With all the buzz about the specter of federal obscenity prosecutions with Reverend Ashcroft at the helm, it seems appropriate to step back and look at the federal government's history of obscenity prosecutions, along with a sort of who-does-what scorecard. You may be surprised.
Recall from American History 101 that, at the outset, the federal government was sort of a limited-purpose institution. Article I, � 8 of our Constitution sets forth a short list of what Congress can do - assess taxes, coin money, regulate international and interstate commerce, determine citizenship, establish post offices and "post roads," protect intellectual property, declare war, and raise armies. It wasn't until the 20th century that the courts said that pretty much everything is interstate commerce, thus empowering Congress, using the commerce power, to regulate just about any activity.
Given that, it's perhaps no surprise to learn that Congress' first foray into the business of obscenity regulation was post-Civil War crusader Anthony Comstock's brainchild, a law prohibiting that "every obscene, lewd or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character ... are hereby declared to be non-mailable matter, and shall not be conveyed in the mails, nor delivered from any post office, nor by any letter carrier, and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be non-mailable matter..." is subject to a prison sentence.
Around the turn of the 20th century, Congress began expanding this, first to common carriers, then to radio stations and on to transportation of obscene materials across state lines, topped off in 1988 with a federal statute defining a crime for anyone who "is engaged in the business of selling or transferring obscene matter, who knowingly receives or possesses with intent to distribute any obscene book, magazine, picture, paper, film, videotape, or phonograph or other audio recording, which has been shipped or transported in interstate or foreign commerce," whatever that means.
As the power of the federal government to prosecute obscenity violations was broadened, its use of that power increased. For historical reasons, however, federal obscenity prosecutions over the years have largely been brought by postal inspectors. Remember "Cliff" on Cheers?
Postal inspectors come from the United States Postal Inspection Service, of which the Postmaster General is in charge. From Civics 101, you will recall that the Postmaster General was a part of the Presidential Cabinet (actually, it was a pretty important position back in the 19th century) until the 1970 Postal Reorganization Act, which turned the United States Post Office Department into a private corporation. The 11-member board that oversees the Postal Service now appoints the Postmaster General of the United States.
The Department of Justice is the part of the federal government that is centrally involved in obscenity prosecutions because it includes its prosecuting arm. The Attorney General of the United States, a member of the President's Cabinet and thus appointed by the President subject to the approval of a majority of the Senate, is in charge of the Department of Justice. The four components of Justice that are significant here are the Federal Bureau of Investigation, the 100-or-so United States Attorneys Offices around the country, the solicitor general, and so-called "Main Justice," the Department of Justice in Washington, D.C.
The FBI, of course, is the investigatory arm of the federal government. It is the closest thing to a federal police department.
The Solicitor General and his assistants are responsible primarily for briefing and arguing cases in the United States Supreme Court when the United States is a party. That includes all federal criminal cases, which gives the Solicitor General a fairly full platter.
Department of Justice attorneys represent the United States in most proceedings, the most noteworthy exception being tax cases. The Department of Justice has a gang of attorneys at so-called "Main Justice" in Washington, but also has about 100 local United States Attorneys offices around the country. Each state has between one and four federal judicial districts, depending upon the population, and there is a United States Attorneys Office in each, headed by a U.S. Attorney who is appointed by the President subject to Senate confirmation. At Main Justice, not only is the Attorney General a presidential appointment subject to Senate confirmation, but so, too, are a number of the Attorney General's top staff, including the Solicitor General.
Prior to the election of Ronald Reagan, federal obscenity prosecutions occurred on a very unpredictable basis. A few United States Attorneys offices were particularly zealous about it, owing to being in a very conservative district and/or having a United States Attorney or one of his (there were no "hers" back then) assistants who was particularly evangelistic. Memphis and Salt Lake City come to mind.
Put this in perspective, however. After the Supreme Court decided Miller v. California in 1973, determination of whether erotic speech was protected by the First Amendment was a function of local community standards, and it was generally assumed that the size of a locale could not exceed a state. So why should the federal government get into this in the first place? Is this not a local issue that can be capably handled by the states? One would think so.
The first coordinated federal obscenity prosecution was dubbed "Operation Miporn," which, as the name might suggest, was a sting operation in Miami. As summarized in the first of the many Miporn rulings: "After a two and one-half year undercover FBI investigation of major national distributors of sexually explicit films and magazines, involving the solicitation of interstate transportation of allegedly obscene material, the government presented its case to grand jury 79-4 in the Southern District of Florida. The grand jury returned an indictment charging forty-five (45) defendants in one count of conspiracy to commit interstate transportation of obscene material. In the overt acts listed under count one and in the seventeen substantive counts involving small groups of the defendants, the indictment listed as obscene, lewd, lascivious and filthy approximately one hundred (100) films and thirty (30) magazines, with titles such as Deep Throat and Dog Sex.... The indictment was returned on February 12, 1980. On the following day, affidavits in support of search warrants were filed in New York, Chicago, Los Angeles, San Francisco, Baltimore, Cleveland, and Fort Lauderdale.... The FBI conducted all of the searches simultaneously across the country on February 14, 1980, in some cases taking two days to seize the thousands of business records and other papers which the agents deemed to reflect the interrelationship and conspiracy among the named defendants and companies. At the search of each business premises, one of the FBI agents present served as team leader, rechecking seizures made by other agents to insure that the limits of the warrant were not exceeded by the breadth of the search." United States v. Defalco, 509 F.Supp. 127, 130-31 (S.D. Fla. 1981).
As you can see, the FBI, like all vice cops, likes to do things in a big way. They have visions of Elliot Ness and the Untouchables, exploding illegal beer kegs with axes and herding truckloads of bootleggers off to jail. "You may eventually beat the rap," they believe, "but you can't beat the ride!"
The Miporn mega-indictment ultimately was broken up into a bunch of little indictments. Not many of the defendants were sentenced to any incarceration, but the case went on forever. On an almost comical note, FBI Special Agent Patrick Livingston, one of the two undercover operatives who garnered all of the undercover purchases, was arrested for shoplifting and gave his "Miporn" alias to the police. As it turned out, Livingston had psychiatric problems involving an inability to distinguish between his real and undercover identities. Livingston had been a principal witness before the Miporn grand jury and at several Miporn trials, thus throwing a monkey wrench into the gears of the proceedings. Hold that thought.
On Jan. 20, 1981, Ronald Reagan was sworn in. Reagan was a political conservative and, more important, a social conservative. He brought the Religious Right into the White House with him, leading a faction of society that was deeply religious, that believed in Cleaver Family values and that was aghast at the social changes of the 1960s and 1970s, including the end of government-approved racial segregation, the emergence of women into the business world, single parents, divorce, social acceptance of recreational drugs, abortion and, most significant here, the sexual revolution. Remember, just 20 years earlier when Jack Kennedy was sworn in, the Pill was brand new, there was no such thing as a racially integrated neighborhood, divorce was extremely rare, and the obscenity battle was over Playboy's showing of breasts.
The country was severely divided then, with one faction doing lines of cocaine every Saturday night and the other faction going to church every Sunday morning. Reagan's core support came from the latter. He pledged to undo Roe v. Wade, and bring the whole country to his moral high ground.
After Reagan's landslide 1984 re-election, he greenlighted the creation of the Attorney General's Commission on Pornography and appointed Edwin Meese III to the attorney general post. The idea of the Commission was to trump a 1970 report of the Commission on Obscenity and Pornography which had a much larger budget, engaged in empirical research over a significantly longer period of time and, to the chagrin of President Nixon, basically found that pornography was not much of a problem and that not much energy should be consumed in doing anything about it. Reagan's Commission, stacked with conservatives, was designed to create a new basis for stymieing this liberal, erotic speech that was rapidly gaining popular acceptance.
Sure enough, in July of 1986, Attorney General Meese proudly announced the Commission's Final Report, a two-volume tome that dug into every corner of the erotica industry and that would become the best-selling book in the history of the Government Printing Office. The Final Report included many recommendations on how government could deal with the supposed evils of pornography.
Another twist that didn't help the industry transpired on June 5, 1986, when Robert "DiB" DiBernardo, one of the Miporn defendants, disappeared. DiBernardo was hooked up with the Gambinos in New York and, as it would turn out, was whacked at the insistence of John Gotti. In fact, DiBernardo's murder formed part of the RICO case against Gotti that sent him to a maximum-security federal prison where he remains to this day.
The 12th of the 92 recommendations in the Final Report reads: "THE ATTORNEY GENERAL SHOULD APPOINT A HIGH RANKING OFFICIAL FROM THE DEPARTMENT OF JUSTICE TO OVERSEE THE CREATION AND OPERATION OF AN OBSCENITY TASK FORCE. THE TASK FORCE SHOULD CONSIST OF SPECIAL ASSISTANT UNITED STATES ATTORNEYS AND FEDERAL AGENTS WHO WILL ASSIST THE UNITED STATES ATTORNEYS IN THE PROSECUTION AND INVESTIGATION OF OBSCENITY CASES."
From that, the National Obscenity Enforcement Unit of the Department of Justice was born. Its moniker quickly was changed to the Child Protection and Obscenity Enforcement Unit - the Administration speedily recognizing that having a whole committee of expensive Department of Justice lawyers focusing on prosecuting adult obscenity cases drew the ire of critics who complained that the government should not be increasing the spiraling national debt on a group of department of justice adults whose responsibility it was to tell the rest of the adults what videos they could watch.
From then until the election of Bill Clinton in 1992, the nation experienced an odd paradox, with the Department of Justice busily executing Operation PostPorn and Operation Woodworm, designed to stamp out the X-rated mail-order industry and the adult-video manufacturing industry - all while the number of annual rentals of hardcore adult videotapes grew from about 50 million to about 500 million. Apparently Attorney General Janet Reno directed the DOJ Porn Squad to turn its attention to child pornography, creating a Pedophile Prosecuting Dynamo.
Operations PostPorn and Woodworm collectively sent a significant number of pornographers to prison, but fell far short of the promised objective of completely eradicating hardcore sex media. In this area, the Republicans perhaps have overlooked that thing in the Declaration of Independence about the federal government "deriving their just powers from the consent of the governed." The citizenry for the most part is not wild about the government telling them which movies they can watch.
Now the Republicans are back in the White House, with Reverend Ashcroft at the helm of the Department of Justice. While the Bush Administration's social agenda was upstaged by the events of Sept. 11 and the aftermath, Ashcroft has pressed ahead, appointing Andrew G. Oosterbaan as head of the Department of Justice's Child Exploitation and Obscenity Section (its current, politically correct nickname).
"Andrew Oosterbaan is a strong leader and aggressive career prosecutor who will diligently investigate and prosecute child exploitation and obscenity crimes," Ashcroft proclaimed in announcing his appointment. "Andrew's many years of experience in complex criminal matters should put on notice those who seek to exploit children or violate our nation's obscenity laws will be punished to the fullest extent of the law."
Oosterbaan apparently was an assistant U.S. Attorney in Miami before coming to Washington and joining the Porn Squad under Janet Reno, where the entire focus was on child pornography. We shall see what happens.
Clyde DeWitt is a partner in the Los Angeles office of the law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025, or by email at [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. Books, pro and con, are 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.
