April 27, 2006

Federal obscenity law enforcement update, April 2006

By MIM President Robert Peters

U.S. Supreme Court upholds federal Internet obscenity law

On March 20, 2006 the U.S. Supreme Court (Nitke v. Gonzales, No. 05-526) affirmed a decision of the U.S. District Court in Manhattan that upheld an obscenity provision of the Communications Decency Act (CDA).  The lower court found that plaintiffs failed to produce sufficient evidence to establish their claim that the CDA’s overbreadth, if any, was substantial and that it therefore violated the First Amendment.

The particular provision [47 U.S.C. § 223(a)(1)(B)] makes it a crime to transmit “by means of a telecommunications device” any communication that is “obscene or child pornography, knowing that the recipient of the communication is under 18 years of age.”

Plaintiffs had argued that by applying the local community standards of the obscenity test to the Internet, the CDA sweeps within its prohibitions a substantial amount of protected speech.  They argued specifically that they cannot control the locations to which their Internet publications are transmitted, and therefore any material that they publish to the Internet may be prohibited under the CDA because it may be legally obscene in one or more communities, even if not legally obscene in others. Thus, they argued that the CDA is overbroad inasmuch as it prohibits, based on the standards prevailing in one or more communities, a substantial amount of speech that is protected, based on standards prevailing in at one or more other communities.

Had the U.S. District Court and Supreme Court accepted plaintiffs’ argument, all Internet federal and state obscenity laws would be unenforceable.  Morality in Media’s legal department submitted an amicus brief in the important District Court case.

U.S. Court of Appeals in Philadelphia upholds federal obscenity laws  

On December 8, 2005, the U.S. Court of Appeals in Philadelphia (U.S. v. Extreme Associates) reversed a decision of U.S. District Court in Pittsburgh that had held that the federal obscenity laws are unconstitutional as applied because they “burden an individual’s fundamental right to possess, read, observe and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials.”

For all practical purposes the U.S. District Court Judge Gary L. Lancaster was attempting to rewrite 200 years of constitutional history. Thankfully, the U.S. Court of Appeals rejected Judge Lancaster’s disregard of Supreme Court precedents, stating: “We are satisfied that the Supreme Court has decided that the federal statutes regulating the distribution of obscenity do not violate any constitutional right to privacy.”

Had the Court of Appeals accepted the pornographer’s argument, all federal and state obscenity laws would in large measure now be unenforceable.  Morality in Media’ legal department submitted an amicus curiae brief in this important case.

U.S. Court of Appeals in Dallas upholds federal obscenity laws

On September 27, 2005, the U.S. Court of Appeals in Dallas affirmed the convictions of Garry and Tamara Ragsdale who were found guilty, after a jury trial, on one count of conspiracy in violation of 18 U.S.C. § 371, two counts of mailing obscene materials in violation of 18 U.S.C. 1461, and aiding and abetting in violation of 18 U.S.C. §§ 1461 and 1462.  The two videotapes found obscene were “Real Rape 1” and “Brutally Raped 5.”  Garry Ragsdale was a Dallas Police Officer at the time of the offenses. He was sentenced to 33 months in prison; his wife was sentenced to 30 months in prison. (U.S. v. Ragsdale, No. 04-10291)

The Ragsdales asserted several constitutional arguments, challenging the validity of both Section 1461 and the Miller v. Californiaobscenity test. Among other things, they argued that the First Amendment protects obscenity, that the obscenity definition is vague, and that obscenity laws offend due process of law because different juries may view identical materials and render different verdicts.  The Court of Appeals rejected each challenge.

U.S. Justice Department forms Obscenity Prosecution Task Force

In fall 2005, former U.S. Attorney Brent Ward, who helped lead the charge against illegal obscenity under President Ronald Reagan, was named Director of the U.S. Justice Department’s new Obscenity Prosecution Task Force.  Federal prosecutors and FBI agents were also recruited to work with the Task Force.

When the Justice Department announced in May 2005 that it was establishing an Obscenity Prosecution Task Force, the Department said the Task Force “will be dedicated exclusively to the investigation and prosecution of obscenity cases.”  The Department Release also said, “[T]he Task Force will draw upon the expertise of…the Organized Crime and Racketeering Section…the Asset Forfeiture and Money Laundering Section…and the Computer Crime and Intellectual Property Section.  The Task Force also will be supported by CEOS’s High-Tech Investigative Unit, which consists of computer and forensic experts with knowledge of the Internet and other interactive computer systems…”

Three out of four Americans support Justice Department crackdown on obscenity

More than three out of four (77%) adult Americans support the Justice Department’s effort to enforce federal obscenity laws, according to results of a survey conducted by Harris Interactive for Morality in Media in November 2005.  Fewer than one in five (19%) of adults oppose new enforcement efforts. The question asked is as follows:

“The Supreme Court has held that obscene material is not protected by the First Amendment and that obscenity laws can be enforced against commercial distributors of hardcore pornography.  During the past decade, hardcore pornographic videotapes and DVDs, films on pay TV channels, and Internet websites have proliferated. Soon, cell phones that combine voice with pictures will make it even easier to access hardcore pornography.  Recently, the Justice Department established a task force to prosecute obscenity crimes, and the FBI recruited additional agents to investigate these crimes.  Do you support or oppose this new effort to enforce federal obscenity laws?”

Major U.S. pornographer sentenced on obscenity and tax charges

On March 2, 2006, Edward J. Wedelstedt, who served as the former national operator of several “sexually oriented” businesses, was sentenced to 13 months in prison on federal obscenity and tax charges at a federal court in Dallas.

Wedelstedt was ordered to terminate all current “sexually oriented” business activities in the State of Texas and to forfeit all business property located in the state.  From the proceeds of the sale of his businesses, Wedelstedt will pay restitution to the IRS for tax loss suffered by the U.S. government.  In a previous civil hearing related to property seized during this investigation, Wedelstedt forfeited $1.25 million to the government.

According to documents filed in federal court, Wedelstedt had managed and operated pornographic bookstores and video arcades in Texas.  Wedelstedt’s stores, both in Texas and throughout the country, contained a video arcade, consisting of small, private “peep show” booths containing video screens with channel controls and devices that accept coins or tokens.  The video players permit customers to view sexually-explicit videos by placing money or tokens into a slot which activated the screen for a finite length of time.  The pornographic bookstores and the video arcades typically operate 24 hours per day, seven days a week.

In his plea, Wedelstedt admitted he displayed one of the videos named in the indictment in his stores in Texas, and that the video was obscene as judged by community standards in the Northern District of Texas.  The video can generally be described as depicting hardcore pornography with patently offensive depictions of adults performing sexual conduct.  The video was shipped from a Wedelstedt owned business in California through a common carrier.

Wedelstedt further admitted that he conspired with certain arcade managers within his company to have large amounts of cash generated from his company’s arcade operations provided directly to him, giving him absolute control over the funds.  From these cash funds, Wedelstedt frequently paid cash salaries and cash bonuses to employees and other parties without reporting the payments to the company accounting or payroll departments.  These recipients frequently did not report these payments as income to the IRS.

Third defendant pleads guilty in prosecution of major porn spam operation

On March 6, 2006, Jennifer R. Clason pled guilty in Phoenix to conspiring to violate the CAN-SPAM Act of 2003, a federal law designed to crack down on the transmission of bulk, unsolicited commercial email messages (“spam”).  Two other individuals, Andrew Ellifson and Kirk Rogers, have already pleaded guilty to charges under the CAN-SPAM Act.

The indictment alleged that spam emails sent by five named defendants advertised pornographic websites in order to earn commissions for directing Internet traffic to the websites.  The indictment also alleged that graphic pornographic images were imbedded in each of the defendants’ emails.  For counts in the indictment charged felony obscenity offenses for such transmission of hardcore pornographic images of adults engaged in sexually explicit conduct.

Federal Judge hands out 5-year sentence in obscenity case

In December 2005, a Florida man, Sanford Wasserman, was sentenced to 5 years in prison for conspiring to distribute obscene videotapes.  According to a story in the Billings Gazette (3/11/05), Wasserman and a Montana man, Thomas Lambert, ran a “catalog business” to distribute nationwide videotapes depicting gang rapes, torture, and bestiality.  The case began when a federal judge in Texas received an unsolicited catalog advertising the videos and turned it over to federal authorities.  Lambert was sentenced in June 2005 to 2 ½ years in prison.

Wasserman’s 5 ½ year sentence is the longest given in a federal obscenity case in over a decade.

New York Mobster gets 9 years for his role in “porn scam”

In January 2006, a U.S. District Court judge in Brooklyn, New York sentenced Richard Marino, a reputed member of the Gambino crime family, to 9 years in prison for his role in a $650 million “ripoff” of pornographic website and phone sex customers.  According to an article in the New York Post (“Jail in Porno Racket,” 1/31/06), Marino lured visitors onto pornographic websites by promising “free tours.”   Internet users would then be billed up to $90 when they gave their credit card number, which was demanded as proof of age.  Other victims responded to ads in magazines that offered free phone sex, but their numbers would be billed for a  $30 monthly voice-mail charge.   No obscenity charges were filed in this particular case.

 

 

Author: Robert Peters   04/31/2006

Further Reading