As you all know, everything is swell in America. Our coffers overflow with doubloons from our white-hot economy. Everyone has the sort of job where even your secretary's assistant has an Aeron chair. Homeless people Google for best Thunderbird prices on 3G 64 Gig iPads. The government has solved all of our domestic problems and now casts about to find new ones to solve.
Or that's what I assume. I mean, if that's not the case, then I'm not sure why the government is spending time and resources to investigate and prosecute John Stagliano.
To be indelicate, Stagliano is a pornographer. To be specific, he makes movies with names like "Milk Nymphos" and "Storm Squirters 2: Target Practice." I don't think you need to Google to guess what those are about. It's definitely not my cup of tea (though I suspect some of you gentle readers might be into it.) I don't need to view it to know it's not for me.
But your federal government believes that such material — filmed using consenting adults, not involving children or animals, shipped through the mail to consenting adults — poses a threat to society that should be addressed through the criminal law. That's why the FBI ordered some of Stagliano's movies through the mail, arranging for them to be shipped from Baltimore to Washington D.C., and then indicted him in D.C., charging him with violation of federal obscenity law. I have uploaded the indictment; you can read it here. The government's trial brief — which lays out the elements of obscenity and the law that the trial judge will very likely follow (since federal judges have a disturbing habit of following the government's arguments about elements, evidence, and procedure rather slavishly) is here.
As Nick Gillespie at Reason notes, the trial judge has disallowed expert evidence about the literary, social, political, or scientific value of the work, meaning that it will be up to the jury to apply the familiar Miller test:
1) Whether the average person, applying contemporary community standards, would find that the material, taken as a whole, appeals to the prurient interest;
2) Whether the average person, applying contemporary community standards, would find that the material depicts or describes sexual conduct in a patently offensive manner; and
3) Whether a reasonable person, viewing the material as a whole, would find that the material lacks serious literary, artistic,
political or scientific value.
As the government notes rather triumphantly in its trial brief, it matters not under Miller that the material was produced by consenting adults and is sent only to consenting adults for use in their homes.
Nick Gillespie notes that the statutory maximum sentence, if Stagliano is convicted, is 32 years. That's misleading; if he's convicted, the sentence is likely to be near or below the United States Sentencing Guideline range, which by my calculations is probably a few years. But we're still talking about an obscenity.
No, not the movies. I'm uninterested in whether they are "obscene" under the Miller test, which is part of the Puritan cultural heritage of a country that once banned Henry Miller and James Joyce — boring old plain-text books that didn't even have a DVD special features menu — for obscenity (and not, as you might have thought, because they were completely unreadable). No, I'm talking about political obscenity.
It is patently offensive, appealing to sick prurient interest in the sex life of strangers, and totally lacking in any redeeming value to pursue and prosecute people for distributing consensually-produced expression from one free person to another. A government that thinks it needs to be putting people in jail to protect you from your desire to watch dirty movies featuring consenting adults is a government that thinks it knows what is best for you to read, to watch, to say, to think. It is a government committed not only to addressing tangible things, but intangibles like your moral fiber. That government — and the power it confers upon its minions, like Assistant United States Attorneys Brent Ward (chief of the appalling Obscenity Task Force) and Pamela S. Satterfield — are vastly more dangerous than dirty movies could ever possibly be. The mere fact that the government thinks that now — during economic and social chaos, with strained resources — is a good time to spend your tax dollars pursuing pornographers is an excellent indicia of the danger. Government likes power, and wants more. The power to decide what you should and shouldn't watch is a mighty one.
Make no mistake — I'm not making a point about moral relativism. A breast milk fetish grosses me out. I have no problem judging it as creepy. But I'm not afraid of people with a breast milk fetish. I am terrified of the sort of sick freaks who believe it should be their job to pursue and punish those who produce fetish videos and distribute them to consenting adults. I am repulsed by the mindset that it is job of the state to protect the moral fiber of its subjects by jailing those who produce things we shouldn't (in the view of the government's minions) read or view. I want to throw up when I see that some people inhabiting a job I was very proud to hold are crusading to limit what grown-up free people can watch.
There are perverts at large in this case. But they aren't John Stagliano and his customers. They are Brent Ward and Pamela S. Satterfield and the entire Obscenity Task Force. They have a sick and prurient interest in the sex lives of strangers. Their behavior is patently offensive. Their work has no redeeming social value. What is worse, they want to make 12 unsuspecting residents of Washington D.C. into perverts as well, by putting them on a jury and asking them to judge the sexual interests of strangers.
I don't have a lot of faith in the residents of Washington D.C. And juries across the nation seem too willing to let the government make them into perverts. But I hold out hope that this jury will display some modesty and decency and Nanny-state chastity, and nullify.
Edited to add: here is another great Reason post on the case, with this excellent quote from a dissent by Justice Brennan:
I would place the responsibility and the right to weed worthless and offensive communications from the public airways where it belongs and where, until today, it resided: in a public free to choose those communications worthy of its attention from a marketplace unsullied by the censor's hand.
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