DALLAS CRIMINAL LAWYERS.: FEDERAL, STATE & APPEALS - BRODEN & MICKELSEN LLP

Trial Puts Obscenity Standards To The Test

TONI HEINZL, Fort Worth Star-Telegram (TX), July 27, 2003

FORT WORTH–In one videotape, a group of men is shown sexually assaulting a woman and pouring hot candle wax over her body.

Terri Moore, a former assistant U.S. attorney in Fort Worth, remembers watching the tape when she reviewed evidence in the initial investigation of a Dallas police officer accused of selling rape videos via the Internet.

“It looked like a snuff film — you know, where the person dies,” Moore said of the hour-long tape, which was produced in Asia. “It looked real to me. I wondered how the woman could have survived this.”

Moore added pointedly: “It was definitely obscene. It was crossing the line.”

Last month — five years after FBI agents, postal inspectors and Dallas vice detectives launched the investigation — federal prosecutors in Dallas unsealed an obscenity indictment against Garry Ragsdale, 34, and his wife, Tamara, 32. The Fort Worth couple were charged with conspiring to mail obscene material from April to July 1998.

An attorney for Garry Ragsdale does not deny that his client sold the tapes through a Web site. But he argues that people have a First Amendment right to watch such tapes, and that his client was simply selling them.

Legal experts say their trial, scheduled to begin Sept. 8, will test the boundaries of free speech, helping define what constitutes legal pornography and illegal obscenity in Dallas.

On a larger scale, the case illustrates Attorney General John Ashcroft’s vow to beef up Justice Department efforts to target obscenity. In the past 10 years, the Justice Department has focused resources on child pornographers or pedophiles who prowl Internet chat rooms looking for children to molest. Ashcroft is adding resources to combat adult material.

Ashcroft also changed a policy that required prosecutors from the Child Exploitation and Obscenity Section to seek approval from a local U.S. attorney before filing obscenity cases. Now, these specialized prosecutors in Washington can pursue obscenity cases after simply notifying local U.S. attorneys, though they are encouraged to cooperate with their local colleagues. The section now has a staff of 50.

Clinton Broden , a Dallas attorney defending Garry Ragsdale, questions why the Justice Department is going after a small business that sold videos to consenting adults. The couple face up to 20 years in prison and a $750,000 fine if convicted.

“The bottom line is, he wasn’t producing, wasn’t endorsing, wasn’t advocating, wasn’t watching these videotapes,” Broden said. “People have First Amendment rights to watching them. He was simply making them available for sale.”

Broden said he will tell jurors about the genre of sadomasochistic pornography featuring consenting adult actors and actresses.

“The average person might not consent to having that done to themselves,” Broden said. “And I think jurors will find these tapes to be distasteful but also recognize the importance of the First Amendment.”

Investigators heard of Garry Ragsdale’s business on April 21, 1998, when a computer user in Berlin sent an e-mail complaint to the Dallas Police Department, court records show. Search warrant affidavits filed by an FBI agent and a postal inspector outline the investigation.

Dallas vice detectives checked the tip from Germany and discovered that Ragsdale’s Web site, www.geschlecht.com, marketed itself as “the real rape video store.” It offered tapes for up to $28 apiece.

Investigators ordered the tapes from the Web site, using a credit card. The tapes were shipped in the U.S. mail, with a return address listing an Arlington post office box registered to a business partner of the Ragsdales.

The business partner has not been indicted. Kathy Colvin, a spokeswoman for U.S. Attorney Jane Boyle, said prosecutors will not comment on the Arlington man or other aspects of the case because of an ongoing investigation.

The investigation ended Garry Ragsdale’s eight-year career with the Dallas Police Department. Dallas police internal affairs records show that Ragsdale was fired Aug. 21, 1998, for conduct unbecoming an officer, said Senior Cpl. Chris Gilliam, a department spokesman.

The action came after a misdemeanor state obscenity charge, which was filed July 29, 1998. But Dallas County prosecutors dismissed it almost a year later “in the interest of justice,” court records show.

Federal prosecutors took over the case. Moore, the former federal prosecutor who originally handled the case, said she would have needed the case agent to work on it for a few more months in summer 2001 to get the case ready to indict.

But after successfully prosecuting Thomas and Janice Reedy and their company, Fort Worth-based Landslide Productions, in the largest international child pornography investigation to date, Moore left the U.S. attorney’s office that summer to campaign for Tarrant County district attorney. She lost to incumbent Tim Curry in 2002 and is now in private practice.

The Ragsdale case landed in the hands of Richard Green of the Justice Department’s Child Exploitation and Obscenity Section, and Assistant U.S. Attorney Linda Groves in Dallas.

To win an obscenity case, picking the right jury is crucial, legal experts say. And jurors’ views on what is obscene may differ greatly among San Francisco, New York, Dallas and Fort Worth.

“If the material is pornographic but not obscene, it is protected by the First Amendment, unless it is foisted on a captive audience or made available to children,” said Lynn Rambo, a Texas Wesleyan University law professor.

The U.S. Supreme Court outlined a definition of obscenity in a three-part test in a landmark 1973 case, Miller v. California. Under the Miller test, jurors are asked to decide:

* Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.

* Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law.

* Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

“The argument that the rape scenes were acting by consenting adult performers could conceivably be persuasive to a jury in deciding whether the material was obscene but does not provide a pure First Amendment legal defense,” Rambo said.

Herald Fahringer, a First Amendment lawyer from New York who has defended Hustler publisher Larry Flynt and other pornographers in 27 states, said that even rape videos might pass constitutional muster.

“Merely because we are offended by it, and I’m certainly offended by rape and torture, doesn’t mean the material is obscene,” Fahringer said. “In the case of rape videos, the argument can be made that it depicts the horrors of rape.”

Anti-pornography groups view Ashcroft as an ally and hope federal prosecutors will make good on his promise to file more cases against merchants of obscenity.

To the dismay of Robert Peters, president of Morality in Media in New York, federal obscenity prosecutions have declined from a peak of 80 in 1989, during the first Bush administration, to six in 2000, the last year of the Clinton administration.

In 2001, the most recent year for which complete official figures are available, there were also six federal obscenity prosecutions.

For Peters, the public debate widely ignores what he sees as the dangers of obscene adult pornography.

“The media does not understand how pornography contributes to sexual crimes and the breakdown of the family,” he said.