If all goes according to plan, an otherwise stately federal courtroom in downtown Los Angeles will be converted into a makeshift movie theater this week, screening a series of graphic -- many would say vulgar -- sexual fetish videos.
At issue is how a jury will define obscenity in a region that boasts its status as the capital of the pornography industry and at a time when technology has made the taboo adult flicks of a generation ago available to a mainstream audience.
Hollywood filmmaker Ira Isaacs says the videos he sells are works of art, protected under the Constitution. Federal prosecutors contend they are criminally obscene.
The prosecution is the first in Southern California by a U.S. Department of Justice task force formed in 2005 after Christian conservative groups appealed to the Bush administration to crack down on smut.
For jurors to determine whether Isaacs’ work is obscene, they will view hours of hard-core pornography so degrading that in one film, an actress cries throughout, prosecutors said in court papers.
But if jurors find that any of the four videos at issue in the case have any “literary, scientific or artistic value,” the work is not legally obscene, according to a 1973 Supreme Court ruling.
“All they’re going to do is turn on a DVD machine and hope the jury is going to be so shocked and disgusted and offended that they’re going to throw me in prison,” said Isaacs, 57, a native of the Bronx. He said he hopes that jurors will be shocked -- he’s a self-described “shock artist” -- but also that they will see artistic value in the work.
The portly defendant, who sports a ponytail and goatee, produced and starred in one of the videos. He contends that the sex in the movie is incidental to the art. It’s merely a marketing tool to drive sales of the videos on the Internet, he said.
In a statistic that some may find every bit as shocking as his work, Isaacs said he was selling about 1,000 videos per month at $30 apiece before being raided by the FBI early last year. The number has since dropped to between 700 and 800 per month, but they still generate enough money to pay the rent on a house with a pool in the Hollywood Hills.
Isaacs predicted that many jurors would not be able to stomach viewing the movies, some of which feature acts of bestiality and defecation.
“It’s going to be a circus,” he said of the upcoming trial. “I think I’d freak out if I had to watch six hours of the stuff.”
Jury selection is expected to begin today. Presiding over the trial will be Alex Kozinski, chief judge of the 9th Circuit Court of Appeals. Kozinski was assigned the case as part of a rotation in which he and other appeals court judges occasionally oversee criminal trials in addition to deciding appeals.
His involvement in the case may be a stroke of luck for Isaacs. That is because Kozinski is seen as a staunch defender of free speech. When he learned that there were filters banning pornography and other materials from computers in the appeals court’s Pasadena offices, he led a successful effort to have the filters removed.
“I did some rabble-rousing about it,” Kozinski said in a brief interview last week. He said he was made aware of the issue when a law clerk researching a case was banned from accessing a gay bookstore’s website.
“I didn’t think the bureaucrats in Washington should decide what the federal judiciary should have access to,” the judge said. “I thought that was incredibly arrogant for them to decide on their own.”
Kozinski declined to comment on any aspect of the Isaacs case.
Isaacs said he would testify as his own expert witness at trial and planned to lecture jurors on how perceptions of art have changed over the years. There was a time, he said, when the works of authors James Joyce and D.H. Lawrence were called obscene.
The point, Isaacs said, “is do we really want to throw artists in jail in America?”
Kenneth Whitted, the Justice Department prosecutor assigned to the Obscenity Prosecution Task Force, declined to be interviewed for this report.
According to the Justice Department’s website, the task force “is dedicated exclusively to the protection of America’s children and families through the enforcement of our Nation’s obscenity laws.”
The task force has won convictions in more than a dozen cases, the vast majority resulting from plea bargains, according to case summaries provided by the department. Only a few defendants have elected to fight the charges at trial. Punishment in most cases included some prison time, ranging from one to seven years, as well as stiff fines and forfeiture of proceeds.
At a time when even hard-core pornography is available in major hotels, through cable companies and on the Internet, prosecutors have focused their efforts on particularly outrageous material, often involving sex with animals and defecation.
Most of the cases were brought in relatively conservative areas of the country, five of them in Texas.
Whether jurors in Southern California have more lenient views on obscenity will be tested at Isaacs’ trial.
Federal agents raided Isaacs’ Koreatown office in January 2007. Isaacs said he was told by authorities that the investigation was initiated after a local person complained, and was eventually turned over to the task force in Washington.
He is now facing charges related to the importation, transportation and distribution of obscene material in connection with four videos he was selling over the Internet, including the one he produced. Isaacs admits to producing that film and to distributing all four.
But he denies that they’re obscene.
“That’s for the jury to decide,” he said.
He said that prosecutors have made several overtures inviting him to take a plea in the case, but that he has refused every time.
Pleading guilty would be admitting that he was just another pornographer, he said.
“If I get convicted and go to prison now,” Isaacs said, “I go as an artist.”