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
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
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 ), 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 ), 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 ),
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 ). 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
 and City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
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
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 ), 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 ).
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 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 ). 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
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
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
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 ).
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
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
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.
1. The terms "pornography" and "obscenity" almost defy
definition. However, in the real world, the following definitions seem to
"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
"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
"Pornographic" material is not necessarily "obscene" but
obscene material is necessarily pornographic unless it deals with
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,
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
5. See Bruce Murphy, Fortas: The Rise and Ruin of a
Supreme Court Justice (New York: Morrow, 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).
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
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.,
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.