Several adult Websites re-posted or reworked a story from Knight-Ridder Newspapers’ Shannon McCaffrey titled “Pornography must pass test to avoid obscenity ruling,” which contained the interesting claim that, “So far, the Bush administration has a perfect record in the 25 adult obscenity cases it's filed. The cases, brought in mostly conservative communities across the country, ended in two guilty verdicts and 23 guilty pleas. Charges are pending in a dozen other cases.”
Those stats raised the hackles of several First Amendment attorneys, none of whom were aware of more than a single guilty verdict and one or two pleas, all from non-industry personnel, though all were aware of the indictments of Rob Black and Lizzie Borden of Extreme Associates, and retailer John Coil in Texas, neither of which case has yet come to trial.
“I don’t know of any others,” said H. Louis Sirkin, Black and Borden’s attorney, and a veteran First Amendment fighter for more than a quarter-century. “We would have heard if there were more, I think. They would have either been retailers who would have gotten back to either the distributors and/or the filmmakers, and both the FALA [First Amendment Lawyers Assn.] or Free Speech [Coalition] would have heard of them.”
“I don’t know where they’re coming up with that figure unless, as I say, somehow they’ve lumped into that the kiddie porn ones,” Sirkin continued. “They’ve had a lot of those.”
In fact, even Sirkin himself had one.
“They did charge this guy in Tulsa after the [Ashcroft v.] Free Speech case,” Sirkin related, referring to his Supreme Court victory over portions of the Child Pornography Prevention Act. “This originally started out a kiddie porn case and then right after Free Speech, they did a superseding indictment and charged him with obscenity as opposed to child pornography and he entered a plea. It wasn’t a retailer; it was a single possession. In fact, they came to his house and they had a search warrant to search his computer, and he said, ‘You’re not going to find anything on my home computer. What you’re looking for is on the computer in my office.’ If only he’d kept his mouth shut...”
“He was my client, but I only got involved in it at sentencing,” Sirkin continued. “It was a good move to take the plea because it was non-commercial and it started off at [sentencing] level 10. The problem that happened was, they were able to prove that some of the pictures that he had were of children, and that allows a cross-reference to the kiddie porn sentencing guideline. We had a big fight about that. The judge really thought we were going to appeal it and the guy didn’t want to appeal it.”
“There must be an awful lot of secret producers we don’t know about who’ve gotten into trouble, and they’re ashamed to even publicize it,” Sirkin jokingly opined. “The producers are ashamed to even mention that they’ve been indicted, and the government’s gotten concerned; they don’t want to ruin anybody’s reputation and they want to honor the presumption of innocence. That’s why we haven’t heard about it.”
But according to prominent First Amendment attorney Clyde DeWitt, “child porn” may in fact be the key to the DOJ’s claim.
“Here’s the part they’re probably not telling you,” DeWitt suggested. “It is possible they could charge someone with child pornography and the evidence on the age of the people in the pictures is iffy. They could say, ‘Well, you know what? We see we may have some difficulty establishing that these people are minors.’ Or, for example, where they saw they might have some trouble proving which person put the picture on the computer, or whatever; if there’s a weakness in their case, rather than go to trial and lose altogether, they’ll take a plea to adult obscenity, which not only has a significantly lower punishment, but somebody going to prison for a child porn offense is not going to get treated too good in prison.”
“So they will take a plea for obscenity as a lesser included offense, and I’m sure the conviction rate on those is 100% because it’s all guilty pleas,” DeWitt concluded. “So the question I would have is, how many of those are guilty pleas where the original investigation or the original charges were to a child pornography offense and it was a plea bargain, basically?”
Child Exploitation and Obscenity Section (CEOS) chief Andrew Oosterbaan certainly would have had enough of those to choose from. Oosterbaan was in charge of the Justice Department’s “Operation Avalanche” Internet child porn sting before he was appointed to CEOS; an sting which led to more than 100 arrests at the turn of the century.
“I don’t think they’d outright lie about it,” DeWitt opined, “so they did the next best thing, which is twist the facts enough and leave out enough — but to the extent they got lesser-included pleas, when somebody pled to adult obscenity where it was originally a child pornography investigation, I’m sure their conviction rate is exactly 100% because getting a conviction on a guilty plea, the odds are pretty good.”
But DeWitt was clear that he also had not heard of any adult industry producer, distributor or retailer who could have been part of the Justice Department’s claim. De Witt also doubted if he would recommend a guilty plea to one of his clients if the claimed “child porn” material was clearly taken from recognized adult video company features. He was well aware, however, that there are a limited number of attorneys in the country who frequently deal with obscenity cases.
“I would bet many, many [defendants] are represented by the public defender,” he commented, “which is not necessarily not good legal advice, but it’s also normally not somebody who has a great deal of experience in the obscenity area.”
Sirkin approached his own doubts about the statistic from another direction.
“I don’t know what the fuck they’re talking about, or else there’s an awful lot of cases out there that none of us big shots are getting,” he laughed
