the scenes as the sex is being performed for the camera. In all, they put an artistic frame around the entire production ... and if it's art, it's not obscene.
On the third day, the jury sent a note to the judge, apparently asking if they had to watch all four DVDs in their entirety. Th trial resumes on Tuesday.


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