Federal Obscenity Prosecutions — What’s In Store?

The recent Max Hardcore indictment and the Arizona trial, along with the recent flack about the firing of local United States attorneys possibly relating to their refusal to pursue obscenity cases (as so thoroughly reported by Mark Kernes in AVN) brings obscenity back to the forefront of adult industry concern. Those who haven’t thought about it in a while are now doing so.

Analyzing what’s going on begins with a historical perspective, and a good starting point is 1973 when Miller v. California was decided, finally settling the obscenity definition. Miller came on the heels of the popularity of Deep Throat, the first hard-core movie that anyone would admit having seen.

During the 1970s, federal obscenity prosecutions surfaced on a hit-and-miss basis. There were several celebrated prosecutions: Bill Hamling in San Diego; Bill Pinkus in Los Angeles; and the Memphis prosecution of the entire distribution network of Deep Throat, all the way up to one of the performers. Perhaps the most bizarre was Operation MiPorn, an enormous late-1970s Miami indictment, naming a laundry list of adult-industry luminaries from coast to coast (literally!), charging them with a giant conspiracy to distribute obscene material. The conspiracy allegation was that they all had attended the Consumer Electronics Show (which then hosted what is now AEE) in Las Vegas.

Federal enforcement changed course in 1984. Jesse Helms tacked on an 11th-hour amendment to the Crime Control Act of 1984, adding obscenity as a RICO predicate. The same law put into place the Sentencing Reform Act, creating the federal sentencing guidelines (which did not become effective until late 1987). Ronald Reagan was reelected by a landslide, owing a huge debt to the Religious Right — repaid by establishing the Attorney General’s Commission on Obscenity and Pornography and appointing as attorney general a devoted anti-porn crusader Edwin Meese. Those events placed into motion unmitigated disaster that would not end until Bill Clinton was sworn in in 1993.

The Commission’s “Final Report” triggered the establishment of a special obscenity enforcement unit at the Department of Justice and gave birth to Child Protection and Obscenity Enforcement Act of 1988. The Obscenity Enforcement Unit of the DOJ launched Operation PostPorn, designed to put an end to all mail-order companies, and Operation Woodworm, seeking to extinguish most of the comparatively few video manufacturers in Los Angeles. Obviously, neither succeeded, but quite a few folks went to jail.

An important concept that was inaugurated in that era was obscenity-forfeiture. RICO included a provision for mandatory forfeiture of all of the assets of the RICO “enterprise,” which means forfeiture of everything: Bank accounts, buildings, inventory, vehicles — everything. However, according to DOJ policy, every RICO prosecution requires prior approval of a very high muckymuck there, and it historically has been used only sparingly. Indeed, history teaches that obscenity - RICO indictments all have also included significant income-tax-evasion charges (Dennis Pryba and Ferris Alexander and, more recently, John Coil and Eddie Wedlestedt).

However, the 1988 CPOEA added 18 U.S.C. §1467, which allowed forfeiture, upon any conviction, of everything involved in the distribution of obscene materials. 1467 differed from RICO in two, significant ways. First, 1467 eliminated the RICO approval requirement, so a 1467 allegation required only the low-level approval of any obscenity case. Second, 1467 included a requirement of proportionality consideration. As originally proposed, 1467 did not included that feature; but, because of the fact that it was debated (unlike obscenity-RICO) and bitterly opposed by the media and civil liberties groups, proportionality was added.

Issuance of federal obscenity indictments stopped cold when the Bush I Administration was replaced by the Democrats. With the inauguration of Bush II in 2001, and the appointment of deeply religious John Ashcroft as attorney general, everyone assumed that the federal anti-obscenity machine would be reinstated. But September 11th derailed that for a few years.

Several observations are in order; because much has changed since Bush I was evicted:

Forfeiture: The recent Adam Walsh Law took the “proportionality” out of 1467 (although a 1993 Fifth Circuit decision made it largely meaningless, at least in that Circuit). All of the recent indictments have included 1467 forfeiture allegations.

Sentencing: Most of the PostPorn/Woodworm indictments included conduct that took place prior to the effective date of the sentencing guidelines, so guilty pleas could be negotiated. But since then, the guidelines have been ramped up (higher base level; more upward adjustments, including use of a computer) so that any obscenity conviction triggers a guideline sentence of 2-3 years, of which about 86% must be served. By 2005, when the Supreme Court held the guidelines to be only “advisory,” courts had become so accustomed to following them (over 15 years) that they still usually adhere to them, anyway.

Juries: This is the wildcard! In the last 15 years, acceptance of sexually explicit materials has changed profoundly, and nobody is sure quite how that will shape the attitude of juries. One thing is certain: Today’s average juror was born 15 years later. Juries are believed to be controlled by successful people in their 50s. In 1992, those people graduated from high school between 1950 and 1960; in 1997 those people graduated from high school between 1965 and 1975; and things changed dramatically after 1960: The Pill; the Vietnam War; the Civil Rights Movement; the Summer of Love; the 1960s and 1970s.

Having said that, do not overlook the public hysteria over the fact that their kids can view nonstop porn on their computers, which is certainly one of the reasons that the DOJ seems to include Internet broadcasts in an indictment when they can. The other side of the Internet coin is that the question of “taken as a whole” presents an issue where, in the Max Hardcore indictment for example, one-minute clips are alleged as discreet items. That would seem to be like alleging that one picture in a magazine or one scene in a movie is obscene, but two of the three prongs of the Miller test require that the material be “taken as a whole.”

We’ll see!