In a recently released internal audit, the Federal Bureau of Investigation revealed that in the four years since the terrorist attacks on the United States, the number of new criminal investigations launched by the bureau has dropped by 45 percent. Largely because of the War on Terror, the FBI has 2,200 fewer agents investigating crimes than it did in 2000. The audit found the steepest decline in the number of new drug investigations – 70 percent – but decreases were found in a number of other areas as well, including organized crime, bank robberies, civil rights, health-care fraud, corporate fraud, and public corruption. The only types of investigations that showed increases since 2000 were terrorism (not surprisingly), gangs, child pornography, and obscenity.
A strong push is underway to raise the totals for obscenity investigations even higher. In mid-September 2005, the Washington Post reported that U.S. Attorney General Alberto Gonzales had circulated a memorandum on July 29 declaring the investigation and prosecution of obscenity cases to be "one of his top priorities." The memorandum solicited applications for assignment to a Washington-based, 10-member anti-adult-obscenity squad, and instructed the FBI's 56 field offices to assign agents to investigate adult obscenity cases "if resources are available."
Although the memo conceded there are many First Amendment hurdles to a successful obscenity prosecution based on nonchild pornography, it suggested that the greatest likelihood of obtaining convictions would be for material that "includes bestiality, urination, defecation, as well as sadistic and masochistic behavior."
It was precisely that thinking, of course, that led to the Justice Department's 2003 prosecution of Extreme Associates: The company's videos are a veritable buffet of potentially obscene themes. (At the direction of U.S. District Court Judge Lancaster, the Justice Department's prosecution was thrown out as unconstitutional, and the case is currently before the U.S. Court of Appeals for the 3rd Circuit.)
The announcement of the bureau's recruitment drive sparked a round of derisive columns in newspapers and on websites across the country, with most commentators wondering why Attorney General Gonzales was redirecting some of the bureau's limited resources to a renewed (and unquestionably futile) effort to reign adult pornography. Even within FBI headquarters, the Post reported, the memorandum was received with skepticism: A series of snarky emails began circulating, with subject lines like "Things I Don't Want on My Resume, Volume Four," "I Already Gave at Home," and "Honestly, Most of the Guys Would Have to Recuse Themselves." (A query to the Post reporter for examples of the "unpublishable" email subject headings went unanswered as of press time).
As the word filtered out to the various U.S. Attorney's offices around the country, there were reports of disbelief among federal law enforcement professionals that Washington was intent on putting more resources into the anti-obscenity fight. In Miami, for instance, interim U.S. Attorney Alex Acosta faced stiff opposition from prosecutors in his own office, who argued that a high-crime area like southern Florida has much bigger concerns than adult pornography. The Daily Business Review, however, reported that Acosta disregarded prosecutors’ protests and ordered them to pursue adult pornography obscenity cases.
Despite unfavorable reviews both inside and outside the Beltway, Attorney General Gonzales has little choice: Religious conservatives have been putting enormous pressure on both the Justice Department and Congress to follow through on the administration's promise to reinvigorate obscenity prosecutions. They argue, correctly, that the prosecution of adult pornography essentially vanished under President Bill Clinton and Attorney General Janet Reno, although they typically overlook the fact that the Reno department made tremendous strides against the production and distribution of child pornography.
Nonetheless, a right-wing-shy Congress has responded: Since 2001, the budget for the Justice Department's Child Exploitation and Obscenity Section alone has been doubled to $42 million. Last year alone, Congress authorized a budget increase of $13.8 million to pay for an additional 25 people to help prosecute nonchild pornography obscenity cases, including an additional 17 lawyers for CEOS. Also included in the spending spree was an allocation for the 10 new agent slots the FBI is trying to fill currently.
As Gonzales himself said in a speech to Florida police chiefs in Miami at the end of September, "[Congress] made the decision that dollars should be spent to fight obscenity. When they appropriate money in order for the department to fight crime, we have an obligation to do that. And that's what we're doing here. People get the idea that somehow the department, with all of its talent, can't do more than one thing at a time.
"In fact," he added, "we can fight the war on terror, and at the same time, we can go after corruption, we can go after corporate fraud, we can go after drugs, we can go after violent gun crimes, and we can go after obscenity."
Nonetheless, it's not too hard to imagine a semihidden agenda for Gonzales' moderately enthusiastic embrace of obscenity prosecutions. Of the various trial balloons floated for possible replacements for Supreme Court Justice Sandra Day O'Connor, the one carrying Gonzales’ name came under the most intense fire from religious conservatives. There was widespread concern that despite his unshirking support for the Texas death penalty and some of the U.S. Army's more extreme interrogation techniques, the affable Gonzales would not prove to be a reliable vote on the movement's key issue, abortion. By carrying through on predecessor former Attorney General John Ashcroft's largely unfulfilled anti-obscenity campaign, Gonzales has a chance to burnish his conservative credentials before another vacancy opens on the Supreme Court. Currently, seven of the nine justices are over the age of 65 (including the oldest, 83-year-old John Paul Stevens), so there is a reasonable likelihood that President Bush will have an opportunity to nominate yet another longtime friend to the court.
Much of the energy for the Justice Department's renewed interest in nonchild pornography obscenity cases comes from a single individual: Bruce Taylor, one of the country's most ardent anti-pornography attorneys. When the Meese Commission recommended the creation of a special anti-obscenity group in its final report in 1986, Bruce Taylor was one of the original crew selected by then-Attorney General Edwin Meese to staff the National Obscenity and Exploitation Unit (the predecessor to the current Child Exploitation and Obscenity Section). In the late 1980s, Taylor served as general counsel for Citizens for Decency Through Law, an Arizona-based anti-pornography group founded by savings-and-loan poster boy Charles Keating.
Taylor later became president and lead counsel for the National Law Center for Children and Families, an anti-pornography group that provides support to federal and state prosecutors and law enforcement. The National Law Center is funded by the National Coalition for the Protection of Children and Families, a group that was founded in 1983 as the National Coalition Against Pornography.
When conservative activists met with Ashcroft in the fall of 2001 (just a few weeks before 9/11), Taylor was one of the people who helped pull the meeting together. In February 2004, he returned to the Justice Department as senior counsel to John Richter, the assistant attorney general in charge of the department's criminal division.
There's some vagueness about exactly where Taylor fits into the Justice Department organizational chart: The Child Exploitation and Obscenity Division, which also reports to John Richter, is headed by Andrew Oosterbaan, one of the few management-level officials to make the transition from the Reno to the Ashcroft administration. Oosterbaan frequently has been a target of criticism from religious conservatives, who believe that he has not been aggressive enough in pursuing distributors of nonchild pornography. There is widespread speculation that Taylor was brought in to keep Oosterbaan's feet to the fire on obscenity prosecutions.
With the evident backing of the White House, Taylor's gravitational pull at the Justice Department has increased steadily. On May 5, 2005, Gonzales added to the organizational mix by establishing an Obscenity Prosecution Task Force, which a Justice Department press release described as "dedicated exclusively to the investigation and prosecution of obscenity cases." In addition to his role as special counsel, Taylor was appointed as counsel to the task force. The task force, which will be led by Deputy Chief for Obscenity Richard Green, is intended to be a multidisciplinary approach to adult pornography, drawing on Justice Department specialists in organized crime and racketeering, asset seizure, money laundering, computer crime, and intellectual property. CEOS experts in computer forensics and the Internet are slated to provide technical support.
According to Assistant Attorney General Christopher A. Wray, who issued the department's press release, "[A]dvances in technology and mass marketing, particularly over the past decade, have enabled the traffic in obscenity to take on a more national and even global reach. The special challenges that obscenity cases pose in the computer age require an equally specialized response. A coordinated task force of prosecutorial expertise is the best way to meet those challenges."
So far, all of the initiatives and department reorganizations have had little concrete impact, largely because of the cloud of doubt cast by the Extreme Associates case. After all, if federal obscenity laws are unconstitutional, that will significantly reduce the Obscenity Task Force's workload.
Nonetheless, it’s evident that the Justice Department is quietly but steadily putting together significant resources to pursue the producers and distributors of adult pornography, and particularly those vendors of material that deviates even slightly from depictions of missionary-position, heterosexual sex. In less troubled times for Republicans, it might have been interesting to see whether pressure would be brought to bear on corporations that distribute sexually explicit materials and have their own legislative agenda on the Hill (cable television companies, for example). Right now, however, Republicans need all the friends they can get.
It is likely, in the end, that history will repeat itself once again. In the heyday of NOEU (1987–1992), the Justice Department inflicted enormous cost (both personal and financial) on a number of businesses and their owners, but the adult industry continued to flourish. Since then, of course, the channels of distribution for sexually explicit material have exploded, as has the number of consumers. It is hard to imagine that even 17 of the doughtiest attorneys, regardless of how hard they work, can make a significant dent in an industry that has such widespread and enthusiastic consumers. Unfortunately, they'll try.
Frederick Lane is an expert witness, author of Obscene Profits (Routledge 2000) and The Naked Employee (Amacom 2003), and co-founder of Tech Law Seminars, an in-house training and seminar company focusing on legal and social developments sparked by new technology. For additional information, visit FrederickLane.com.
