In a setback for the federal government's campaign against major distributors of pornography, a judge Wednesday dismissed racketeering charges against a Woodland Hills video distributor, saying he could not find that the graphic, occasionally violent films he sold violated community standards.
U.S. District Judge David V. Kenyon, granting an acquittal in the only Los Angeles case brought in the Justice Department's highly publicized crackdown on obscenity, said he could not conclude that films like "Kneel Before Me" and "Beyond DeSade" were "patently offensive" in an area as diverse as Los Angeles.
Need Positive Evidence
"The great majority of people in this town would be incensed by this," the judge said. "I just do not believe that unless you have positive evidence of what the entire community believes in this area, that any judge could say what goes on in the so-called edge of this area, whether it's obscene, or (merely) pornographic."
"I cannot say beyond a reasonable doubt that community standards were violated," Kenyon said in his oral decision.
The ruling represented the government's first loss in a series of racketeering prosecutions launched throughout the country in 1987, and both prosecutors and defense lawyers predicted it could affect the way the government presents evidence in obscenity cases in large metropolitan areas like Los Angeles, where community standards are difficult to define.
"In a way, what the court did, which is of nationwide significance, is call into question the Supreme Court's assumption that you can tell if material is patently offensive just by looking at it," said defense attorney Stanley Fleishman. "The historic fact as I see it is that in America today, the American people tolerate virtually any sexual material."
The case against Rubin Gottesman, owner of X-Citement Video Inc. and R. G. Sales Co. in Van Nuys, was filed under federal racketeering laws, which allow prosecutors to seize the assets of pornography distributors and effectively put them out of business. Under the statute, prosecutors had sought to seize Gottesman's Woodland Hills home, his stock and ownership interests in both companies, his personal and corporate bank accounts, all office furniture and equipment.
The indictment was one of a series returned in a campaign prompted in part by the 1986 report of a Justice Department commission that found a link between some sexually explicit material and violence.
The four films alleged to be obscene in the present case included graphic depictions of group sex, oral sex, beatings and bondage. One included a gang rape scene in a mental hospital. One showed a woman committing suicide after she had been sexually attacked.
The Supreme Court, in its historic 1973 ruling on obscenity, held that only materials that are "patently offensive" when measured against contemporary local community standards and that appeal primarily to "prurient interests" can be adjudged obscene. But defense lawyers in this case argued that in metropolitan areas, it is virtually impossible to determine what may be offensive to the entire community.
"The scant evidence concerning contemporary community standards in the Los Angeles area suggests that there is found on the newsstands in the community a wide range of scenes of explicit sex, singly and in groups, including detailed portrayals of genitalia, sexual intercourse, fellatio, masturbation, bondage and sadism," the defense argued in its motion to dismiss the charges.
Defense lawyers said the government's failure to present expert testimony about community standards--electing instead to let the judge decide for himself, as a representative of the community--warranted dismissal, unless the judge could say beyond a reasonable doubt what such standards are.
Prosecutors did present one expert witness who testified that materials such as those cited in the indictment are not readily available on video shelves in Los Angeles, an indication, perhaps, that even purveyors of pornography consider them outside the scope of most films. But Kenyon said that may indicate only that the distributors "would say it's not worth the risk" of potential prosecution.
Justice Department Sued
Indeed, the Adult Video Assn. has filed suit against the Justice Department in Los Angeles federal court seeking to enjoin racketeering prosecutions against pornographic film distributors. The lawsuit alleges that the prosecutorial campaign violates the First Amendment because it discourages distributors from carrying even soft-core porn for fear of tough racketeering penalties.
Adult film rentals have topped 104 million a year--nearly double the number of rentals two years ago--indicating the growing popularity of such films by mainstream Americans, the association contends.
Kenyon earlier in the trial expressed doubts about his ability to judge community standards without the testimony of experts.