12:00pm: Now we’re sitting in How New Media Changed the Way we Look at Porn… or so I thought. The panel got canceled, so we’re ACTUALLY going to talk about the US vs. John Stagliano. We’re getting to be involved in an informal discussion with an (almost) expert witness in the case, Dr. Constance Penley,who graciously stepped up to fill the spot. She hasn’t had the chance to speak publicly about this… until now. I’m really excited!
[Warning: this is super-hard to summarize, but I’ll do my best!]
The obscenity trial hinges on three porn titles allegedly distributed by Stagliano: The full-length DVDs of Milk Nymphos and Storm Squirters 2: Target Practice, and a 5-minute online trailer for Belladonna: Fetish Fanatic 5.
The D.C. jurors—six men, seven eight women; nine 11 black, three white—[were] be tasked with determining whether Milk Nymphos‘ dairy-based enemas and Storm Squirters‘ water sports violate D.C.’s “community standards” for obscenity. [Source]
Dr. Penley has been teaching a course at UC Santa Barbara since 1993 about porn as film/pop culture that looks at porn and how it has changed over the decades, how the audience has changed, what have the modes of creation/consumption been, etc. Basically, anything they’d ask of other forms of media. She wants her students to learn what porn actually is before they form opinions by talking to people in the industry (who come to her class), doing readings, watching videos, etc John Stagliano has been a regular guest of her class.
In 2008 his movies were charged with 7 violations of obscenity laws – she asked him to bring the charged videos to her class, so they could look at them. In 2010 they looked at them again, just before the Supreme Court Trial was originally slated to begin.
Before this trial Stagliano had brought another filmmaker to court for a trial regarding theft of intellectual property. Dr. Penley theorized that maybe the group within the US government that decided to bring obscenity charges on him did so because they were “rankled” by the fact that this first case was a business and law trial like any other. Also, the taskforce that had been appointed during the Bush era likely wanted to go after the “mainstream” of the sex industry as well as the “fringe” that have fewer resources to defend themselves.
Before this there hadn’t been an obscenity trial in DC in about two decades. (The trial was originally supposed to be in Alamaba.) Sidenote: these cases are not supposed to be based on personal opinion, they are supposed to be based on community-reaction and impact… but the decisions are made by jurors who are basically asked to project their opinions outwards. So… why was this moved from Alabama where it would have likely been a slam-dunk win for the US? Dr. Penley speculates that (pure speculation) one of the federal attorneys who would have been responsible for this in Alabama wasn’t up for the job/was fired (I missed exactly what she said.) But: why DC? Maybe because they felt sure that they’d still get a guilty conviction because of the judge: Richard Leon, who was more or less basically on their side.
John Stagliano wanted Dr. Penley as his expert witness. She was to speak to the national standard: would the average person find the material as a whole lacks serious literary/artistic/political/or scientific value [the third of Miller’s three standards for gauging obscenity.] Unfortunately the judge wanted to deprive the defense of being able to make an argument by saying that they didn’t have the right to offer expert witnesses AND the material did not need to be shown to the jury in its entirety. This is stark evidence of how much a bias judge has the power to alter the outcome of a case, even though this judge did not succeed… others have.
Issues this brings up: what is prurient interest or patently offensive or obscene anyways? How do you DEFINE these things legally and objectively? How can we prohibit vaguely defined areas of speech? If you’re making these films you can’t know in advance what is going to be considered obscene because that is always an after the fact decision, which makes things tricky.
She is writing a book called Teaching Pornography! Constance: “This whole thing has been a great lesson in what academic freedom really stands for.” In California law there is an Educational Exception to the obscenity laws that allows people to show this material in education/research settings with much more leeway than other scenarios. That law was specifically taken out of North Carolina’s law… which means professors there must be much more careful about what they show because they could get in trouble after the fact (but no one can tell them before they show something if it will be considered obscene or not.)
She took on the case for free because this is her are of reasearch. That wasn’t the end of it though… there’s a strange law started in 1993, supposedly to get junk science out of the courts, called the Daubert Hearing. It is a hearing just for the judge where expert witnesses are questioned in front of the judge, who gets to determine whether the expert is credible and authoritative and whether what they ware likely to say on the stand will be useful to the jury in making their determination.She basically had to qualify to speak at this trial. The prosecution can use this to figure out what your opinion will be in the trial, and thus determine how to come after you… so basically an expert witness has to give enough to establish credibility, but not too much so as to tip their hand.
In Dr. Penley’s case they tried to get her to determine if she felt certain examples were obscene to gauge her opinion, and every time she would say something like: “I would have to see the film first, that’s the point of my whole teaching research but by the way I wouldn’t be able to see the film because that would be illegal…”
She just told us (and she mentioned it during her hearing) about research that she did for Francis Ford Coppola, where she got to ask other major film directors what their most erotic scene in film was. The audience (myself included) is clamoring for examples… she says she is putting this situation in her book!
Dr. Penley: “I can do it both ways, I can argue for it as art in that older sense but I can also argue for it as popular culture, or popular speech as well.”cholars used to be the gatekeepers for what is/is not art but now they study how people even make those determinations.
One thing that she didn’t raise was that she was going to be arguing for these materials as having political value, as well as artistic value because . Most of the videos they choose were women exchanging bodily fluids with some light bondage. “How that got choose to be the most obscene thing in the land…” she doesn’t know.
Running out of time. The judge, ultimately, dismissed her as an expert witness in a very convoluted decision because she wasn’t “qualified” because she hadn’t written something specifically about these kinds of film as art. (But they had thought that the judge loved her.) What Dr. Penley says she has learned is that “there is so much going on behind the scenes” that what you think is going on in a case like this, is often not what is happening at all.
For instance: she later found out that “the government psychologist had been so bad that he had basically argued the defenses side.” In order to get rid of that guy, the judge had to get rid of everyone… which might be why he changed his mind about liking her.
Here’s a fun complication: technically the prosecution/defense looking at these videos in DC is illegal. The jury was shown selections.
In the end the prosecution had done such a bad job that the charges were dropped. (Moderator:”It basically is a study in how not to run an obscenity trial, in a sense…”)
This case and the proceedings are so interesting to me because I feel they indicate a real problem. How can we critically examine material like pornography in the context of a culture where we demonize it and mess with court cases in order to continue doing so without challenge… I wonder what we’d be saying if the playing field was level?