Attorney General John Ashcroft reportedly is preparing to resign before President Bush's inauguration in January. Aides speaking on condition of anonymity told news wire reporters November 4 that the 62-year-old former Missouri governor and senator was likely to step down due to his health.
"Obenberger raises the freedom of speech alert level to orange," said Chicago-based First Amendment attorney J.D. Obenberger, when told of the potential Ashcroft resignation. He also told AVNOnline.com that, in the event someone even more hard-line than Ashcroft should succeed the Attorney General, it almost wouldn't matter.
Free Speech Coalition executive director Michele Sreridge said the Adult industry trade group hopes Ashcroft's successor, if indeed Ashcroft is planning to step down, "would be more objective and fair to the [Adult entertainment] industry."
A few published reports have indicated former federal prosecutor and New York City major Rudolph W. Giuliani is one man favored to be tapped as Ashcroft's successor. Giuliani as New York mayor was as well known for cracking down on Adult entertainment clubs and stores as he was for helping shepherd the city during and after the 9/11 atrocities.
But Giuliani, now a business and government consultant who is believed to have presidential aspirations in 2008, is said to be uninterested in becoming the nation's top prosecutor, particularly if the controversies that come with the job might put a dent in any potential presidential plans.
Obenberger said whether Ashcroft goes or Ashcroft stays, the election sent a too-clear message to Adult entertainment and other content industries.
"When the number one issue in the campaign is morality – when the American public is all agitated about God, the Pledge of Allegiance, gay marriage, and the consequences of Lawrence v. Texas (the Texas sodomy law)," Obenberger said, "we enter an era when the Republican administration will feel itself justified in taking a hard line about enforcing morals legislation, including obscenity law.
"Ashcroft himself personally had been largely marginalized, even by many people in the Department of Justice," he continued. "The election validates the conviction of the moral right, including those numbers of the moral right who hold office in this administration, that they are giving in to the popular will and desire of the people by enforcing morals legislation. And that is dangerous and inimical to freedom of speech. Regardless of whether Ashcroft is there, or someone is in his place, the alert level is orange."
"I've got mixed feelings in terms of a resignation or replacement," said another First Amendment attorney, Florida-based Lawrence G. Walters. "The devil you know is better than the devil you don't. In the big scheme of things, there hasn't been an assault on the [Adult] industry; there's been talk, but it hasn't happened yet. But we know where he stands."
Ashcroft's department in recent weeks launched a general crackdown on Internet crime, including a major round of cases in late August, where 103 suspects facing 117 criminal complaints were announced to have been arrested since early June. Those included the chief of Orbit Communications, Jay Echoufani, and five tied to him, accused of launching denial-of-service attacks against competitors.
Speculation that Ashcroft was preparing to leave Washington began making the rounds barely a day after Election Day. Other names suggested to succeed him range from his former deputy, Larry Thompson, who would become the nation's first black attorney general if he is nominated and confirmed; Bush campaign manager Marc Racicot; and White House general counsel Alberto Gonzales.
Sreridge said FSC believes Ashcroft has had a personal agenda against Adult entertainment "and even against legitimate Adult content. His personal religious beliefs that it's a sin for anybody to look at sexually explicit material motivates him to aggressively attack legal free speech," she said. "And we can't allow that to happen. We have to protect the rights of the Adult entertainment industry. And we're not talking about child pornography or bestiality. We're talking about legal, legitimate Adult entertainment that's even consumed by the average married couple for enhancement."
But she preferred to be optimistic about Ashcroft's potential successor. "It's always possible that someone could be worse," she said, "but my bet is that whoever comes in is going to be more reasonable and less biased. At least, that's our hope."
Bush himself told a November 4 news conference he is not yet making any decisions about his Cabinet.
"If there's somebody new, we'd have to wait with baited breath to see what happens, and that could be a scary thing for the industry," Walters said. "And there are people out there who would be better attorneys general, and it would be nice if Bush means what he says about bringing people together and brings somebody with less extreme views than John Ashcroft."
Ashcroft is said to have been exhausted from running the Justice Department, especially since the 9/11 attacks, compounded by his gall bladder removal surgery earlier this year. Other controversies in which Ashcroft has figured prominently have included the so-called Patriot Act – a group of federal laws Ashcroft pushed heavily, that expanded government's power to eavesdrop on citizens and, many critics say, harass citizens over content they read or view that isn't necessarily Adult content – and debates over abortion and gun control.
"One of the primary lessons that Congress should have learned from the original enactment of the Patriot Act was that it is a terrible idea to 'bundle' so many legal changes into a gigantic legislative 'package,'" said Timothy Lynch, who directs the libertarian Cato Institute's Project for Criminal Justice.
"When that happens, it vastly increases the chances of a bad idea getting into the mix without scrutiny," he continued, in remarks from April. "What Congress needs to do now is consider the president's call to renew the Patriot Act on a section-by-section basis – separate votes on all of the major provisions. If this procedure is followed, the provisions that have true merit will very likely be re-enacted and the ones that lack merit will very likely fail."
