The U.S. Department of Justice, at least according to its chief representative in Miami, believes obscenity is a bigger threat to the American way of life than drugs, terrorism, corruption, or organized crime. That’s the impression U.S. Attorney Alex Acosta has been leaving in his wake lately, anyway, and it’s creating something of a backlash in the legal and law enforcement communities.
Addressing a meeting of Federal Bureau of Investigation supervisors here last month, Acosta reportedly said his mandate to pursue adult pornography cases even more aggressively than those against child pornographers was delivered directly by U.S. Attorney General Alberto Gonzales himself. The FBI and other law enforcement groups with which Acosta spoke subsequently have been less than enthusiastic, according to published reports.
"Compared to terrorism, public corruption, and narcotics, [pornography] is no worse than dropping gum on the sidewalk," Stephen Bronis, a partner at Zuckerman Spaeder in Miami and chair of the white-collar-crime division of the American Bar Association, told Daily Business Review. "With so many other problems in this area, this is absolutely ridiculous."
Lida Rodriguez-Taseff, a spokeswoman for the American Civil Liberties Union and a partner at Duane Morris in Miami, told the paper, "It's amazing that we're wasting our resources on the morality police instead of battling organized crime, illegal drugs, corruption, and undocumented immigration. I can't even believe this."
Fort Lauderdale attorney Bruce Rogow, who successfully defended 2 Live Crew against obscenity charges in Broward County in the 1990s, commented, “I think law enforcement has lost its enthusiasm for these types of cases."
Even Acosta’s own staff members are reluctant to focus resources on obscenity prosecution at the expense of other crimes, according to Daily Business Review, but Acosta reportedly has assigned them cases despite their objections.
Attorneys who represent the adult entertainment industry are neither surprised by the sudden public confirmation of the warnings they’ve issued for years nor particularly taken aback by the reticence of prosecutors and law enforcement.
“As a former prosecutor, I can certainly confirm the fact that mainstream prosecutors and law enforcement officers think adult obscenity cases are a complete waste of resources and generally a bad idea,” said noted adult industry defender Clyde DeWitt. “And I was a prosecutor in Texas in the 1970s, a time and place where the adult community at large was not nearly as comfortable with hardcore depictions as is the case today.”
Commented Eric M. Bernstein, founder of a New Jersey practice that represents clients in both the governmental and adult entertainment sectors, “Prosecutors don’t like bringing cases they can’t win. This backlash from Acosta’s own people may have some effect. You’ve got to have the foot soldiers to do all the dirty work. If they’re being pulled off what they consider important cases” to work on fruitless obscenity prosecutions, they might do more than balk. They might start abandoning the hallowed halls of government for private practice.
No one seems to doubt the authenticity of the mandate. After Gonzales stepped into the post vacated by former Attorney General John Ashcroft, who resigned in December, one of the first things he did was to establish the Obscenity Prosecution Task Force under the aegis of his office’s criminal division. The task force is headed by Deputy Chief for Obscenity Richard Green, who works closely with Bruce Taylor, senior counsel to the criminal division's assistant attorney general. Taylor is one of the founding members of the Justice Department's National Obscenity Enforcement Unit, which was very active during the conservative tenure of Republican President Ronald Reagan. Taylor claims to have prosecuted more than 100 state and federal obscenity cases, including one against Hustler magnate Larry Flynt. (Taylor won the case, but it was overturned on appeal.) Taylor has made it no secret that he believes that for the past decade the DOJ has been entirely too lax with smut peddlers to the detriment of society and the endangerment of children.
In that he has the support of fundamentalist Christian conservatives. Anthony Verdugo, director of the Christian Family Coalition in Miami, said pornography produced by and for consenting adults “is a form of corruption and should be a priority” for law enforcement. “Pornography is a poison, and it's addictive,” he told Daily Business Review. “It's not a victimless crime. Women are the victims.”
According to adult industry attorney Rob Apgood, who specializes in legal semantics and statutory interpretation, “Verdugo's hyperbole (‘Women are the victims’) is the true teller here. Verdugo's comment reveals that what [conservatives] are really targeting is their misconception of what pornography is, and to whom it appeals.” He added with no little cheekiness, “What sites do you subscribe to, Anthony?”
Most in the legal trenches of the adult entertainment industry see Acosta’s “mandate” and other moves by the DOJ and the attorney general as transparently political. President George W. Bush is watching his popularity rating dip to an all-time low in the face of an unpopular war and a faltering national economy. With midterm elections in 2006 making the Senate look vulnerable if faced with confirmation hearings for a second Supreme Court nominee, the Bush administration and Supreme Court nominee-hopeful Gonzales are turning to the ultra-right constituency that has supported them faithfully. The group probably won’t let down its poster children for a better world through religious fervor, but it expects favors in return—and the elimination of pornography has long been one of its primary goals.
“This is politics playing into law,” said Bernstein. “Bush is shaping up to be one of the most unpopular second-term presidents in history. [He] is desperately in need with an election in the Senate in play. He needs to play to the one group that has stuck by him through thick and thin. Gonzales is pandering on behalf of his boss to that constituency. They’re fighting for a ‘higher cause.’ Their issue is ‘We should rid the world of the demon adult industry, in all its many forms.’”
DeWitt agrees. “This is nothing more than another manifestation of Bush’s crusade to inject radically conservative Christian values into the government. The censors always use children in an effort to gain broad acceptance of their radical, out-of-the-mainstream position—one that essentially amounts to a small group of adults telling all of the other adults what they can and cannot watch.”
Apgood sees it that way, too: “Even the Supreme Court of the United States has held that mere possession of obscenity is not illegal. So now the morality police are going to burn up inestimable sums of tax dollars for the sole purpose of appeasing a highly vocal minority.”
That the DOJ’s newly minted focus on adult obscenity prosecutions instead of crimes against children or dozens of other violent acts upon which it could expend precious resources is seen by some – including, reportedly, some within the halls of justice – as wasteful in the extreme probably won’t stop the department from forging ahead.
“Not surprisingly, a few of the more reasonable assistant prosecutors appear to have concluded that there are more pressing issues facing our country besides Internet erotica,” said Florida-based adult entertainment attorney Larry Walters. “Instead of heeding the concerns of those closer to the street, so to speak, the administration seems dead-set on pursuing its censorship campaign.”
He also said, however, that the adult entertainment industry is not one to back down from such adversity meekly. “Now is the time for the industry to stand up and fight,” Walters said. “First Amendment heroes will be born in these times. We hope to have the honor of representing some of these brave individuals in their effort to preserve free sexual expression. We’ve been preparing for this fight for over 10 years, and we’re ready.”
