US v. Stagliano

• Decision Date: 19 February 2010
• Docket Number: Criminal Action No. 08-93 (RJL).
• Citation: United States v. Stagliano, 693 F. Supp.2d 25 (D. D.C. 2010)
• Court: U.S. District Court — District of Columbia
• Parties: UNITED STATES of America, v. John STAGLIANO, et al., Defendants.

693 F. Supp.2d 25

UNITED STATES of America, v.John STAGLIANO, et al., Defendants.

Criminal Action No. 08-93 (RJL).

United States District Court, District of Columbia.

February 19, 2010.

Pamela Stever Satterfield, U.S. Department of Justice, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

The defendants—John Stagliano, John Stagliano, Inc., and Evil Angel Productions, Inc.—challenge the constitutionality of four federal statutes that criminalize the interstate trafficking of obscenity.They move to dismiss the Indictment charging them with offenses under 18 U.S.C. § 1462,18 U.S.C. § 1465,18 U.S.C. § 1466, and47 U.S.C. § 223(d).In particular, they contend that these statutes are unconstitutionally vague and overbroad as applied to Internet speech.They also contend that the statutes are unconstitutional in light of recent Supreme Courtcase law that they say establishes a substantive due process right to sexual privacy broad enough to include the right to distribute obscene materials.Having considered the defendants' arguments, the Court concludes that the federal obscenity statutes charged in the Indictment withstand the defendants' multi-faceted constitutional challenge.Accordingly, the Court DENIES their respective Motions to Dismiss.

BACKGROUND

The pending Indictment contains seven counts.Counts One and Two charge the defendants with knowingly transporting an obscene motion-picture film in interstate commerce for the purpose of selling or distributing the film, in violation of 18 U.S.C. § 1465.¹Count Three charges the defendants with knowingly using an interactive computer service for the purpose of distributing in interstate commerce an obscene motion-picture trailer, in violation of 18 U.S.C. § 1465.Counts Four and Five charge the defendants with knowingly using an express company or other common carrier to ship the two films in Counts One and Two from California to a location in Washington, D.C., in violation of 18 U.S.C. § 1462.²Count Six charges the defendants with knowingly possessing the obscene items in Counts One, Two, and Three with the intent to distribute those items in interstate commerce while engaged in the business of selling obscene material, in violation of 18 U.S.C. § 1466.³Count Seven charges the defendants with knowingly using an interactive computer service to display an obscene image—that is, the movie trailer identified in Count Three—in a manner available to a person under 18 years of age, in violation of 47 U.S.C. § 223(d).⁴

The FBI obtained the materials that form the basis for these charges in the course of investigating allegations that the defendants produce and distribute certain obscene "hard-core pornography."(Gov't Opposition # 23at 1).After placing an order with the defendants by mailing a form printed from their website, FBI agents in Washington, D.C. received by mail two DVDs—"Milk Nymphos" and "Storm Squirters 2 `Target Practice'"—that allegedly contain obscene movies.(Id. at 1-2).An agent in Washington also downloaded from the defendants' website a free movie trailer—"Fetish Fanatic Chapter 5"—that the government believes to be obscene as well.(Id. at 2).Descriptions of the films are not relevant at this stage, of course, because it is the jury's province to determine whether those films are actually obscene.The issue now before the Court is limited to the legal question of whether the obscenity statutes charged in the Indictment are unconstitutional.The defendants contend that they are.I disagree.

DISCUSSION

The defendants raise a litany of arguments challenging the constitutionality of the federal obscenity statutes charged in this case.First and foremost, they contend that Section 1465andSection 223(d), both of which incorporate the "community standards" and "as a whole" elements of the obscenity test set forth in Miller v. California,413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419(1973), are unconstitutionally overbroad and vague as applied to Internet speech.Second, they contend that Section 223(d) is a content-based restriction on speech that fails strict scrutiny under the First Amendment.Because of these constitutional defects, the defendants contend, at a minimum, that Counts Three and Seven of the Indictment must be dismissed.Not surprisingly, the defendants do not stop there.In addition to their overbreadth and vagueness claims, they contend that all counts of the Indictment must be dismissed because individuals have a substantive due process right under the Constitution not only to possess and use obscene materials but to produce and distribute those materials as well.Finally, they contend that obscenity prosecutions in the District of Columbia impermissibly burden the right to copyright work that would be protected elsewhere.Unfortunately for the defendants, I am not persuaded by any of these arguments.How so?

I. Overbreadth

The defendants' principal argument, which happens to be their best, is that Section 1465(charged in Count Three) and Section 223(d)(charged in Count Seven) are unconstitutional as applied to the Internet because the "community standards" and "as a whole" elements of Miller's obscenity test render both statutes overbroad.I disagree.

The First Amendment doctrine of overbreadth is an exception to the normal rule governing facial challenges to statutes.Virginia v. Hicks,539 U.S. 113, 118, 123 S.Ct. 2191, 156 L.Ed.2d 148(2003).To invalidate a law on its face under this doctrine, one need not show that the law is unconstitutional in every instance; rather, one need only show that the "law punishes a `substantial' amount of protected free speech."Id.In that regard, the overbreadth must "be `substantial,' not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications."Id. at 120, 123 S.Ct. 2191.

Both Section 1465andSection 223(d) prohibit the use of an interactive computer service to distribute or display "obscene" materials.Beyond dispute is the Supreme Court's repeated admonition "that obscene material is unprotected by the First Amendment."Miller,413 U.S. at 23, 93 S.Ct. 2607.Of course, courts have long struggled to draw the line between protected expression and unprotected obscenity.But after years of jurisprudential uncertainty, the Supreme Court in Miller finally settled on a three-prong test for determining whether a particular work is obscene: (1)"whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest"; (2)"whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable . . . law"; and (3)"whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."Id. at 24, 93 S.Ct. 2607(internal quotation marks omitted).The Supreme Court later refined this test by incorporating the community standards element of the first prong into the second prong and by mandating that the third prong be evaluated using an objective "reasonable person" standard.Pope v. Illinois,481 U.S. 497, 500-01, 107 S.Ct. 1918, 95 L.Ed.2d 439(1987).

Because the challenged statutes incorporate the Miller test by virtue of their ban on "obscene" material, it appears, at first blush, that there is an exact congruence between the kind of expression the Constitution permits to be punished and the kind of expression the statutes in fact punish.The statutes criminalize, and the defendants have been charged with, the distribution or display of obscene material, and obscene material "has long been held to fall outside the purview of the First Amendment."Ashcroft v. American Civil Liberties Union,535 U.S. 564, 574, 122 S.Ct. 1700, 152 L.Ed.2d 771(2002)(ACLU I).For this reason, the Court rejects out of hand the defendants' argument that Section 223(d)(1), which prohibits use of the Internet to display "obscene" material in a manner available to minors,⁵ is a content-based regulation that cannot survive strict scrutiny.(SeeEvil Angel Productions Mem. # 17at 13-23).Because obscenity, as defined in Miller, is a category of speech not protected by the Constitution, statutes like Section 223(d) that regulate obscene materials in a viewpoint neutral way are not subject to strict scrutiny.⁶As such, the Court need only address the defendants central argument that Section 223(d)andSection 1465 are unconstitutional as applied to the Internet because the "community standards" and "as a whole" requirements of Miller's obscenity test render both statutes overbroad.

A."Community Standards" Requirement

The defendants contend that the federal obscenity statutes, which incorporate the "community standards" test, suppress substantially more speech than is constitutionally permissible when applied to the Internet.Because Internet publishers, unlike those who use mail or telephone, cannot limit the geographic reach of the materials they post on the Internet, those materials are subject to the community standards of the most conservative jurisdictions in the country.Thus, to avoid criminal liability, the publishers must either tailor their speech to conform to those standards or abstain altogether from using the Internet as a medium for their speech.As a consequence, Internet speech that more permissive jurisdictions would surely protect will be unconstitutionally burdened or chilled.(Evil Angel Productions # 17at 4-8;John Stagliano Inc. # 20at 10-12).

Although a majority of Supreme Court justices in a splintered decision in Ashcroft v. American Civil Liberties Union(ACLUI) voiced concern that a "community standards" requirement, as applied in Internet prosecutions under the Child Online Protection Act ("COPA"), poses overbreadth problems,⁷ those concerns hardly suffice to render the more narrow obscenity statutes unconstitutional as...