Suit Filed to Determine If Tape Is Obscene

In an unusual counterattack against the government’s war on pornography, a Southern California-based association of manufacturers and distributors of sexually explicit videotapes has filed suit to determine whether a tape is obscene before its release.

The suit filed by the Adult Video Assn. is designed to help distributors of X-rated videos stay out of jail by finding out ahead of time whether a tape violates community decency standards.

The suit comes against the background of an anti-obscenity campaign by the federal government that has resulted in huge fines and the jailing of Los Angeles-based producers of X-rated videos. The campaign, which has included the prosecution of pornographers in conservative regions of the country rather than Los Angeles, has been strongly denounced by the pornography industry and the American Civil Liberties Union.

The government maintains that the prosecutions of pornographers are a justified way of keeping illegal obscenity from reaching the public. The ACLU has denounced the strategy of using multiple prosecutions in different regions of the country as an unfair tactic designed to harass and bankrupt producers of constitutionally protected material.

The Adult Video Assn. case was filed in Memphis, Tenn., a region known for aggressive prosecution of pornographers. If judged to be obscene by a federal judge or jury, the video would not be shipped into western Tennessee, according to attorneys for the association, a trade group composed of about 100 manufacturers and distributors.

The video association filed the suit asking for what is called declaratory relief on behalf of an anonymous, Los Angeles-based distributor who wants to ship a video called “After Midnight” into Tennessee for sale or rental. The suit says the tape depicts “ultimate sex acts,” meaning intercourse. Attorneys for the video association characterize it as a mainstream pornographic tape of the type that millions of Americans rent or buy each year.

“This is a very legitimate effort to obtain an important remedy for my clients,” said J. Michael Murray, a Cleveland attorney. “It is an attempt to obtain a determination whether a particular film is protected by the 1st Amendment so that my client can distribute the material through the mail without fear of being prosecuted by the federal government.”

Attorneys for the video association said this legal avenue has never been tried before by X-rated videotape producers. There are precedents in the entertainment industry, however.

The 2 Live Crew album “As Nasty As They Wanna Be” was the subject of a similar suit last year and was declared obscene by a Florida judge in a ruling that was overturned, according to a video association spokesman. A decade ago, Penthouse International Ltd., producers of the graphically sexual film “Caligula,” filed suit against Fulton County, Georgia. A U.S. District Court judge ruled that the movie was patently offensive, but not obscene under Georgia law and Supreme Court rulings.

The new litigation differs from the other cases in that it is filed by a trade association representing the pornography industry as a whole. It also takes aim at the federal government and its ongoing war on pornography.

Barry Freilich, a spokesman for the video association, said the lawsuit will avoid expensive criminal prosecutions and “will not chill the distribution of adult materials as the government’s current procedure of prosecute first and determine legality later does now.”

Erwin Chemerinsky, professor of law at the Law Center of USC, called the suit “completely appropriate. You shouldn’t have to violate a law to challenge it.”

The Justice Department and U.S. Atty. Edward Bryant in Memphis refused comment on the suit, filed Oct. 22 in U.S. District Court.

But Patrick Trueman, director of the Justice Department’s child protection and obscenity enforcement section, has said he was carrying out former Atty. Gen. Dick Thornburgh’s mandate that pornographers “would be pursued in every state in the union.”

California pornographers should not feel invincible just because they are based in Los Angeles, he said.

“No one should be able to locate in one part of the country and decide that since the community standards are different there that they are not violating the law” by sending the material to other communities, Trueman said.

Sexually oriented speech is protected under the 1st Amendment unless the material is found to be obscene under a three-part test laid down by the U.S. Supreme Court. To be classified as obscene, material must be found to violate contemporary community standards of decency, be patently offensive and lack “serious artistic, political or scientific value.”

The government’s crackdown has hit the mostly Los Angeles-based pornography industry hard in recent years.

Reuben Sturman of Van Nuys and Cleveland, once known as the nation’s most successful pornographer, paid a $1-million fine and was sentenced June 10 to four years in federal prison on a plea bargain to avoid trial on racketeering and obscenity charges. In September, Mark Carriere of Encino was ordered to serve four months of home detention and his company forfeited $3.5 million in assets for sending obscene material to Tallahassee, Fla. It was the largest forfeiture in an obscenity case in U.S. history.

Spokesmen for the X-rated industry say a hallmark of the government’s approach has been to avoid prosecuting the companies in Los Angeles, where the tapes are made and where juries have been unwilling to return obscenity convictions.

Producers of X-rated material complain that even if they win in one region, the government’s willingness to file obscenity cases in more than one jurisdiction makes defense costs prohibitive. Several companies have voluntarily entered plea agreements and paid large fines.

The Adult Video Assn. claims that the Child Protection and Obscenity Enforcement Section, formerly known as the National Obscenity Enforcement Unit, is behind the prosecutions. The unit’s strategy, outlined in a 1985 Justice Department memo obtained by the ACLU, was for “multiple prosecutions at all levels of government in many locations. . . . This strategy would test the limits of pornographers’ endurance.”

The ACLU contended that this strategy violated the Justice Department’s own rules discouraging multiple prosecutions because of “unfairness.”

Before filing suit, the Adult Video Assn. on Sept. 10 sought a legal opinion from the U.S. attorney’s office about whether “After Midnight” would be considered obscene. The government declined, said Freilich, the video association spokesman. The group is a member of the anti-censorship Free Speech Coalition in Canoga Park.

“We think this film is not obscene and is protected by the 1st Amendment,” Murray said. But without federal guidelines on what behavior is considered obscene, “producers and distributors are at the mercy of individual prosecutors across the country.”

USC’s Chemerinsky said the Declaratory Judgment Act was adopted by Congress in the 1930s to allow challenges such as this.

“The act is all about the fact that it is not fair to make somebody break a law to challenge it,” he said.

Murray said a ruling of non-obscenity on “After Midnight” would establish a base line against which other video distributors could measure their products before deciding to ship them into conservative regions.

The crackdown on the pornography business has resulted in more than 40 searches and seizures at Los Angeles-area companies since March, 1990. Four have resulted in criminal indictments in Dallas, Las Vegas and Tulsa, Okla.