WASHINGTON, D.C.—A Senate Judiciary Committee meeting Wednesday on Department of Justice Oversight included a few questions by Senator Orrin Hatch (R-Utah) directed at Attorney General Eric Holder on the issue of obscenity.
Hatch traditionally uses these occasions to grill attorneys general and other Justice Department and law enforcement officials on matters related to adult obscenity, and, as he admitted in his comments to Holder, he has been vocally disappointed with the pace and type of prosecutions coming out of both the Bush and Obama administrations.
Before delving into obscenity, however, Hatch asked Holder about the 2006 Adam Walsh Act, and specifically about impending deadlines before which all states must comply with provisions in the Act related to the creation of sex offender registries. Many states that have not yet finalized these reforms have found that the law’s guidelines—which require registries to create a three-tiered system that will more readily identify dangerous offenders, the collection and publication of online identities and aliases of offenders and the publication of information about the specifics of a crime for which an offender is listed—do not by themselves account for the wide variety of both minor and serious offenses that could be categorized under sex crimes. The current deadline, which has been extended several times, is this July.
In asking Holder whether he would pledge to work to make sure that all states are in compliance by July, Hatch signaled his indifference to the problems contained in the law’s requirements for states, and also possibly his interest in seeing those who are unfairly caught up in it—such as clerks in adult video stores arrested as part of a local obscenity bust, zoning infraction of other non-violent technical offense—treated as harshly as those who actually do engage in violent sex offenses.
Holder pledged to assist but cautioned against forcing the issue without respecting the problems being faced by state AGs.
“I’ll pledge to do that,” he said, “but one thing I would say, Senator, is that we have to work with the state’s attorneys general who want to comply with this Act, and when I met with them, expressed concerns about their ability to do so, and so I think we have to make them a part of the conversation, as well. I share you concern; I think that is an Act that we have to have fully implemented as quickly as we can, and certainly within the deadline, but I also think that a part of that conversation ought to be with the state AGs.”
“I have no problem with that, but that Act’s very important,” said Hatch. “It was a tough slog getting it done, and I think it’s very important to have it done.”
With respect to obscenity, in beginning his line of questioning by asking Holder how the administration is enforcing “federal law prohibiting sexually-explicit material that meets the Supreme Court’s definition of obscenity,” Hatch signaled his intention to focus on what sort of material is being targeted rather than the methods being used to prosecute cases. The senator clearly was not satisfied with Holder’s initial reply that the Justice Department’s Child Exploitation and Obscenity Section—which he said was staffed by career employees—was doing a good job.
“Well,” interrupted Hatch, “I ask you this question … and I asked this of your Republican predecessors, because in my judgment they took a misguided and narrow approach to law enforcement in this area, so I’m concerned.”
Holder continued, “The responsibility for enforcement lies in that [section] and I think that they are quite aggressive in the prosecution and detection of these materials with a particular focus … on child obscenity, which doesn’t exclude other forms of obscenity that they can look at.”
“But there’s been a pattern with the Department of Justice to prosecute only the most extreme obscene materials,” observed Hatch. “Now, this particular type of material may virtually guarantee a conviction, but it’s not the most widely produced or consumed and therefore this prosecution may have very little impact on the obscenity industry, so that’s what I’m concerned about.
“This approach,” he continued, “in moving the prosecution line out to the fringe signals that material that is just as obscene though just as extreme is let off the hook. And I believe that approach is misguided and contributes to the proliferation of obscenity that harms individuals, families and communities. So, I’m really concerned about it and I hope you’ll take a real look at it, because currently there is an obscenity prosecution task force at the Department of Justice. Now, will you allow the director of that task force to enforce federal obscenity laws without restricting him to the most extreme material?”
“There are First Amendment considerations that have to be taken into account,” replied Holder, “but that does not mean that we will not be serious about the enforcement of those laws.”
With that, Hatch moved on to his next non-obscenity-related question.
Needless to say, in referring to the adult entertainment industry as the “obscenity industry,” Hatch stands shoulder to shoulder with social conservatives from groups such as Morality in Media and Focus on the Family, who believe that most of what is believed to be legal adult content protected by the First Amendment is actually illegal obscenity that has no constitutional protection.
Indeed, in expressing his appreciation for Hatch’s remarks, Morality in Media president Robert Peters reiterated his call for increased prosecution of “hardcore adult pornography,” which he said harms children and leads to a litany of other ills.
“Among other things,” he said, in a statement, “addiction to this material contributes to the breakup of marriages, to sexual violence against women, to on-the-job sexual harassment, to a loss of worker productivity, and to the demand for women trafficked into prostitution. Our nation's reputation as the 'porn capital of the world' is also making the war against religiously based terrorism more difficult.”
Diane Duke, the executive director of the Free Speech Coalition, which soundly rejects Peters’ claims, told the Salt Lake Tribune that the relative lack of federal prosecutions since the nineties is a reflection of a changing society.
"Prosecutors are less enthusiastic about prosecuting for obscenity because they realize that our society is becoming more supportive of adults’ rights to be adults and to access adult materials," she said.
Responding to a query from AVN.com, Duke supported the attorney general’s apparent reluctance to waste precious DoJ resources fighting a war against legal expression.
“Attorney General Holder is focusing DOJ resources where they will have the greatest benefit, protecting children by prosecuting those who would prey on them, she told AVN. “Prosecutors understand the growing support of allowing adults to be adults and access adult materials. Focusing the government’s resources on real criminals is an effective strategy. Meanwhile, the adult entertainment industry will continue to utilize labeling and filtering tools to the fullest in order to promote age-appropriate viewing.”