So, I’m reading this Max stuff pretty carefully, and I think this is sizing up to be a really interesting case.
This is going to the jury. I don’t know the jury instructions, and I’m not entirely sure what exactly Max is being charged with – but, on the other hand, it appears that the judge was pretty disgusted by this stuff and that members of the jury were put off by it. Does that mean diddly? Who knows. But this is very different material from what Seymour was on trial for. I never got the whole fisting thing, and it certainly isn’t a turn-on for me. I fast-forward right through it. But, I’m not repulsed by it. It just seems like they might very well convict him of something.
If they do, I think Sirkin has very nicely teed up the grounds for appeal – and that really might be what Sirkin is going for – That is this: You have to judge a work of art as a whole, and not by its parts. Heck, as any student of literature knows, James Joyce’s Ulysses begins with the main character in the outhouse. I could see this case going to the Supreme Court.
The judge reserving her ruling until after the jury decision is also interesting. That could mean she’s decided that she wants to throw the book at him, regardless of what the jury decides, or, conversely, that she reluctantly agrees with the defense, and wants to let the jury have its say, and then dismiss anyway.
Frankly, I think one of these cases should go to the Supreme Court. The Miller test is so bizarre; and community standards so hard to define in the age of the Internet – heck, is a community a geographic community or is it an online community? – that there ought to be some guidelines somewhere. The Supremes should say: Guys, all bets are off, you can do what you please short of little kids, animals and dead people. Or, they should say: We don’t like it, but we agree that sexual expression is legal within the following limits.
And, if Max is found guilty, I think female guards should be allowed to take a leak on him once a day while he’s doing time. Or gag him with a night stick until he vomits.
You are correct this case is far from over unless he walks on all charges, Sirkin ids probably the best first amendment lawyer alive and I am sure he would love to take this to the Supreme Court, and they are due to hear one, as you pointed out the Miller Test is all but obsolete. And I got a feeling Max would be very popular in the kind of Federal prison he would likely get if he gets convicted.
I predict a hung jury, and the judge dismissing the charges regarding Jaded distributing the videos, Max can hardly be held accountable for that.
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As an attorney, I have to disagree that Sirkin is “going for an appeal.” No decent lawyer (and Louis Sirkin is much more than decent) makes trial choices based on a belief that it will improve the appellate chances. You make trial choices based on what you think will win the trial, and you do everything you can to preserve appellate issues in case you lose.
I’m also not sure that any First Amendment lawyers want to go to the Supreme Court right now. It’s a toss up, at best, on First Amendment issues. Scalia is showing himself to be more and more of a hard-core religious fundamentalist with no regard for the Constitution, notwithstanding his protests that he is an “originalist.” And I fear that Thomas will take whatever crazy, anti-porn stance is necessary for him to try to put the “Long Dong Silver” incident to rest. Plus, if McCain gets elected in November (please God, no!), the Court could look awfully different by the time the Max Hardcore case got up there. I think that Stevens has a maximum of 18 months left, and I have concerns about Ginsburg’s health.
As far as calling to Max Hardcore to task for making stuff that’s “too extreme,” I have to cry foul. It’s not my cup of tea either, and I think that his influence on the industry in general is unfortunate. (I don’t want to see women gagging—period.) But someone is clearly buying his stuff. It’s not like he’s getting grant money from the National Endowment for the Arts.
This is where the whole “community standards” element of Miller has really gotten derailed. The original obscenity cases dealt with quasi-public displays—movie theatres that were doing advertising on the streets for everyone to see. In those cases, the purpose of the community standards part of the test was to protect the community from stuff that was “too offensive” for the public. For example, a theatre in Salt Lake City that was showing and promoting “Double Penetration 4” would probably offend a very large part of the population and cause lots of general unrest in the community.
Applying “community standards” to videos that are ordered and watched at home is ridiculous because nobody except the viewer is even going to know that it’s in the community! Some people might argue that the community standards element is in place to protect public morals, but that idea was laid to rest by the Supreme Court in Lawrence v. Texas when it overturned Texas’s anti-sodomy laws.
Bottom line, if there is a market that allows someone to make and sell videos that don’t involve criminal activity (bestiality, necrophillia, child molestation) to private viewers, then they should be allowed to make and sell it. Protecting Max Hardcore’s right to make and sell his videos is necessary because it protects the rights of Mike South, the Sinclair Institute, and even Universal Studios to make their videos.
Oh I agree. No doubt the defense wants an across the board acquittal but Lou is smart enough to hedge his bets, a lot.
I have a friend who has a theory that a conservative court is more likely to offer a strict interpretation of the constitution than a liberal court. Cases in point.
Lawrence v. Kansas
the rob black initial dismissal
the 2257 reversal
all happened in ultra conservative courts
yet in denver on the 2257 challenege most of it was upheld, and denver is a liberal court.
Miller is useless in this day and age but if “obscenity” is to remain unprotected free speech its high time someone defined what obscenity is.