The featured panelists were Colorado-based Arthur M. Schwartz, after whom the seminar is named, Ohio's Louis H. Sirkin and Buffalo, New York-based Paul Cambria. Schwartz made only a few opening comments before handing over the program to the two younger criminal defense attorneys and first amendment champions.
Sirkin
Sirkin opened by covering a few recent obscenity cases of note. First, he informed the audience of the fact that the Extreme Associates case in Pittsburgh is now in its fourth year. Judge Gary Lancaster has not been “pushing” the case, Sirkin said, and the defense team has reissued arguments that seek to define the “community” prong in question as international, a critical point in a case in which the government is claiming that content delivered over the Internet can be prosecuted as obscene at the local level.
Sirkin also mentioned the Tampa, Florida Max Hardcore obscenity case, in which charges also encompass the dissemination of Internet video clips as well as DVDs obtained by mail-order.
The good news on the obscenity front comes out of Phoenix, Sirkin said, where, thanks to attorneys Jeffrey Douglas and Richard Hertzberg, all charges were dismissed by the judge against Ken Graham, co-owner of Five Star Video and Five Star Video Outlet, in October.
In that case, the jury did find Five Star Video and Five Star Video Outlet guilty of interstate transportation of obscene materials and the interstate transportation of obscene material by common carrier, but for one title only. In the end, according to Sirkin, the government could not overcome hearsay problems.
On the 2257 front, Sirkin said the industry is waiting for the government to issue new regulations, but in the interim the industry did acheive a fabulous victory in Cincinnati, where a U.S. Court of Appeals ruled, in the Connections Distributing case argued by J. Michael Murray, that the federal record-keeping statute is unconstitutional, holding that the law is overbroad and facially invalid.
Sirkin added almost in passing that the injunction won by the Free Speech Coalition in Denver in its 2257 lawsuit with the federal government is still in effect, a fact that was received with surprise by some members of the audience who thought that it had been dismissed last year. The injunction prevents government agents from conducting 2257 inspections of “secondary” producers who are also members of the Free Speech Coalition.
Sirkin also made special ominous mention of recent changes to the law in his home state of Ohio, the result of the passing of the Adam Walsh Child Protection and Safety Act of 2006, that will now require anyone convicted of a pandering obscenity offense to register as a sex offender. Sirkin reminded the audience of the profound impact this will have on store owners and their employees, who now face potential registration terms of 10 years for a first offense, 25 for a second and lifetime for a third.
Cambria
Paul Cambria spoke next, and immediately added his kudos to the successful 5 Star case.
“I felt like a cheerleader in the Phoenix case,” he said. “It’s great to see that sort of case, where a good criminal lawyer wins.”
Cambria mentioned a Movies-by-Mail case he is working on, in which the government engaged in what he referred to as “manufactured venue” by ordering adult movies from a distributor’s website in one state to assess the content and then ordering copies and bringing charges in the more conviction-likely Utah.
“We have some new ideas about how to challenge this manipulation of venue,” he said.
He also mentioned developments in a Virginia case involving the mainstream Movie Gallery chain, which operates 4900 stores nationwide, with a number carrying adult sections. In his case, the state has brought nuisance charges just for carrying the videos. Cambria wondered how it could be nuisance if it is protected speech.
Cal-OSHA
Cambria then took a right turn into uncharted territory by mentioning the fact that several of his clients in California who produce adult movies have been visited on the set by Cal-OSHA, the state employee health and safety agency.
He said a number of them have been cited for not having blood-borne pathogen policies in place.
“We’ve been meeting with the Cal-OSHA people, and even brought in Sharon Mitchell,” Cambria said.” Mitchell is director of the Adult Industry Medical Health Care Foundation (AIM).
Cambria added that he has appealed administratively the citation, and said he would resort to litigation if necessary. Camrbia took great pains to state how serious a situation it is, and that if not addressed it could spell the end of widespread adult production in the state.
During the Q&A session that followed, Sirkin said in response to a question about the 6th Circuit decision declaring 2257 unconstitutional that the government had filed a petition for an en banc hearing, with a decision due imminently. If the ruling is not overturned, he fully expects the government to appeal the case to the U.S. Supreme Court.
There were several other excellent questions from the audience that closed out what was an exceptional review of the current legal state of affairs, delivered by peerless lawyers at the height of their game.
