The Senate Judiciary Committee's Subcommittee on Constitution, Civil Rights and Property Rights will hold a hearing on Wednesday on "Obscenity Prosecution of the First Amendment." Sen. Sam Brownback (R-Kan.), a staunch conservative, will preside, and once again, the adult entertainment industry – the clear target of the hearing – was neither invited nor even notified of the hearing, and attempts to provide witnesses friendly to the adult industry were rebuffed by subcommittee officials.
Despite its oddly-worded title, the hearing was unquestionably inspired by the decision of Judge Gary Lancaster of the U.S. District Court for the Western District of Pennsylvania to dismiss all charges in the obscenity case, U.S. v Extreme Associates, which was long touted to be the government's jumping-off point for a long series of prosecutions of adult video producers and Webmasters.
The failure of the government to sustain its case against motions to dismiss (drafted and brilliantly argued by Extreme's attorneys, H. Louis Sirkin and Jennifer Kinsley) has angered conservatives, inspiring Sens. Orrin Hatch (R-Utah) and Rick Santorum (R-Penn.) to write an op-ed piece for the Washington Times on Feb. 10 decrying the Extreme decision – and AVN to respond. (Click here http://www.washtimes.com/op-ed/20050212-093429-1775r.htm.)
But a mere op-ed piece would hardly satisfy the conservative religious forces that have been chomping at the bit for the past four years for the Bush administration to "do something" about the "scourge of pornography," the result being Sen. Brownback's hastily arranged hearing.
Only three speakers have been invited: Robert A. Destro, professor of law at the Catholic University of America's Columbus School of Law, where he is co-director and founder of the Interdisciplinary Program in Law & Religion; W. William Wagner, associate professor at the Thomas M. Cooley Law School; and Frederick Schauer, Frank Stanton Professor of the First Amendment and former academic dean of the John F. Kennedy School of Law at Harvard University.
Little is known about Prof. Wagner, but the anti-porn stance of Prof. Schauer and the conservative religious credentials of Prof. Destro are extensively on record.
Prof. Destro has been much in the news recently as co-counsel (with former Family Research Council head Ken Conner) for Gov. Jeb Bush in attempting to uphold a law quickly passed by the Florida legislature last fall to prevent Michael Schiavo from removing the feeding tube from his brain-dead wife Terri Schiavo. Destro and Conner petitioned the U.S. Supreme Court to intercede when lower courts ruled Florida's new law unconstitutional, but no high court justice would grant a stay, leaving Schiavo free to let doctors put his wife out of her misery.
Prof. Schauer deals frequently with free speech issues, having authored several books, including The Law of Obscenity; Free Speech: A Philosophical Enquiry and The First Amendment: A Reader. Prof. Schauer was an advisor to Sen. Hatch when the Senate was debating the PROTECT Act, and was even thanked publicly by Sen. Patrick Leahy for pointing out what proposed language in the PROTECT Act would and would not pass constitutional muster after the Supreme Court's excellent ruling in Free Speech Coalition v. Ashcroft, which struck down certain sections of the Child Pornography Prevention Act (CPPA).
Most damning, however, was Prof. Schauer's opinion on adult speech contained in his essay, Speech and “Speech” – Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language, which was quoted in an article authored by anti-porn activist Katherine MacKinnon.
"[Pornography] takes pictorial or linguistic form only because some individuals achieve sexual gratification by those means," wrote Prof. Schauer.
"Imagine a person going to a house of prostitution, and, in accord with his or her particular sexual preferences, requesting that two prostitutes engage in sexual activity with each other while he becomes aroused. Having achieved sexual satisfaction in this manner, he pays his money and leaves, never having touched either of the prostitutes. Imagine an individual who asks that a leather-clad prostitute crack a whip within an inch of his ear. Are these free speech cases? Hardly. Despite the fact that eyes and ears are used, these incidents are no more cognitive than any other experience with a prostitute. It is essentially a physical activity, the lack of actual contact notwithstanding."
"If the above examples are not free speech cases, is there any real difference between the same activity when presented on film rather than in the flesh?"
It's a tired argument which FSC board chair Jeffrey Douglas long ago analogized to the government attempting to prosecute Sylvester "Rambo" Stallone for murder after having "gunned down" a battalion of "police" in the movie First Blood.
If Prof. Schauer is unable to tell the difference between sexual acts and sexual speech, it seems unlikely that, after his testimony, the Subcommittee on Constitution, Civil Rights and Property Rights will fare much better.
The Free Speech Coalition, however, will see to it that objective and professional written testimony from prominent, knowledgeable and seasoned First Amendment attorneys is included in the subcommittee's record, in order that the U.S. Senate be made aware of all sides of this very important issue.
AVN will be attending the subcommittee hearing on Wednesday; watch for a report here on the results of that hearing.
