The End of the Net Porn Wars
Patrick Trueman.
Photo by Ron Aira
It may be hard to remember now, but when the Bush administration came into power, it said fighting Internet pornography would be a priority. At their confirmation hearings, U.S. Attorneys General John Ashcroft and Alberto Gonzales each vowed that fighting obscenity on the Web would be a top concern.
And since 1995, the criminalization of Internet pornography has been a priority in Congress, with major pieces of legislation passing by wide majorities.
Yet 35 years after the U.S. Supreme Court defined obscenity in Miller v. California, adult entertainment has moved out of darkened movie theaters and onto cable and hotel pay-per-view TV, home video players and especially onto the Internet, becoming the second largest segment of the industry by revenue, according to statistics compiled by the online research group TopTenReviews. Noting that “statistics are hard to ascertain,” the site reports 2006 U.S. revenues from Internet porn were $2.84 billion, up 13 percent over 2005.
Meanwhile, little beyond minor Internet obscenity prosecutions is happening on the federal legal front. The battlefield has been strangely silent. And some of the old-line combatants say a combination of empty political posturing with legal uncertainty have enervated federal anti-obscenity efforts.
PORN WARRIOR
From 1988 to the end of President George H.W. Bush’s administration, Patrick A. Trueman was chief of the Child Exploitation and Obscenity Section in the Department of Justice’s Criminal Division. During that time, CEOS aggressively pursued obscenity cases, helping to put seven of the nation’s largest pornography distributors out of business.
The biggest fish caught was Reuben Sturman, reputed to be the na- tion’s largest distributor of pornographic materials through his Las Vegas-based adult bookstore. Sturman, who died in prison in 1997, pleaded guilty in 1992 to racketeering and shipping obscene materials across state lines.
Back then, Trueman says, Attorneys General Edwin Meese, Richard Thornburgh and William P. Barr and their lieutenants made sure obscenity cases got adequate resources and attention.
“Bob Mueller [now FBI director] was my boss most of that time, and if a prosecutor wouldn’t help us with a case, we’d go to Bob, and things would happen,” Trueman says. “It was understood that this was a priority and it came from the top.”
Testifying before a U.S. Senate subcommittee in March 2005, Trueman ticked off the accomplishments of his tenure: collecting more than $24 million in fines and forfeitures, 50 individual or corporate convictions of sending obscene advertisements through the mails, and a “Los Angeles project” that he said led to the conviction of 20 out of 50 producers and suppliers of obscene materials targeted in the L.A. area.
But things, like politics, change. During the Clinton administration, the DOJ made a public decision to focus on child pornography cases. Trueman has said the Democratic administration “all but halted obscenity prosecutions.”
With the return of a Republican administration, there was a lot of renewed tough talk from the incoming leadership about prosecuting obscenity cases again.
Trueman, who had gone into private practice when Janet Reno became attorney general, says he and other activists met with John Ashcroft soon after he came into office. “We asked that he appoint a vigorous prosecutor … and he promised to do so,” he says. But that’s not what happened. “Instead, they appointed Drew Oosterbaan, who said he would go after the worst child porn, but let the adult content go.”
The lack of action against adult pornography galled veterans of the legal battles of the 1980s and early ’90s. “When I was at the Justice Department, we’d hear complaints there weren’t enough resources to tackle this stuff, but the leadership was committed and people got the message that obscenity was a priority,” says Trueman. “We deputized local law enforcement and split the forfeiture with them. There are ways to motivate people.”
To be fair, attempts were made after the 2000 election was settled. Ashcroft authorized new funds to push CEOS to prosecute obscenity cases. To make it easier to bring those prosecutions, Ashcroft ordered the U.S. attorneys’ manual revised, eliminating the demand that CEOS seek approval from the local U.S. attorney before conducting investigations in that district.
This lockout provision was eliminated as part of a broader effort to get U.S. attorneys’ offices and CEOS to coordinate on prosecutions.
“We may not be able to eradicate completely the criminal behavior associated with obscenity,” Ashcroft told prosecutors in 2004, “but we can and we will change the pattern of behavior with aggressive law enforcement.”
But easing those restrictions had no discernible impact.
In his 2005 speech before the Senate Subcommittee on the Constitution, Civil Rights and Property Rights, Trueman asked in the voice of a concerned parent: ” ‘Why is the government spending tens of thousands of dollars prosecuting and incarcerating Martha Stewart rather than the criminal who spams hardcore pornography to my child?’
“When I hear law enforcement authorities pit child pornography against obscenity, I see it as an excuse for doing nothing on obscenity crimes.”
THE MILLER TEST
Opponents of adult obscenity prosecutions say the DOJ has made the proper choice in putting its resources against child pornography and human trafficking instead of adult pornography. After all, adult pornography in itself is not illegal; it can be prosecuted as obscenity under the test described in Miller for material that, “taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political or scientific value.” Miller v. California, 413 U.S. 15 (1973).
Federal law prohibits distribution of obscenity through interstate or foreign commerce. The only question is whether a jury will agree with prosecutors as to whether materials are obscene by the standards of their communities.
One reason the community standards test has lasted so long is that it is seen as a fair test of what is obscene. Obscenity is not identified by the most conservative members of a community, but by the community at large. But the Internet happened to arise at a time when the number of prosecutions for obscenity fell toward zero, which means a dearth of court guidance on what a community standard is on the Web.
Only one case, United States v. Thomas, 74 F.3d 701 (6th Cir., 1996), has tested whether Miller can be applied to Internet businesses. The Cincinnati-based federal appeals court found that obscenity is determined by the standards of the community where the trial takes place, and not by the standards of the Internet.
Trueman acknowledges there is some uncertainty about how juries will react today, but he believes the group dynamics of a jury tend to lead people to convict pornographers on charges of in- decency. “We got convictions then, and I believe there would be convictions today,” he says.
Defenders of adult entertainment contend that obscenity cases impinge on the rights of consenting adults.
“Basically [George W.] Bush was elected with the support of fundamentalist Christians, and they want to see their guy go after pornographers,” says Clyde DeWitt, a Los Angeles-based partner with Weston, Garrou, DeWitt & Walters who represents adult entertainment producers and retailers. “To me, it’s just an attempt by the right wing to impose their morality on the rest of America.”
The only thing anti-porn crusaders might dispute in that statement is just how small that “imposed upon” group really is. Robert Peters is president of the group Morality in Media and says that without enforcement, pornography becomes a corrosive force in society. “We need to teach future generations that this is not acceptable behavior, because pornography is a real problem for many people.”
However, as pornography’s effects on adults are highly debated, much of the legal argument against porn is tied to its effects on children. The Supreme Court has said the states have a compelling interest in protecting minors from obscenity, and porn opponents point to statistics like those at TopTenReviews that say 90 percent of children ages 8 to 16 have been exposed to Internet porn.
Peters argues adult material is too easily obtained by children. “We need to make it so that pornographers risk losing money or going to jail for their behavior,” he says.
Still, in the absence of prosecutions, the state of the law in this area is uncertain. Defense attorneys say that with little government interest in prosecuting obscenity, no one knows what it takes to get a conviction anymore.
“I now spend an ungodly amount of time prosecuting copyright infringement—content that’s stolen from my clients—but not doing obscenity work,” says DeWitt. “There haven’t been enough prosecutions to know, but I have to believe attitudes have changed in the last 15 years so that it would be harder to get a conviction.”
DEFENDING COPA
The DOJ’s big stand of this century against Internet obscenity has come in defense of the Child Online Protection Act, passed in 1998. COPA has been batted around the federal court system, and was declared overly broad and unconstitutional by the U.S. Supreme Court in 2004. But last year, the department made a vigorous and expensive attempt to defend the law.
The Supreme Court had upheld a ruling of the Philadelphia-based 3rd U.S. Circuit Court of Appeals in ACLU v. John Ashcroft, No. 99-1324 (March 6, 2003), that there were less-restrictive means of blocking access, so the government subpoenaed search engines hoping to prove that less-restrictive means like filtering technology don’t really work.
Justice asked all the major search engines to turn over data about the types of search requests individuals were making online. It sought a broad swath of Web searches and Web filter and parental control product information to determine whether filtering technology could in fact block most pornographic material.
The story became big news when Google protested the terms of the subpoena, which were later narrowed so the data would be anonymous.
According to opponents, the department spared no expense to defend COPA. “We tried to get permission to depose senior Department of Justice officials, but we couldn’t get them,” says Catherine Crump, the New York City-based ACLU attorney on the COPA case, “but our sense is that they had unlimited resources to do this.”
Yet after all that effort and expense, a Philadelphia-based U.S. District Court rejected the government’s research and found filters to be reasonably effective in ACLU v. Alberto Gonzales, No. 98-5591 (E.D. Penn., March 22, 2007).
After COPA’s failure, Congress has had to rethink its approach to regulating obscenity. Not only has the Supreme Court found efforts to regulate anything but child pornography likely to violate the First Amendment, but technology moves faster than legislation can be put on the books.
“We’re so far down the road and these laws are so old that COPA doesn’t even say anything about peer-to-peer networks, even though we now know that’s one of the main ways content moves around the Web,” says Crump. “But I don’t think Congress will ever give up trying to criminalize Internet porn.”
After more than a decade of litigation, legislative attempts did produce one small change to federal obscenity law. The late U.S. Rep. Henry Hyde, R-Ill., borrowed language from those laws not yet found to be unconstitutional and amended 18 USC § 1465 to make it clear that “interactive computer services” were among the prohibited means of conveying obscene or lewd materials for which a person can be fined or imprisoned not more than five years under federal law, ensuring that the Internet is not immune to federal obscenity standards. But with no prosecutions, it’s a hollow victory.
There have been several attempts to pass bills that would force websites offering pornographic material to label themselves as such—something proponents say would help parents filter material. Opponents believe such a measure would only scare purveyors into taking legitimate adult material off the Net. But the failure to get such legislation on the books is irritating to anti-obscenity activists.
“It’s insane. Nobody but the Supreme Court and ACLU attorneys say that parents alone can stop Internet porn,” says Peters. “The courts say the states have a compelling interest to stop this stuff, but they don’t let [the states] have the tools to do it. It makes me mad even to think about it.”
LATTER DAYS
After Ashcroft left and Gonzales took over in 2005, both the new attorney general and Congress made noise about renewing the attack on Internet pornography. U.S. Sen. Sam Brownback, R-Kan., in particular, goaded Gonzales to take a hard line against Internet obscenity. And in May 2005, the DOJ hired two experienced prosecutors, Bruce Taylor and Brent Ward, to head up a new obscenity prosecution task force.
But Taylor has since left to become an immigration judge in Arizona, and declined to talk to the ABA Journal. The Department of Justice also declined requests to speak with Ward. And according to the U.S. District Court in ACLU v. Gonzales, there have been less than 10 prosecutions for obscenity since 2005.
In fact, the DOJ as a whole shows no appetite for taking on the issue. The conservative religious organization Concerned Women for America polled every U.S. attorney’s office to find out what they planned to do about obscenity. Except for a handful of offices that didn’t return calls, not one said it had any inclination to pursue anything other than child obscenity cases.
Congress and others have tried to force the DOJ’s hand. U.S. Rep. Frank Wolf, R-Va., sponsored a grant in 2005 to Morality in Media to set up the website obscenitycrimes.org that would allow citizens to report obscene websites and materials. The site has generated tens of thousands of tips and complaints, and the organization has sent promising ones on to Justice, but the department has not followed up on a single one.
“We thought it would go well with Brent Ward, and Gonzales talked a good game,” says Trueman, “but there’s been no follow-through.”
LIMITED ATTACK
Clyde DeWitt.
Photo by Edward Carreon
A handful of prosecutions have been launched around the nation, including convictions in Arizona against a pornographic spam e-mail operation.
“There have been cases, but they are few and far between,” says Peters. “To me it’s a mixed bag. I’m not as hard on prosecutors as some people I work with. It’s not enough to make a difference, but some significant cases are in the works and more are to come.”
But most argue that the number of prosecutions is too small to have any effect. When the government prosecuted mainstream pornography producers and distributors in the ’80s and early ’90s, prosecutors rarely lost.
“I firmly believe that we need a variety of obscenity prosecutions,” says Trueman. “These are small fries they’ve gone after. I’d rather see a prosecution of a company with a big distribution system.”
Prosecutors seem to have very little appetite for following through on these initiatives. When Alex Acosta, the interim U.S. attorney for the Southern District of Florida, assigned pornography cases to his prosecutors, members of his staff complained to the Associated Press in 2005, saying they were “stunned” that resources were being used for obscenity cases.
“If you talk to prosecutors on the front lines, they’ve got fraud, gang activity, organized crime and drug cartels to contend with. Nobody wants resources redirected to dirty movies,” says DeWitt. “Whoever gets that assignment is the laughingstock of the department.”
The issue seems to be withering outside of the federal government as well. The organization Taylor used to head—the National Law Center for Children and Families in Alexandria, Va.—was once focused on advancing the cause against all obscenity.
But Executive Director Richard Whidden says that while the organization helps train DOJ lawyers on how to investigate and prosecute child pornography and human trafficking cases, it does not do anything with adult obscenity cases.
Despite dwindling law enforcement interest, Congress continues to force the issue. At last November’s confirmation hearings for Michael Mukasey to become U.S. attorney general, Sen. Orrin Hatch, R-Utah, raised the obscenity enforcement issue, labeling as “misguided” the current approach of only prosecuting child obscenity cases.
Mukasey said he would personally review this policy and consider changing it, and said that even what might be called mainstream obscenity is dangerous and “undermines families.”
But porn war veterans like Trueman and Peters fear it may be too late to put the Internet genie back in the bottle. It’s been more than a decade since the federal government took on the issue, and in the intervening years, pornography has become big business. The federal government has ramped up efforts to take on child pornography, but adult obscenity is operating in uncharted legal waters.
“I will not advise clients on what is or is not obscene,” says DeWitt. “The first question is where? I can give you an opinion, but nobody still knows what is obscene in different places anymore.”
And the real reason Internet obscenity has not been tackled stems from the fact that law enforcement seems not to have the time, resources or inclination to pursue it.
“I’ve always maintained that there are enough laws on the books, but tell me a national obscenity case the DOJ has gone after right now,” asks Trueman. “Is there any reason [prosecutors would] go after them with COPA … on the books?”
Web extras:
Statistic on Internet porn profit
