According to a handout from Morality in Media, more than 50,000 complaints of obscenity were filed with various United States attorneys around the country from June 2002 to February 2005 – and that’s something a good conservative senator would want to do something about.
That seems as likely a reason as any that Senator Sam Brownback (R-Kan.) convened a hearing today before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights. The hearing, titled “Obscenity Prosecution and the Constitution,” was held in Room 226 of the Dirksen Senate Office Building.
Sen. Brownback was initially the only senator in attendance, although Sen. Russ Feingold (D-Wis.) appeared in the closing minutes of the hearing, having been delayed because one of his bills was being subjected to a vote on the Senate floor. The witnesses who appeared were professor Robert A. Destro, attorney Patrick A. Trueman, a former Justice Department prosecutor, and Prof. Frederick Schauer, none of whom were particularly friendly to the adult industry.
Destro is a professor of law at the Catholic University of America's Columbus School of Law and Schauer is a Frank Stanton Professor of the First Amendment at Harvard University. Both have strong conservative credentials, and Destro has ties to right-wing religious groups as well.
“The explosion of sexually-explicit material is not a problem that exists in the vacuum of Constitutional theory,” Sen. Brownback said in his opening remarks.
“Government has a compelling and real-life interest in the matter because of porn’s adverse effects on individuals, families and communities in the form of criminality and addiction. The editor and publisher of AVN, a journal of the pornography trade, recently stated that ‘it’s scary’ how much is made on porn, about this there can be little debate. The porn industry has grown rapidly in the last decade. Part of the reason for this growth is that the nature of, and access to, sexually explicit material in the marketplace has been radically transformed and expanded.”
Brownback then launched into an attack on Judge Gary Lancaster’s decision in the case of the United States vs. Extreme Associates, claiming, “according to many legal scholars, another reason for the industry’s growth is a legal regime that has undermined the whole notion that illegal obscenity can be prosecuted.”
Brownback also claimed that half of all pay-per-view movies in hotels are pornographic and that pornography is now the cause of nearly half the divorces in America. But he added that “porn had an almost non-existent role in divorce just seven or eight years ago.”
The first witness to testify was Prof. Destro, who began by noting “the importance of name-calling in Constitutional law.”
“If you call it pornography, it’s not protected,” he said.
“You can look at it as a question of market regulation… or you can look at it from the perspective that you’re regulating content,” he said, referring to how the government should deal with explicit materials.
Prof. Destro called the U.S. vs. Extreme Associates “an interesting case,” where Judge Lancaster “ignored the Constitution” and “created a right to privacy…that would legalize prostitution.”
Prof. Destro suggested that the best method of regulating sexually explicit material would be to regulate “specific behavior that’s easy to define and is not Constitutionally protected.” He cited the exploitation of women and sexual battery committed during the production of a porn video as examples of conduct that the government could regulate.
The next speaker was Trueman, who trumpeted the fact that while he was a prosecutor under three attorney’s general under President George H. W. Bush, the government collected $24 million in fines as a result of prosecuting pornography.
Therefore, “people may question spending tens of thousands of dollars for the prosecution of Martha Stewart while porn spammers get to go free,” he said.
Trueman believes that it should be the juries in various jurisdictions around the country who should decide what is considered obscene in their areas, not the dictates of the Department of Justice. He noted that he was encouraged by the firm stance taken by new Attorney General Alberto Gonzales against pornography and he would encourage increased prosecutions of sexual material.
Prof. Schauer, who had been called to testify by Sen. Feingold – the other two witnesses were called by Sen. Brownback – said that, unlike some of his colleagues, he did not believe that obscenity prosecution is unconstitutional. However, he felt that the Justice Department should take several issues into consideration when deciding to mount obscenity prosecutions in the future.
For example, while he said that judges should not ignore the law, he also felt that prosecutors should also adhere as closely to the law as possible. Prof. Schauer testified that he does not believe that America needs any new obscenity laws, and that all material that should be prosecuted, could be prosecuted under the standard enunciated in the seminal case, Miller v. California. He noted that the Miller case divided pornography into three categories: violent pornography, degrading pornography and material which was neither violent nor degrading, and he suggested that the latter category should not be dealt with under the law in the same way as the violent and degrading kinds – a stance that he claimed was supported by the Meese Commission Report.
Each witness spoke for approximately 10 minutes, and when they were done Sen. Brownback brought up a specific concern of his: the trafficking of women into sexual slavery, which was reported in the Los Angeles Times in early March.
“We’re seeing people trafficked into the pornography industry,” Brownback claimed.
When asked to respond, Prof. Schauer agreed that sexual slavery should be prosecuted, but that that did not mean that films made of those women should be prosecuted as well.
Sen. Brownback claimed that pornography, which was frequently shot overseas, used women who had been pressed into sexual slavery, and that video footage, he said, was then imported into the United States.
“This is really an awful trade,” he said, expressing a desire that that practice could be addressed by law enforcement.
At one point, Sen. Brownback asked Trueman, if the Extreme decision stands, “What will happen to pornography prosecution?”
Trueman responded, “The ruling itself is so extreme, prosecutions will go by the wayside.”
Sen. Brownback then inquired whether the pornography industry’s reportedly enormous profits are as a result of the lack of prosecutions of the material?
“Yes, it is,” Trueman stated.
Trueman also claimed that if the Justice Department began prosecutions of mainstream companies such as General Motors that are involved in sending adult material to the public via cable and satellite that the companies would stop distributing the material.
In an answer to another of Sen. Brownback’s inquiries, Trueman said that “the porn defense bar is rather small, just nine or 10 attorneys in the country,” and that the federal government should give aid to local prosecutors when possible to help them fight the defense attorneys’ expertise. However, he said, “Prosecutions {of obscene material} should primarily be done by the Department of Justice.”
Sen. Brownback noted that this was the first of several projected hearings to be held by the Subcommittee on the Constitution, Civil Rights and Property Rights and the record of this hearing would be held open for seven days in order for any committee members who were not present to submit written testimony.
The Free Speech Coalition had already submitted a statement by board members/attorneys Reed Lee and Jeffrey Douglas but that was not mentioned during the hearing.
