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By Vanessa Blum, in Legal Times March 8, 2004
Obscenity cases have not been a priority at the Justice Department for the past few years. That's about to change.
When John Ashcroft was named attorney general, conservative interest groups thought they would finally get the $10 billion porn industry on the run. Instead, the terrorist attacks of Sept. 11, 2001 reshuffled priorities at Main Justice and pushed nonterrorism issues to the sidelines.
Now, in a signal that the Bush administration is serious about policing porn, the Justice Department has brought on anti-obscenity icon Bruce Taylor to kick-start an aggressive law enforcement campaign that may reverberate through a broad swath of corporate America.
Over the course of his 30-year career, Taylor has participated in more than 700 obscenity cases, including representing the state of Ohio before the Supreme Court in Larry Flynt v. Ohio in 1981. He worked in the Justice Department's Child Exploitation and Obscenity Section from 1989 until 1993, during the heyday of federal obscenity prosecution.
Now, as senior counsel to the Criminal Division for obscenity issues, the 53-year old Taylor reports directly to division chief Christoper Wray. Though Taylor's precise role remains murky, his zero-tolerance approach to obscenity prosecution is well-known.
Taylor--who most recently served as president of Fairfax, Va.'s National Law Center for Children and Families--has consistently pushed federal and local prosecutors to target not only fringe elements of the porn industry, but also companies dealing in more mainstream material, such as films that might be available in hotel rooms or on pay-per-view channels. Taylor has gone so far as to suggest that Fortune 500 hotel chains and cable companies are not off-limits.
"If it's true that ...some of these cable or Internet companies are making deals with porn-syndicate producers or distributors and becoming their partner in the production or distribution of obscene material, then they are breaking the law just like the pornographers are," Taylor said on a documentary on pornography aired on public television in 2002. Taylor declined comment.
News of Taylor's arrival--first reported in Adult Video News , a porn industry trade publication--came as the Bush administration unveiled its 2005 budget seeking increases of more than $4 million to target adult obscenity. If approved by Congress, the budget increase would fund positions for 10 new FBI agents to focus exclusively on adult obscenity and nearly double the number of prosecutors working obscenity cases. Since Taylor's arrival on Jan. 26, six FBI agents already have been reassigned from other areas to investigate obscenity crimes.
"I think the administration has made it clear that obscenity enforcement is a priority for them," says Andrew Oosterbaan, head of the Child Exploitation and Obscenity Section. "We're turning those words into actions."
According to Justice Department numbers, the Bush administration has racked up 24 convictions on adult obscenity charges across the country over the past two years and has additional charges pending against 12 parties. Another 50 obscenity investigations are under way. The number of cases and investigations handled by the 18-lawyer section has increased more than 300 percent n the past 18 months, with the bulk of the growth in adult obscenity, Oosterbaan says. Just last week, a former Dallas police officer and his wife were sentenced to at least 30 months behind bars for making and selling videos depicting simulated rape scenes.
The initiative comes after years of almost no federal law enforcement activity in the adult obscenity area. During the eight-year tenure of Attorney General Janet Reno, the section focused on crimes involving children and brought only a handful of obscenity charges.
Free speech advocates and porn industry lawyers say the Justice Department's anti-obscenity push inhibits free speech and is intended to score points with conservative voters during an election year.
"It's just so transparent. Bruce Taylor is there to excite voter groups the administration needs," says Los Angeles attorney Jeffrey Douglas, chairman of the Free Speech Coalition, a trade association for the adult entertainment industry. "I would expect search warrants to be executed near the Republican convention."
Current DOJ insiders say the law enforcement vacuum of the '90s and the pheonomenal growth of the Internet during the same yars led to an expansion of illegal pornographic material that can no longer be ignored.
"Anyone can see that if streets are not policed, criminal activity is going to start," Oosterbaan says, "Obscenity is no different."
He adds that while obscenity prosecutions have often been left to local law enforcement, the nature of the Internet demands that federal prosecutors take a lead role.
"When you start an investigation on the Internet, you have no idea where it's going to lead you," he says. "At the state and local level, are you going to go after that Web site and spend resources working on that investigation without knowing where you'll end up? The answer is probably no."
In order to be obscene, and therefore illegal, materil must meet a three-part test established by the Supreme Court in 1973 in United States v. Miller. The test requires that "the average person, applying contemporary community standards," would find that the work taken as a whole appeals to the prurient interest, that the work depicts or describes sexual conduct in a patently offensive way, and that the work as a whole lacks serious literary, artistic, political, or scientific value.
Because there have been few obscenity trials in the past decade, prosecutors must consider what kind of an impact contemporary sexual attitudes will have on juries applying the Miller test.
"Prosecutors are going to have a much harder time today than 15 or 20 years ago," says Silver Spring attorney Jonathan Katz, president of the local Free Speech Coalition. "Juries have become more and more accepting and less and less sensitive, because more people are exposed to porn whether they want to be or not."
Testifying before the Senate Judiciary Committee in October 2003, Taylor stated his belief that "people consider obscene all hardcore pornography that shows penetration clearly visible."
He added, "Our community standards did not sink into the sewer in the last 10 years so that only animals or bondage or children is going to be obscene to our juries."
Defense lawyers say Taylor's views are out of touch given Amercia's enormous appetite for pornographic products.
"Taylor clearly has an individual ideology that he would like to impose on the entire nation," says Douglas, the L.A. porn attorney.
"By really conservative numbers, at least one in three people in the United States goes out of their way to see sexually explicit material--material depicting penetration and oral copulation--many times a year," he adds. "What does it mean when in response to those remarkable numbers the Justice Department brings in a man who says this material should be prosecuted?"
So far, the government appears to have targeted two kinds of businesses--those intentionally marketing to children and those dealing in content prosecutors consider particularly offensive.
One of the most closely watched obscenity cases to come out of the Justice Department recently is that of Extreme Associates Inc., a North Hollywood, Calif. company that makes and sells graphic adult videos online. Among the films that jurors may be asked to weigh in on is "Forced Entry" which prosecutors say depicts simulated rapes and murders of several women.
Husband-and-wife team Rob Zicari and Janet Romano, who run Extreme Associates, were targeted for investigation after being featured on a PBS special in February 2002. In August 2003, a grand jury in the Western District of Pennsylvania returned an indictment charging the couple on 10 counts of conspiring to distribute obscene material, selling obscene material online, and transporting obscene material for sale. If convicted, each faces up to 50 years in jail and $2.5 million in fines.
Zicari is being represented by H. Louis Sirkin, a prominent Cincinnati free speech advocate who successfully championed the porn industry before the Supreme Court in Ashcroft v. Free Speech Coalition, a lawsuit fighting a congressional ban on virtual child pornography.
"I believe censorship is a cancer," Sirkin says. "Once you start to curtail what can be expressed, someone always wants to take it a little bit further."
Sirkin's first challenge to the obscenity charges against Extreme Associates rests not on freedom of speech, but on a privacy argument similar to that upheld by the Supreme Court in Lawrence v. Texas. the 2003 decision striking down a Texas anti-sodomy law.
U.S. Attorney for the Western District of Pennsylvania Mary Beth Buchanan says the Supreme Court has clearly rejected privacy arguments in the context of obscenity.
"Just because you can view sexually explicit material in your home under Stanley v. Georgia doesn't extend to the ability of someone to distribute or sell it," Buchanan says. "The Supreme Court has already considered that argument and rejected it."
She adds, "Companies like Extreme Associates have no interest in complying with the law. What they intended to do was create the most offensive, disgusting material they could."
Serious anti-pornography activists consider the prosecution of Extreme Associates "small potatoes" and hope Taylor's arrival heralds bigger things on the horizon.
"You cannot have any impact on this industry by focusing on a few small producers of the most deviant stuff. You have to go after anyone--[cable companies,] hotel chains, even major credit card companies with logos on these Web sites," says Janet LaRue, chief counsel of the conservative Concened Women for America.
Dan Panetti, vice president for legal and public policy for the National Coalition for the Protection of Children & Families, says he expects Taylor to do just that.
"Sooner or later, Bruce is going to sink his teeth into one of those companies," Panetti says. "That's what he does. That's why he's there."
Taylor launched his career bringing obscenity cases as a Cleveland city attorney in 1973. In 1978 he hooked up with Citizens for Decency Trhough Law, the anti-porn activist group backed by controversial banker Charles Keating Jr. [Keating would later be convicted on fraud charges in connection with the savings and loan crises of the 1980s).
Taylor served briefly as assistant attorney general of Arizona and then joined the Justice Department's burgeoning obscenity group in 1989. When Taylor arrived, the DOJ Criminal Division was engaged in its first coordinated effort to combat obscenity--a full-scale assault on the mail-order porn business called Project Postporn.
To anti-porn advocates, the initiative represents a golden era of obscenity law enforcement. But one of the most effective tactics used by DOJ prosecutors in Project Postporn--the simultaneous prosecution of a single entity in multiple jurisdictions--was later found unconstitutional.
Phil Harvey, founder of a mail order sex shop called Adam and Eve, brought a lwsuit against the Justice Department that forced prosecutors to stop bringing coordinated cases in multiple districts.
"Taylor better be very careful," says Harvey. "Once the process is infected with the whiff of bad faith and an intention on the part of prosecutors to suppress sex-oriented speech, they're on thin ice."
Dougles of the Free Speech Coalition notes that with other forms of expression--such as anti-establishment political views--courts often extend First Amendment protections even to the most extreme positions. Not so with porn.
"When you have material that is shocking and causing outrage, logically it would seem that is the material actually deserving of First Amendment protection. The whole notion is turned on its head [in evaluating pornography] when the material that is the most incendiary gets the least protection."
Oosterbaan, a veteran prosecutor who lead the violent crime section in the Southern District of Florida before coming to Washington, says that, at the end of the day, prosecuting obscenity boils down to protection of American households.
"This is not a political issue or an idealogical issue for the majority of Americans. It's very simply a matter of what kind of material is invading their home," Oosterbaan says. "All you have to do is spend some time listening and you can hear very clearly that the people of the United States want something done about this."
-end-
Obscenity cases have not been a priority at the Justice Department for the past few years. That's about to change.
When John Ashcroft was named attorney general, conservative interest groups thought they would finally get the $10 billion porn industry on the run. Instead, the terrorist attacks of Sept. 11, 2001 reshuffled priorities at Main Justice and pushed nonterrorism issues to the sidelines.
Now, in a signal that the Bush administration is serious about policing porn, the Justice Department has brought on anti-obscenity icon Bruce Taylor to kick-start an aggressive law enforcement campaign that may reverberate through a broad swath of corporate America.
Over the course of his 30-year career, Taylor has participated in more than 700 obscenity cases, including representing the state of Ohio before the Supreme Court in Larry Flynt v. Ohio in 1981. He worked in the Justice Department's Child Exploitation and Obscenity Section from 1989 until 1993, during the heyday of federal obscenity prosecution.
Now, as senior counsel to the Criminal Division for obscenity issues, the 53-year old Taylor reports directly to division chief Christoper Wray. Though Taylor's precise role remains murky, his zero-tolerance approach to obscenity prosecution is well-known.
Taylor--who most recently served as president of Fairfax, Va.'s National Law Center for Children and Families--has consistently pushed federal and local prosecutors to target not only fringe elements of the porn industry, but also companies dealing in more mainstream material, such as films that might be available in hotel rooms or on pay-per-view channels. Taylor has gone so far as to suggest that Fortune 500 hotel chains and cable companies are not off-limits.
"If it's true that ...some of these cable or Internet companies are making deals with porn-syndicate producers or distributors and becoming their partner in the production or distribution of obscene material, then they are breaking the law just like the pornographers are," Taylor said on a documentary on pornography aired on public television in 2002. Taylor declined comment.
News of Taylor's arrival--first reported in Adult Video News , a porn industry trade publication--came as the Bush administration unveiled its 2005 budget seeking increases of more than $4 million to target adult obscenity. If approved by Congress, the budget increase would fund positions for 10 new FBI agents to focus exclusively on adult obscenity and nearly double the number of prosecutors working obscenity cases. Since Taylor's arrival on Jan. 26, six FBI agents already have been reassigned from other areas to investigate obscenity crimes.
"I think the administration has made it clear that obscenity enforcement is a priority for them," says Andrew Oosterbaan, head of the Child Exploitation and Obscenity Section. "We're turning those words into actions."
According to Justice Department numbers, the Bush administration has racked up 24 convictions on adult obscenity charges across the country over the past two years and has additional charges pending against 12 parties. Another 50 obscenity investigations are under way. The number of cases and investigations handled by the 18-lawyer section has increased more than 300 percent n the past 18 months, with the bulk of the growth in adult obscenity, Oosterbaan says. Just last week, a former Dallas police officer and his wife were sentenced to at least 30 months behind bars for making and selling videos depicting simulated rape scenes.
The initiative comes after years of almost no federal law enforcement activity in the adult obscenity area. During the eight-year tenure of Attorney General Janet Reno, the section focused on crimes involving children and brought only a handful of obscenity charges.
Free speech advocates and porn industry lawyers say the Justice Department's anti-obscenity push inhibits free speech and is intended to score points with conservative voters during an election year.
"It's just so transparent. Bruce Taylor is there to excite voter groups the administration needs," says Los Angeles attorney Jeffrey Douglas, chairman of the Free Speech Coalition, a trade association for the adult entertainment industry. "I would expect search warrants to be executed near the Republican convention."
Current DOJ insiders say the law enforcement vacuum of the '90s and the pheonomenal growth of the Internet during the same yars led to an expansion of illegal pornographic material that can no longer be ignored.
"Anyone can see that if streets are not policed, criminal activity is going to start," Oosterbaan says, "Obscenity is no different."
He adds that while obscenity prosecutions have often been left to local law enforcement, the nature of the Internet demands that federal prosecutors take a lead role.
"When you start an investigation on the Internet, you have no idea where it's going to lead you," he says. "At the state and local level, are you going to go after that Web site and spend resources working on that investigation without knowing where you'll end up? The answer is probably no."
In order to be obscene, and therefore illegal, materil must meet a three-part test established by the Supreme Court in 1973 in United States v. Miller. The test requires that "the average person, applying contemporary community standards," would find that the work taken as a whole appeals to the prurient interest, that the work depicts or describes sexual conduct in a patently offensive way, and that the work as a whole lacks serious literary, artistic, political, or scientific value.
Because there have been few obscenity trials in the past decade, prosecutors must consider what kind of an impact contemporary sexual attitudes will have on juries applying the Miller test.
"Prosecutors are going to have a much harder time today than 15 or 20 years ago," says Silver Spring attorney Jonathan Katz, president of the local Free Speech Coalition. "Juries have become more and more accepting and less and less sensitive, because more people are exposed to porn whether they want to be or not."
Testifying before the Senate Judiciary Committee in October 2003, Taylor stated his belief that "people consider obscene all hardcore pornography that shows penetration clearly visible."
He added, "Our community standards did not sink into the sewer in the last 10 years so that only animals or bondage or children is going to be obscene to our juries."
Defense lawyers say Taylor's views are out of touch given Amercia's enormous appetite for pornographic products.
"Taylor clearly has an individual ideology that he would like to impose on the entire nation," says Douglas, the L.A. porn attorney.
"By really conservative numbers, at least one in three people in the United States goes out of their way to see sexually explicit material--material depicting penetration and oral copulation--many times a year," he adds. "What does it mean when in response to those remarkable numbers the Justice Department brings in a man who says this material should be prosecuted?"
So far, the government appears to have targeted two kinds of businesses--those intentionally marketing to children and those dealing in content prosecutors consider particularly offensive.
One of the most closely watched obscenity cases to come out of the Justice Department recently is that of Extreme Associates Inc., a North Hollywood, Calif. company that makes and sells graphic adult videos online. Among the films that jurors may be asked to weigh in on is "Forced Entry" which prosecutors say depicts simulated rapes and murders of several women.
Husband-and-wife team Rob Zicari and Janet Romano, who run Extreme Associates, were targeted for investigation after being featured on a PBS special in February 2002. In August 2003, a grand jury in the Western District of Pennsylvania returned an indictment charging the couple on 10 counts of conspiring to distribute obscene material, selling obscene material online, and transporting obscene material for sale. If convicted, each faces up to 50 years in jail and $2.5 million in fines.
Zicari is being represented by H. Louis Sirkin, a prominent Cincinnati free speech advocate who successfully championed the porn industry before the Supreme Court in Ashcroft v. Free Speech Coalition, a lawsuit fighting a congressional ban on virtual child pornography.
"I believe censorship is a cancer," Sirkin says. "Once you start to curtail what can be expressed, someone always wants to take it a little bit further."
Sirkin's first challenge to the obscenity charges against Extreme Associates rests not on freedom of speech, but on a privacy argument similar to that upheld by the Supreme Court in Lawrence v. Texas. the 2003 decision striking down a Texas anti-sodomy law.
U.S. Attorney for the Western District of Pennsylvania Mary Beth Buchanan says the Supreme Court has clearly rejected privacy arguments in the context of obscenity.
"Just because you can view sexually explicit material in your home under Stanley v. Georgia doesn't extend to the ability of someone to distribute or sell it," Buchanan says. "The Supreme Court has already considered that argument and rejected it."
She adds, "Companies like Extreme Associates have no interest in complying with the law. What they intended to do was create the most offensive, disgusting material they could."
Serious anti-pornography activists consider the prosecution of Extreme Associates "small potatoes" and hope Taylor's arrival heralds bigger things on the horizon.
"You cannot have any impact on this industry by focusing on a few small producers of the most deviant stuff. You have to go after anyone--[cable companies,] hotel chains, even major credit card companies with logos on these Web sites," says Janet LaRue, chief counsel of the conservative Concened Women for America.
Dan Panetti, vice president for legal and public policy for the National Coalition for the Protection of Children & Families, says he expects Taylor to do just that.
"Sooner or later, Bruce is going to sink his teeth into one of those companies," Panetti says. "That's what he does. That's why he's there."
Taylor launched his career bringing obscenity cases as a Cleveland city attorney in 1973. In 1978 he hooked up with Citizens for Decency Trhough Law, the anti-porn activist group backed by controversial banker Charles Keating Jr. [Keating would later be convicted on fraud charges in connection with the savings and loan crises of the 1980s).
Taylor served briefly as assistant attorney general of Arizona and then joined the Justice Department's burgeoning obscenity group in 1989. When Taylor arrived, the DOJ Criminal Division was engaged in its first coordinated effort to combat obscenity--a full-scale assault on the mail-order porn business called Project Postporn.
To anti-porn advocates, the initiative represents a golden era of obscenity law enforcement. But one of the most effective tactics used by DOJ prosecutors in Project Postporn--the simultaneous prosecution of a single entity in multiple jurisdictions--was later found unconstitutional.
Phil Harvey, founder of a mail order sex shop called Adam and Eve, brought a lwsuit against the Justice Department that forced prosecutors to stop bringing coordinated cases in multiple districts.
"Taylor better be very careful," says Harvey. "Once the process is infected with the whiff of bad faith and an intention on the part of prosecutors to suppress sex-oriented speech, they're on thin ice."
Dougles of the Free Speech Coalition notes that with other forms of expression--such as anti-establishment political views--courts often extend First Amendment protections even to the most extreme positions. Not so with porn.
"When you have material that is shocking and causing outrage, logically it would seem that is the material actually deserving of First Amendment protection. The whole notion is turned on its head [in evaluating pornography] when the material that is the most incendiary gets the least protection."
Oosterbaan, a veteran prosecutor who lead the violent crime section in the Southern District of Florida before coming to Washington, says that, at the end of the day, prosecuting obscenity boils down to protection of American households.
"This is not a political issue or an idealogical issue for the majority of Americans. It's very simply a matter of what kind of material is invading their home," Oosterbaan says. "All you have to do is spend some time listening and you can hear very clearly that the people of the United States want something done about this."
-end-
