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Here is some food for thought.
http://www.baltimoresun.com/news/bal-te.obscenity06apr06,0,3004361.story?coll=bal-home-headlines
Obscenity: For the first time in 10 years, the U.S. government is spending millions to file charges across the country.
By Laura Sullivan
Sun National Staff
April 6, 2004
WASHINGTON - Lam Nguyen's job is to sit for hours in a chilly, quiet room devoid of any color but gray and look at pornography. This job, which Nguyen does earnestly from 9 to 5, surrounded by a half-dozen other "computer forensic specialists" like him, has become the focal point of the Justice Department's operation to rid the world of porn.
In this field office in Washington, 32 prosecutors, investigators and a handful of FBI agents are spending millions of dollars to bring anti-obscenity cases to courthouses across the country for the first time in 10 years. Nothing is off limits, they warn, even soft-core cable programs such as HBO's long-running Real Sex or the adult movies widely offered in guestrooms of major hotel chains.
Department officials say they will send "ripples" through an industry that has proliferated on the Internet and grown into an estimated $10 billion-a-year colossus profiting Fortune 500 corporations such as Comcast, which offers hard-core movies on a pay-per-view channel.
The Justice Department recently hired Bruce Taylor, who was instrumental in a handful of convictions obtained over the past year and unsuccessfully represented the state in a 1981 case, Larry Flynt vs. Ohio.
Flynt, who recently opened a Hustler nightclub in Baltimore, says everyone in the business is wary, making sure their taxes are paid and the "talent" is over 18. He says he's ready for a rematch, especially with Taylor.
"Everyone's concerned," Flynt said in an interview. "We deal in plain old vanilla sex. Nothing really outrageous. But who knows, they may want a big target like myself."
A recent episode of Showtime's Family Business, a reality show about Adam Glasser, an adult film director and entrepreneur in California, had him worrying about shipping his material to states more apt to prosecute. It also featured him organizing a pornographic Internet telethon to raise money for targets of prosecution.
Drew Oosterbaan, chief of the division in charge of obscenity prosecutions at the Justice Department, says officials are trying to send a message and halt an industry they see as growing increasingly "lawless."
"We want to do everything we can to deter this conduct" by producers and consumers, Oosterbaan said. "Nothing is off the table as far as content."
Money and friends
It is unclear, though, just how the American public and major corporations that make money from pornography will accept the perspective of the Justice Department and Attorney General John Ashcroft.
Any move against mainstream pornography could affect large telephone companies offering broadband Internet service or the dozens of national credit card companies providing payment services to pornographic Web sites.
Cable television, meanwhile, which has found late-night lineups with "adult programming" highly profitable, is unlikely to budge, and such companies have powerful friends.
Brian Roberts, the CEO of Comcast, which offers "hard-core" porn on the Hot Network channel (at $11.99 per film in Baltimore), was co-chair of Philadelphia 2000, the host committee that brought the Republican National Convention to Philadelphia. In February, the Bush campaign honored Comcast President Stephen Burke with "Ranger" status, for agreeing to raise at least $200,000 for the president's re-election effort. Comcast's executive vice president, David Cohen, has close ties to Gov. Edward G. Rendell of Pennsylvania, a former chairman of the Democratic National Committee.
Tim Fitzpatrick, the spokesman for Comcast at its corporate headquarters in Philadelphia, declined to comment on the cable network's adult programming. But officials at the National Cable and Telecommunications Association, which Roberts used to chair, said adult programming is legal, relies on subscription services for access and has been upheld by the courts for years.
"Good luck turning back that clock," said Paul Rodriguez, a spokesman for the association.
Ashcroft vs. consent
In a speech in 2002, Ashcroft made it clear that the Justice Department intends to try. He said pornography "invades our homes persistently though the mail, phone, VCR, cable TV and the Internet," and has "strewn its victims from coast to coast."
Given the millions of dollars Americans are spending each month on adult cable television, Internet sites and magazines and videos, many may see themselves not as victims but as consumers, with an expectation of rights, choices and privacy.
Ashcroft, a religious man who does not drink alcohol or caffeine, smoke, gamble or dance, and has fought unrelenting criticism that he has trod roughshod on civil liberties in the wake of the Sept. 11 attacks, is taking on the porn industry at a time when many experts say Americans are wary about government intrusion into their lives.
The Bush administration is eager to shore up its conservative base with this issue. Ashcroft held private meetings with conservative groups a year and a half ago to assure them that anti-porn efforts are a priority.
But administration critics and First Amendment rights attorneys warn that the initiative could smack of Big Brother, and that targeting such a broad range of readily available materials could backfire.
"They are miscalculating the pulse of the community," said attorney Paul Cambria, who has gone head to head with Taylor in cases dating to the 1970s.
"I think a lot of adults would say this is not what they had in mind, spending millions of dollars and the time of the courts and FBI agents and postal inspectors and prosecutors investigating what consenting adults are doing and watching."
The law itself rests on the landmark 1973 Supreme Court decision in Miller vs. California, which held that something is "obscene" only if an average person applying contemporary community standards finds it patently offensive. But until now, it hasn't been prosecuted at the federal level for more than 10 years.
Since the last time he faced Taylor, Flynt's empire has grown into a multimillion-dollar corporation with a large, almost conservative-looking headquarters in California, where he and executives in dark suits oversee the company's dozens of men's clubs, sex stores and more than 30 magazines.
"He's basically crusaded against everything I've fought for for the past 30 years," Flynt said. "This is for consenting adults. They have the right to view what they want to in the privacy of their own home. And even if they don't enjoy these materials, they still don't want to be looking over their neighbors' shoulders."
Cases and results
Taylor, who has been involved in the prosecution of more than 700 pornography cases since the 1970s, including at the Justice Department in the late 1980s and early '90s, declined to be interviewed. But he did talk to reporters for the PBS program Frontline in 2001, when he was president of the National Law Center for Children and Families, an anti-porn group.
"Just about everything on the Internet and almost everything in the video stores and everything in the adult bookstores is still prosecutable illegal obscenity," he said.
"Some of the cable versions of porno movies are prosecutable. Once it becomes obvious that this really is a federal felony instead of just a form of entertainment or investment, then legitimate companies, to stay legitimate, are going to have to distance themselves from it."
The Justice Department pursued obscenity cases vigorously in the 1970s and '80s, prosecuting not necessarily the worst offenders in terms of extreme material, but those it viewed as most responsible for pornography's proliferation.
Oosterbaan said the department is employing much the same strategy this time, targeting not only some of the most egregious hard-core porn but also more conventional material, in an effort "to be as effective as possible."
"I can't possibly put it all away," he said. "Results are what we want."
The strategy in the 1980s resulted in a lot of extreme pornography - dealing in urination, violence or bestiality - going underground. Today, with the Internet, international producers and a substantial market, industry officials say there is no underground.
Obscenity cases came to a standstill under Janet Reno, President Bill Clinton's attorney general, who focused on child pornography, which is considered child abuse and comes under different criminal statutes. The ensuing years saw an explosion of porn, so much so that critics say that Americans' tolerance for sexually explicit material rivals that of Europeans.
That tolerance could prove to be the obscenity division's biggest obstacle. Americans are used to seeing sex, experts say, in the movies, in their e-mail inboxes and on popular cable shows such as HBO's Sex and the City. There is no real gauge of just how obscene a jury will find pornographic material.
The majority of defendants indicted in federal courts over the past year have taken plea agreements when faced with the weight and resources of the Justice Department. More than 50 other federal investigations are under way.
In 2001, though, one interesting case emerged from St. Charles County, Mo., the heart of Ashcroft's conservative Missouri base. First Amendment lawyer Cambria defended a video store there against state charges that it was renting two obscene videotapes that depicted group sex, anal sex and sex with objects.
Cambria won, convincing a jury of 12 women, all between the ages of 40 and 60, that the tapes had educational value and helped reduce inhibitions. They reached the verdict in less than three hours.
The department's most closely watched case involves "extreme" porn producer Rob Zicari and his North Hollywood company Extreme Associates. The prolific Zicari is charged with selling five allegedly obscene videotapes, which he now markets as the "Federal Five," that depict simulated rapes and murder.
Almost reveling in the charges, Zicari's Web site says, "The most controversial company in porn today! Guess what? Controversy ... sells!"
The case hangs on a strategic move by the Justice Department that could make or break hundreds of future cases. Instead of bringing charges in Hollywood, where Zicari easily defeated a local obscenity ordinance recently in a jury trial, department officials ordered his tapes from Pittsburgh, Pa., and charged him there, hoping for a jury pool less porn-friendly.
Industry lawyers and top executives contend that the courts should rule that because the tapes were ordered on the Internet, the "community standard" demanded by the law should be the standard of the whole community of the World Wide Web.
The Internet is filled with ample evidence of even more hard-core or offensive material from abroad, they say, and someone in Pittsburgh should not be able to determine what someone in Hollywood can order.
Either way, Nguyen, father of a 2-year-old girl, and his co-workers spend their days scouring the Internet for the most obscene material, following leads sent in by citizens and tracking pornographers operating under different names. The job wears on them all, day after day, so much so that the obscenity division has recently set up in-house counseling for them to talk about what they're seeing and how it is affecting them.
"This stuff isn't the easiest to deal with," Nguyen said recently while at his computer. "But I think we're going after the bad guys and we're making a difference, and that's what makes it worthwhile."
Copyright © 2004, The Baltimore Sun
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