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Robertson taking no prisoners in obscenity prosecution

Story by Chris Graham

It was the big to-do back in 1968 when it was released in America.
“Filmed entirely in Sweden,” a snapshot on relates, “‘Inga’ brims with a European sensuality and eroticism that shocked American audiences upon its release in 1968.”
That about sums it up right there, doesn’t it?
“When I got word that a local theatre was about to show the 1968 XXX-rated movie, ‘Inga,’ I wrote a letter of warning, telling them that pornographic exhibitions would not be tolerated,” Staunton Commonwealth’s attorney Ray Robertson wrote in his book, More Tales from the Trenches, released in November, “and that while I could not promise a conviction, I surely could promise a prosecution. They would be showing it at their own peril!”
Fast forward three decades, and Robertson took a similar approach to the news that a Northern Virginia businessman, Rick Krial, was looking to open an adult-themed video store in the Queen City.
Robertson made it known through the local newspapers that he would not “allow dissemination of pornographic material in Staunton,” and then followed through on his threat, seeking and obtaining indictments against Krial on obscenity charges that are still pending as of this writing.

Robertson makes no apologies for his foot-to-the-floor approach regarding the prosecution.

“My job is to enforce the laws,” he said in an interview with me in his office in Downtown Staunton in November, as he reached to pick up a law book sitting on his desk. “This is Volume 4 of the Code of Virginia – that’s the criminal code. There are ninetysome pages devoted in that code to crimes involving morals and decency. That’s what they call it. Things like the illegal types of gambling that there are in this state. Prostitution. Pimping. Obscene phone calls with the intent to harass. Indecent exposure. All those types of things. And one might argue that all those things are restrictions on the First Amendment – because they stop, they draw the line, at freedom of expression. And they are.

“Libel and slander are the same way. Can’t do them. Child pornography is the same way. Addictive drugs are the same way – all the drugs that we have laws against. You might like to express yourself in a certain way, but the General Assembly has weighed the pros and cons, and they’ve said no, it’s illegal,” Robertson said.

I have been highly critical of Robertson for his efforts in this case – and Robertson was well aware of that in advance of our interview. As we talked, he glanced at a legal pad apparently at some notes that he had taken from columns and essays that I had written that raked him over the coals for the prosecution.

“One of the points that you were making is that this would surely end in an acquittal – and again, I don’t want to talk about a particular case,” he said, going over the ground rules that he had set for the interview, which as you will see he later willingly bent in the course of discussing the subject of obscenity cases, “but I want to talk in terms of why obscenity cases in general should not result in acquittals. And the main reason is because it’s my job to enforce the laws that are there, and it’s a jury’s job to apply the law to the facts.

“It’s none of our job to make the law, to amend the law or to repeal the law. That fight has to be fought on the national level in Congress and on the state level it’s got to be fought at the General Assembly. If you think there are advantages to these things, if you think there are positive effects to these things, same thing like with drugs or any of the other things that we’ve mentioned, you bring those up in a legislative context, and you also bring up the things that are wrong with it,” Robertson said.

I don’t know that he answered my criticism that the case will surely end in acquittal with that answer, personally, but he raises some good points. I’ve talked with First Amendment scholars, adult-entertainment industry lawyers and local residents who have raised issue with the fact that obscenity laws are even on the books in their own renderings of the Krial case, but as Robertson noted, the laws remain on the books.

The next point that I assume was on Robertson’s legal pad – since he referred to it as he continued to talk – had to do with Krial’s contention that Robertson was guilty in his case of “selective enforcement.” Krial told The News Leader this fall that he had done his research on the availability of adult materials in Staunton and had even purchased adult-themed items from stores in the city before opening his own. Implied there is that Robertson is thus selectively enforcing obscenity law against Krial while leaving the owners and managers of those other stores alone.

“As far as any one individual is concerned, I would never engage in selective enforcement,” Robertson told me. “I told my police when we first got wind, again, I don’t want to talk about that case, but when we learned for the first time in history that an adult store, and that’s a euphemism for a pornography store, was coming to town, there’d never been anything like that before – and if places like Crossroads and Desires had these things in a small section, or in a back room, I didn’t know about it, because nobody had ever called it to my attention, there’d been no complaints raised – I told the police to go see what they’ve got, and you arrest anybody and everybody who’s selling it.
“When they went to Crossroads, whatever section that had been in there had been entirely taken down. As I understand it, at Desires, it was only available in a back room, and you had to know somebody to get in there. But I’ve never even seen that building, let alone had a complaint about it,” Robertson said.
“The only issue is whether the person sold it by himself or through an authorized agent, and whether it’s obscene. It’s not a case at all of freedom to choose. It’s not a freedom-of-choice issue. Because that battle is fought in the legislature, not in the courts. You can’t choose to do something that’s illegal. And if it’s obscene, selling it is illegal,” Robertson said.

Again, fair enough. Robertson is right – if Krial is guilty of selling videos that are considered obscene by a Staunton jury, it is immaterial whether or not other stores in Staunton may also be engaged in selling similar types of videos.

Essentially, one wrong doesn’t make another wrong right.

But that having been said, didn’t Robertson sort of undermine his contention that he wasn’t engaged in selective prosecution there?

Next contention – and back to the ones that I have raised in the past several months.

“Nobody’s going to go after Playboy magazine,” Robertson said, picking up on a column in which I suggested that the prosecutor would have to lower his sights to find another target in the skin industry.

“I mean, my goodness, when Jimmy Carter was president, he gave them an interview. There are all kinds of dignified people who regularly give interviews or even opinions for articles in magazines like that. So you’re going to find a literary value – a serious literary value. Gahan Wilson’s cartoons have some serious artistic value to them. He’s a darn good cartoonist,” Robertson said.

“That’s not what we’re interested in – and that’s not what the First Amendment prohibition against obscenity is interested in,” Robertson said. “They do it so tastefully. Now, there are obscene pictures in magazines. There are some magazines that are terribly, terribly below the level of a Playboy or a Penthouse or even a Hustler. And you’re going to get to a point where a community would have the right to say, That’s obscene.

“You go after the triple-X movies because it ought to be obvious to those who watch them that they are obscene, that they rise to that level. And if they rise to that level, they’re illegal – just as much as child porn, just as much as drugs, as much as murder or anything between speeding and murder that’s a curtailment on freedom of expression,” Robertson said.

Next objection – and I am far from being the only person who has suggested this.

“This is not a waste of the taxpayers’ money,” Robertson said. “In the first place, the U.S. government – especially the Supreme Court – has used many manhours and lots of money on these prosecutions. In the prosecution that I have in Staunton – again, not talking about the specifics of the case – but I will tell you that the only money that’s been spent is the cost of the movies. I’m not bringing in experts, I don’t have anybody that I’m paying to help with research or anything. Nobody else in this office is even involved in it. And I promise you, I’m not shirking my duty with respect to any other crime.”

Which gets to another objection that I and again many others have raised – that Robertson could probably find a lot of other things to be focusing his attention on.

“This pales in comparison to the drugs and the gangs that I’m fighting every day. And we’ve got a special grand jury going on out of Harrisonburg that I’m a part of right now, and we work with them all the time. And we’re making a heck of an inroad against gangs – because we need to,” Robertson said.
“I don’t want to minimize the importance of this stuff, either, though. Because it is important – because I can see what it can do to a community if it starts getting out there and becoming a part of my community. I can just see a huge workload for whoever follows me in terms of drugs and prostitution and pimping. You go down to Roanoke, to Williamson Road, where they let these things in. And you see the hypodermic needles on the sidewalk. And you see the sleazy element that’s come in. What places like Roanoke and Richmond and Tidewater are trying to do now is pass these zoning ordinances – but it’s like shutting the barn door after the horse has gotten out,” Robertson said.

“This is absolutely a legitimate prosecution. Any obscenity prosecution is a legitimate prosecution. OK?” Robertson said. “If I were going after Playboy magazine, that might be kind of iffy. Or if I were going after sex toys, that would be kind of iffy. I mean, I can’t even go after papers and bongs unless I can tie them to drugs – because they can be used for other purposes. You don’t go after things that are pretty easily refuted as not being illegal. You go after stuff that – I mean, the law says there’s absolutely no First Amendment protection for obscenity. They’ve said it again and again. That’s all. It’s just a question of whether the material being prosecuted is obscene or not. And I would never go after stuff that I felt wasn’t obscene.”

Chris Graham is the executive editor of The Augusta Free Press and The New Dominion.

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