60 year old pornographic filmmaker Ira Isaacs was sentenced on January 17, 2013 in the Central District of California for the Federal crime of producing and selling obscene videos and distributing obscene videos. Isaacs is known as a “shock porn” director and has routinely made videos depicting bestiality and sexual conduct involving feces. One such video was known as “Two Girls, One Cup” and involved a sexual encounter with two women eating human waste. Isaacs’ criminal defense attorney argued that despite the horrific nature of the videos that they are protected speech under the First Amendment of the United States Constitution. This argument fell on deaf ears when a federal jury convicted Isaacs on April 27, 2012 of a superseding indictment involving several counts. Pursuant to his sentencing Isaacs was ordered by Federal District Court Judge George H. King to serve 48 months in the Federal Bureau of Prisons, be subject to supervised release upon his release from prison for three years and pay a $10,000 fine. Isaacs was tried previously, both ending in mistrials. In 2008 his initial trial ended in mistrial when presiding Judge Alex Kozinski was forced to recuse himself after it was found that he possessed pornographic material on a personal website. Later, during a trial on March 6, 2012 a jury deadlocked at 10-2 resulting in a second mistrial.
As best as I can tell Isaacs was indicted for violations of 18 USC 1465 for Production and Transportation of Obscene Matters for Sale and Distribution, 18 USC 1462(a) for Importation or Transportation of Obscene Matters and lastly 18 USC 2257(f)(4) for failing to keep records of actors and actresses involved in his movies. The applicable language or gist of the statutes of which Isaacs was charged is as follows:
18 USC 1465- Whoever knowingly produces with an intent to distribute into interstate or foreign commerce for the purpose of sale or distribution, any obscene material, would be guilty of 18 USC 1465 and subject to a five year term in the bureau of prisons and a fine.
18 USC 1462(a)- Whoever brings into the US or uses an express company for carriage in interstate or foreign commerce any obscene, lewd or lascivious motion-picture film shall be subject to a five year term in the bureau of prisons and a fine.
18 USC 2257(f)(4)- It is unlawful for one to produce any motion picture as described in the preceding statutes without creating an individual and identifiable record pertaining to each performer in the motion picture. In essence this law is aimed at preventing minors from engaging in such movies.
All that said, likely the first defense a Tampa criminal attorney would evaluate is the good old first amendment of the United States Constitution where we are all guaranteed the right to freedom of speech. In essence it would be argued that what Isaacs created was protected by his freedom of speech right. However, it has long been held that speech considered to be obscene is not protected under the United States Constitution. There is a long and illustrious line of cases interpreting what pornographic material is considered to be obscene with the culmination being the case of Miller v. California, 413 U.S. 15 (1973). In Miller, Chief Justice Warren Burger wrote for the majority wherein it was determined a three part test was needed to evaluate whether pornographic material was to be considered obscene. The opinion devised three criteria that the Government must meet in order for obscenity to be established:
1) whether the average individual, applying contemporary community standards, would find that the work (in this case each movie), taken as a whole, appeals to the prurient interest;
2) whether the work depicts in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable State law; and
3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Ultimately, despite the rigorous protections offered by the United States Constitution this jury came back after a two hour deliberation to find Isaacs guilty on all counts. I have never seen any of the videos involved in Isaacs’ case nor do I have any desire to. I don’t believe it would be a stretch when asked of a local Tampa criminal lawyer, to receive a response that he or she is not surprised at the verdict. Depending on the locale it seems at least conceivable that a jury could find that any or all of the three Miller test prongs could be met. The crazy thing about obscenity cases is that one could try the same exact case to different juries in different parts of the United States or to different juries in the same locale and get a different result. In a case of this nature all prongs are at least in part dependent on the subjective opinion of a juror. Unfortunately for Isaacs this was the wrong jury for evaluation of his product.
Jason Mayberry is a State and Federal criminal defense attorney with offices in Tampa and Clearwater. The Mayberry Law Firm is available from 9AM to 5PM, Monday through Friday at 813-444-7435 and 727-771-3847.