A blog of the Philadelphia Bar Association’s Criminal Justice Section

Click to http://www.politico.com/news/stories/0411/53314.html
By: Josh Gerstein
April 16, 2011 05:44 PM EDT

To the list of social issues such as abortion once thought to be off the 2011 political agenda and now making a comeback, add a hot-button one from the days of Reagan-era Attorney General Ed Meese — pornography.

Attorney General Eric Holder/Reuters/politico.com

The catalyst for a renewed fight over pornography is a recent, little-noticed move by Attorney General Eric Holder to shutter the Obscenity Prosecution Task Force, a special Justice Department unit set up during the Bush administration under pressure from conservatives upset about the proliferation of obscene material on the Internet.

Critics say the decision reflects a lack of interest in prosecuting such cases. The dissolution of the task force has touched off an angry reaction in Congress as well as from conservative activists pressing for a crackdown on hard-core adult pornography, and threatens to embroil Holder and the Obama administration in another culture-war confrontation.

Department officials say the administration is not giving up on prosecuting obscenity but that such violations are better handled by U.S. Attorneys’ offices and the Criminal Division’s Child Exploitation and Obscenity Section. Even some who support such prosecutions concede that they are increasingly difficult to pursue at a time when pornography is a multibillion dollar industry whose products are readily available to anyone with a computer — and when the lines between pop culture and X-rated entertainment are seriously blurred.

“Attorney General Holder told the Judiciary Committee last year that this task force was the centerpiece of the strategy to combat adult obscenity,” Sen. Orrin Hatch (R-Utah) told POLITICO in a statement Friday. “Rather than initiate a single new case since President Obama took office, however, the only development in this area has been the dismantling of the task force. As the toxic waste of obscenity continues to spread and harm everyone it touches, it appears the Obama administration is giving up without a fight.”

Earlier this month, Hatch and 41 other senators sent a letter to Holder pushing him to bring criminal cases against “all major distributors of adult obscenity.”

“We write to urge the Department of Justice vigorously to enforce federal obscenity laws against major commercial distributors of hardcore adult pornography,” said the April 4 letter, circulated by Hatch. “We know more than ever how illegal adult obscenity contributes to violence against women, addiction, harm to children, and sex trafficking. This material harms individuals, families and communities and the problems are only getting worse.”

Most signers were conservative Republicans, but Sen. Joe Lieberman (I-Conn.) and six Senate Democrats also signed on: Ben Nelson and Mark Pryor of Arkansas, Bill Nelson of Florida, Tom Carper of Delaware, Amy Klobuchar of Minnesota, and Dianne Feinstein of California.

Justice Department spokeswoman Laura Sweeney said Friday the decision to discontinue the task force was made by the department’s Criminal Division, which is headed by Assistant Attorney General Lanny Breuer. “Re-incorporating the prosecution of obscenity violations into the Child Exploitation and Obscenity Section, as opposed to having a separate task force, provides for increased collaboration among experienced attorneys and agents, and gives our prosecutors the most solid foundation possible for pursuing their mission,” Sweeney said.

Although pornography is ubiquitous on the Internet, distribution of hard-core pornography online or by mail remains a violation of federal law if the material violates community standards, is patently offensive and lacks serious, artistic, scientific, political or literary merit. Whether it violates such standards or lacks merit is up to a jury to decide, if such a case goes to trial.

Federal obscenity prosecutions have waxed and waned over the years. The Reagan administration ordered a major study on the issue by the Meese Commission, and initiated a series of controversial prosecutions. Such prosecutions fell out of favor under presidents George H.W. Bush and Bill Clinton, but made a resurgence of sorts about halfway through President George W. Bush’s term.

While run-of-the-mill hardcore pornography may have been enough to shock a jury in the 1970s, that no longer seems to be the case today. As a result, prosecutors who have pursued such cases in recent years have usually focused on cases involving violent pornography, simulated rape or unusual fetishes.

News that the obscenity task force was being deep-sixed was hailed by lawyers and advocates for the adult industry, who defend it on First Amendment grounds and argue that material produced by and for consenting adults does no harm.

“It’s a very smart and pragmatic move on the part of the administration,” said Diane Duke of the Free Speech Coalition, a group representing businesses that produce sexually-explicit entertainment. “It was a witch hunt against folks in the industry, and it wasn’t one that was particularly successful. … It just seems like, finally, the Department of Justice has caught up with the rest of the nation.”

Feinstein’s decision to sign Hatch’s letter surprised some industry advocates, since the large porn businesses she’s pressing Holder to target are almost exclusively located in southern California’s San Fernando Valley.

“I have a feeling she’s going to be getting a lot of letters from our area,” said Duke. “It’s political season and we’re an easy dog to kick, but Dianne Feinstein needs to understand that a good portion of the economy in California comes from our industry, and we pay taxes and we’re voting members of the community.”

Asked about her interest in the obscenity issue, a spokesman for Feinstein pointed to her support for several measures targeting child pornography in recent years.

The recently disbanded unit was created by Attorney General Alberto Gonzales in 2005 amid complaints from social conservatives that Justice was almost never pursuing adult obscenity cases. Given limited resources and staff time, prosecutors consistently prioritized child pornography cases over adult materials. The new task force was established to ensure that the feds were prosecuting at least some obscenity cases.

The task force never amounted to more than a handful of lawyers, but its impact extended beyond the few cases it handled directly. Gonzales appointed a former U.S. Attorney from Utah, Brent Ward, to head the unit. Ward cajoled local U.S. Attorneys to pursue adult obscenity cases. He did that so aggressively that documents suggest the resistance some prosecutors showed to taking on such cases got them targeted for firing during the controversial round of dismissals the Bush administration carried out in 2006.

Ward declined to be interviewed about the closure of the task force or its record. However, in a brief conversation with POLITICO on Friday, he confirmed that he rejoined the U.S. Attorney’s Office in Utah in December. Court records show him assigned, beginning in January, to a series of federal fraud and tax evasion cases there.

A Justice Department official, who asked not to be named, said Ward “requested a detail” back to Utah and department managers agreed.

Burress said Ward had repeatedly expressed frustration, under both the Bush and Obama administrations, at senior officials’ unwillingness to initiate more adult obscenity cases.

“I met with him privately on several occasions,” Burress said of Ward. “He said, ‘Phil, I’ve got my hands tied behind my back. They won’t let me do my job.’ There was never a commitment to doing this.”

“It has now been 10 months since I arrived here. In that time, two cases have been indicted,” Ward wrote in an August 2006 e-mail that became public during the U.S. Attorneys firing controversy. “In light of this, the Task Force would have to be considered a failure so far.”

Critics of the task force say that while it managed to secure some guilty pleas from sellers of fringe pornography, it had an uneven record in the courtroom. People on both sides of the debate say the group focused largely on bit players in the industry.

“I hope [prosecutors] have been somewhat discouraged because I don’t think they’ve really gained a whole lot in what they did. They’ve gotten a couple of guilty pleas and prison terms of one to three years but in the last series of cases they got directed verdicts [of not guilty] and acquittals,” said Lou Sirkin, a Cincinnati lawyer who defends adult industry clients. “It didn’t really go anywhere.”

When Obama officials came in, they appeared to stop any new prosecutions but allowed the task force’s ongoing cases to play out. The death knell for the unit may have come last July, when its prosecution of porn director and producer John Stagliano ran aground in federal court in Washington, D.C. In the middle of a jury trial, U.S. District Court Judge Richard Leon — an appointee of President George W. Bush — dismissed several counts due to evidence problems. Leon later ordered Stagliano’s acquittal on all charges.

“I hope the government will learn a lesson from its experience,” the judge said, according to the Washington Post.

One of the task force’s cases, involving bestiality and so-called scat porn, is still pending in Los Angeles. The case was taken over by the Child Exploitation and Obscenity Section in January and is expected to go to trial this spring.

A formal response to the senators’ letter, sent on Friday, asserted that the department “has charged violations of the federal obscenity laws over 150 times since October 2008, and has recently secured guilty pleas from defendants in several cases involving adult obscenity.”

However, Assistant Attorney General for Legislative Affairs Ronald Weich, who signed the response, was fairly blunt in stating that department officials view crimes directly involving children as a greater priority. “The Department has focused its limited investigative and prosecutorial resources on the most egregious cases, particularly those that facilitate child exploitation and cases involving the sexual abuse of children, including obscene depictions of child rape,” he wrote.

Former obscenity prosecutor Patrick Trueman, who now heads the group Morality in Media, said the claim of 150 recent obscenity prosecutions is misleading and that, in fact, no adult obscenity prosecutions have been initiated under Obama.

“In various administrations — not just this one — DOJ has tried to sell the notion that it has a vigorous enforcement of obscenity laws underway,” Trueman said. “A look at the cases, however, reveals that what are counted as ‘obscenity cases’ are in fact child pornography cases where the defendant is allowed to plead down to an obscenity charge. … To suggest that such cases are adult porn cases is just wrong.”

Trueman asserted that the rising number of child pornography cases is due in part to the government’s failure to take meaningful action against sexually-explicit adult material. “Significant numbers [of] adult porn consumers move eventually to child porn because nothing else excites them,” he said.

As recently as this week, the Obscenity Task Force still had a section on the Justice Department website. Ward was still listed as the unit’s chief. The site also maintains links to a Morality in Media-run page that the public can use to submit complaints about allegedly obscene materials to federal prosecutors.

In an interview, Gonzales said he always considered child pornography a bigger priority than adult pornography but set up the task force because he was getting complaints from families across the country about the sheer volume of adult pornography on the Web and elsewhere. “I did hear concerns about how prevalent pornography is and how easy it is to access now,” he told POLITICO. “It made sense to have in effect a more concerted, more focused effort by creating a task force that brings different capabilities, different experience to the table as a springboard for greater success.”

However, the former attorney general called the prosecution of obscenity cases “difficult” and said it was not surprising that, in the eyes of most prosecutors, those would take a back seat to matters such as terrorism and antitrust prosecutions. He also declined to criticize Holder’s decision to close the task force.

“There are always competing priorities and objectives, and they may have felt that there was perhaps today a more effective way in dealing with this issue. I don’t want to second-guess it or want to be critical of it,” Gonzales said. “I have to believe they believe as strongly as I do that crimes against children and obscenity should be addressed — one way or another.”

© 2011 Capitol News Company, LLC

Free legal research available on State and Federal court appointed cases from the Student Research Center. http://www.philadelphiabar.org/page/CJResearch?appNum=4


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