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The Future Of Obscenity

What will Obama's Justice Department do about adult entertainment?

The Future Of Obscenity

WASHINGTON, D.C. - Although President-elect Barack Obama has chosen Eric Holder as his replacement for current Attorney General Michael Mukasey, the former Deputy Attorney General under Clinton's AG Janet Reno is far from assured the position.

First, Holder must undergo a confirmation hearing in the Senate, where Republican Judiciary Committee members are sure to bring up Holder's role in Clinton's pardon of fugitive financier Marc Rich, his role in returning young Elian Gonzales to Cuba, his role in the pardoning of 17 members of the violent Puerto Rican separatist group FALN, his support for closing the Guantanamo prison (he once said detainees there weren't entitled to Geneva Convention protections) and his opposition to the Bush-sanctioned warrantless wiretaps.

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Holder, in turn, will hopefully affirm his intention to divest the Justice Department of the political partisanship which has dogged it for most of the Bush presidency, and prosecute those within it who have broken the law for political purposes. It'd also be nice if he prosecuted some of the Wall Streeters whose frauds led to the current economic crisis.

And, of course, one topic which Utah Sen. Orrin Hatch is sure to bring up - since he did so with both Gonzales and Mukasey - is Holder's commitment (or lack thereof) to prosecuting "pornography."

Historically, Holder's views on porn have been troubling. On June 10, 1998, Holder sent a memo to all 93 U.S. Attorneys, advising them that due to "increasing concern about the distribution of obscenity and child pornography both by traditional purveyors of 'adult material' and in particular by those who distribute such material over the Internet," Holder wanted to remind the USAs of his department's "priorities" regarding the prosecution of adult producers.

"[P]riority should be given to cases involving large-scale distributors who realize substantial income from multistate operations and cases in which there is evidence of organized crime involvement," Holder wrote. "However, prosecution of cases involving relatively small distributors can have a deterrent effect and would dispel any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations... In particular, priority also should be given to large-scale distributors of obscenity over the Internet. Because of the nature of the Internet and the availability of agents trained in conducting criminal investigations in cyberspace, investigation and prosecution of Internet obscenity is particularly suitable for federal resources."

Around that same time period, Holder also wrote to Morality in Media founder Paul McGeady to express his appreciation for the opportunity to meet with a group of religious anti-porn activists. Holder assured McGeady: "I fully share your concerns about the distribution of obscenity and child pornography, whether it is over the Internet or by more traditional purveyors of such material."

With that background, AVN asked several prominent attorneys who have represented the adult industry to comment on what they believe the Obama administration's, and particularly the Holder Justice Department's, policies will be regarding the adult industry.

"I guess I'm cautiously optimistic," said Denver-based First Amendment advocate Michael Gross. "Obama, I think his heart's in the right place, but he's a politician and you don't want to put too much faith in politicians. He made a remark that just being elected president is a remarkable accomplishment, and he didn't get there by offending everybody. But he's going to try to govern, I think, from the center. Certainly the adult business is not the most popular among certain segments, but on the other hand, he's a professor of constitutional law at the University of Chicago part of the time, and I think he understands the Constitution extremely well, and I think he will generally treat the adult business pretty, with a certain degree of caution."

Greg Piccionelli, many of whose clients are adult website operators, seemed even more optimistic in an email he sent to the Adult Sites Advocating Child Protection (ASACP) subscriber list.

"I sincerely believe that recent political and social events clearly indicate that for the first time in the history of the adult entertainment business, there is a real and substantial opportunity to effect a meaningful and permanent change in the way the industry is perceived and regulated," he argued. "[W]hile federal obscenity and 2257 prosecutions are far less likely under Obama that the have been under Bush ... the likely focus of congress and the Obama administration with respect to the adult industry in the next few years will center on how to best protect children."

Piccionelli also suggested that Obama's people would likely be far more receptive to industry lobbying efforts than any prior administration, and opined that one facet of such effort should deal with supporting speech-friendly Supreme Court nominees, since several vacancies on the high court may occur during Obama's term.

The idea that Holder might focus more on child pornography than adult obscenity was expressed by several commentators.

"We can predict, based on previous Democratic administrations and their approach to the obscenity issue, that there will likely be a decrease or a lessened emphasis on obscenity prosecutions as opposed to things like child pornography," said Florida-based adult Internet advocate Lawrence Walters. "I think we're headed into something akin to a Clinton-esque administration, where we saw that the obscenity efforts were eviscerated and Justice Department resources were reallocated to child pornography prosecutions, so I wouldn't be surprised if we see something like that."

"Now, that being said, the wild card in this whole analysis will be Eric Holder as attorney general," Walters continued, "and I know his memo has been the subject of some discussion out in the industry and among First Amendment lawyers. But it may also be that even if Holder is interested in obscenity prosecution, there would be enough political pressure from above to eliminate or put the brakes on any such efforts."

AVN columnist Clyde DeWitt thought along similar lines.

"I see Obama as returning to the traditional White House role of letting the attorney general manage the Department of Justice," he said, "and I suspect that the White House and Holder will both keep the traditional 'hands-off' policy as to local federal prosecutors, which Bush notoriously did not."

H. Louis Sirkin, a 25-year veteran of adult industry defense, had a different historical perspective.

"I've always found that during times like these, a recession or economic downturn, the far right usually devote their energies more on the local rather than the national level," he said. "What will happen is that they'll start to put a lot more pressure on local politicians and local prosecutors, and they'll do their typical threats of, 'You better do something or we'll put up opponents against you in the next election' and stuff like that. Whether they'll start at retailers and then try to go up the line after working deals with retailers, I don't know. We may also find more of what happened in Staunton, Virginia, where the Justice Department will send someone to help out a local prosecutor. I'm assuming that [Obscenity Task Force director Brent] Ward will resign because it seems like his conservative view is diametrically opposed to Obama's philosophy."

Sirkin also found comfort in the fact that both Obama and VP-elect Joe Biden have both been constitutional law professors.

"My hope would be that they have a real true understanding and belief in the First Amendment and that whatever energies are now being spent on targeting adult material for adults on the Internet will be devoted to prosecuting to child pornography."

One thing constitutional scholar Reed Lee is pretty sure of is that neither Obama nor Holder will be subject to the same influences that have dogged the Bush administration and its Justice Department.

"It seems clear that right-wing groups like the American Family Association cannot claim to have been the base of support of this elected president, whereas they absolutely could make that claim under the George W. Bush administration, so that is a big difference right off the bat," Lee said. "But will we have people at high levels in the Justice Department that will say publicly that they are friends of the adult entertainment industry? I doubt that very much. Do I believe an Obama Justice Department is going to make the dissemination of allegedly obscene material between adults, where no children are involved in its creation or its audience - do I think they're going to make that a priority? I do not. We can't realistically pretend that they're going to come out and publicly embrace us, but what we need is to be left alone."

Bottom line: The adult industry is just going to have to cross its collective fingers and wait to see what will happen under Obama and Holder - and be prepared to mobilize whatever influence it can bring to bear when and if opportunities to favorably influence people or policies present themselves.






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Mark Kernes

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