WASHINGTON, DC – A federal grand jury on Tuesday handed down an eight-count obscenity indictment against adult video producer John Stagliano of Malibu, CA, and his companies Evil Angel Productions Inc. and John Stagliano Inc., located in Van Nuys.The indictment calls Milk Nymphos, Storm Squirters 2: Target Practice and a trailer for Fetish Fanatic Chapter 5 potentially obscene. The defendants are accused of “using a facility of interstate commerce” to distribute obscenity via common carrier and the internet. In addition, the defendants are charged with “using an interactive computer service to display an obscene movie trailer in a manner available to a person under 18 years of age” in violation of an intact clause of the Communications Decency Act.

The indictment seeks forfeiture of “all obscene material produced, transported, mailed, shipped and received, and all property, real or personal, constituting or traceable to gross profits or other proceeds obtained from such offense(s), and all property, real or personal, used or intended to be used to commit or to promote the commission of such offenses,” including ownership in the domains EvilAngel.com and EvilAngelDirect.com.

If convicted, Stagliano faces a maximum penalty of 32 years in prison. The corporations face a maximum penalty of $500,000 in fines per count.

Stagliano attorney Al Gelbard declined to discuss legal strategy and said he needed more time to review the indictment before commenting in detail, but offered the opinion that “taking a single trailer off a website seems to violate the ‘taken as a whole’ provisions of the Miller Test.”

In 2007, Gelbard successfully defended JM Productions’ Jeff Steward against similar charges. He declined to speculate why the Department of Justice sought an indictment against Stagliano and his companies, but he noted Evil Angel recently won a very large civil award for video piracy. Washington may have noticed, he said.

Free Speech Coalition Chairman Jeffrey J. Douglas said he expects prosecutors to have their hands full trying to prove both that the trailer is obscene and that the defendants intentionally offered it online to minors.

“I suspect [the count related to displaying obscene content to a minor] is an instrumental means by the government to taint the jury,” he told YNOT. The very presence of the charge is tantamount to saying to the jury, “think about the emotional effect this would have on the most vulnerable.”

He also said he believes the case is the first to incorporate such a charge.

Several First Amendment attorneys mentioned they were a baffled by the government’s choice of a venue for the case: Washington D.C. Not only is the area not noted for conservative values, they said, but it comprises a jury pool that is very diverse both in socioeconomic and ethnic terms.

“I can’t say that’s what I went to be expecting last night,” Chicago Loop-based attorney and FSC board member Reed Lee said. One possibility for the D.C. venue, he suggested, “is [the DOJ] couldn’t get anyone else to cooperate with them.”

According to Lee, typically the DOJ seeks assistance from local federal prosecutors in conservative jurisdictions when they attempt obscenity prosecutions. U.S. attorneys may not be eager to participate in obscenity cases after the government’s stunning defeat in the JM Productions case in Phoenix last year, he opined.

He also said the Stagliano case raises some legal questions the U.S. Supreme Court has addressed only partially in the past, particularly when it comes to children accessing adult content online.

One of the difficulties that caused the Child Online Protection Act to be enjoined, Lee noted, is that “webmasters can’t tell where requests come from or who makes them. In a face-to-face transaction, if a person hands ‘harmful matter’ to a child, the government can make a strong argument. In general, though, the courts are going to take the position that burdens on the speaker are very, very serious matters.”

For Lee, one of the potentially most interesting aspects of the case is the Miller Test’s provision that “a work, taken as a whole” must be devoid of redeeming social value in order to be declared obscene.

“One of the important protections the Supreme Court has emphasized over and over again since the 1950s is ‘taken as a whole’,” he said. “However, paradoxically it also has upheld convictions for materials excerpted from larger works for the purpose of advertising.”

One such conviction, he said, involved a flyer created to advertise the availability of an explicitly illustrated report from the Lockhart Commission on pornography created by President Lyndon Johnson. The flyer contained excerpts from the report. It was ruled obscene; the report was not.

From Lee’s perspective, “there are five justices on the court right now who should refuse to abandon the ‘taken as a whole’ provision. The prosecution most likely will argue that snippets may be considered works in and of themselves. The defense probably will argue that approach eviscerates Miller. The government is continuing to seek ways to undermine that.”

FSC Executive Director Diane Duke echoed the sentiment of many industry observers when she wondered if the Stagliano prosecution might be symptomatic of a last-ditch effort to appease conservative voters during the “last year of a lame-duck presidency.”

“I think they’re just trying to get at the [adult] industry,” she said.

Duke noted that several obscenity cases before the court now may not be completed until next year, and she’s suspicious more prosecutions may materialize as a DOJ that’s been criticized resoundingly by social conservatives tries to prove it has been working after all.

“I think there were promises made,” she said.

However, she doesn’t expect the ploy to be terribly successful.

“This industry has nothing to be ashamed of,” she said. “This current generation [of consumers] has cameras, and they can put anything they want on the internet — including explicit sex. I think the stigma [attached to sexuality] is going to go away in this generation. Already people are beginning to speak out. ‘Don’t take away our choices and don’t say [what the government is doing] is to protect the children, because it’s not.’ It’s about absolute fear of sex.”

As for Stagliano, he’s not saying much about the case on the advice of his attorney. However, he waxed philosophical with an old friend who also happens to be an entertainment blogger for the Los Angeles Times.

“The charges are real and something bad could happen,” Stagliano told Richard Abowitz. “But I look at the world with wonder and amusement, especially when it comes to the government. I am hoping this will result in a bump in sales for the films. It is all films I distribute and not a single one I directed. I wish my Fashionistas had been chosen. The films are hard, but I have real artistic ambition. I wonder how closely they watched? I am surprised the government, with the war and the economy, has time for this.”