I have a very bad feeling that this is just the tip of the iceberg. Say goodbye to free speech because the Republicans wont stop until its dead and gone.

Feds Charge MoviesByMail.com Owners With Selling Obscene Materials
By Steve Javors
Thursday, June 14, 2007



SALT LAKE CITY, Utah — Two Ohio men who own online adult retailer MoviesByMail.com have been accused of selling obscene materials via the Internet. In a federal complaint filed June 8 and unsealed today, the U.S. Attorney's Office has charged the pair with one count each of selling obscene material.
The investigation into Sami and Michael Harb's online enterprise, MoviesByMail.com, began in August when the FBI's Adult Obscenity Task Force received a tip that the website was selling alleged obscene DVDs. In March, FBI agents placed an order for "Max Hardcore: Pure Max 18," Max Hardcore: Extreme 12" and Extreme Associates' "Cocktails 5" and had them shipped to Utah.

Hardcore was indicted by the Justice Department May 17, and is being charged with 10 counts of obscenity. Hardcore is being arraigned on July 12.

"None of the three films has a plot line," an FBI investigator said in the complaint. "The films consist entirely of scenes of hardcore sexual acts being performed by multiple men and women."

According to U.S. Attorney Brett Tolman, the movies have no artistic value.

"The U.S. Department of Justice and U.S. Attorneys' Offices nationwide have stepped up the prosecution of obscenity cases, as evidence increases of the harm of obscenity to American children and families," Tolman said. "As obscene materials continue to proliferate, they are becoming more accessible for the young and the innocent among us. At the same time they are becoming more extreme and degrading in content and present a growing threat to the wellbeing of American families and our society as a whole."

The Cleveland, Ohio-based Harbs are ordered to appear in Salt Lake City District Court before Judge Paul Warner on June 29.

"This charge was initiated by complaint," Tolman said. "It will now be up to a grand jury, in the exercise of its independent judgment, to decide if there is probable cause to believe the material is obscene in considering an indictment. Ultimately a Utah jury will decide if the material is obscene."

Kenneth Whitted of the Department of Justice's Obscenity Prosecution Task Force and Assistant U.S. Attorney Karin Fojtik of Utah are prosecuting the case.

Assisting the FBI in the investigation were the Department of Justice, the U.S. Attorney's Offices in Salt Lake City and Cleveland and the U.S. Postal Inspection Service.

The pair could face a maximum of five years in prison.

An email sent to Sami Harb seeking comment was not returned by press time.

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Ultimately a Utah jury will decide if the material is obscene.

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Oh my, a jury of Mormons. Who wants to try to predict the jury's verdict?

The new axis of evil: Teheran - Miami - Salt Lake City...

A better analogy would be someone who decides to build a house on train tracks because the conducter told him the train won't be comming anymore. But you know that guy won't be running the train forever and his replacement wants to run a bullet train through your house.

i feel like your analogy still says, "blame the guy who wasn't an asshole because some other guy is an asshole." if we hadn't been under the impression we had rights and that there was free speech, it wouldn't be so irritating that some asshole wants to take them away. who gave us rights, anyway? fuckers. agree to disagree. i feel weird in these kind of discussions, anyway.

I'm not blaming anyone, just saying stop making Clinton out to be such a savior and the fact he ignored obscenity as a godsend. I'm sure if Max went to a lawyer and said "will I get prosecuted for this stuff?" the answer would have been "without a doubt". Government shouldn't give people a false expectation that they won't be prosecuted.

All that said, the obscenity decisions (based on people going to a stroke house) are obsolete in the age of the internet. It is not illegal to posess Max's films in the privacy of your own home. I see no government interest in prosecuting him for mailing them.

Arguing over who's to blame is about as useful as giving Rob Black a Sturman award.

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"None of the three films has a plot line," an FBI investigator said in the complaint. "The films consist entirely of scenes of hardcore sexual acts being performed by multiple men and women."

According to U.S. Attorney Brett Tolman, the movies have no artistic value.

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This is real interesting. So the Feds are effectively saying that they'll give features a complete pass and that Americans can no longer jerk off to anything without a plot.

Thats correct Conky. Anything that apeals solely to "a prurient interest" is obscene under the definition given by the Supremes. In other words, if theres no message and its just good for jerking off, its obscene. Which describes 90% of Gonzo (but not Rob Black's movies cause they usually have a nun in bondage or some other political message.)

But alot of the obscenity cases are based on a time when you had to go to a stroke theatre in public. In the age of the internet, I'm not sure the same logic applies. If it looks like the only interest the government has is regulate peoples thoughts, I think Max has a shot to change law and win. Of course, when the deciders see some of Max's best work logic and reason may be replaced by revulsion and vomit. Theres a reason why Max was chosen.

So if Jeff has a whore being gagfactored and gets her to turn to the camera half way through and say "You won't get this for much longer under a Republican administration" it could be classed as a political message and slip through?

Cool!

Looks like the fbi chose the most extreme stuff just to prove a point. The could have chosen any non-plot driven gonzo, but it wouldn't be deemed as that offensive to a jury.

I wonder if the "plot line" loop hole will lead to the resurrection of the Feature.

...but Max's movies do have a message. They serve as warnings to young women as to why they should never agree to go home with strange, creepy looking, old men.

Could it not be argued that Gonzo flicks are in fact documentaries of some sort? Gonzo, by its very nature, consistently 'breaks the fourth wall' in that the director and crew are not only acknowledged, but often also interact with the subjects, either verbally or physically.

Also, as other posters have pointed out, the notion of what constitutes a 'storyline' will vary from person to person purely in terms of artistic taste...many gonzo directors have cheesey little lead-ins to their scenes. Will this be enough to get them off the hook?

Following this sort of logic, how long before the MPAA is excising the opening credits sequence from James Bond movies? It doesn't serve to advance the plot (nor does it have a plot), it's just a montage of naked women in silhouette moving about sexily.

Indeed, why stop at pornography? Any sex scene in a mainstream movie which doesn't serve to advance the plot (the woman becomes pregnant/one of them is being unfaithful/one of them gets HIV, etc.) must surely be just as frivolous as porn if it tells the viewer nothing more than 'these two characters really like each other'?

Interesting times ahead, no doubt about it...

I'm glad I didn't see this yesterday, or I would have set a record for angry, drunken posting.

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i feel like your analogy still says, "blame the guy who wasn't an asshole because some other guy is an asshole." if we hadn't been under the impression we had rights and that there was free speech, it wouldn't be so irritating that some asshole wants to take them away. who gave us rights, anyway?

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Yeah, the analogy does have that feel to it, Doesn't it? But Conky's right, arguing over who's to blame is pointless, especially since it's clearly the Religious Right and their flunkies in the White House/DOJ.

As for Who gave us these rights, the Framers believed that thes rights were "inalienable,' which Wictionary (I'm at a Starbucks, alright) defines as "Incapable of being alienated, surrendered, or transferred to another; not alienable; as, in inalienable birthright." Other Framers believed these rights were derived from God, although, being Deists, it was a rather vague sort of God not at all in keeping with the God of the Religious Right.

The notion that our rights are "Incapable of being alienated, surrendered, or transferred to another" stands in direct contrast to the position of most Republicans, most notably Rudy Giuliani, who has stated on numerous occasions that "Freedom is about authority. Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do and how you do it." Scary words in a scary time.

Moxie is correct about the need to argue that the age of the internet has rendered many obsceneties laws obsolete, and I'm sure Counsel for Jeff, Max and now the Harb Brothers have been scouring Supreme Court Decisions dating from the turn of the 20th Century, where the Court has recognized Statutory Obsolescense. Many of these will involve Transportation related cases, as that's where the majority of such rulings occur. There are many from more recent times involving the telecommunications industry as well, which I believe cite these earlier cases as well.

Still, as I've said before, given the venues (District of Arizona, Middle District of Florida, District of Utah) and the likelyhood that convictions will be upheld for Max and the Harbs (in the 11th and 10th Circuit Courts of Appeal, respectively*) These cases will in all likelyhood end up before the US Supreme Court in a few years, certainly after the 2008 election. There, so long as the make-up of the Court remains unchanged, it will come down to Justice Kennedy, the lone swing vote on the court since the retirement of Sandra Day O'Connor. As I've said before, I havent had time to research Justice Kennedy's voting record regarding Obsceneties and related issues. Maybe I'll stop by the Library later today.

(*Jeff gets a "break" of sorts, in that the 9th Circuit, of which both California and Arizona are a part, is the most Liberal Circuit in the Country, routinely ruling on the side of freedom in First Amendment and other Civil Liberties issues. The flip side is that it is the most Appealed Circuit by the Government, and the most overturned by the Supreme Court. In fact, there have been several tougne-in-cheek remarks made to the effect that there should be Two Supreme Courts: One for the 9th Circuit and One for the Rest of the Country. So even when he wins on appeal, the Government will almost certainly appeal to the Supreme Court.)

I still maintain that a Democratic Administration would, quietly, kill these prosecutions. Or, at the very least, pursue them half-heartedly. Even a (shudder) Hillary Administration would be too busy with revenge cases against Kenneth Starr, Linda Tripp, Richard Mellon Scaiffe and others to deal with Porners. Whereas ANY of the Republicans (Ron Paul doesn't count) would pursue the charges with equal if not greater vigor. It's just that simple.

Well, I went to the Library at Brooklyn Law School. (Nice to have your Alma Mater 6 blocks away.) Anyway, I did some digging on Justice Kennedy, who, for all intents and purposes will be deciding the fates of Jeff, Max and the Harb Brothers, and this is what I came up with:

This guy is an enigma.

Born: 7/23/1936 (Age 70). B.A. in Pol Sci from Stanford, 1958. LLB from Harvard Law 1961. Professor of Constitutional Law at McGeorge School of Law, University of the Pacific 1965-88. Appointed to United States Court of Appeals for the Ninth Circuit by Gerald Ford in 1975.

Nominated to the United States Supreme Court by Ronald Reagan after the Senate refused to confirm Robert Bork (for latent Fascism) and the withdrawal of Douglas Ginsburg upon allegations that he smoked a shitload of grass when he was younger (including with a young Tipper Gore.) Kennedy was confirmed 97-0 and took his seat in February, 1988.

From the get-go, this guy has had a pronounced Libertarian streak, although from time to time he has reverted to his Conservative origins, most disappointingly in Bush v. Gore 531 U.S. 98 (2000).

On Abortion, he seems to have voted both ways, voting to re-affirm Roe v. Wade in Planned Parenthood v. Casey 505 U.S. 833. But he’s voted to restrict so-called “Partial Birth Abortion” in other cases, including Steinberg v. Carhart and Gonzales v. Carhart where, writing for the majority, he held that the Partial-Birth Abortion Ban Act of 2003 did not impose an undue burden on the due process (i.e. 5th and 14th Amendment) right of women to obtain an abortion, "under precedents we here assume to be controlling," such as Roe or Planned Parenthood.

On Gay rights, his Libertarian streak has shown, in opinions such as Romer v. Evans 517 U.S. 620 and Lawrence v. Texas 539 U.S. 558, which struck down Anti-Sodomy laws as being violative of the Due Process clause. He did, however, vote with the Majority to uphold the Boy Scouts’ ban on Gay Scoutmasters in BSA v. Dale 530 U.S. 640.

But of greatest importance to Jeff, Max and now the Harbs is how he’s ruled in obsceneties cases:

In 1997, he joined with the Majority in striking down the major provisions of the Communications Decency Act (CDA) that Moxie’s always going on about, in Reno v. ACLU 521 U.S. 844. The CDA was the Government’s first attempt to "protect minors" from viewing Internet Porn by criminalizing the "knowing" transmission of "obscene or indecent" messages to any recipient under 18; and also the knowing sending to a person under 18 of anything "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

In 2002 the Court struck down as overbroad two provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech." A major portion of the law prohibited "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct." (As I’m sure Max is already aware.) Writing for the majority in Ashcroft v. Free Speech Coalition, 535 U.S. 234, Justice Kennedy held that "CPPA prohibits speech despite its serious literary, artistic, political, or scientific value" and suggested that the law might have been enforced against such movies as Oscar-winning American Beauty or Romeo and Juliet.

Most recently, and again with Justice Kennedy writing for the majority, in Ashcroft v. ACLU the Court upheld injunctions against the Child Online Protection Act (COPA), the Government’s attempt to get around the ruling in Reno. On the Plus side, Kennedy seems to recognize that technology is making restrictive legislation obsolete. "Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid... and that the Government bear the burden of showing their constitutionality... This is true even when Congress twice has attempted to find a constitutional means to restrict, and punish, the speech in question.

"Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished." He went on to suggest that filters were a more effective deterrant than Legislation, noting that Filters could block offshore sites, while COPA could not.

On the minus side, he did concur with Clarence Thomas in an earlier ruling in the case that COPA's reliance on "community standards" (the so-called Miller Test) to identify what material "is harmful to minors" does not by itself render the statute substantially overbroad for First Amendment purposes, even though the internet is World Wide in Scope and community standards vary from place to place.

In short, this Justice is hard to figure out. He has a demonstrated Libertarian streak, tempered by bouts of Conservatism. He votes for free speech in Internet Porn Cases, yet clings to Miller. He appears to be a technophile, which can only bode well for Jeff, Max and the
Harbs. I'd say it's 65/35 that he comes down on the side of the good guys should any of these cases come before the Supreme Court.

Actually, a good lawyer should be able to make the case that even a Max dvd, they are roleplaying or in other words "acting" because there usually is some kind of flimsy plot that leads into the action. A lot of JM and Jim Power’s gonzo lines have plots or vignettes with themes like those found in Perverted Stories, Young & Anal, and Guttermouths. They should also make the case to the jury that on camera sexual activity can be also a “performance” because the purpose of the sex is not just for mere pleasure or procreation on the performers part.

What happens if a movie has won an award, such as an AVN? Could this be used to counter the 'no artistic merit'-type charges?

Honestly, I'd advise any client to keep the Political Rhetoric vague. Something along the lines of "It's up to you to protect the First Amendment." The sort of diatribe envisioned by the General would only serve to piss people off. Remember that there are many Judges still on the Bench, including Kennedy, who were appointed by Reagan and Bush I, including the Courts hearing Jeff's and Max's cases.

A Clinton appointee will not help. Under current obsenity law its a tough case for Max/Jeff either way. The defense that Clinton didn't prosecute obsenity so we thought it was safe will not be very persuasive to an Arizona judge that was confirmed by the US congress and has his eyes set on the Court of Appeals or Supreme Court.

After thinking about it, Max's argument that consenting adults are making films for consenting adults may not be such a winner after all. There are limits on what you can consent to. For instance, you can't consent to be assaulted. I'm not saying that's what gonzo amounts to, but the government will claim that first it will be Gonzo films and next it will be bum fights or some other violence commited for money.

1) That Clinton appointee knows full well he's not going to the 9th Circuit unless and untill a Democratic administration comes in, since neither Bush nor any of the Republican Candidates want to add to the Liberal Base of the 9th. So he doesn't have much to lose.

2) You and I both know that the 9th Circuit is so far to the left that it makes Hillary look like Jessee Helms, so the Clinton appointee would simply be ruling in such a way as to not be overturned.

3) As for concenting adults, it really depends on what kind of waivers they've signed, doesn't it? I'm sure Max's attorneys worked triple overtime dotting the 'Is" and crossing the "Ts" to make a "Knowing, intelligengt and voluntary" waiver that would pass judicial review.

I try to forget Andrea Dworkin as often as possible. But you do bring up a very good point: The foes of Porn are neither Monolithic nor United. The Jesus Freaks do not take the "Femi-Nazis" (to use their own term) very seriously, and vice versa. Still, with James Dobson and co. fully in control of the engine of Gov't, the don't need them.