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Copyright 1997 Ohio University School of Film. All rights reserved.
Wide Angle 19.3 (1997) 149-170
 

Politics and the Pornography Wars

William E. Brigman


Introduction

Pornography is one of the great paradoxes of American culture. 1 On the one hand, Americans produce, buy, and consume as much, or more, sexually oriented material as any other nation. On the other hand, pornography is despised by a large portion of the population. The result is that in a society where eight times as many "adult" films are rented or sold per year as there are votes cast in a presidential election, those purchases and rentals are illegal and could result in long term incarceration in many of the communities in the nation.

The battle over pornography and obscenity is grounded in conflicting religious and philosophical frameworks which have led to great ambiguity regarding sexual practices and presentations. Today, when some schools pass out condoms to students, it is easy to forget that birth control devices were illegal in many states until 1965 and that birth control information has been the most censored material in American history. While there was a strong moral consensus, the existing anti-obscenity laws were largely superfluous--outrage at deviations from the community norms were usually so strong that such behavior was relatively uncommon. However, as the sense of community declined in America in the sixties, traditional concepts of morality were challenged. Inevitably, [End Page 149] those who still held political power tried to use it in an attempt to maintain their social values.

Obscenity laws and prosecutions are inherently political. Since pornography is a "victimless crime"--in the usual sense of the term, if not in the feminist rendition--most obscenity prosecutions, federal or state, are generated by pressure groups or elected officials attempting to appease such groups. Pornography normally receives very little official notice, other than just before elections. However, because of our anxieties about sexuality, pornography is open to attack in its own right and can be used as a symbol--a lightning rod--for those threatened by changing attitudes regarding proper sexual behavior, abortion, homosexuality, and other lifestyle issues. 2 This began to occur in the late sixties.

The usual legal analysis divides obscenity into three phases: (1) the period prior to 1957; (2) the Roth Period, 1957-73; and the (3) the Miller period, from 1973 to the present. Although such a conceptualization is valid, it is too narrow to convey the nature of the conflict over pornography in the United States during the past forty years. The Supreme Court provided the overall legal framework, or at least set the outer boundaries, but the battle over pornography has been inextricably intertwined with the changes in American society for the past half century. Supreme Court decisions have been the highly visible portion of the iceberg: the real struggle has been at policymaking and enforcement level in all levels of government. Therefore, this discussion will go beyond the standard legal framework and include the political factors that have impacted on the laws as written and as interpreted by the courts.

Phase I: The Roth Years

Until 1957, federal and state courts suppressed allegedly obscene materials by applying the extremely restrictive English common law test set forth in Regina v. Hicklin, L.R. 2 Q.B. 360 (1868). The so-called Hicklin test was "whether the tendency of the matter charged as obscenity is to deprive and corrupt those [End Page 150] whose minds are open to such immoral influences and into whose hands a publication of this sort might fall." Under this test, major books were banned on the basis of selected passages and the influence they might have on the weakest members of society. As Justice Frankfurter noted, the intent of this standard "is to reduce the adult population of [the country] to reading only what is fit for children." 3

Justice Brennan, speaking for the Supreme Court in Roth v. United States, 354 U.S. 476 (1957), and its companion case, Alberts v. California, 354 U.S. 476 (1957), repudiated the Hicklin test. The new constitutional test for obscenity was based on the assumption that obscenity was "utterly without redeeming social value" and was not entitled to First Amendment protection. Obversely, material with any redeeming social value could not be obscene and could not be outlawed. Therefore, if "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interests" and has no redeeming value it can be proscribed and those involved in its production and distribution can be punished. As the three dissenters, Justices Black, Douglas, and Harlan, pointed out, the Roth test was unclear because it did not define the "average person," did not specify which community's standards were to be used or how those standards were to be determined, and, finally, did not define "prurient interest."

The Warren Court subsequently redefined and expanded the Roth test. In a case involving a movie version of Lady Chatterly's Lover, Justice Stewart ruled, in Kingsley International Corporation v. Regents of University of New York, 360 U.S. 684 (1959), that books and films could not be banned merely because they dealt primarily with sexual themes. The "prurient interest" requirement of Roth was strengthened in Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962) to require that materials appeal to prurient interests in a "patently offensive way." And, again writing for the Court in Jacobellis v. State of Ohio, 378 U.S. 184 (1964), Justice Brennan added to the Roth test the requirement that a book or film must be shown to lack "redeeming social importance" according to "national contemporary standards." (Chief Justice Warren never joined his liberal brethern in endorsing a national community standard although most commentators acted as if that were the position of the Court.) Finally, in A [End Page 151] Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 383 U.S. 413 (1966), Justice Brennan combined all three of the above requirements into a restatement of the majority's position holding that materials were excluded from First Amendment protection only if they failed all three requirements--that is, they (1) have a prurient interest that (2) appeals in a patently offensive way, and (3) lack social redeeming value. This material was usually referred to as hardcore pornography.

The Warren Court was badly split on the obscenity issue. From 1957 to 1967, it rendered decisions in thirteen major obscenity cases. Those thirteen cases had fifty-five different concurring and dissenting opinions. The issue was so divisive that in 1967 the Court, after carefully stating the position of each Justice, announced that there was such a divergence of opinion on the issue that it would stop issuing opinions in such cases. In the next five years, the Court reversed thirty-one obscenity convictions, most without written opinions.

There were two issues on which the Court was able to reach a consensus. Ginzburg v. United States, 383 U.S. 463 (1966) ruled that the manner in which material was advertised could be used as proof of its obscene character. Thus, the Court upheld the conviction of Ralph Ginzburg for pandering by advertising because he sought unsuccessfully to mail his magazine Eros from such places as Middlesex, New Jersey, Blue Balls, Montana, and Intercourse, Pennsylvania. Surprisingly, that issue had not been raised by the prosecution during the trial and was only briefly mentioned during the oral argument. The Court also upheld the conviction of Sam Ginsberg for selling two "girlie" magazines to a sixteen-year-old boy in Ginsberg v. New York, 390 U.S. 629 (1968). Additionally, the Court upheld the use of local censorship boards for screening sexually oriented films if there were due process and a prompt determination, and if the Court's standards for determining obscenity were followed. 4 [End Page 152]

Although the Ginzburg and Ginsberg cases demonstrate that the Court was not exclusively liberal in its treatment of sexually explicit material, its obscenity jurisprudence meshed with the political, racial, social, and sexual revolution of the fifties and the sixties and became a political lightning rod for conservatives who were incensed at the rising tide of what they perceived as evil. As a result, the obscenity decisions were one of the factors contributing to Justice Fortas's failure to become Chief Justice in 1968. The obscenity decisions also played a role in Richard Nixon's successful presidential election campaign that was based, in large part, on attacking the Supreme Court. Nixon made a commitment to return the country to law and order by appointing "strict constructionists" to the Supreme Court. 5

However, while Nixon was trying to take the country down a more traditional path, changes in the nature of "pornography" made this highly unlikely. Although the dominant forms of sexually explicit material--books, photographs and the "stag" film--were designed and used almost exclusively by men, this changed dramatically around 1970. The "stag" was replaced with a new form: the publicly screened, hardcore film. Deep Throat (1972) became a sort of cult icon in the early seventies for both male and female audiences. Linda Lovelace and Marilyn Chambers became household names. A new "cultural" era was born at the moment that President Nixon was declaring war on the old one.

After Nixon's election, and in Chief Justice Warren's last term, the Court handed down Stanley v. Georgia, 394 U.S. 557 (1969), which upheld an individual's right to possess obscene materials in his home. The decision was to become the last outpost for liberal obscenity jurisprudence.

Phase II: Conservative Victory in the Court: Miller v. California and Its Progeny

Warren Burger became Chief Justice the year after Stanley was decided, but had to wait almost four years until the arrival of two more Nixon appointees gave him the majority he needed to alter the Court's position on obscenity. In 1973, in Miller v. California, 413 U.S. 15 (1973), and its companion cases, most [End Page 153] noticeably Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), Burger set out new rules for obscenity prosecutions designed to give states and localities greater flexibility and control over sexually oriented materials. (At this time, most prosecutions were local, not federal.) While professing to maintain the prurient interest test, he redefined it as "whether the work depicts or describes, in a patently offensive way sexual conduct specifically defined by state law," thus inviting states to write new obscenity laws. He also rejected as too broad the "utterly without redeeming social value" test and devised his own balancing test. Henceforth, the test was "whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value." Whereas Justice Brennan's test in Roth had held that materials with any social value could not be obscene, the new test weighed the offensiveness of the material against its social value. Equally important, the contemporary community standards test was redefined to mean local, not national standards.

In Paris Adult Theatre I v. Slaton, Justice Burger stated the justification for censorship that convervative Justices still follow: the government has a legitimate interest not only in protecting the community but also in protecting individuals from their own weaknesses and desires. The state may act "to protect the weak, the uninformed, the unsuspecting, and the gullible" from the exercise of their own judgment. In the remainder of the series of five-to-four decisions, the new majority expanded the power of state and local governments to control sexually oriented materials. One of these, United States v. 12-1200 Foot Reels of Super 8mm Film, 413 U.S. 123 (1973), limited Stanley v. Georgia by holding that an individual does not have a First Amendment or privacy right to purchase obscene materials.

The most troubling problem with Miller was that it made the determination of obscenity dependent upon the community in which a case was tried. Legally, if not literally, an item could change its character if moved from place to place. In one of the most ironic of examples, the movies Deep Throat and Devil in Miss Jones, which to a large extent had spawned the new pornographic revolution, were found to be obscene in Times Square but were shown without a problem in the New York City suburbs. [End Page 154]

The use of local community standards to determine what was obscene allowed, or encouraged, federal prosecutors to engage in "forum shopping," i.e., enticing distributors to send materials into very conservative areas and then initiating prosecutions. The result was to reduce what was acceptable to that of communities with the most restrictive standards. The ultimate example of such abuse, which the Court declined to review, was Novick, Haim and Unique Specialities, Inc. v. U.S. District Court, 423 U.S. 911 (1975), which involved an obscenity prosecution in Louisiana for materials in transit from California to New York but seized as they passed through Louisiana.

Although Chief Justice Burger thought that the local community standard test set forth in Miller would remove the ambiguities in the law of obscenity, he was proved wrong almost immediately when Georgia tried to outlaw the movie Carnal Knowledge. The Supreme Court, in Jenkins v. Georgia, 413 U.S. 496 (1973) had to step in and remind the states that only hardcore pornography could be prosecuted. The Burger and Rehnquist Courts were also forced to clarify other ambiguous aspects of Miller. One of the most important was the decision in Pope v. Illinois, 481 U.S. 497 (1987), that Miller's third prong--requiring the showing that a work lacks serious literary, artistic, political, or scientific value--be applied based on standards set by a "reasonable" person, not an "ordinary" person (an interesting distinction that we can't explain here).

Besides trying to clarify the application of Miller's tests for obscenity, the Burger and Rehnquist Courts were highly receptive to restrictions on the availability of sexually oriented materials. Over First Amendment objections, for example, Rowan v. U.S. Post Office Department, 397 U.S. 728 (1970), and United States v. Reidel, 402 U.S. 351 (1971), upheld a federal statute prohibiting the mailing of certain pornographic and obscene materials. However, Bolger v. Youngs Drug Product Corp., 463 U.S. 60 (1983), struck down another statute [End Page 155] prohibiting the unsolicited mailing of advertisements for contraceptives.

Limitations on adult bookstores, nude dancing, and other forms of sexually oriented entertainment were upheld while Warren was still Chief Justice (California v. LaRue, 409 U.S. 109 [1972]), but were extended under Burger and Rehnquist. Although the Court voided a law prohibiting nude dancers in places of adult-only entertainment (Schad v. Borough of Mount Ephraim, 452 U.S. 61 [1981]), it upheld prohibition of nude dancing in areas where liquor is served. It has also upheld the closing of an adult bookstore used for soliciting for prostitution (Arcara v. Cloud Books, Inc., 478 U.S. 697 [1986]), and unanimously upheld zoning and licensing ordinances that prohibited motels from renting rooms for less than ten hours, observing that "it is reasonable to believe that [a] shorter rental time period indicate[s] that the motels foster prostitution" (FW/PBS, Inc. v. City of Dallas, 493 U.S. 319 [1990]). The Court also upheld broad powers of cities to regulate sex businesses, adult theaters, and nightclubs through exclusionary zoning. (Young v. American Mini Theatres, 327 U.S. 50 [1976] and City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 [1986]).

Phase III: The Pornography Wars: The Conservatives On the Offensive

The recitation above clearly shows that Chief Justice Burger and his successor, Chief Justice Rehnquist, were quite successful in establishing a new, more restrictive, definition of obscenity, thereby making it relatively easy for states and localities to regulate sexually oriented business and the flow of such material. However, theirs was a hollow victory: despite the fact that the new rules made it much easier to get a conviction--especially if prosecutors engaged in "forum shopping" and brought prosecutions in the least liberal areas of the country--pornography and other sexually related businesses flourished through the seventies.

If the birth control pill helped spawn the sexual revolution of the 1960s and altered society's attitudes to the point that an adult movie business was viable, the videocassette recorder (VCR), which made its debut two years after the Miller decision, dramatically expanded the breakthrough. Prior to the advent [End Page 156] of the VCR, most pornography was printed, supplemented by a few movie titles available in 1,500 specialized movie houses frequented almost exclusively by males. With the coming of the VCR, printed and traditional movie pornography were swamped by the moving visual image. While printed forms of pornography survived, adult movie houses declined. By 1989 there were fewer than 250 such houses. 6 More important, the new media attracted a much broader audience, both male and female, which viewed, and sometimes produced, sexually explicit material in their own homes. The victory which the conservatives had clearly won in the courts and consolidated with Nixon's election had been voided by a new invention and new attitudes regarding sexuality.

The Ford and Carter Administrations had little direct impact on the availability of sexually oriented materials. Neither Administration devoted significant resources to the issue and treated it as a local problem. However, Ford's long term impact was significant because he appointed Justice John Paul Stevens to replace Justice Douglas. President Reagan, even more than President Nixon before him, was heavily committed to the religious right wing of the Republican party. However, the first two years of his term were devoted to the issues of abortion and taxes, with no real focus on the pornography issue. Meanwhile, the Supreme Court, dominated by Nixon and Ford appointees, with

the addition of Justice Sandra Day O'Connor appointed by Reagan, was still fighting the obscenity battle, but appeared to relax a bit. In 1981, it held in Schad v. Borough of Mount Ephriam, 452 U.S. 61(1981) that nude dancing could not be totally banned in establishments that did not serve liquor, and in Cooper v. Mitchell Brothers' Santa Ana Theater, 454 U.S. 90 (1981) it held that the burden of proof in a civil obscenity case was the same as in other civil cases. In 1982 the Court unanimously--but with four separate opinions--upheld a state ban on the possession of child pornography (New York v. Ferber, 458 U.S. 747 [1982]), thereby opening up a major new area of litigation. Subsequently, in Osborne v. Ohio, 495 U.S. 103 (1990), the Rehnquist Court upheld a state law banning the possession and viewing of child pornography despite strong protests from three Justices that the law was overly broad and undermined the Court's privacy decision in Stanley v. Georgia, 394 U.S. 557 (1969). [End Page 157]

At roughly the same time that a conservative Supreme Court was rewriting the rules to make it much easier to prosecute obscenity and a new technology was making it much easier and cheaper to produce and consume pornography, feminists declared war on pornography. Although they ultimately failed in their attempts to have the law treat pornography as a violation of women's civil rights, their attack on sexually explicit material provided camouflage for the conservatives in the Reagan Administration.

Near the end of the first Reagan Administration the conservatives began a barrage that was to continue until after Reagan's successor, George Bush, left office. The first major development was a 1984 law applying the RICO concept to obscenity. Under the law, if two or more persons engage in more than one illegal act together they constitute a Racketeer Influenced Corrupt Organization and are subject to prosecution on a RICO charge in addition to any penalties that their separate criminal acts may impose. RICO allows the seizure of all assets at the time of indictment on the presumption that the possessions of the defendants were acquired illegally, and provides for the forfeiture of all the assets of the parties upon conviction. 7 The leading example of the application of RICO to sexually explicit material is the case of Dennis E. Pryba and Barbara A. Pryba, husband and wife, who were each convicted of seven counts of transporting obscene materials in interstate commerce for sale and distribution and three additional RICO charges. Although the total value of the obscene material involved was valued at roughly $100, all the couple's property, worth more than a million dollars, was forfeited. The conviction was upheld and the U.S. Supreme Court refused to hear the case. (Pryba v. United States, 900 F.2d 748 [1990]).

Early in the second Reagan term, Attorney General Edwin Meese created the Attorney General's Commission on Pornography. Unlike the 1970 commission on obscenity in the United States, or the panels in Great Britain (1979) and Canada (1984), all of which had examined the scientific evidence and found little support for the proposition that exposure to pornography was harmful, the new Meese Commission relied heavily on selected anecdotal presentations to mount a propaganda attack on pornography. Although the Commission was criticized by scholars and much of the media, it provided the justification for [End Page 158] the adoption of a number of new laws and the creation of an Obscenity Task Force in the U. S. Department of Justice to enforce them. The Meese Commission made ninety-two specific recommendations designed to reorient, or repackage the war on pornography. Although the new laws appeared to be aimed at child pornography, they were designed to regulate the producers of all sexually explicit materials out of existence. The strategy was to create onerous, if not impossible, record-keeping requirements and to convict individuals and firms for child pornography when they failed to meet the requirements. A second strategy was to bankrupt participants in the process.

The Child Protection and Obscenity Enforcement Act of 1988 8 illustrates the process. While the new law criminalized the transfer of a minor for use in the production of pornography and criminalized possession of child pornography with intent to distribute on federal property, it also outlawed "computer porn," criminalized possession with intent to distribute obscenity that has crossed state lines, restricted "dial-a-porn" businesses, and more. 9 The record-keeping section of the Act required producers of any item which contained visual depictions of actual sexually explicit conduct to create and maintain individually identifiable records pertaining to every performer. By pretending that it was directed at child pornography, the law used concepts and definitions far beyond those acceptable in obscenity law. However, the record-keeping requirements applied not merely to productions involving persons arguably under the age of eighteen, but to all productions. It was incumbent on the producer to obtain the information; he or she could not rely upon information collected by anyone else. "The producer may not rely on representations from the photographer or others and may not rely on photocopies of identification, such as the model's driver's license or birth certificate. The producer had to verify the information by personal contact with the model, no matter how long has passed since the photograph or film was first made" (American Library Association v. Thornburgh, 713 F. Supp. 469 [1989]). This burden applied to everyone along the trail of production regardless of the passage of time: any reprint in the future required the same sort of proof. The law was enjoined before it went into effect 10 and Congress modified it while it was on appeal, limiting the record-keeping requirements to those involved in the actual hiring and management of performers. It also narrowed the definition [End Page 159] of "actual sexually explicit conduct" to exclude "lascivious exhibition of the genitals or pubic area." 11

The second major legacy of the Meese Commission was the creation of the National Obscenity Enforcement Unit in the Justice Department in 1987. In the spirit of its creator, the organization took as its goal the elimination of all sexually oriented material, both softcore and hardcore. 12 Its strategy was to use sting operations as a basis for multiple prosecutions (either simultaneous or successive) in widely scattered (conservative) locations. The purpose of bringing several prosecutions in different locations was to bankrupt the distributors of material the Obscenity Unit considered objectionable and to overtax the relatively small number of First Amendment lawyers capable of defending those arrested. Company employees were charged separately and, on occasion, several family members were charged separately. (Companies and individuals were not indicted in their home jurisdiction since this would allow them to consolidate the cases and defeat the strategy of litigation by attrition). 13 When it was pointed out that a simultaneous multiple prosecution strategy was contrary to Justice Department policy, as set forth in its Manual, a new section was written, applicable only to obscenity cases, that encouraged the use of multiple prosecutions! With a new policy in place, in July 1988, the Obscenity Unit and the U.S. Post Office launched "Project PostPorn," a multiple prosecution sting operation against national mail-order distributors of sexually oriented material.

The nature of the Unit's war can be seen in the types of settlement agreements, or plea bargains, the Unit tried, with some success, to force on its opponents who wished to avoid prosecution. After confronting a distributor, or even a local adult theater, with ruinous multiple prosecutions spread across the United States, the prosecutors would offer a plea bargain under which the company would cease all business involving any sexual materials, regardless of whether or not they could be declared obscene. The plea negotiations with the "Adam & Eve" company (a.k.a. PHE, Inc.) show the Unit at work. The owner was told that in order to avoid prosecution, the company would have to stop selling even "soft porn," including many R-rated videos, Playboy, Penthouse, or even marriage manuals like The Joy of Sex. The Obscenity Unit made [End Page 160] it clear that any depictions of nudity also would be prohibited. 14 Adam and Eve sued for an injunction against the Department of Justice. According to attorneys for the defendants, the government attorneys conceded that the materials were protected by the First Amendment, but they made it clear that it did not matter "if the entire congregation of the First Baptist Church of Plains, Georgia would stand and vote that they are not obscene. If they are sexually oriented, that is it." 15 In July 1990, Federal Judge Joyce Hens Green ruled that PHE had shown a substantial likelihood that the Unit's conduct "constitute[d] bad faith calculated to suppress [Adam & Eve's] constitutional rights.... When taken as a whole, these allegations suggest a concerted effort by the defendants, through harassment and threats of multiple prosecutions, to suppress plaintiffs' constitutionally protected activities." 16

The Obscenity Unit responded to the judge's injunction by prosecuting the owner on federal obscenity charges in Utah! A Justice Department attorney subsequently admitted that he proceeded to indict the owner largely in response to the owner's public criticism of the Unit's actions. 17 Eventually, the U.S. Court of Appeals for the Tenth Circuit reversed the Utah conviction citing "evidence of an extensive pattern of prosecutorial conduct dating back some five years that appears to suggest a persistent and widespread campaign to coerce [them] into surrendering their First Amendment rights." 18 Other distributors with fewer resources were less successful.

At first, it appeared that the program was a success. An article in the Wall Street Journal, December 28, 1989, entitled "Prosecute Porn? It's on the Decline," argued that "the stricken market for sexual materials cannot justify the ballooning costs of prosecuting pornographers." The article noted that adult movie houses were dead, that the video sex business had peaked in 1986 at $430 million and had declined to $380 million by 1989, that the number of sex-film distributors attending the main trade show in Las Vegas had dropped by 40 percent, and overall sex titles had shrunk to 9 percent of retail video sales, as compared to 15 percent in 1984. The soft porn business had also declined: sales of Playboy, Gallery, and High Society were down and dial-a-porn had declined by roughly 40 percent in some areas. 19 [End Page 161]

Although this report underestimated the health of the video business, there was a perception that the industry was not prospering. The Obscenity Unit, having been fairly successful in attacking mail-order businesses and in discouraging general-interest video distributors from offering pornography by selective prosecution of local vendors, was determined to eradicate production. Thus, they launched "Operation Porn Sweep," which went after the major producers of adult video themselves. In a fifteen-month period ending in August 1991, the Operation resulted in thirty-three search and seizure operations against major producers. 20 To ensure that these companies would not be tried in Los Angeles, where more liberal juries might acquit them, the Unit set up phony video stores in conservative communities in Arkansas, Utah, Oklahoma, Kentucky, Florida, and North Carolina, and ordered tapes from the California companies. The Unit was so confident that it also operated a sting out of Las Vegas.

In its first four years, 1987-91, the Obscenity Unit conducted 1,422 child-porn investigations, almost double the number from 1980-84. Adult pornography investigations jumped from 81 during 1981-85 to 222 in 1987-91. Part of the increase was due to the expansion of the Section to 13 prosecutors, almost double the number in the earlier period. From 1987-91, the Section obtained 135 convictions, 50 involving mail-order companies. The RICO statute was applied in four of the convictions. 21 However, many observers inside and outside the business suggest that the results were mostly symbolic and did little to curtail the business. G. Robert Blakey, a professor at Notre Dame Law School and one of the authors of RICO, told the New York Times, "The Government got convictions and seizures. But did they substantially curtail the traffic? I think the answer is no." Paul Fishbein, publisher of Adult Video News, the industry journal, agrees. He estimated that the adult-video industry's rental and retail sales grew from $992 million in 1989 to $1.6 billion in 1991. 22 Whatever the true assessment, the Obscenity Unit was rewarded in the bureaucratic arena by the strongest endorsement possible: its mandate was broadened. In 1990, it was given jurisdiction over cases involving child sexual abuse and child prostitution. Subsequently, its mandate was expanded to protect children from other forms of victimization. It also began to focus on obscenity and child pornography--an area that was to become its primary focus in the nineties. [End Page 162]

Meanwhile the Supreme Court was becoming even more conservative. The same year (1986) that the Meese Commission was advocating a new approach to pornography Chief Justice Burger resigned. Associate Justice Rehnquist was promoted to Chief Justice. His old slot was filled by Antonin Scalia, adding another strong, conservative voice to the Court. A truly conservative Court was almost within reach since the liberal Justices, Brennan and Marshall, were quite old. However, Justice Powell decided to retire first and President Reagan overreached by nominating Robert Bork to replace him.

Bork's nomination was a watershed in the Reagan Presidency. It alerted liberals and moderates of their peril: Roe v. Wade and other cherished positions were in jeopardy. After a bruising Senate confirmation battle in the Democratic controlled Senate, Bork was rejected and President Reagan had to settle for a more moderate Ninth Circuit Justice, Anthony Kennedy. Bork's loss was compounded by the resignation under fire of Edwin Meese as Attorney General, but that did not affect the anti-porn policies of the Department of Justice. In fact, the new Attorney General, Richard Thornburgh, approved of "Operation Woodworm," which was designed to destroy the entire adult video industry by using the forfeiture provisions of RICO and the recently passed Child Protection and Obscenity Enforcement Act of 1988.

Although Republican conservatives still were not sure of his bona fides, George Bush took office in 1989 committed to much of the Reagan agenda including the overturning of Roe v. Wade and a continuing war on pornography. His big weapon was the appointment of two new justices to replace the two most liberal justices--Brennan and Marshall. However, with the Senate still controlled by the Democrats, the best that he could do was to appoint two largely unknown individuals, David Souter and Clarence Thomas, and he almost failed with Thomas. The new appointments merely solidified the conservative position on pornography. In the ten years after the Meese Commission, the Supreme Court ruled on over a dozen cases involving pornography and obscenity. Although the Court has sided with producers, distributors, and consumers on a few narrow issues, it sided with the Government in most of the major cases. For example, the Court cut back on the requirements for searches and seizures in Maryland v. Macon, 472 U.S. 463 (1985); reduced the level of knowledge required about a film before a magistrate [End Page 163] could issue a warrant in New York v. P. J. Video, Inc., 475 U.S. 868 (1986); upheld the use of nuisance-abatement ordinances to close bookstores after less drastic means had been tried in Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986); and gave local governments great discretion over zoning of adult business that some local courts have interpreted to virtually eliminate any sex related business in City of Renton v. Playtime Theatres, 475 U.S. 41 (1987).

There were a few losses for government. For example, the Court was unwilling to allow local governments to run adult book stores completely out of existence by denying them licenses and said so in FW/PBS v. City of Dallas, 493 U.S. 215 (1990). It also handed the Federal Government a major defeat in Jacobson v. United States, 503 U.S. 540 (1992), in which the Court found that the Government had entrapped a purchaser of child pornography through a sustained campaign lasting several years. In a series of lesser cases the Court has resisted attempts to expand Miller v. California or to modify the burden of proof (Pope v. Illinois, 481 U.S. 497 [1987]).

Overall, the Reagan-Meese campaign, which started in 1986, was quite effective in establishing a strong legal base for prosecuting pornography. Although there is not room in this recitation to examine the change in the legal climate at the state and local level, it is clear that those entities took advantage of the new Supreme Court rules, especially those relating to zoning, to limit local book and video outlets. The Meese regime did encounter problems at the federal district and courts of appeals levels in its campaigns to harass the sex business with excessive record-keeping requirements, but, all in all, by the time that President Bush left office they had won the pornography war in the Courts.

Phase IV: The Clinton Years

Although candidate Clinton stated "that aggressive enforcement of federal obscenity laws by the Justice Department--particularly by the Child Exploitation and Obscenity section--will be a priority in a Clinton-Gore administration," 23 it is widely perceived that the federal war on explicit materials has [End Page 164] entered a stalemate in the Clinton Administration. At the time of her appointment, observers noted that Attorney General Janet Reno had not aggressively prosecuted pornography, other than that involving children, when she was the chief prosecutor in Dade County, and that pattern has been replicated at the U.S. Department of Justice. The war on child porn, especially the computerized variety, continued, but there has been little focus on adult materials. An analysis of press releases by the Department of Justice and U.S. Attorneys from September 1995 through April 1997 found only five announcements for arrests and prosecutions of adult pornography but over 200 for child pornography, much of it computer-based.

Two controversies, the Knox case and Communications Decency Act, have dominated the Clinton Administration's approach to pornography and both involved child pornography. The first, United States v. Knox, 977 F.2d 815 (3d Cir. 1992), became a litmus test for Clinton. The essential facts of the case are not in dispute. In 1990, Stephen Knox, a graduate student at Penn State, was found in possession of videotapes of amateur models--mostly teenage girls--that he had purchased through the mails. The models were practicing modeling poses typical to the fashion industry, but the cameraman (unbeknownst to his subjects) was zooming in on various parts of their clothed bodies, including the legs, chest or crotch. Knox was prosecuted and convicted under the federal child pornography statute that prohibits possessing depictions of sexual conduct as well as "lascivious exhibition[s] of the genitals or pubic area."

The specific legal question was whether the depiction of clothed minors engaged in non-sexual activities is covered by the law and whether a law which prohibited such non-nude depictions would be constitutional. The trial court defined the pubic area to include "the uppermost portion of the inner thigh" and Knox was convicted. On appeal, the Court of Appeals flunked the trial judge on his knowledge of anatomy, but ruled that the depiction of clothing covering the genitals constituted a "lascivious exhibition." This was a case of first impression. The legislative history did not offer any guidance on the issue and there was no precedent for such a definition. What evidence there was seemed to contradict the Government's position. Robert Showers, who [End Page 165] directed the Child Exploitation and Obscenity Section of the Justice Department at the time, told a Senate committee in 1991 that the federal child pornography law applied only to "lascivious" depictions in which minors were nude--a point his Supreme Court brief in the Knox case fails to mention. Until this case, the government had never even indicted anyone for possessing the kind of tapes that Knox had. Moreover, in 1990 the government had decided not to prosecute the Nather Co., the producer of Knox's videos, because the government did not think the videotapes were illegal.

The Knox case started during the Bush administration but was not decided by the Supreme Court until after Clinton came to office. At that point, the new Solicitor General, Drew Days, filed a brief on behalf of the United States challenging the decision of the Third Circuit. He contended that the Court had "utilized an impermissibly broad standard for determining whether a videotape can be considered to be a lascivious 'exhibition' of the genitals.... " He argued "that neither the statutory language nor the legislative history will bear such an interpretation...." Days equivocated only slightly by admitting that there could be an "exhibition" where the clothing covering the genitals was "so thin or so tight" as to reveal the "contours" of the genitals. He argued that nudity or "visibility" of body parts through or beneath the clothing was required for a conviction and that the material had to "depict a child lasciviously engaging in sexual conduct" to be illegal. 24 The Congress exploded. The Senate passed a unanimous, non-binding resolution condemning the Solicitor General's brief and claimed that Congress had always intended to punish clothed depictions; 138 members of Congress filed a brief in the Supreme Court. President Clinton caved in quickly. He denounced the reasoning of his own Solicitor General Days and ordered Attorney General Reno to draft new legislation "to eliminate any conceivable misinterpretations" in the future. The Knox case was seen as an early sign that the Clinton Administration would be soft on obscenity. Senator William V. Roth, ranking Republican on the Government Affairs Committee, denounced the ruling a "victory for a convicted pornographer." Republican Rep. Christopher H. Smith of New Jersey, went further: "This unholy alliance between Clinton and the porn peddler can only lead to the proliferation of child pornography and to the further exploitation of America's children." 25 Ultimately, the [End Page 166] Supreme Court accepted the position set forth in Days's brief and ordered a federal appeals court to rehear the case. After review, Knox's conviction was reaffirmed.

According to at least one commentator, Knox has sinister implications because it moves images of children out of the protected category of speech into the unprotected category of action, since the law now does not require that children be nude, be posed lasciviously, or even be overtly sexual, merely framed in such a way that a person might respond sexually. Worse, the precedent may so alter the status of all images. 26 Moreover, the ruling seems to have been the trigger for the Oklahoma City police seizure of the movie The Tin Drum in June of 1997. When a local judge ruled in advance of any trial that the film (which won the Academy Award for Best Foreign Picture in 1979) was obscene because of a sexual scene involving a minor, police demanded all copies from six Blockbuster Video stores and from the home of an employee of the Civil Liberties Union. 27

The Knox episode is a textbook study of how political fear can overwhelm political philosophy. In an early assessment of the new administration, Professor G. Robert Blakey, a professor at Notre Dame Law School, commented, "There are two kinds of people in the world: Democrats who hate guns, and Republicans who hate dirty books. Bill and Hillary Rodham Clinton are not going to make a crusade against dirty books." 28 While that assessment of intent is probably accurate, the Knox episode placed something close to a straightjacket on the Clinton Administration. Thereafter, anything carrying the imprimatur of child pornography, whether the designation was warranted or not, whether logical or ill-considered, required vigorous opposition. This accounts in large part for the Clinton Administration's strong support for the Communications Decency Act, which was just declared unconstitutional by the Supreme Court as this goes to press. [End Page 167]

Professor Blakey's further prediction that the Obscenity Unit would be killed by natural attrition was probably voided by the Republican control of Congress after 1994. Rather, the Unit will continue in its new role as protector of children who are victims of sex abuse, who are witnesses in criminal cases, and who are in danger of being run over on the "information highway." Clinton cannot appear to be weak on pornography if his successor is to be a Democrat. The Republicans can be counted upon to make his record an issue in the months leading up to the election. Since the Communications Decency Act was declared unconstitutional, the Clinton Administration will be forced to take at least a strong symbolic stand against pornography.

Regardless of one's assessment of the actions--past, present or future--of the Clinton Administration, it is clear that the conservatives and the Government have won the legal war against pornography. So why is there more pornography now than ever before? Fortunately that question is not within the purview of this paper.

William E. Brigman teaches law and social science at the University of Houston--Downtown. He has written several articles on pornography and the law, and serves as chair of the Eros, Pornography, and Popular Culture section of the Popular Culture Association.

Notes

1. The terms "pornography" and "obscenity" almost defy definition. However, in the real world, the following definitions seem to apply.

"Erotica" is the term applied to sexually related material which you like.

"Pornography" is the term applied to sexually related material which you don't like--unless you are a "pervert" who likes pornography.

"Obscenity" is the legal term applied to that sexually related material which it illegal to produce, sell, purchase, or rent in your local community, but which it is legal to possess if you can get it into your home without being caught, assuming that it involves people who appear to be, and in fact are, over the age of eighteen and if it were marketed as if it were non-obscene. Please note that under the prevailing definitions identical material can be obscene or non-obscene depending upon the community in which it exists. Thus a photograph produced in Los Angeles which is not obscene may become such by being transmitted to Memphis.

"Pornographic" material is not necessarily "obscene" but obscene material is necessarily pornographic unless it deals with excretement.

For the sake of readability, only the word "obscene" is used with its narrow definition in this presentation.

2. The only defense of pornography I am familiar with, other than the usual free speech argument, is Kenneth Tynan, "In Praise of Hard Core," in Dirty Movies: An Illustrated History of the Stag Film, 1915-1970, Al Di Lauro and Gerald Rabkin (New York: Chelsea House, 1976).

3. Butler v. Michigan, 352 U.S. 380 (1957).

4. See, for example, Kingsley Books v. Brown, 354 U.S. 436 (1957) (injunction against a book is permissible if the trial is held within two days) and Freedman v. Maryland, 380 U.S. 51 (1965) (state movie censorship did not have adequate safeguards).

5. See Bruce Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice (New York: Morrow, 1988).

6. Wall Street Journal, 28 December 1989.

7. 18 U.S.C. Sec. 1962.

8. Pub. L. No. 100-690, 102 Stat. 4487 (1988).

9. 18 U.S.C. Sec. 2251A and Sec. 1460 (intent to distribute on federal property); 18 U.S.C. Sec. 2251-2252 (outlawed "computer porn"); 18 U.S.C. Sec. 1466 (criminalized possession with intent to distribute obscenity that has crossed state lines); Sec. 7524, 47 U.S.C. Sec.223(b) (restricted "dial-a-porn" businesses).

10. American Library Association v. Thornburgh, 713 F. Supp. 469 (1989).

11. 18 U.S.C. Sec. 2257(h) (1).

12. This discussion is based on material in PHE v. Department of Justice, 743 F.Supp 15 (D.C. D.C.1990) and United States v. PHE, Inc., et al., 965 F.2d 8489 (10th Cir. 1992). See also, the Deposition of FBI agents, most notably Robert Marinaro as quoted in Arts Censorship Project, Above the Law: The Justice Department's War Against the First Amendment (Bedford, N.Y.: American Civil Liberties Union, 1992).

13. The strategy was first proposed by then United States Attorney Brent Ward in a letter to then Attorney General Edwin Meese in 1985. United States v. PHE, Inc., et al., 965 F.2d 8489 (10th Cir., 1992).

14. PHE v. Department of Justice, 743 F.Supp 15 (D.C.D.C. 1990), footnote 16.

15. Deposition of Randall Roden in PHE v. Department of Justice, June 11, 1991, p. 69, quoted in Above the Law.

16. PHE, Inc. et al v. United States Department of Justice, et al., 743 F. Supp. 15 (D.C.D.C, 1990) .

17. Deposition of Assistant U.S. Attorney Richard Lambert in PHE v. Department of Justice (June 11, 1991, p. 175, quoted in Above the Law.)

18. United States Department of Justice, et al v. P.H.E., Inc., et al., 965 F.2d 848 (10th Cir. 1992).

19. "Prosecute Porn? It's on the Decline,"Wall Street Journal, 28 December 1989, p. 1.

20. Adult Video News, April 1991, 17; Adult Video News, June 1991, 15; Adult Video News, July/August 1991, 14; Adult Video News, October 1991, 15.

21. The Commercial Appeal (Memphis), 28 December 1991, p. A15.

22. "Despite U.S. Campaign, a Boom in Pornography," New York Times, 4 July 1993, p. 20.

23. Quoted by Patrick Trueman, "Letter to the Editor: The Pornographers Have Won," The Washington Times, 19 September 1994, Final Edition, p. A21. Patrick Trueman was Chief of the Child Exploitation and Obscenity Section at the U.S. Department of Justice from 1988 until January 1993. At the time he wrote to the editor he was Director of Governmental Affairs at the American Family Association.

24. Lawrence A. Stanley, "The Child Porn Storm; How One Curious Legal Case Caused a Capitol Hill Stampede," The Washington Post, 30 January 1994, Final Edition, p. C3. Lawrence Stanley was a defense attorney for Stephen Knox.

25. Jerry Seper; "At Urging of Justice, High Court Eases Child-porn Definition," The Washington Times, 2 November 1993, Final Edition, p. A3.

26. Anne Higonnet, "Conclusions Based on Observation," Yale Journal of Criticism 9:1 (1996): 1-18.

27. "Oklahoma City Seizes Movie and Is Sued By A.C.L.U,"New York Times, 5 July 1997, p. 7.

28. The New York Times, 4 July 4 1993, Late Edition, sec. 1, p. 20.

Source: http://muse.jhu.edu/journals/wide_angle/v019/19.3brigman.html