Web Sexual Expression Imperiled

Bush’s Department of Justice Makes Clear It Is Aiming at Obscenity

Lavina is a tiny community in eastern Montana about 30 miles north of Billings. There is a gas station, a post office, and that’s about it. It was in the post office where a 65-year-old man got caught committing a crime that would send him to jail for more than two years. His name is Thomas Lambert, and he as well as co-conspirators Sanford Wasserman and Gary Robinson were prosecuted and convicted of a federal crime, distributing obscenity.

“It’s pretty simple how he got caught, since everybody knows everybody in that little town” according to Mark Errebo, Lambert’s attorney in Billings. “Lambert kept bringing in these brown, unmarked packages to be mailed to people across the country, and the one girl who works in the Post Office got suspicious and called the inspector general here in Billings.”

The woman informed the postal official that Lambert had been sending an inordinate number of packages out of that office. A warrant was obtained, one of the boxes Lambert was sending was opened, and hard-core pornographic videos were found. At that point, federal prosecutors were notified and another warrant was issued, which led to a raid on Lambert’s house by government agents.

“Lambert’s house is out in the country, and that’s where they found the copying equipment, and the jig was up,” Errebo explained. “That’s when he contacted me, after the raid… It took them a while to actually charge the case, for whatever reasons.”

According to Errebo, his client was convinced by accomplice Wasserman that the videos were legal. The attorney maintained that Wasserman owed Lambert around $60,000, so instead of paying him, Wasserman offered his client the chance to make back his money, and then some, by mailing the videos to customers who had purchased them through a mail order catalog. Robinson was an employee of the other two men.

Lambert’s case was prosecuted personally by the U.S. attorney for Montana, Bill Mercer. The defendant admitted that the videos confiscated

were obscene and he was found guilty in July. He is currently serving a 30-month sentence in a California federal prison. Robinson was sentenced to a year while Sanford Wasserman, still awaiting sentencing, faces up to 10 years since this is his second conviction.

The nation’s obscenity laws are prosecuted with a three-prong test established by the Supreme Court in the 1973 Miller v. California ruling. The prosecutor puts questions to the jury to decide whether or not the average person in their community would view the material as appealing to “the prurient interest,” whether it was presented in a “patently offensive” manner, and whether it was lacking in serious artistic, political, artistic, or scientific value. Film, print, or live performance has to meet all three tests to be judged obscene, but clearly these standards, for all their detail, are vague and subjective.

Most important, however, is the community standard applied by the jury—which allows for prosecutions, in conservative districts, of cases that would not be winnable in more tolerant jurisdictions, adding an additional subjective element to the equation. This reliance on local standards not only allows for prosecutions of local distributors such as Lambert. It also enables localities to go after national producers of adult material, as a Cincinnati prosecutor did in the case of Larry Flynt, the publisher of Hustler magazine, in 1976 at the behest of a local anti-pornographer activist, Charles H. Keating, Jr., who became better known a decade later in the nation’s savings and loan scandal.

The rise of the Internet, in which online distributors cannot control the jurisdictions where their material is available, makes this question of local community standards all the more significant.

Errebo said that he works on federal cases in his practice but that it is rare that he deals with the U.S. attorney directly. This was different, he said—he detected a sense of urgency from federal law enforcement officials from the start.

“I knew it was a priority when the actual U.S. attorney for this district, Bill Mercer, called and said he would be handling the case himself” Errebo said. “ I knew this was more than your regular run of the mill case.”

According to Errebo, Mercer informed him that there had been a directive from the top to aggressively prosecute obscenity cases.

“I’ve known Bill for years and he said, ‘Hey, we’ve got our orders here, this is serious and we’re going take this case very seriously’” Errebo said.

The fact that this case was brought in Montana was probably coincidental, the attorney said, though he conceded that the jurisdiction played into the government’s hands.

“This is an extremely conservative judicial district, with very conservative residents,” Errebo said. “I think the fact that it is conservative made the case something the U.S. attorney’s office would want to pursue.”

Since 2001, the Bush Department of Justice has prosecuted 40 obscenity cases, with indictments pending against another 19 persons or organizations. This compares with four prosecutions during the Clinton administration from 1993 through 2000. This increase has taken place at the behest of the Child Exploitation and Obscenity Section, or CEOS, a unit at the DOJ criminal division.

On May 5, the DOJ announced plans for a new Obscenity Prosecution Task Force, dedicated exclusively to the investigation and prosecution of sexual content crimes. The Task Force is part of $13.8 million increase in the DOJ’s Child Exploitation and Obscenity Section budget, a unit of the criminal division. The CEOS budget increase includes the hiring of several new attorneys, FBI agents, and forensics experts who specialize in cyber technology.

Attorney General Alberto Gonzales publicly expressed his commitment to going after pornography, saying that “obscenity and child pornographers rip at the heart of our moral values and easily corrupt our communities. Enforcement is absolutely necessary if we are going to protect our children and citizens from exposure to obscene materials.”

Despite the fact that the Bush administration has found it possible to prosecute obscenity cases, it is looking to strengthen its hand, and is focusing particular energy, both in regulatory changes and rhetoric, on the issue of child pornography, an issue that its critics charge is a red herring in the debate.

Less the than three weeks after the Gonzales statement, the DOJ revealed plans to strengthen provisions attached to the 1988 Child Protection and Obscenity Enforcement Act, U.S. 18 USC 2257 laws. The original intent of the 2257 regulations was to keep minors from appearing in adult material. The justice department claims the new record keeping requirements will do a better job at protecting children from exploitation by pornographers, even though only four underage performers have slipped through the existing regulations in the past 20 years, according to prosecution records.

The new 2257 rules require the re-packaging of videos and DVDs with sleeves that prominently display where each model’s age verification records are stored. The new regulations extend the rules from covering just the primary producers to all distributors of material with explicit sexual content. The move appears squarely aimed at adult-oriented Web sites.

Any such Web site, even personals sites such as Manhunt and Bigmuscle, must maintain verifiable, official government identification records of every model, performer, or other person who appears on their pages for a period of seven years. The records must be available for government inspection at a physical location clearly identified. Failure to comply could result in five years prison time for first-time offenders, and up to ten years for a second offense.

Adult entertainment industry lawyers charge that the 2257 regulations place burdensome record keeping requirements on distributors and Web sites. Free speech advocates argue that the new regulations could be used to inhibit the production of all adult material. The Free Speech Coalition, an adult entertainment industry group, challenged the new broad regulations in federal court and is awaiting a decision from a Denver judge as to whether an injunction will be issued pending a full trial. Legal analysts are awaiting a ruling.

“When you have a new regulation that very broadly interprets the government’s power, that’s a significant event,” according to First Amendment attorney Bob Corn-Revere of Washington. “Under the justice department’s interpretation, its authority under 2257 is very broad, so as a result we’ll be watching to see what the court has to say about it.”

Critics of the new 2257 regulations argue that the focus on underage sexual exploitation is a smokescreen for a broader agenda, noting that pornography aimed at pedophiles operates under the radar screen in an underground market separate from adult entertainment material that is widely marketed.

“This is a moment where there is a lot of exploitation of children through images, and the Internet has been a major facilitator of how people can do that,” acknowledged Amy Adler, a First Amendment expert who is an NYU law professor. But, she added, “Pedophiles are criminals… on the fringes of society and are probably not worried about complying with 2257 in the first place.”

The current government crusade against pornography has its roots in the Reagan administration, when his attorney general, Edwin Meese, led a commission, named for himself, that worked to strengthen criminal penalties for the industry.

“The mandate of the Meese Commission was how to get rid of porn, and what they found was that their were two hot button issues that people respond to, the big one being kids,” said Barbara Nitke, a New York photographer who has done significant work in erotic S/M imagery and is among the plaintiffs challenging the federal Communications Decency Act, which places potentially sharp limits on online sexual material. “What they do now is every law they pass, it will always be about protecting children. I’m cynical enough to believe they don’t really care about kids.”

“The DOJ can make themselves look like heroes, saying we’re just protecting children” according to Marvin Johnson, legislative counsel for the American Civil Liberties Union in Washington, adding, “There are already laws on the books protecting children without having to restrict any one industry or free speech.”

The adult entertainment industry recognizes the political risks it faces and in the name of policing itself created the Association of Sites Advocating Child Protection. According the ASCAP spokesperson Joan Irvine, the industry employs a number of technologies meant to prevent children from exposure to pornography, including subscriptions that require credit card and age verification.

When asked about the current efforts by the DOJ to crack down on the adult entertainment industry, DOJ spokesman Charles Miller said it was a matter of policy, and that comes directly from the White House.

The move against the adult entertainment industry comes at a time when the Christian right is flexing its muscle over the issue. In June, in a private meeting with Family Research Council president Tony Perkins, Gonzales laid out details for the Department of Justice’s new war on pornography. Perkins told readers of his Washington newsletter that the attorney general said that he “intends to smash these criminal enterprises on the Internet and elsewhere” with what Perkins called “a new obscenity strike force.” Perkins went on to say. “This is the only way to handle hard-core pornographers.”

The cooperation between the right and the administration on the issue began quite nearly from day one. PBS’ “Frontline” highlighted the findings of Nicholas Confessore, who wrote in February 2002 about a meeting the previous May where then-Attorney General John Ashcroft offered assurances of aggressive porn prosecution to a dozen or so conservative leaders headed by Family Research Council’s Jan La Rue. That meeting took place in the Ashcroft’s private conference room. Also in attendance were Tom Minnery of Focus on the Family, Beverly La Haye of Concerned Women of America, and Bruce Taylor, an attorney and prosecutor who got his start as a Cleveland city attorney and says he has gone after more pornographers, including Hustler’s Flynt, than any other prosecutor in the nation.

“Bruce claims to be the architect of a number of the Internet laws that have been stricken by the courts,” noted the ACLU’s Johnson, adding with a sigh, “Bruce has been around a long time.”

Taylor was general counsel to Keating’s Citizens for Decency Through Law (CDL), which pressed for Flynt’s 1977 prosecution, and was also involved in the 1990 indictment of Cincinnati Contemporary Art Center’s Dennis Barrie in the infamous Mapplethorpe flap. CDL later changed its name to the National Coalition for the Protection of Children and Families. Taylor himself went on to head the National Law Center for Children and Families, which describes itself as a “law enforcement assistance and public education center” providing resources to state and federal prosecutors, police investigators, and legislators. The Fairfax, Virginia organization has focused a good deal of its energies on cyber pornography.

Taylor has recently landed a new job, serving as senior counsel to John Richter, the assistant attorney general in charge of the criminal division, the official the Obscenity Prosecution Task Force reports to. Taylor edits the task force newsletter, which appears on the DOJ Web site.

Around the time that the Family Research Council’s Perkins was meeting with the attorney general, other leading conservatives were also gathering to plan strategies for the fight on obscenity. On May 19, Republican Congressswoman Katherine Harris, a U.S. Senate candidate who was the controversial Florida secretary of state during the contested 2000 Bush-Gore election, headlined a summit on pornography along with Pennsylvania Republican Rep. Joe Pitts at the Rayburn building in Washington.

“Too many studies have linked pornography with horrific crimes against children and women for responsible lawmakers to remain silent,” Harris said at the gathering.

Also attending the summit was an assistant attorney general and leaders of several groups that have risen to nearly quasi-governmental status at the current justice department. The groups Morality in Media and Enough is Enough are now offered as resources on the Department of Justice Web site—alongside official government agencies like the FBI and Postal Service—for citizens looking to report obscenity.

Enough is Enough’s president is Donna Rice Hughes, who first came to national prominence when photos of her sitting on the lap of then-Senator Gary Hart aboard a boat named Monkey Business sunk the Democrat’s 1988 presidential ambitions. For a number of years, Enough is Enough shared office space in Fairfax with Taylor’s National Law Center for Children and Families and the group Keating once headed, the National Coalition for the Protection of Children and Families. Visitors to the Enough is Enough Web site can get recommendations for sexual counseling and books like “Crisis in Masculinity” and The Battle is the Lord’s.”

Robert Peters is president of Morality in Media, founded by the Jesuit priest Morton Hill. The group sponsors a visibility action called “White Ribbons Against Pornography” each fall. The head of the organization’s Massachusetts chapter, M. Rita Burke, said repeatedly in a 1992 interview “We are a Christian nation.” Peters has termed the Showtime series “Queer as Folk” “a frightening indication of how far the gay rights movement has come.”

And, if there were any doubt about the friendly relationship between the DOJ and these conservative groups, the 2005 federal budget provides a money trail to follow. Enough is Enough received a discretionary grant of $500,000 and Morality in Media took in $150,000 in federal money, even as the DOJ cut hate crimes prosecution funding.

Artists and free speech advocates are clearly concerned, but there are nuanced differences in their reactions.

“Some of the political supporters of this administration have been talking about wholesale censorship, but you can’t necessarily impute what people in the political marketplace say with what’s going on inside the justice department,” attorney Corn-Revere said, cautioning against any knee-jerk conclusion that a wholesale assault on sexual expression is in the works.

Yet, NYU’s Adler noted that through the rhetoric of protecting children, the administration is looking to curb legitimate adult material.

“For years, child pornography or child exploitation was seen as the pressing scourge on society, so that’s where our dollars and efforts were going to go,” she said. “This new [DOJ] task force signifies a reversal of that policy. Suddenly they want to go after adult pornography, which has basically been left alone.”

In legal terms, Adler added, “obscenity has been sort of this dead thing, now they want to bring it back.”

Photographer Nitke is concerned that the American public is not paying attention.

“I think you’re going to have trouble getting the average person to really care about this particular issue, simply because a lot of people don’t understand the broader principals at stake,” she said.

Concerned about government interference that goes beyond the new 2257 regulations announced by Gonzalez, Nitke and the Coalition for Sexual Freedom joined forces during the past several years to challenge the Communications Decency Act, which they allege poses risks for anybody—commercial entity or individual citizen—who posts sexually explicit material that some locality in the nation claims is obscene. In late July, Nitke and her co-plaintiff were rebuffed by a three-judge federal panel, but they have vowed an appeal to the Supreme Court, which need not take the case.

In a recent interview, Nitke warned, “It’s going to creep up on people and it’s going to be too late.”

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