Several adult industry attorneys have shared their opinions about the formation of a special obcenity task force.
Assistant Attorney General Christopher A. Wray announced on May 5 that the Criminal Division of the U.S. Department of Justice (DOJ) is establishing an Obscenity Prosecution Task Force dedicated exclusively to the investigation and prosecution of obscenity cases.
The Task Force will be in addition to the Department's existing Child Exploitation and Obscenity Section (CEOS), commanded by Andrew Oosterbaan, and the press release noted that CEOS "will continue to prosecute obscenity cases in addition to child pornography, child exploitation and [sex] trafficking."
The director of the Task Force, who was not named in the release, "will work closely with Bruce Taylor, Senior Counsel to the Criminal Division’s Assistant Attorney General, who will provide guidance in his capacity as Counsel to the Task Force."
Taylor, who was rehired by the DOJ in February of last year, is well-known as a former DOJ prosecutor in the National Obscenity Enforcement Unit, the predecessor to CEOS, and later, as President of the National Coalition for the Protection of Children and Families, an active pro-censorship organization. He has been continually active in efforts to suppress sexual speech, and politically aware members of the adult industry have been speculating for the past year as to what role Taylor would play in obscenity prosecution.
"This certainly suggests to me that Bruce Taylor is deeply unhappy at how things are going at CEOS," opined First Amendment attorney Jeffrey Douglas. "But it's just going to take time, right? I mean, it seems to me, in creating a new unit, unless they intend to take, from CEOS, investigations that are already pending, they're undertaking a two-year plan. Just the creation of the task force has got to take six months. Maybe they could do it in three, but typically it takes six months just to get the offices assigned, and the secretaries. So I find it bewildering."
But it seems clear from the DOJ's statement that the Obscenity Prosecution Task Force is meant to play the key Justice Department role in targeting obscenity, since it has been given the power to draw on the expertise of several other DOJ divisions, including the Organized Crime and Racketeering Section, the Asset Forfeiture and Money Laundering Section, the Computer Crime and Intellectual Property Section, and CEOS’s High-Tech Investigative Unit.
Those last two notations suggest that adult material on the Internet will be one of the Task Force's top priorities.
"Advances 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," Wray noted in the press release. "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."
"This was certainly not unexpected, and it's something we've been bracing for, for quite some time," responded Lawrence G. Walters, who represents several adult Webmasters. "There have been complaints by those inside and outside the Justice Department that their technology was not up to snuff, and that it was difficult to perform these investigations on the Web because their computers and other technology were outdated, as was their understanding of how it all worked, and so apparently they felt the need to form this task force. It strikes me that it comes at an odd time, when the only real prosecution against adult Web content [U.S. v. Extreme Associates] resulted in a dismissal and a declaration that the statute's unconstitutional. You'd think that they would wait to see what the results of the constitutional challenge are before they organize an entire force of people to enforce this law that is presumptively unconstitutional based on the federal court ruling."
The use of the Organized Crime and Racketeering and Asset Forfeiture and Money Laundering sections, though, portend a full-scale assault on adult manufacturers and distributors. It is, after all, through those two divisions that the DOJ prosecutors will be attempting to pay for their efforts through both the Racketeer-Influenced Corrupt Organizations (RICO) and obscenity forfeiture provisions of the law – but only if they get enough convictions.
"How many millions of dollars will they squander in attempting to control our adult thought process when that money could be put to better use?" asked veteran free speech fighter Paul Cambria. "It is a true tragedy that such resources can be wasted, but those of us who have been fighting this battle for more than 20 years are prepared to demonstrate, as we have with many jury verdicts in the past, that the average adult finds that adult material made for adults by adults is an acceptable form of entertainment."
Attorney and AVN columnist Clyde DeWitt took those thoughts one step further.
"This whole thing is just another example of what I have long referred to as terrorism against the First Amendment – not just against the free-expression component of it, but more importantly against the requirement of separation between church and state," DeWitt said. "The Bush Administration plainly has an agenda of establishing conservative Christianity as a de facto national religion, approving other faiths only where they are in accord with them, and disapproving those that are in conflict, and particularly disapproving those whose members put science before faith. An unfortunate number of people will randomly be put in jail and have their lives and those of their families ruined for selling 'dirty movies' because of the Bush Administration's 'God agenda,' just as an unlucky number of Iraqi policemen will be blown up because insurgents believe that their God compels their actions. Conceptually, there is not too much difference between them."
Indeed, several religio-reactionary spokespersons have commented favorably on the Justice Department initiative.
"Prosecution of this illegal material deserves the DOJ's highest attention and their best resources," said Jan LaRue, chief counsel for Concerned Women for America. "The DOJ's announcement of this new task force should indicate to pornographers across the country that their illegal activity is being taken more seriously. We are especially pleased to see that Bruce Taylor, Senior Counsel to the Criminal Division's Assistant Attorney General, will be closely involved in this effort."
"The Family Research Council has been critical of the Department of Justice for its half-hearted obscenity prosecution effort," wrote FRC President Tony Perkins, "and we are eager for Attorney General Gonzales to make effective changes to the obscenity prosecution team... We are encouraged that Attorney General Gonzales intends to follow through with his promise to enforce indecency and obscenity violations."
Unmentioned by Wray is the question of whether the federal obscenity laws will survive the challenges presented in the Child Online Protection Act (COPA) case, which has been before the U.S. Supreme Court twice, and which will soon go to trial in the U.S. District Court for the Eastern District of Pennsylvania. The Third Circuit Court of Appeals, whose base of operations is in Philadelphia, the same as the Eastern District, has already opined twice that the international nature of the Internet exempts it from the "community standards" language of the three-prong test for obscenity established in the Miller v. California decision. With that issue still way up in the air, it seems premature for the Task Force to attempt to target material on the Internet.
Another reason for the creation of the Task Force at this time may be to attempt to create as many prosecutions as possible, in as many "friendly" jurisdictions as it can muster, before the government's appeal in the Extreme Associates case is heard by the Third Circuit. The opinion of U.S. District Court Judge Gary Lancaster dismissing the indictments in that case created shockwaves throughout the government, and led to a flurry of activity, including a Senate subcommittee hearing directed at finding ways around Judge Lancaster's decision, whose well-researched reasoning will be difficult to refute at higher judicial levels.
"This is scary that judges cannot make their own decisions, and when they do, this kind of stuff happens," Walters commented. "This is going to be a tough time for the government to start trying obscenity cases. This is not like their typical drug case or organized crime or arson or extortion case. There are good defenses in obscenity cases, especially under existing community standards or lack thereof, and they've got to be careful in bringing these cases in the existing environment, because they could end up with some huge embarrassments either from judicial rulings or from jury acquittals, which frankly in the federal system, these prosecutors are not used to and don't handle well."
"There's not only the COPA challenge pending, but also the challenge from the National Coalition for Sexual Freedom, which argues that the obscenity portion of the CDA [Communications Decency Act] is unconstitutional as applied to the 'Net, and of course the fundamental challenge in Judge Gary Lancaster's opinion in the Extreme Associates case," Douglas added. "I suspect that this is as much a public relations effort as anything else, aimed at those members of the Religious Right that the current administration depends on, to make them happy. Because it seems to me it would just be absolute madness for the Justice Department, with the pendancy of the Extreme case before the Third Circuit, to undertake a large-scale prosecution. Previous sting operations conducted by the Justice Department have been on the magnitude of 30 cases. If they were to undertake that now, there is a substantial likelihood that at least two or three trial courts would agree with Judge Lancaster, and then they would be fighting not only a multi-front war by handling multiple appeals, but at the moment, Judge Lancaster's opinion is by itself. Nothing could add to its weight and credibility more than having other district court judges agree with it. So I can't imagine that they would start executing search warrants or otherwise proceed on multiple fronts because it would just make their current vulnerability that much greater."
Wray's mention of trafficking also calls to mind the Senate Judiciary subcommittee hearing, chaired by Sen. Sam Brownback, in which the senator closely questioned one witness, Prof. Frederick Schauer, as to the connections between sexual trafficking and adult video production. Brownback stated twice on the record that trafficked women had been used in adult productions in the U.S.; an allegation vehemently disputed by industry insiders.
Trafficking was also mentioned by Attorney General Alberto Gonzales, in a speech on Tuesday before Gatlinburg Law Enforcement Conference in Gatlinburg, Tennessee.
"Unfortunately," Gonzales said, referring to prosecution of allegedly obscene materials, "exploitation is not limited to magazines and the electronic medium. It can be found in the form of human trafficking. This form of modern-day slavery does not only exist in far away lands; it happens here on our shores. Aliens are smuggled into our country, held in bondage, treated as commodities, and stripped of their humanity... More work is needed to confront this heinous crime."
Wray seemed also to refer to trafficking later in the DOJ press release.
"The Justice Department is committed to respecting and protecting the First Amendment rights of all individuals," he said. "However, the welfare of America’s families and children demands that we enforce the laws on the books, and that is what this Task Force is designed to do. With the creation of this Task Force, our commitment to law enforcement in this vital area is taken one step further."
So far, the Task Force is not credited with having taken any actions, although Oosterbaan has recently been quoted as saying that there are approximately 20 obscenity investigations under way.
