The Obama administration reveals its stance on obscenity
Since President Obama took office, it’s been hard to tell exactly what the new administration’s attitude is towards the matter of obscenity. Hard to tell, that is, if you’re looking for direct commentary. If you’re looking at action, the lack of obscenity prosecutions speaks volumes.
The early years of the Bush administration saw an uptick in obscenity prosecutions that stood in marked contrast to Clinton’s anything-goes attitude towards obscenity. That effort was derailed by 9/11, when a whole new public enemy no. 1 came on the scene. The endeavor picked up momentum again when Alberto Gonzales was sworn into office in 2005 and quickly set about rejiggering the administration’s much-touted and long-awaited “War on Porn.”
Over the following years, the effects were hit-or-miss. In Arizona, an adult producer got off on a technicality. In California, an obscenity trial turned into a media circus when it was revealed the presiding judge had his own publicly-accessible porn collection. In Pennsylvania, an adult content-producing couple took a plea deal. In Florida, adult director Paul Little, better known as Max Hardcore, was sentenced to nearly four years for his dabblings in obscenity.
Surely, prosecuting porn purveyors in the 21st century is no easy task. These days, porn is everywhere you look. If the question is, “What is obscene?”, the answer, legally-speaking, can be found in the Miller test. But what are “community standards” in the digital era? What is “offensive” when a Quiznos commercial is a nod to “2 Girls 1 Cup”? What is “prurient” when Jenna Jameson is a best-selling author and Ron Jeremy is an American hero?
Recently, at the Senate Judiciary Committee’s Department of Justice Oversight hearing, Attorney General Eric Holder answered questions on subjects ranging from the 9/11 trials to Guantanamo Bay, but it was Utah senator Orrin Hatch who brought up the subject of obscenity.
Hatch: How is this administration enforcing federal law prohibiting sexually explicit material that meets the Supreme Court’s definition of obscenity?
Holder: Well, there is a section within the Justice Department, the Child Exploitation and Obscenity section, that handles these matters. The people who are there are career employees who’ve worked under Republican as well as Democratic attorneys general, and, I think, who do a good job, the –
Hatch: I ask you this question — I asked this of your Republican predecessors, because, in my judgment, they took a misguided and narrow approach to law enforcement in this area, so I’m concerned. Sorry to interrupt you.
Holder: No, I was just saying that the responsibility for the enforcement lies in that area, and, I think, they are quite aggressive in the prosecution detection of these materials, with a focus on, I think, child obscenity, which does not exclude other forms of obscenity that they can look at.
Hatch: Yeah, but there’s been a pattern at the Department of Justice to prosecute only the most extreme obscene materials. Now, this particular type of material may virtually guarantee a conviction, but it’s not the most widely produced or consumed, and therefore its prosecution may have very little impact on the obscenity industry. So, that’s what I’m concerned about.
This approach of moving the prosecution line out to the fringe signals that — material that is just as obscene, though less extreme, is let off the hook. I believe that approach is misguided and contributes to the proliferation of obscenity that harms individuals, families, and communities.
So, I’m very concerned about it. I hope you’ll really take a real look at it, because, currently, there is an Obscenity Prosecution Task Force at the Department of Justice. Now, will you allow the director of that task force to enforce federal obscenity laws without restricting him to the most extreme obscene materials?
Holder: Well, we will certainly enforce the laws using the limited resources that we have, and go after those cases that, I think, as we always do, have the potential for the greatest harm. There are First Amendment considerations that have to be taken into account, but that does not mean we will not be serious about the enforcement of those laws.
The Obscenity Prosecution Task Force at the DoJ is to what the men are referring, and it is tasked with obscenity prosecutions. It was formed under Gonzales in 2005, and it is helmed by Brent Ward, a former Utah attorney general, who, one gathers from Hatch’s query, feels his hands are tied by the Obama administration when it comes to obscenity prosecutions.
If you get the impression from Holder that the current administration has little interest in pursuing obscenity prosecutions, you’d probably be right. Whether you believe the reason is “First Amendment considerations,” a limited budget, perceived lack of public interest, or all of the above, you’d probably be right about that, too.
Nowadays, journalists pen passionate odes defending the ubiquitous consumption of extreme porn as an inalienable right without which Americans would be denied their very American-ness. It’s all no big deal, right? The problem is that this “anything goes” attitude doesn’t take into account the hardcore realities of the US porn business, something I’ve spent some time observing on the front line.
It’s easy to play armchair First Amendment activist, pronounce the mere concept of “obscenity” the product of conservative minds, and rail against the thought police patrolling one’s deepest, darkest fantasies. Yet, it’s not that simple. That mentality requires, as does the consumption of pornography, believing that the people performing in adult movies aren’t human, that they aren’t affected by the cultural climate surrounding their occupation, and what I have found in some 13 years writing about the adult movie industry is that when administrations turn a blind-eye to what’s happening in the adult film business, things in Porn Valley get very hardcore, indeed.
It’s all very well and good to shrug off obscenity as an antiquated term and consume as much pornography at the trough as one likes, but one might also be well served to remember that porn is a business like any other, and without controls of any sort, it becomes like the Wild, Wild West, and for those in that particular line of work, the consequences for them can be obscene.