Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. . . Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.
Lawrence v. Texas, 539 U.S. 558, 563, June 23, 2003.
At Alberto Gonzales's nomination hearing before the United States Senate Judiciary Committee Sen. Michael DeWine of Ohio asked Gonzales what he'd like to be remembered for at the end of his captaincy of the Justice Department. Gonzales mentioned six particular goals without any hesitation...number six was "obscenity." The AG-to be explained, "I think obscenity is something else that very much concerns me. I've got two young sons, and it really bothers me about how easy it is to have access to pornography." Was the future attorney general suggesting that the nature of what adults should be able to see in our society should be judged by what might be harmful to young children? Will he, as attorney general, draw a line in the sand when exercising discretion over criminal obscenity prosecution at the point of inappropriateness for his two sons?
Though the statement is ambiguous, I trust that he did not intend to express such a mullah-like sentiment in the halls of Congress. The Supreme Court handled that issue 48 years ago when it struck down a Michigan law that criminalized the sale to adults of materials that had a tendency to corrupt youth. In Butler v. Michigan, 352 U.S. 380, 383 (1957), Justice Felix Frankfurter wrote: "The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig." I will point out, however, that it is possible that the excitement of the moment may have blurred in Gonzales's mind the important constitutional difference between criminal obscenity and the dissemination to minors of explicit materials that may harm them. As attorney general, he will need to understand the distinction and recognize it in charging decisions. It is possible that he wasn't talking about the criminal offense of obscenity at all in these remarks, but of a goal to find a practical and legal scheme to shield children and unwilling adults from exposure to explicit materials while respecting the First Amendment rights of willing adults. Maybe.
Scrutinizing "strict scrutiny"
Fourteen days later, on January 20, 2005 U.S. District Judge Gary Lancaster declared the federal obscenity statutes, Title 18 United States Code Sections 1461, 1462, and 1465 to be unconstitutional...at least as applied to the activities of Extreme Associates Inc., Robert Zicari, and Janet Romano in shipping obscene material by mail order and in selling access in a pay website. (The defendants did not dispute that the content was obscene for the purposes of their motion to dismiss.) Because "federal obscenity statutes place a burden on the exercise of the fundamental rights of liberty, privacy, and speech," Judge Lancaster applied the most demanding test to assess the constitutionality of the obscenity statutes...the so-called "strict scrutiny test," which assumes that the law is invalid until the government establishes its ample justification by 1) identifying a compelling governmental interest served by the law and 2) demonstrating that the statute's reach is narrowly limited in advancing that compelling interest to avoid intrusion into unnecessary or unrelated matters.
Applying strict scrutiny analysis, two cases formed the foundation of Judge Lancaster's decision. He read the U.S. Supreme Court, in overturning the Texas sodomy statute in Lawrence v. Texas (2003) to say that "public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual, sexual conduct even if that conduct is deemed offensive to the general public's sense of morality."
Judge Lancaster also based his conclusion on Stanley v. Georgia, 394 U.S. 557, 564-6 (1969), citing a passage in Stanley affirming that the very essence of the First Amendment rejects the idea that government has the power to control what we read and watch: "To permit the government to do so would support the '... assertion that the State has the right to control the moral content of a person's thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment.'" Judge Lancaster held that the commendable goal of "protecting the kids" did not act to justify any and all legislation that might serve that end, without regard to the burden it would place on the fundamental liberty, privacy, and speech rights of willing grown-ups.
And so, 25 days later on February 14, 2005 when Alberto Gonzales was sworn in as the 80th attorney general of the United States, he faced an immediate and urgent decision as to whether the government should appeal the decision in Extreme Associates and risk losing the obscenity statutes nationwide or sit this one out. Two days later, on February 16, the Justice Department filed its notice of appeal from Judge Lancaster's dismissal of the indictment.
"The Department of Justice places a premium on the First Amendment right to free speech, but certain activities do not fall within those protections, such as selling or distributing obscene materials," Gonzales proclaimed in a written statement. "The Department of Justice remains strongly committed to the investigation and prosecution of adult obscenity cases."
Fourteen days later during a speech at the Hoover Institute February 28, 2005, the attorney general again pledged adherence to First Amendment rights but insisted that "obscene" materials are not constitutionally protected: "Another area where I will continue to advance the cause of justice and human dignity is in the aggressive prosecution of purveyors of obscene materials. I am strongly committed to ensuring the right of free speech; the right of ordinary citizens and of the press to speak out and to express their views and ideas is one of the greatest strengths of our form of government, but obscene materials are not protected by the First Amendment, and I am committed to prosecuting these crimes aggressively."
A short time later, a publication named "DOJ Obscenity Prosecution News" made its appearance on the U.S. DOJ Criminal Division Web page, ominously describing itself as "Spring 2005, Volume I, Issue 1" of a new periodical edited by Bruce Taylor and apparently dedicated to chronicling a new wave of adult obscenity prosecution. (It may be found where it is discretely hosted, at Usdoj.gov/criminal/obs032604.pdf)
Judge Lancaster was widely denounced by the so-called moral right as a judicial activist; he was accused of inventing new rights and of advancing his personal philosophies under camouflage of the Constitution. On March 16 Senator Brownback's Subcommittee on the Constitution, Civil Rights, and Property Rights of the U.S. Senate Committee on Judiciary held a hearing in reaction to the decision in Extreme Associates.
Senator Brownback first ridiculed the reasoning of Judge Lancaster's decision by observing: "Judge Lancaster cobbled together hand-picked strands of 14th Amendment substantive due process, decisions from Roe, Lawrence, and others and ruled that the statutes at issue violated an unwritten constitutional right to sexual privacy." Senator Brownback expressed notable concern because according to recent data, more than 50 percent of hotel room pay-per-view video rentals are now pornographic. He then noted that the Justice Department had taken its appeal, he quoted the Attorney General's remarks before the Hoover Institute and then put on a show of handpicked "experts" on obscenity while refusing the request of the Free Speech Coalition to provide testimony.
Global morality police
On May 3, 2005, Attorney General Gonzales spoke to a group of prosecutors and law enforcement officers at a conference in Gaitlinburg, Tennessee, in which he significantly addressed adult obscenity:
"From street corners to websites, obscenity and child pornography rip at the heart of our moral values and too easily corrupt our communities. I've made it clear that I intend to aggressively combat the purveyors of obscene materials. ... I have directed department officials to carefully review federal laws to determine how we can further strengthen our hand in prosecuting obscenity. Our goal is to assess all the law enforcement methods we use - and identify the tools we may still need - to more effectively investigate and prosecute these crimes."
Attorney General Gonzales addressed moral values and corruption of communities as though Stanley and Lawrence did not exist, as though their understanding of the right to privacy was not part of the Constitution he is sworn to uphold...as though the rights of individuals to read and watch what they chose was simply not a part of his calculus.
Two days later, on May 5, the Chief of the DOJ Criminal Division announced the formation of an obscenity prosecution task force composed of CEOS trial attorneys and dedicated exclusively to the prosecution of adult obscenity. Counsel to the task force is Bruce Taylor. The task force will obtain assistance from the Organized Crime, Computer Crime, and the Assets Forfeiture units. The Chief explained that the global traffic in obscenity required a specialized response in the computer age. He pledged to enforce "the laws on the books." In Gaitlinburg, the attorney general observed that obscene materials rip at the heart of "our" moral values. There are those of us who think that individual liberty is a moral value, too. And so, half a century after the defeat of Nazism and Fascism, a decade after the collapse of Soviet Communism, the eternal battle between collectivism and individual rights rages again, this time on our own shores, with a Re-publican administration as the surprising champion of collectivist values.
As this article is written, the Chinese prosecutors are preparing their prosecution of China's first Internet sex crime trial, which authorities call the 99BBS case, scheduled to begin May 11. The case involves 12 sus-pects arrested around the country in 2004, after auth-orities pursued them for over a month and finally forced them to close down their websites, according to the Chinese news agency Xinhua.
Patriotic torture
I attended the U.S. Army Judge Advocate General's School at the University of Virginia, where I learned enough about the laws regarding war and the Geneva Conventions to later teach the subject in NCO academies and as part of training for combat soldiers. That's why during Gonzales's nomination proceedings, I was especially interested in the memorandum he signed on January 25, 2002 as counsel to the president, the ostensible purpose of which was to advise President George W. Bush about his "options" regarding whether to continue denying members of the Taliban and al Qaeda treatment as prisoners of war under the Geneva Convention III on the Treatment of Prisoners of War. Colin Powell's State Department had asked for reconsideration of the president's decision.
A fair and dispassionate reading of the memorandum leads to the probable conclusion that it was a "hack job" designed to buttress a previous decision and to protect the president rather than an objective and careful analysis of the legal issues for his consideration. The memorandum contains not one textual reference to the language of the treaty. While Gonzales writes at great length about the relationship of the insurgent groups to recognized nations and anticipates that the troops of "failed states" should not be protected under the treaty, he wholly ignored the plain text of Article IV, which extends protection to members of "organized resistance movements" under the circumstances there described.
More importantly, the fundamental point of the president's decision was the issue of whether any hearings or case-by-case assessment was necessary before a decision was made to grant or deny POW status to captured individuals. The desired result was to assert that the treaty did not apply in bulk to the Taliban and al Qaeda and deny individuals a case-by-case review of their status under the Treaty. The President was simply not advised by Gonzales of the plain text of the Treaty, at Article V, which directly addresses such issues:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
Politically convenient morality
By all accounts, Mr. Gonzales is a very smart man and a lawyer of some considerable distinction. He served several years on the Texas Supreme Court. It is not reasonable to believe that Gonzales did not know what the treaty actually said. It is for that reason that I am compelled to believe that the omission was intended by him to serve a purpose.
A careful reading of Gonzales's numerous accomplishments suggests that he is savvy and smart in a practical sense that has led to his meteoric ascent to the high corridors of power and influence. His relationship with the president and his ease maneuvering in the political arena seem to be at the core. But a careful reading of his recent history as White House counsel suggests that in important issues clearly within the moral sphere, he has pragmatically helped erode the traditional American moral values against torture and mistreatment of those subject to our control that have distinguished this nation among all others. In some significant measure, he is one of those who have participated in extinguishing the beacon of hope and the diminishment of American integrity in human rights.
The America that has accepted torture is, in an important moral sense, a different America than that which put the word "liberty" on its coins, and it can be argued that the America we knew has lost its soul under this administration.
This is not to suggest that Gonzales is not a principled and sometimes idealistic lawyer. His early career especially gives witness to his dedication to the principle that the poor and disadvantaged should have decent access to effective legal services, and he has received substantial recognition for these contributions and others. In a time when many young conservatives and Republicans were dodging military service, Gonzales served two years as an enlisted man in the Air Force and then applied for admission and was appointed to the Air Force Academy, which he attended for two years. This is not the kind of decision generally made by the unprincipled and avaricious.
The issue is rather whether his moral compass is askew and needs correction. There is a difference (most of the time) between true north and magnetic north. Mr. Gonzales is no longer just George Bush's lawyer, no longer the president's lawyer... the office he holds suggests that he is now the lawyer for the American peo-ple. A compass in-evitably points to magnetic north, a point irregularly fluctuating somewhere between Canada and Greenland.
True north is a point about which the planet rotates once in a day, which changes by precession only over thousands of years. In some places in the 48 contiguous states, the difference is as much as 21 degrees. Because of that difference, maps and charts for navigation provide a correction factor called a magnetic declination. My sense is that the attorney general's moral compass is pointing roughly 90 degrees from true north, directly to the right most of the time, but it has a habit of directly pointing to the president whenever he is in the vicinity.
The direction of true north in the tradition of our Constitution has been toward the increase of individual, personal liberty to the maximum extent possible consistent with a reasonable degree of social function. If significant obscenity prosecutions arise (before the inevitable, significant defense victories in American courts) as a result of Gonzales's anti-porn platform, however, much of American online porn is likely to become effectively outsourced to supply the demand of the American market. It is unimaginable that our government would or could exert the kind of chokepoint stranglehold over the Internet in the U.S. that Red China exerts over foreign websites, and that suggests the likelihood of transborder permeability of content for the foreseeable future. The concentration of adult webmasters and content producers on foreign shores will simply make it more difficult for the Justice Department to enforce Section 2257 and to effectively prosecute the most extreme genres. There is much for the DOJ task force to consider before any wave of prosecution commences.
A close reading of the Attorney General's remarks in Gaitlinburg would suggest that, at the present time, he has directed study and consultation about the issue of obscenity, and not the kind of precipitous action that, surely, some around him are requesting or demanding. That's a smart move. He also now needs to hear the same guidance now that I received at the start of Navigation and Orienteering training at Fort Riley and which he, too, surely heard in the Air Force: "First, orient your compass."
Since establishing his Chicago-based firm in 1993, J. D. Obenberger has been well known for his work representing the interests of the online entertainment community and political and religious extremists. His practice areas include First Amendment, obscenity, defamation, adult entertainment, criminal, privacy, and municipal licensing and zoning law.
