While the recent search, seizure, and indictment of Extreme Associates and its alleged principals carries remnants of the Reagan and Bush Sr. administrations' obscenity prosecutions of the '80s and early '90s, it also provides valuable insight into the future. Of particular interest is what is not in the indictment. But in order to understand this, a long-overdue review of federal obscenity laws is necessary.
In the 1973 Miller quintet of cases, the Supreme Court affirmed the principle that obscene speech was not protected by the First Amendment. But, more importantly, for the first time the Supreme Court announced a test that drew the line between erotic speech protected by the First Amendment, and that which is legally obscene and therefore subject to prosecution. Two of the five Miller cases squarely authorized federal obscenity prosecutions, United States v. Orito, 413 U.S. 139 (1973), which involved transportation of obscene material by common carrier, and United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123 (1973), involving importation of obscene material. By that time, federal laws were in place (as they are now) prohibiting dissemination of obscene materials by mail, telephone, common carriers (e.g., Federal Express, UPS, etc.) and in interstate or foreign commerce. 18 U.S.C. ��1461-65. The possible sentences for such violations topped out at five years per count but, importantly, a judge had unbridled discretion to announce a sentence anywhere within that range.
That set of circumstances gave rise to prosecutions during the 1970s for a variety of obscenity offenses, some of which are noted in an earlier column (AVN Online, Feb. 2002), and were in place when President Reagan was elected in 1980.
October of 1984 brought the first and perhaps most dramatic amendment to the federal obscenity laws. Arch-conservative North Carolina Senator Jesse Helms utilized his seniority and political acumen to slip an eleventh-hour, five-line rider into a 250-page budget amendment that included the Comprehensive Crime Control Act of 1984, the most thorough reform of federal criminal laws in history. Helms' five-liner added state and federal obscenity offenses to the definition of "racketeering activity," as a result of which obscenity prosecutions could be brought under the draconian federal RICO (Racketeer Influenced and Corrupt Organization) Act.
The implications of adding obscenity as a "predicate offense" for RICO were daunting. Under the federal RICO law, operation of an "enterprise" - which is just about any group of people, no matter how loosely connected - utilizing a series of "predicate" criminal acts, which can be as few as two, is a RICO crime punishable by 20 years in prison. In the context of obscenity prosecutions, that means finding two movies to be obscene can translate into a RICO offense. Worse, a conviction can result in the forfeiture to the federal government of the entire "enterprise," lock, stock, and barrel. The high-punishment component of obscenity-RICO gave the courts no real trouble, because it is really nothing more than a high-punishment obscenity prosecution. The Supreme Court upheld Indiana's version of the same thing in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989).
The forfeiture provision, however, presented something more of a constitutional dilemma because a handful of findings of obscenity could result in the forfeiture of an entire publishing enterprise. In 1993, a 6-3 Supreme Court, over a stinging dissenting opinion written and read from the bench by Justice Kennedy, upheld the forfeiture of Ferris Alexander's entire Minnesota adult-bookstore empire. Alexander v. United States, 509 U.S. 544 (1993). Alexander's indictment charged that 34 items were obscene; the jury found that 18 of them were and 16 were not. Nonetheless, based upon the indictment and the RICO law, not only was Alexander sentenced to a hefty prison term, but the court also ordered forfeited to the government his entire "enterprise," basically encompassing all of the assets associated with his 10 wholesale and retail media businesses, including the real estate that had housed them, their bank accounts, and all the personal property necessary to conduct these businesses - including film projectors, television monitors, video cassette players, cash registers, shelves, office equipment, company vehicles, and inventories of untold thousands of books, magazines, and video tapes. Significantly, the RICO forfeiture provisions are mandatory, so a forfeiture of that magnitude was required, and not just the doing of a particularly harsh judge.
RICO is used sparingly, so obscenity-RICO cases have been scarce. In the first place, it is generally the policy of the Department of Justice to use RICO - which can be triggered by a variety of crimes ranging from murder to mail fraud to extortion to prostitution - under only the most egregious of circumstances (e.g., John Gotti). While obscenity prosecutions can be initiated by rank-and-file federal prosecutors, a RICO indictment can be brought only with the approval of high-level DOJ authorities.
In the shadow of Senator Helms' RICO quickie, ultra-conservative President Ronald Reagan ran for reelection. While he had been elected by a relatively narrow margin over Jimmy Carter in 1980, he won reelection in 1984 by a landslide, owing a very large indebtedness to the Religious Right.
Having failed to keep his promise to upend Roe v. Wade, Reagan's first big repayment to the Religious Right was the installation of Edwin Meese III as attorney general. Meese was a religious and anti-erotica zealot, as is the current A.G., John Ashcroft.
Meese oversaw a commission designed to trump a 1970 report of the Commission on Obscenity and Pornography, which, 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. Clearly, Meese's Commission, stacked with conservatives, was designed to create a new basis for stymieing this liberal, erotic speech that was rapidly gaining popular acceptance because of the advent of the VCR.
Sure enough, in July of 1986, Meese announced the Attorney General's Commission on Pornography, Final Report, a two-volume tome 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 alleged evils of pornography. The DOJ responded to one of those recommendations by creating the National Obscenity Enforcement Unit. Several other recommendations included proposed federal legislation, and Congress responded.
The first of the congressional responses to the Meese report was the usual "tack-on," this one to another 250-page-plus bill, the "Anti-Drug Abuse Act of 1988." (You have probably figured out that the standard procedure is to add obscenity regulations as riders to very popular bills.) Under the sub-heading "Death Penalty and Other Criminal and Law Enforcement Matters" was the sub-sub-heading "Subtitle N - Child Pornography and Obscenity," denominated the "Child Protection and Obscenity Enforcement Act of 1988." (You also have probably figured out that another standard procedure is to stifle adult speech in the name of "child protection.")
The Child Protection and Obscenity Enforcement Act of 1988 implemented many of the recommendations of the Meese report, including the creation of criminal penalties against "Engaging in the Business of Selling or Transferring Obscene Matter." 18 U.S.C. �1466. Here, "engaging in the business" meant "that the person who sells or transfers or offers to sell or transfer obscene matter devotes time, attention, or labor to such activities, as a regular course of trade or business." The idea of this law was to get the federal government into the business of prosecuting purely local businesses, eliminating the requirement of sending materials across state lines. Only one significant prosecution under that statute has ever been brought, since the government can almost always induce the target to mail or send by common carrier the target materials. However, the statute was upheld in that case. United States v. Skinner, 25 F.3d 1314 (6th Cir. 1994).
Second, the 1988 law enacted a special obscenity-forfeiture law, designed to circumvent the complexities of RICO and give the Unit and local prosecutors the authority to include forfeiture allegations in an obscenity prosecution, without the approval of any high mucky-muck at Justice. The enactment process of this new obscenity-forfeiture provision, however, did not go as smoothly as Senator Helms would have liked. People got wind of it, and there was debate. As a result, the new forfeiture is limited specifically to materials involved in, and the proceeds of, the offense. In other words, the broad RICO-type forfeitures were not allowed. Rather, the remainder of the forfeiture provision allows only forfeiture of other property "used or intended to be used to commit or to promote the commission of such offense, if the court in its discretion so determines, taking into consideration the nature, scope, and proportionality of the use of the property in the offense." Significantly, then, the property subject to forfeiture under the new provision (18 U.S.C. �1467) is dramatically less than under RICO.
Finally, included in the 1988 Obscenity Enforcement Act was the first version of the labeling and record-keeping requirements, 18 U.S.C. �2257, which later were held unconstitutional, American Library Ass'n v. Thornburgh, 713 F.Supp. 469 (D.D.C. 1989).
Two years later, Congress mounted its next assault on the First Amendment, buried in the 150-page-plus "Crime Control Act of 1990" and entitled the "Child Protection Restoration and Penalties Enhancement Act of 1990." This one resurrected 18 U.S.C. �2257 which, after a protracted court battle, was finally upheld. American Library Ass'n. v. Barr, 794 F.Supp. 412 (D.D.C. 1992), Aff'd. in part, Rev'd. in part sub nom American Library Ass'n. v. Reno, 33 F.3d 78 (D.C. Cir. 1994), rehearing denied 47 F.3d 1215 (1995), cert. denied 515 U.S. 1158 (1995).
Meanwhile, Congress was making its first foray into regulating electronic erotica with another so-called "Helms Amendment," buried in the 270-page "Anti-Drug Abuse Act of 1988." This put the final nail in the coffin of dial-a-porn as it then was known, but not until after considerable judicial scuffling. American Information Enterprises, Inc. v. Thornburgh, 742 F.Supp. 1255 (S.D.N.Y. 1990), Rev'd sub nom. Dial Information Services Corp. of New York v. Thornburgh, 938 F.2d 1535 (2nd Cir. 1991), cert. denied 502 U.S. 1072 (1992).
In another, less-noticed development, the sentencing reform provisions of the Comprehensive Crime Control Act of 1984 kicked in, substantially curtailing the discretion of federal judges in dishing out sentences in criminal cases. The most dramatic change, however, would take place in 1991, when the "base offense level" for obscenity offenses was raised from 6 to 10. That change increased the presumptive sentence for a first-offender obscenity defendant from months to years, and effectively rendered probation impossible.
By this time, Congress had thoroughly armed the DOJ with weapons against erotica. But the erotica industry responded with a new weapon of its own, the Internet, which flummoxed anti-erotica efforts for two reasons. First, it was a new technology that the existing laws were not equipped to combat. Second, it caused an unprecedented increase in the public's accessibility to erotica, particularly to hardcore and fringe materials, all during a time when the Clinton administration was focusing almost its entire prosecutorial efforts on the child pornography that was flourishing over the Web.
As the BBS generation was phasing out and the Internet was phasing in, a celebrated but in fact inconsequential obscenity prosecution was winding its way through the courts. United States v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied 519 U.S. 820 (1996). Robert and Carleen Thomas operated a BBS in the Silicon Valley area of Northern California. They were accused of transmitting what was, to say the least, bizarre and allegedly obscene ".gif" files (and sending video tapes) to an undercover federal agent in Memphis. They were convicted and sentenced to 30 months incarceration. The irony was that, because of the video tapes they shipped, the sentences probably would have been no different had no ".gif" files been involved. Nevertheless, the court held that interstate transportation of obscene materials was illegal regardless of the technology used to accomplish it. Importantly, the evidence was deemed sufficient to establish that the defendants were aware that the target of their BBS transmissions was to be Memphis, the location of the prosecution.
In response to both the Thomas case and all of the hysteria over Internet pornography - and particularly the free access that minors were having to it - Congress jumped into the controversy in its usual manner: The Telecommuni-cations Act of 1996, their third comprehensive overhaul of federal communications laws. The bill was long, complex and controversial - a perfect place to bury some obscenity legislation and avoid too much debate. Thus, the Communications Decency Act of 1996 ("CDA"), dubbed the "Exon Amendment" because of its sponsor, Nebraska Senator James Exon, was buried in this array of new regulations. Nonetheless, it was subject to much debate.
The CDA added considerable legislation to the federal arsenal, first by effectively codifying the Thomas decision so that sending obscene materials over a computer was a line item in the federal obscenity laws concerning the use of a common carrier and in interstate commerce. The issue of the constitutionality of those provisions is the same for the most part as the constitutionality of obscenity laws in general, which thus far rests on the 1973 Miller quintet. Unless the Supreme Court overrules Miller - which might not be a good thing given the possible alternatives - the ground for litigation with respect to Internet obscenity involves situations where erotic materials are posted and the Webmaster has no control over where they are going. That is the subject of the pending Nitke litigation in federal court in New York. See Nitke v. Ashcroft, 253 F.Supp.2d 587 (S.D.N.Y. 2003).
Other parts of CDA did not do so well in the courts. The blocking requirement was held unconstitutional, a ruling promptly affirmed by the Supreme Court due to an accelerated-review provision unique to the CDA. American Civil Liberties Union v. Reno, 929 F.Supp. 824 (E.D. Pa. 1996) Aff'd. sub nom. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). And, although it took longer, the so-called "signal bleed" provision also was struck down by the Supreme Court. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000).
Particularly in response to the Reno v. A.C.L.U. decision, Congress acted again in 1998. This time, as a part of the 800-plus-page Omnibus Consolidated and Emergency Supplemental Appropri-ations Act (which, to its credit, included the Internet Tax Freedom Act, generally prohibiting taxes on Internet activities for many years), there is buried the Child Online Protection Act (COPA) in an effort to bring back the blocking requirement for posts of materials harmful to minors. COPA remains tied up in the courts, and the particulars are beyond the scope of this article. See American Civil Liberties Union v. Reno, 31 F.Supp.2d 473 (E.D. Pa. 1999), Aff'd., 217 F.3d 162 (3rd Cir. 2000), vacated sub nom. Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), on remand, 322 F.3d 240 (3rd Cir. 2003), Cert. pending, 72 USLW 3130 (Aug 11, 2003).
With the Republicans having taken over the White House and Congress, the final arrows in the quiver of the DOJ to combat erotica were put in place by the recent "Amber Alert" law - the PROTECT Act, supposedly designed for the protection of children but, of course, including drastic provisions improving the odds for obscenity prosecutors. As summarized earlier this year (AVN Online, July 2003), the PROTECT Act strips federal judges of the power to deviate below the sentencing guidelines in obscenity cases; adds a new child pornography crime which defines as obscene materials that appear to be, but are not, of children; ratchets up the punishment for violations of the labeling and record-keeping requirements of 18 U.S.C. �2257; and adds 25 prosecutors to mount an assault on the erotic media industry.
With all of that in its arsenal, we turn to the latest indictment involving Extreme Associates. Substantively, the indictment utilizes the ancient law prohibiting mailing of obscene material (three counts), along with the newer one from the CDA, transmitting a video clip over an interactive computer service (six counts). As does almost every federal indictment for anything, it also includes a conspiracy allegation, which is an independent crime. It is almost impossible for more than one person to violate any law without a conspiracy as well, although it is a distinct crime and can be separately punished; under the sentencing guidelines, however, it makes little difference. Finally, the indictment includes an obscenity-forfeiture allegation, but does not charge RICO.
From the summary above, it is clear that other laws could have been brought into play but were not. Also, more counts surely could have been alleged, since all that is required for a federal indictment is probable cause, and the Supreme Court has held that about all that is required for probable cause, is a depiction that appears to affront community standards. New York v. P.J. Video, Inc., 475 U.S. 868 (1986). (Evaluating the probable cause requirement in the context of an application for a search warrant for obscene materials.)
This obviously is not the last column that will address these topics, as General Ashcroft has promised that there will be many more indictments coming. Stay tuned.
Clyde DeWitt is a partner in the Los Angeles-based, national 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 at [email protected]. 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.
