Prep for Hardcore trial.
profrv at nex.net.au
Mon May 10 04:49:56 PDT 1999
Max Trial Now Set for September 18; Conversations With Attorney Jeffrey Douglas
Because the sales records for four of Extreme's Extreme Teen tapes had been
subpoenaed, I thought I'd give attorney Jeffrey Douglas a call and find out
what the fuck that was all about. My first question to Douglas was not
about the unwitting Extreme tie-in to Max's obscenity trial but a rumor
that I heard on the street about the Free Speech Coalition's allegedly not
filing the paperwork to get a legal rebate of sorts in their lawsuit Free
Speech Coalition v. Ashcroft, a case which the organization won.
Gene: Jeffrey I'm hearing things. I'm hearing things like the fact that the
Free Speech Coalition missed the boat on collecting reimbursement of legal
fees it was entitled to.
Douglas: We have an attorneys' fees request back in the trial court. So
that's flat out incorrect. We're currently asking for reimbursement.
Gene: I heard a wild figure of $270,000 being thrown out there.
Douglas: That's probably the right magnitude. Which is of course a tiny
fraction of what one would normally expect to pay for litigation that we
undertook. Lou Sirkin A) doesn't charge as much as attorneys on either
coast would charge; B) He stepped very lightly on our bill. As free
advertising for Lou, check around with the other prominent firms that
handle Supreme Court cases and ask them what an estimate would be that
begins with the filing of a lawsuit and going up through the court of
appeals up to the Supreme Court. I think you'd find it to be about three
Gene: This is a standard thing that if you win a case you can get reimbursed.
Douglas: No. If you sue a state for a violation of state law in contrast to
federal law, and you're saying the enforcement of the law violates civil
rights, under a federal provision you're entitled to get reasonable
attorneys' fees. If the exact same situation arises under federal law,
which is what it did here, you're not automatically entitled to get
attorney's fees. You're entitled to get up to $125 an hour which is even
less than what Lou Sirkin charges. If the government's position was
essentially totally unreasonable- and we have a very difficult road to hoe
on that- because the trial court is going to be saying that the
government's position was totally 100% reasonable. He ruled for the
government. The Ninth Circuit ruled for us but there was a strong dissent.
What helps us the most is that the Supreme Court ruled 7-2 in our favor.
There the government's position was clearly to create new laws. They never
said that this was supported by existing law. They acknowledged that they
were trying to create new ground here. We have a chance at the trial court
will rule to some extent in our favor and the pleadings on the part of the
government in response to our request for attorney's fees, they focused at
least as much on individual entries. They said you shouldn't have had two
lawyers argue before the Supreme Court. Things like that. They were doing a
lot of nitpicking. They certainly addressed the big issue that they felt
their position was reasonable and therefore we weren't entitled to
Gene: Regarding the Extreme titles.
Douglas: I was subpoenaing the titles; I was subpoenaing the sales records.
What I'm looking for is the California sales of those titles. All I just
want to say is so many copies sold for Extreme 19; Extreme 20...in
Gene: Where does the case stand.
Douglas: We're starting the trial a month from yesterday; or sometime in
Mid September. We're very optimistic.
Gene: There was a little controversy over an illness in Max's family.
Douglas: I don't know if it was controversial.
Gene: They were busting his balls about it.
Douglas: Yeah. The city attorney made some unprofessional, inappropriate
comments. In essence she was saying to the judge that the judge should
presume that it was fraudulent. The basis for her saying that are things
that are so bizarre. She said, for instance, that Max had a sister. You
keep waiting for a conclusion to be drawn, what are you going to say?
Therefore, since I don't know about it, chances are he really doesn't have
a sister. It was the kind of thing that in a different court I would
probably have ended up in jail. I got really upset.
Gene: Sounds like you got the makings of a case to be tried by the law firm
of Barnum and Bailey.
Douglas: They're currently representing the city of Los Angeles. Before
that appears in your column what I mean by that is solely this. There is
something inherently absurd and circus-like about prosecuting a movie that
has no offensive sex act simply because the prosecutor's office doesn't
like the idea that a person would fantasize that their adult sex partner is
underage. And while I don't think the movie does that, that's certainly the
prosecution's theory that out there right now there are people having sex
and one or both of them are pretending in their mind that their 20 year-old
partner is actually 17; or 14 for that matter. On the basis of that,
they're prosecuting the movie? That is ludicrous. The prosecutor herself is
perfectly professional. She was just having a bad day. And I'm not
surprised by that. Because it's incredibly frustrating to be all dressed up
and ready to go to trial and have the trial continued. So I understand her
frustrations in that way. I kind of felt the same way. You get all geeked
up and geared up and you've got everyone and everything lined up- your
witnesses and your documents, and, oops, it has to be put over. It's very
difficult to get things all tidy and neat and ready to roll again. And her
frustration came out in that hearing.
Gene: In a trial like this would it be common to bring in other adult
titles and try to make comparisons?
Douglas: Yeah. There are several ways of going about doing it. Comparables
showing that materials of a similar nature to that which is being charged
are available in the community can be done for two things. One to simply
argue therefore it's not obscene. That is a weaker argument than arguing
the availability of this material is evidence to you the jury of what is
within the acceptable community standard. If a movie that's comparable to
one being charged is widely sold, that's evidence that the community finds
it acceptable. But the hang up is that the more widely accepted a movie is,
the more examples of similar films there are. Let's take a silly example-
let's say the prosecution wanted to prosecute to softest X rated movie ever
made which has one sex scene in it that's pure vanilla sex. How do you go
about showing that this is perfectly acceptable? You want to bring in 5,000
movies, right? Well, the judge is not going to allow a trial of a movie
that lasts an hour and a half to then show 60 hours worth of movies. But
you want to. You want to show that this is not just accepted, it's
universal. So for instance the theme of the young-appearing character
virtually every manufacturer has at least one line that emphasizes that-
Barely Legal being the highest profile one. The trick is to persuade the
judge I can show the jury, visually, that this material is everywhere.
In a typical case the controversy would be over a sex act. Let's say a
fisting scene. So you would want to show 30 movies that had fisting scenes
in them. In an ideal situation, each clip would be the fisting scene. Here
it's NOT the sex. It's the idea. So I'm going to show a large number of
movies that emphasize the apparent immaturity of the character but I'm
mostly going to be putting forward the story setup. I have to show some sex
to show that it's comparable sex and not just talking about it or that it's
not an R-rated version where all you see is someone that's huffing and
puffing- but that there is actual penetration.
The key is the setup. So it's going to be uncharacteristic in that regard.
Of course everything is uncharacteristic about this trial. This is the
first obscenity case that's going to a jury trial in maybe fifteen years in LA.
Gene: I haven't seen the movie but I keep hearing these urban legends about
it. The one I most often hear is that in this particular movie, there was a
reference the girl makes that she's 12 years old.
Douglas: That line of course should have ended up on the editing floor but
didn't. It occurs as Max is being his character at the east coast show, and
this woman is one of his roving reporters. She is a very adult-type looking
character. There is nothing about her appearance, character, demeanor,
anything that suggests not just that she's under age but even that she's
young. She's a contemporary of Max. She talks about her sex life and
supposedly that people she's been interviewing on the boardwalk, she's been
having sex with. Eventually the two of them get around to having sex. In
the course of that sex act she says fuck my 12 year-old ass; or I think
it's 14 year-old ass. I don't recall. Then they go into the normal stuff
about characterizing her as a slut, this, that and the other thing. But,
essentially, again, they're saying [the DA's office] that a person who's
having sex can't fantasize that they themselves are under age. So the other
characteristic that they find so offensive and indicative of it being
appealing to pedophiles is that one of the characters is carrying.... a
Gene: For the record who's the girl?
Douglas: I don't remember her name. Another thing that they object to is
that the seduction occurs in a park.
Gene: In a park.
Douglas: In a park. Part of the theory is that only children go to parks, I
Gene: I think you need Al Pacino coming in at this point and telling
everyone they're out of orduh.
Douglas: And then that same character in the park is reading a Playboy
magazine or something that looks like Playboy. That again is somehow or
another indicial that she's under age. And another one has pigtails. As
movies within the genre of youth emphasis, this isn't a particularly
extreme example; an egregious example. In terms of the sex depictions in
the movies, on the scale of one to offensive, this is about a 4.
Gene: I take it by looking at Extreme's California sales records there's an
indication to show that there are a lot of people who watch this stuff in
the community standards area.
Douglas: Right. This is evidence of the community standard. It's indirect
evidence but it's very valuable evidence nonetheless.
Gene: Are you bringing any comparables in?
Douglas: That's what the subpoena is for. I'm trying- the judge has yet to
rule on it- but what I'll be doing is showing a wide range of movies that
have a youth theme to them that are good selling movies in California
including Barely Legal. Now the distinction between Barely Legal and the
other films is that the characters in Barely Legal say [there's a
voiceover], 'six minutes after I turned 18...' The rest of the genre they
just don't say that. If the prosecutor concedes that the only distinction
between all those movies that are out there and this one, is that at one
point one character says that she's 14 or 12, I'll be thrilled. Because no
jury's going to say a person can't fantasize. And there's also that great
language on Free Speech Coalition versus Ashcroft that talks about the
importance of exploring the theme of teenage sexuality through the ages.
It's not that it is an inherently a taboo topic. The politics of the
prosecution is quite interesting because they had three cases pending- this
one, JM and Seymore Butts. They completely folded on the two prosecutions
offering just a magnificent deal which is a corporate plea to a public
nuisance and NO restriction on the distribution of the movies. Which is in
essence a city attorney's stamp of approval. Because if they don't say as a
term of corporate probation, don't distribute this movie, they're saying we
have no problem with you distributing this movie, right? If you're on
probation for anything having to do with an outburst of lack of control,
one of the terms of probation is don't drink. They have enormous latitude.
If they don't restrict the distribution of the movie, they're saying we
have no problem with the distribution of the movie. One of the comparables
I'm going to be attempting to get in is American Bukkake 11. The city
attorney's office has announced it is not obscene. That's evidence of the
community standard as far as I'm concerned. Judges normally do not like to
have this happen but I'm going to try with a nice cross section of
youth-oriented films. I'm hoping that the Extreme titles that I subpoenaed
the sales records of or tried to subpoena will help back that up.
Gene: Are you going to be showing other movies.
Douglas: The judge has ruled I can. In the abstract he's going to review my
editing and say whether it's acceptable or not. But I'm going to be having
excerpts from a dozen different movies.
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