In 25 years of defending adult entertainment, one thing has become very clear: It is a war, not just a battle. The fighting continues unabated; the front just advances and retreats.
Every session of Congress, meeting of a state legislature, and meeting of a local city council begins with a prayer, or at least the functional equivalent of one. This "In God We Trust" mentality of government is arguably responsible for the war between sexual expression and the government, as government hypocritically does what it can to suppress precisely the media the public wants most to consume. Generally, the marching orders from the governing body to the enforcement authorities are to "do something" about the pornography "problem."
Before the 1950s, the situation was relatively simple. If the cops didn't like your books, they seized them, burned them, threw you in jail, and that was that.
Then, in 1957, a handful of enterprising lawyers marched into the Supreme Court building, arguing in Roth v. the United States that the First Amendment's command that Congress enact "no law" abridging free speech meant exactly what it said. Erotic speech, they argued, was nonetheless "speech" under the First Amendment, and the rhetorical question to the Supreme Court was, "What part of 'no law' don't you understand?"
The Supreme Court rejected the argument, holding in essence that the First Amendment did not protect expression that had no content, that erotic media was "utterly without redeeming social value" and also pandered to the "prurient interest" in sex. There was no communication in that kind of speech, the argument went.
After the Supreme Court's decision in Roth, police departments responded to complaints about racy magazines and movies by doing what they do best: busting the merchants. They were still living in the Elliot Ness era, reminiscent of chopping up the beer barrels of three decades earlier.
During the '60s, '70s, and into the '80s, First Amendment attorneys regularly marched into court with armloads of files under their arms, all containing misdemeanor obscenity files for the cases they were defending. This activity skyrocketed after the incredibly popular 1972 movie Deep Throat catapulted explicit fare into mainstream culture, and the sexual revolution provided public support for the public's right to view it.
Juries convicted some, acquitted some; appeals courts affirmed some and reversed others; and the battle persisted. The key skill for the erotica attorney in those days was the defense of criminal obscenity cases, which usually were toothless misdemeanors, as legislatures largely followed the recommendation of the Model Penal Code that obscenity be assigned misdemeanor punishment.
Then, during the 1980s, the Republicans dusted off the theretofore little-used federal obscenity laws and went to Congress to get them beefed up. Obscenity was added as a RICO predicate, facilitating forfeiture of entire publishing enterprises. Then a special obscenity-forfeiture statute was enacted, allowing forfeiture counts to be added routinely to federal obscenity charges. The federal sentencing guidelines were implemented, and then ratcheted upwards, mandating significant prison sentences for all federal obscenity convictions; and, finally, Congress added the Sec. 2257 labeling and record-keeping law that now is plaguing everyone in the industry.
As those new laws were enacted, the Reagan and Bush Sr. administrations assaulted the adult video industry with the old laws, as well as the new ones as they became effective and were upheld by the courts. First, Operation PostPorn attacked the adult mail-order industry, and then Operation Woodworm, which targeted Los Angeles' adult video companies, led to prison sentences for a number of adult entrepreneurs.
But just as these harsh new laws were solidly in place and federal enforcement machinery humming, a dramatic shift occurred when George H.W. Bush was defeated in the 1992 presidential election. The Republican/Religious Right driven Department of Justice was out, replaced by one headed by Janet Reno, who viewed obscenity prosecution as a nonpriority, as had been her inclination in her years as the head state prosecutor in Miami.
The irony of the anti-porn Reagan-Bush years was driven by the axiom that technology is the censors' worst enemy, a proposition that this column has advanced for decades. When Reagan was elected in 1980, a VCR cost the modern equivalent of more than $2,000, s and an adult videotape cost over $125. VCRs were then few and far between; the video rental concept was in its embryonic stage, and adult motion pictures were widely available for the most part only in dilapidated auditorium theaters in questionable neighborhoods or in arcade booths in the back of dingy adult bookstores.
By the time Clinton was elected, after 12 years of Republican pillaging of the adult video industry, adult video rentals had gone from scant to over one-half billion annually!
But lurking in the background all this time was a trend that began two decades earlier, when the Detroit City Council added adult theaters and other adult businesses to the list of businesses covered by their "anti-skid-row" zoning ordinance. The underlying theory was that concentrations of those businesses, which also included pawn shops, bars, shoeshine parlors, and others, tended to cause urban blight. The Supreme Court narrowly approved that approach in 1976, but completely rubber-stamped it in 1986, finding that the city's objective of attacking "pernicious secondary effects" was a noble purpose and constitutionally acceptable as not regulating the content of speech. Regulatory ordinances imposing all manner of restrictions on adult businesses became the weapon du jour for cities, replacing local obscenity prosecutions that failed to accomplish what cities really wanted, which was to close down the businesses.
Especially after the 1986 Renton decision firmly established the authority of local governments to enact these "secondary effects" laws, they did so increasingly, seeking to shutter adult businesses. Not only were there adult zoning laws designed to relegate such businesses to far-flung industrial zones, but also there were operating regulations designed to take the profit out of the businesses: Prohibiting private movie-viewing booths; drastically curtailing hours of operation; requiring topless dancers to stay 6 feet from their customers; and even prohibiting multi-use adult businesses under one roof, in an effort to eliminate the classic adult bookstore-arcade business model.
Since the advent of those ordinances, First Amendment attorneys have invested a majority of their time challenging them, as they do today—2257 is an example of such an ordinance.
But as cities continued to attempt to choke off retail access to adult product, indeed with some measure of success, the Internet – coupled with the hands-off approach of the Clinton administration –allowed the greatest explosion of erotic media in history. (Count on fascist censors to quote that phrase!)
Readers of this column are quite conversant with that phenomenon, as well as the Bush II administration's drastic responses to it.
Where will this all go? "It's the Supreme Court, stupid!"
We know that the Republicans will have control of both the Senate and the White House until at least January of 2007, and probably until January of 2009. That clearly will translate into increasing control over the judiciary, and the most significant issue will be control over the Supreme Court.
By the time this article hits the streets, Chief Justice Rehnquist likely will have retired, although it is improbable that the replacement can do much more damage than he has, other than that the replacement will likely be with us for decades as an assured Rehnquist-style vote against erotic speech. A replacement vote that could change the delicate balance of the present Court, which of late has turned out a number of key 5-4 victories in favor of erotic speech, could inflict considerable damage on free speech protections.
The danger lies in whether the Bush administration, with the support of its majority in the Senate, will be able to appoint a Scalia-like conservative to replace one of the solid liberal votes; e.g., Justices Stephen Breyer, Ruth Bader Ginsburg (who at age 72 has reported health problems), or John Paul Stevens, who will be approaching his 89th birthday when Bush's replacement is sworn in. Even to replace one of the swing votes – Anthony Kennedy, who is increasingly becoming an ally of the First Amendment, or Sandra Day O'Connor, who at age 75, like Ginsburg has reported health problems – could do irreparable damage. The Court, which now has three solid conservative votes in Justices Rehnquist (or his replacement), Scalia and Thomas, only needs two more of them to render the other four justices irrelevant in most First Amendment cases.
That, my friends, is the future.
Clyde DeWitt is a partner in the Los Angeles, California-based, national law firm of Weston, Garrou, DeWitt & Walters. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025 or via email: [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Booksare encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but rather serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
