Alex Henderson

Paul Cambria

By Alex Henderson
XBIZ, February 15, 2007

Paul J. Cambria Jr. has witnessed quite a few changes in the adult entertainment industry over the years. When the famous Buffalo, N.Y.- based attorney (who is a senior partner in the firm of Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP) first met longtime client Larry Flynt in the 1970s, there was no such thing as the adult Internet or adult webmasters. In those days, the adult industry's biggest profits mainly came from printed adult magazines and adult films, which, even with the VCR-powered explosion of adult home video in the early to mid-1980s, were still being transported physically instead of electronically.
But thanks to the Internet revolution of the 1990s and 2000s, Cambria's clientele now includes an abundance of adult webmasters along with many adult filmmakers and some adult magazine publishers. It now includes a new generation of technology- minded adult entrepreneurs who — in this digital era — distribute erotic material electronically, not physically.

Speaking with XBIZ, Cambria, who will turn 60 this year, discussed the importance and growth of the adult Internet, and what he believes the industry might be facing during the final two years of George W. Bush's presidency.

XBIZ: You have had many legal victories over the years. In retrospect, which ones would you say have been the most consequential for the adult industry?

PAUL J. CAMBRIA JR.: I don't think you can pick any single one. They all played their part in helping. Al Goldstein, Ruben Sturman, VCA, Video Team, Larry Flynt — all of those trials added a little stitch to the fabric, if you will, in strengthening the 1st Amendment. The last 10 years have been interesting because when the Clinton administration backed off from federal obscenity prosecutions, some of the states became more active in state prosecutions. For example, I defended a Max Hardcore tape in Manassas, Va. — and it wasn't for Max Hardcore, it was for a wholesaler-retailer I represented at the time.

XBIZ: Manassas is a very dark red part of Virginia. In fact, some of your victories in recent years have been in the type of conservative, heavily Republican jurisdictions that prosecutors tend to favor in obscenity cases.

CAMBRIA: We went into the courtroom in Manassas — one of the most conservative places in the South — and it was a very middle-of-the- road jury with schoolteachers and people who I would be worried about evaluating Max Hardcore material that definitely pushed the envelope. [In the video] Max started off with the camera on his shoulder; the girl comes up, and he says, "How old are you? About 14?" She goes, "No, I'm 16." It was obvious that she was really 19 or 20, but that's what Max does with that stuff. There was gagging and all the usual Max stuff, and I'm sitting there saying, "Oh, here we go. We are in Manassas with very rough material" — and the jury comes back and acquits. The next day, we get an editorial in the Washington Post basically criticizing the prosecutors for wasting taxpayers' money. That case really helped us put a damper on obscenity prosecutions in the South. And a few years after that, in St. Louis, we had a case with an all-woman jury. These were rough movies — these were gang-bang movies — and the prosecutors were high-fiving each other because they had gotten an all-woman jury. I think the average age was about 48 on that jury, and they found every film not guilty. The prosecutor turned to me and said, "If you can get an acquittal on this material with an all-woman jury, I'm done — we're not prosecuting this stuff." So each case has played a role.

XBIZ: In what respects have juries in obscenity cases evolved since the 1970s and 1980s? How do the juries on obscenity cases in the 2000s differ from the juries of 20 years ago?

CAMBRIA: Twenty years ago, jurors were afraid to be honest about their feelings regarding adult entertainment. They were afraid to express themselves. What would happen back then is that the younger male jurors would look around and say, "Hmmm, let's see. They think that because I'm young, I should be saying that this stuff is OK. I really do think it is OK, but I'm not about to tell them that." In the jury room, the men would feel this obligation to protect the women from adult material.

XBIZ: Is this the Sir Galahad syndrome?

CAMBRIA: Yes, male jurors often take a view that is very hypocritical because they would eat this stuff up if they had access to it. But instead they go into the jury room and put on their Galahad face and say, "Oh, this is terrible, ladies. We have to outlaw this." That's what we were facing back then. What happened in the interim is that with mass communications — computers, satellites, cable — you can now get adult material more easily in your home. More people are familiar with it. It's not shocking anymore. So now, when we pick juries, we see that people aren't afraid to be honest about adult material. I'll give you an example. In the St. Louis case, the prosecutor was asking everybody, "When was the last time anybody here saw an X-rated movie?" A lot of people raised their hands, and one of them was this really pretty young girl who said her name was Mrs. Bork. The prosecutor said, "Mrs. Bork, when did you last see one of these movies?" And she smiled and chuckled and said yesterday — and everybody laughed. She said: "You know, it was a rainy day. My husband and I got bored. So we decided to rent one of these movies." Now, I could not have paid for a better endorsement, and during my summation, I said, "The prosecutors want you to think that billions of dollars worth of adult entertainment is being purchased by a roving band of 1,000 perverts with billions of dollars to spend, but it doesn't work that way. It is purchased by average people like Mrs. Bork, who are married, who have a relationship and who are nice people." Even if Bush and the others try to prosecute the daylights out of people, they are going to get a rude awakening with jurors like the prosecutors did in Manassas and St. Louis.

XBIZ: You mentioned that the St. Louis jury was dominated by women in their late 40s, which is important because in the past, middle-aged women were people who prosecutors in obscenity cases expected to be socially conservative.

CAMBRIA: And the reality is counterintuitive because older women have seen it all. Older women have been in relationships a long time, and you need to know what switches to flick. In Manassas, I saw all these middle-aged ladies on my jury, and we were talking about the Miller test and how material has to have serious literary, artistic, political or scientific value. One of the expert witnesses testified that the material had scientific value because it helped ordinary couples work through sexual issues. I said things like, "Why wouldn't this material be acceptable if, for example, you and your mate could download one of these adult movies and use that material to strengthen your bond? Maybe you're getting older; maybe it helps you spice up your relationship. Maybe it will help a relationship in the sense that you and your husband will continue to be attracted to each other, and he won't feel he has to take off with the secretary at the desk outside his office." Well, let me tell you something, when I said that, I struck a chord with about two of those ladies. The jury has to be able to relate to what you have to say, and it has to make sense to them. They have to be able to say, "You know, he's right." If you can't get a "you know, he's right" out of your summation, you're gone.

XBIZ: One thing 1st Amendment attorney Clyde DeWitt has pointed out about the evolution of juries in obscenity cases is that today's 60-year-old juror is a baby boomer who is old enough to remember Woodstock and the sexual revolution and all the upheaval of the 1960s and 1970s — quite a contrast to someone who was a 60-year-old juror 20-30 years ago.

CAMBRIA: Well, there's no doubt about it. But you really have to see what happened to them between then and now. You really have to be careful when selecting juries, which is why I use consultants for everything when I'm picking jurors. Jury selection is 75 percent of the game.

XBIZ: You were practicing law long before the advent of the Internet. In what respect has the growth of online adult affected your work as a 1st Amendment attorney?

CAMBRIA: It has added a new dimension to it because we are now advising so many adult website [operators] not only about content but also 2257. I'm also one of the principal lawyers in the Free Speech Coalition's lawsuit attacking 2257. So the Internet has made a lot more work for me. I have eight lawyers who have been with me for years and years — lawyers who are all extremely experienced in all aspects of criminal law, constitutional law and 1st Amendment law. I literally had three of them hopscotching around the country in the last month advising on 2257 record-keeping plans; we've been advising some of the largest adult companies and some of the smallest adult companies. It has been just one company after another with 2257.

XBIZ: How great a source of frustration is the international nature of the adult Internet for the Christian Right?

CAMBRIA: The Religious Right was unhappy when adult entertainment was a collection of magazines and books in a brick-and-mortar location, let alone now when anybody and everybody has access to adult entertainment online in their living rooms. This has to be making them crazy.

XBIZ: In 2006, roughly what percentage of e-commerce on the Internet would you estimate is adult entertainment oriented?

CAMBRIA: I know that every day, the amount of adult entertainment on the Internet keeps growing by leaps and bounds. My guess is that of the $13 billion that is spent on adult entertainment in this country every year, at least half of it comes from e-commerce. You know as well as I do that in the next five years, you won't have a television in your house, you'll have a giant PC — a giant personal computer — and that will be your source of television programs, downloads, video-on-demand, whatever. Basically the Internet will take over everything.

XBIZ: One obscenity case that adult webmasters and civil libertarians have been quite concerned about is the case of Red Rose Stories. Is the U.S. returning to a trend of text-based obscenity prosecutions?

CAMBRIA: I never thought text was a major target, but remember that many years ago, the U.S. Supreme Court made it clear that the written word is subject to the same obscenity test and standard as visual material. There is nothing new about that; we just haven't seen another prosecution of the written word until recently. But I don't think you're going to be seeing too much of that type of thing in the future. To be honest with you, I think that case is an anomaly.

XBIZ: Before the Red Rose case, adult webmasters who published erotic fiction sites were operating under the assumption that the written word would not be prosecuted for obscenity even though it had been prosecuted a lot in the past. Did they have a false sense of security?

CAMBRIA: They didn't know the law. In 1973, the Supreme Court made it clear that the written word could be prosecuted. The laws have never changed; the only thing that has changed is that somebody recently decided to prosecute the written word on the Internet.

XBIZ: Is Mary Beth Buchanan, the federal prosecutor in the Red Rose case, just rolling the dice to see if there is an appetite for text-based prosecutions of adult webmasters?

CAMBRIA: That's a possibility. Buchanan got all this attention with the Extreme Associates case, but what other attention is she going to get unless she continues to ride that horse? The horse needs a new track; so now, the track is, "Well, I'll take it to an even greater extreme, and we'll go after the written word." This case is all about Mary Beth Buchanan trying to get some publicity for herself. The next thing you know, she'll be running for the Senate. It's a familiar refrain. This is all about her trying to get her name out there and get known for something, and that's what's going on with this case; she's trying to exploit the adult entertainment industry for her own gain.

XBIZ: Is Attorney General Alberto Gonzales' interest in prosecuting consensual adult entertainment continuing to drain valuable law enforcement resources that could be used to combat child pornography and terrorism?

CAMBRIA: I've said that several times in the past. There are only so many FBI agents; there are only so many courtrooms and only so many judges — only so many district attorneys and local police officers. These days, people are more focused on avoiding terrorist violence, and to divert these finite resources to something like adult entertainment is really unconscionable. More and more people are realizing that. Look at the FBI when they tried to recruit agents for their new porn squad; look at how many agents protested and said: "We have more important missions out there than this. I don't want to be on that squad."

XBIZ: Let's discuss the midterm election results. What are some of the possible repercussions for the adult industry?

CAMBRIA: Obviously, the change in the House of Representatives is a big deal. We're hoping that it may have the effect of slowing down legislation that the conservative Republicans might have had on their agenda. Obviously they can't count on the House to just follow suit. They got rid of Rick Santorum in Pennsylvania, which is phenomenal, and I think Nancy Pelosi is going to be a great Speaker of the House. What will be interesting is this: Will the Republicans now say, "We didn't do enough for our constituents — the Religious Right and all the rest of them — so we need a big push to try to make them happy"? Obviously, the Religious Right has been unhappy with the pace and rate of prosecutions by the feds.

XBIZ: Overall, has the George W. Bush era been better or worse for the adult industry than you expected?

CAMBRIA: So far, it has been much better because nothing has really changed. Aside from saber rattling, nothing has really changed.

XBIZ: If federal prosecutors are having a harder time getting obscenity convictions for vanilla adult entertainment, does 2257 become their weapon of choice?

CAMBRIA: That clearly is true. 2257 is a pretty technical statute, and it's fairly easy to find a violation. They couldn't get Al Capone on other violations, so they got him for tax evasion — and the same theory applies to prosecuting adult entertainment companies. Not that the adult industry is Al Capone, but I bring that up as an example of the fact that when the government puts a bull's-eye on you, they figure out a way to hit the mark. If they can't get you for obscenity, they get you for 2257 and record keeping.