With the federal court decision dismissing the obscenity indictments against Extreme Associates still fresh in conservatives' minds, Sen. Sam Brownback (R-Kan.) presided over a March 16 hearing of the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Property Rights titled "Obscenity Prosecution and the Constitution" – with Brownback himself the only senator in attendance, though Sen. Russell Feingold (D-Wis.) did put in a momentary appearance between floor votes on his legislation.
But the hearing, which was originally scheduled for February 16, meaning it had to have been conceived just days after the January 20 Extreme decision, held few surprises, though it did provide clues to the direction conservatives may take in attempting to suppress sexual speech.
Sen. Brownback, in his opening remarks, claimed that Judge Gary Lancaster had "cobbled together hand-picked strands of 14th Amendment substantive due process, decisions from Roe, Lawrence and others and ruled that the statutes at issue [in the Extreme Associates case] violated an unwritten constitutional right to sexual privacy" and that "just recently, we have in Southern California examples of human trafficking, of individuals trafficked into the porn industry for use by the porn industry." Neither statement was accurate, but accuracy was hardly the point of the hearing.
Sen. Brownback then introduced Prof. Robert Destro, of the American Catholic University (and co-counsel, with former Family Research Council head Ken Connor, on some matters affecting the attempt to prolong the life of the brain-damaged Terri Schiavo), who had some ideas on ways to head off First Amendment defenses of adult material.
"[Y]ou can start by looking at this as a question of market regulation, and focus on the pornography industry," opined Prof. Destro. "That has certain advantages to it, in that, you know, what you're really talking about is business transactions and lots of money and lots of – lots of illegal behavior. And if you focus on it from that perspective, you never really even get to the First Amendment unless you are of the view that Justice Douglas was, that sex acts between consenting adults were a form of free speech, and he talked about that in Griswold v. Connecticut. But setting that aside, nobody else really takes that view."
"Or you could look at it as a perspective of, we're going to be regulating content. That then gets you into the content and the perspective of speech, and in really almost an endless morass of First Amendment analysis where you get into the question of how much redeeming social value is there in this particular movie or videotape or Website or virtual reality, and you get into kind of almost unanswerable questions about just how – you know, how much, you know, under the Court's decisions, does this really appeal to someone's prurient interest? I suppose the easy answer to the question is that if they're willing to pay for it, it must appeal to them."
Prof. Destro went on to claim that Judge Lancaster's opinion opens the door to the legalization of prostitution, which is what he apparently believes goes on any time someone shoots an adult feature.
"He [Judge Lancaster] creates a right to privacy that, if taken to its logical conclusion, would legalize outcall prostitution," Destro said, "because if indeed you have a right to sexually explicit material that's made by others out in Hollywood or wherever they make it, I suppose you could make the same argument that under Griswold [v. Connecticut] and Lawrence [v. Texas], you would have a right to have it made right in your living room. At least, under the judge's reading of the – of those 14th Amendment cases, the Congress's power to regulate the economy and the industry just drops out of the equation altogether."
Prof. Destro bolstered his view by quoting a law review interview with Larry Flynt.
"[A]s many of you know, Larry Flynt has always been held up as the paragon of the defenders of First Amendment values," Prof. Destro recounted. "Larry Flynt's interview was actually quite fascinating, because, you know, they asked him about the First Amendment; he says, 'Well, no, that wasn't really the point.' He said that his goal really was to open up – and I'm putting words in his mouth, but it's the rough equivalent – he wanted to have a chain of sex stores, you know, that in the end, he thought that there should be a freedom to buy and sell sex just like you did any other commodity. I thought, well, finally, you know, he's actually – you know, when you get the Larry Flynt unvarnished, he's a salesman, and that's what I would suggest that we're looking at here, is that we're looking at the sale of sex as a commodity; we're looking at sex slavery and trafficking, which is a serious problem not only here in the United States but around the world."
Interestingly, the professor didn't attempt to make the same argument against the First Amendment status of, for example, the nightly news on television, which, after all, is presented with commercials selling products; which ads pay for the news program. Similarly, newspapers with advertisements are sold on most city street corners, but the professor didn't argue that the news between the ads is not constitutionally protected.
In his written testimony, Prof. Destro was even more forceful – and even less accurate.
"ENFORCING OBSCENITY LAWS: DOES THE CONSTITUTION PROTECT THE 'SEX TRADE'?" the professor's heading screams. "The answer to this question is an emphatic 'no.' I will leave to others the task of describing the individual and community devastation (including slavery, brutality, and murder) caused by those engaged in the sex trade, but I do want to take this opportunity to describe why this Committee needs to view the 'pornography issue' in a more global context."
"The production and distribution of pornography is part and parcel of a global sex trade that employs 'sex workers', film and video producers, distributors like Extreme Associates, IT experts, and the financiers who provide the capital to bring these 'productions' to market. Broadband and cable providers provide the final link in a worldwide distribution chain that allows willing consumers to watch as 'sex workers' around the globe ply their trade.
"Sex workers" are what porn performers may well be – but they are willing, well-paid adults who enter the profession freely and with knowledge of what their work will entail, not as slaves, not to be brutalized and not to be murdered.
In his prepared testimony, Prof. Destro goes on to trash Judge Lancaster's decision, in the process casting aspersions on Lancaster as an "activist judge." At the hearing, the professor also had thoughts on how sexually explicit material on video could be prosecuted irrespective of the First Amendment.
"In the case of Extreme Associates, you're looking at exploitation, at battery and at all kinds of other behaviors that certainly can be regulated under the criminal law," Prof. Destro opined, apparently forgetting his written references to slavery, brutality and murder. "So my suggestion to the committee is that ... you too can avoid the First Amendment. You can do it if you're clear and if you focus on the commercial aspects of what's going on."
In some ways, the March 16 hearing dovetailed nicely with a November 18, 2004 hearing, over which Sen. Brownback also presided, of the Senate Committee on Commerce, Science, and Transportation's Subcommittee on Science, Technology, and Space, titled "The Science Behind Pornography Addiction." At that hearing, Dr. Mary Ann Layden testified that pornography is "toxic mis-education about sex and relationships," while "Dr." Judith Reisman – her doctorate is in communications, not biochemistry – claimed that porn images "imprint and alter the brain, triggering an instant, involuntary, but lasting, biochemical memory trail, arguably, subverting the First Amendment by overriding the cognitive speech process." She called those biochemical memory trails "erototoxins."
So if a viewer doesn't have to think about sexually explicit material in order for it negatively to affect him/her, and if the message conveyed by the material can be given secondary status somewhere below the acts performed that convey the message which, without the message component, may already be illegal acts, then pornography – not just obscenity, but porn in general – has effectively been stripped of its constitutional protections without a First Amendment fight. That clearly seems to be where Sen. Brownback is headed with his hearings.
The chairman also heard from Patrick Trueman, an attorney currently working for the ultra-conservative Family Research Council, but who, in the late 1980s and early '90s, headed up the Justice Department's Child Exploitation and Obscenity Section.
"To those who argue that the prosecution of obscenity crimes is a waste of time or an unwise use of resources," Trueman said, "I'd like to point out that during the time that I was chief of CEOS, we received more than $24 million in fines and forfeitures as a result of our aggressive prosecution efforts. That is more than the budget of CEOS during those years."
A not-so-subtle message to Congress that if harsher anti-porn laws are enacted, they won't impact the already-out-of-control federal deficit? You be the judge!
After boasting of the number of convictions his department obtained under Project PostPorn, which targeted adult mail-order companies, and Project Wormwood, which targeted Los Angeles producers and distributors of adult materials, Trueman espoused his philosophy of which materials should be brought to trial.
"We didn't just select the hardest of the hardcore material," Trueman said of the Wormwood busts. "We wanted juries to decide what they found to be obscene in their district, and that's the nature of what Miller v. California, the seminal obscenity case by the Supreme Court, allows. We believed it was important to let juries decide what was obscene, and we found that juries, looking at a variety of materials, from the hardest to the most mild of what we considered to be obscene, regularly said that the material was obscene and were willing to convict. I've done several grand juries myself, where we asked the people in the jury to decide whether the material is obscene, and my own experience has been that people who regularly watch movies that are obscene, will ask questions in the grand jury about – saying that they didn't know it was obscene; are they doing something illegal? But yet those people, when told that yes, in fact it may be obscene, will also vote for an indictment on obscenity against a pornographer."
Leaving aside the questionable assertion that grand jurors who regularly watched porn would nonetheless vote to indict material they themselves had seen and found to be harmless, Trueman in his statement further blurred the already indistinct boundary between illegal "obscenity" and perfectly legal "pornography." He also failed to note that most of the material convicted in the '80s would be laughed out of court by juries today.
Trueman also made the claim that it was because of Justice Department prosecutions that porn producers, in the late '80s and early '90s, stopped using the themes of "rape, incest, bestiality [and] pseudo-child pornography" in their features, when in fact those themes had always been marginal to the industry, and had all but disappeared on their own 10 years earlier.
The tiny voice of semi-sanity at the hearing was the next witness, Prof. Frederick Schauer, a Frank Stanton Professor of the First Amendment at the John F. Kennedy School of Government, Harvard University.
After assuring the subcommittee that he was not among the "many people who believe that obscenity law as it now exists is unconstitutional and violates the First Amendment," Prof. Schauer opined that, "The inquiry then moves to the question of, under what circumstances would the constitutionally-permissible-under-the First-Amendment prosecution of obscenity be desirable?"
The professor listed three cautions that he urged the government and federal prosecutors to consider in deciding what to prosecute.
"[I]gnoring the law in favor of their own agenda is not only a judicial vice," said Prof. Schauer of federal judges such as Judge Lancaster, "but is also potentially a prosecutorial vice. I raise this issue because I believe the same applies to prosecutors."
Prof. Schauer also advised both the legislature and the courts to adhere closely to the obscenity standards set forth in Miller v. California.
"I would ask you, Mr. Chairman, in investigating this issue, to seek assurance on behalf of the committee the prosecution will be in accordance with the Miller standards strictly defined rather than be used as a way of modifying, expanding, changing, redefining, resuscitating or in some other way changing the existing, and as I said, in my view constitutionally-permissible-under-the-First-Amendment law of obscenity," he said.
Prof. Schauer, who authored the conclusions set forth in the Report of the Attorney General's Commission on Pornography (better known as the Meese Commission Report), also suggested that benign material should be left alone by federal prosecutors.
"One of [the Meese Commission Report's] central teachings was that it divided the category of Miller-defined legal obscenity into the categories of material that endorsed and promoted explicitly violence against women, material that endorsed and promoted explicitly the degradation of women, and material that was neither endorsing of violence against women nor that was endorsing the degrading of women," Prof. Schauer assessed. "In light of those three categories, the Attorney General's Commission recommended prosecution of legal obscenity in the first category and in the second category, but as to the third category, the commission made no recommendation."
"I am troubled here in part by the attempt to use the Report of the Commission as endorsement for the prosecution of legally obscene materials that neither promote nor endorse explicitly the violence against women," he concluded.
In a question-and-answer session between Sen. Brownback and the witnesses that followed the witnesses' remarks, the senator returned to his contention that at least some porn performers in Southern California are trafficked-in sex slaves.
"[S]ex trafficking ... [is] one of the lead slavery issues in the world today, and what we're finding in this, apparently, we're seeing people trafficked into the pornography industry for porn," Sen. Brownback claimed, referring to a Los Angeles Times article of March 5. "This is just a quote here from the article: 'A lot of people are promised jobs once they come here, but when they get here, they're forced into labor or the sex trade.' That's a lawyer with the Department of Health and Human Services, and apparently this is a lucrative business to move people into."
None of the witnesses were willing to go on record in the hearing in support of the idea that any Southern California performers are sex slaves, so Sen. Brownback widened his claim.
"I've been working on this for some period of time," Brownback said, "and this is really an awful trade, and I've met with girls who've been trafficked in Nepal and Israel and Thailand and America, and that's where this is taking place, and we're even finding reports – we haven't verified this, but people [are] doing the pornography filming in a foreign country, developing country, and then shooting it in here – because then you don't have to traffic somebody in; you just traffic the film in."
This concerned Sen. Brownback, because Prof. Schauer had previously testified that even if a video's content had been produced with sexual slave labor, and that if caught during the taping, the slave masters could be prosecuted, the content itself could not be prosecuted simply because it featured unwilling participants.
"All I'm suggesting is that in order to get at the product, existing law would have to be changed dramatically," Prof. Schauer responded. "I don't deny the economics of the fact that when one dries up the product, one makes it harder to engage in the underlying conduct ... I would agree with you entirely, the underlying conduct is something we should deal with. I would like to deal with it within the boundaries of existing law, because attempts to change the existing law are always fraught with danger."
"My suggestion is that, you know, what you do is that you focus on the underlying behavior that's going on here," added Prof. Destro. "I mean, these people are accessories to prostitution, and the – you're going to have to, just like you do in trying to interdict the drug trade, to figure out where the important pressure points are going to be, and so if you can – you can easily prosecute someone for the – not so much under a 'pornography' theory but under an 'accessory to prostitution' theory."
Sen. Brownback then turned his attention to the ex-Justice Department prosecutor.
"Mr. Trueman, if the Extreme Associates case is allowed to stand, upheld, will we be able to prosecute any obscenity cases in the future?" the senator asked.
"No, I can't imagine that you would," came the reply. "I think that Extreme Associates – the ruling itself is so extreme that obscenity prosecution would go by the wayside."
"[T]his industry is a very large industry now," Sen. Brownback continued. "Is it because of the lack of prosecution that we see the pervasiveness of pornographic material in America today?"
"Yes, I certainly think it is," said Trueman, who went on to opine that owing to the "nine or 10 attorneys" of the "pornography defense bar" who can easily overwhelm local prosecutors with motions to dismiss and other pre-trial matters, that most obscenity prosecutions, he felt, should be handled at the federal level by Justice Department prosecutors "because they can match, shot for shot, the defense bar in these cases. The Justice Department won't be overwhelmed, they won't stop to take a case just because it's been drawn out and expensive to do, so I think it's vital that the Justice Department gets back to a point of vigorously prosecuting."
Interestingly, there was no mention at this hearing of the indictments against Goalie Entertainment and its principals and employees that had been filed just five days before, even though the indictments represented the largest federal move against an adult retailer in more than a dozen years.
What actions Sen. Brownback will next take are anybody's guess. He announced at the beginning of this hearing that it was the first of several that he planned to conduct on several different topics, but with the testimony adduced so far, the senator or one of his colleagues could easily introduce an anti-porn bill soon, using the "porn addiction" hearing and this one as the "scientific basis" to prevent First Amendment defenses in obscenity trials. Only time will tell.
A complete (though unofficial) transcript of the March 16 hearing can be found here and copies of the witnesses' prepared remarks for this hearing can be found here.
