Thursday, August 23, 2007

Who's Running the Obscenity War?

NOTE: THIS STORY IS FROM AUGUST 2005 (originally published in the September 1, 2005 edition of New York’s Gay City News)

By Cody Lyon

Lavinia is a tiny community in eastern Montana about 30 miles north of Billings. There’s a gas station, a post office, according to some residents, that’s about it. It was in the post office where 65 year old former school teacher Thomas Lambert was caught committing a crime that would eventually send him to jail for over two years. Lambert and his two alleged co-conspirators, Sanford Wasserman and Gary Robinson were prosecuted and convicted of what the federal government called a serious crime, distributing obscenity.

Since 2001, the United States Department of Justice has prosecuted 40 obscenity cases, with indictments pending against an additional nineteen persons or organizations. That compares to just four prosecutions during the Clinton administration from 1993 through 2000. Each has been handled by the Child Exploitation and Obscenity unit or CEOS at the DOJ criminal division. The more aggressive approach faces greater challenges because of the internet and the borderless distribution it allows.

Regardless, the Bush White House, an administration politically beholden to some of its most conservative constituencies has made the crusade against pornography a policy priority. In fact, a few members of a closely connected web of anti-porn warriors now play official roles in the Department of Justice’s new efforts. To them, the conviction of an individual like Thomas Lambert is a triumph over what they have long seen as a scourge on society.

“It’s pretty simple how he got caught, since everybody knows everybody in that little town,” said Mark Errebo, Lambert’s attorney in Billings.

“Lambert kept bringing in these brown, unmarked packages to be mailed to people across the country, and the girl who works in the Post Office, got suspicious and called the Postal inspector general here in Billings,” he said.

According to Errebo, a Lavinia Postal worker informed higher ups in Billings that Lambert had been sending an inordinate number of packages to points across the country out of that Post Office. A warrant was obtained, one of the brown packages opened, and inside, inspectors found hard core pornographic videos. At that point, federal prosecutors were notified, another warrant issued, and then a raid by federal agents on Lamberts home near Lavinia.

“Lambert’s house is out in the country, and that’s where they found the copying equipment, and the gig was up,” said Lambert attorney Errebo.

“That’s when he contacted me.”

“It actually took them a while to charge the case, for whatever reason, “noted Errebo during a phone conversation from Montana.

At first, Lambert pled ignorance, shifting part of the responsibility to co-defendant Wasserman. Errebo says Lambert explained Wasserman had told him the adult video distribution would be legal. Wasserman apparently owed Lambert around $60,000, and had offered to set up the video distribution operation as an alternative to paying him back. Wasserman allegedly said he’d not only would he make his money back, but then some through the mail order and distribution system. The other convicted individual in the case, Gary Robinson, had later joined Lambert and Wasserman as an employee.

In the end, defendant Lambert admitted the videos were obscene and was convicted in July, 2005. He is now serving a 30 month sentence in a California federal prison. Co-defendant Robinson was sentenced to one year while Wasserman faces up to 10 years since this is his second conviction

Lambert’s case was prosecuted personally by Montana U.S. Attorney Bill Mercer. .

When an obscenity case is charged and brought before a jury, prosecutors use a three prong test established by the United States Supreme Court in the 1973 Miller v. California ruling. The Miller case provided prosecutors with a tool that lets them ask a jury three important questions; whether or not the “average” person in that community would view the material in question as appealing to “the prurient interests,” whether it was presented in a “patently offensive” manner, and whether it was lacking serious artistic, political or scientific value. Film, print or live performance has to meet all three tests to be judged as obscene. For all their detail, the questions are vague and subjective, relying in large part on a particular community’s standards. Adding greater confusion is the advent of the borderless Internet, which present even more complicated legal questions to prosecutor efforts.

Regardless, some observers say that the Bush administration’s Department of Justice has been flexing its muscles in more conservative districts where it believes it might find a jury willing to convict on charges of obscenity. In other words, what might be deemed obscene and win a conviction in Lavinia, might not be as easy in a more liberal community like New York City. In the Lambert case, clues indicate that directives from Washington to Montana were indeed at play.

In a phone conversation from Billings, Lambert’s attorney Mark Errebo said that he had worked on a number of federal cases in his practice but that it was rare for him to deal directly with the U.S. Attorney, especially in a case such as this. But, Errebo said all it took was a phone call for him to realize the “sense of urgency” that federal law enforcement officials felt regarding Lambert’s case.

“I knew it was a priority when the actual for the district, Bill Mercer, called and said he would personally handle the case,” said Errebo.

“I knew this was more than your regular run of the mill prosecution” he said.

According to Errebo, Mercer informed him that there had been a directive from the top to “aggressively prosecute obscenity cases.

“I’ve known Bill for years and he said, hey, we’ve got our orders here, this is serious and we are going to take this case very seriously,” Errebo said.

Errebo speculated that the fact the case was brought in Montana was probably coincidental, however, he noted that the particular jurisdiction near Lavinia played right into the government’s prosecutorial efforts.

“This is an extremely conservative judicial district, with very conservative residents,” Errebo said.

“I think the fact that the district is conservative made the case something the U.S. attorney’s office would want to pursue,” he said.

Earlier, in the nation’s capital, details of a new task force were revealed by the Department of Justice.

On May 5, 2005, the DOJ announced plans for the Obscenity Prosecution Task Force whose exclusive mission would be the investigation and prosecution of sexual content crimes. The task force included a $13.8 million increase in the DOJ’s Child Exploitation and Obscenity Section budget at the Criminal Division provided for the hiring of several new attorneys, FBI agents and forensic experts who specialize in cyber technology.

Attorney General Alberto Gonzales had on several occasions publicly expressed his commitment to going after pornography, saying “obscenity and child pornographers rip at the heart of our moral values and easily corrupt communities,” going on to say that “prosecution and enforcement is absolutely necessary to protect our children and citizens from exposure to obscene materials.”

Critics charge such rhetoric that loops together what some see as legitimate adult material together with child pornography that has led to a controversial and complicated red herring in the debate over whether or not sexually explicit material is worthy of free speech protections.

The DOJ had also announced plans to strengthen the 1988 Child Protection and Obscenity Enforcement Act, U.S. USC 2257 laws. The original intent of the 2257 regulations was to keep minors from being used in adult material. The justice department’s new more meticulous 2257 regulations would require adult material producers to keep paper files of government issued identification on file at a disclosed physical location a move they said would prevent children from exploitation by pornographers.

But in fact, there had been only four documented where underage performers have slipped through existing regulations over the past 20 years according to available prosecution records.

The newer 2257 laws would also extend the existing rules from covering primary producers to all distributors of pornographic material. For online web sites with sexual content, the new requirements mean that official government identification of all models or anyone who appears on their web pages must be available for government inspection for seven years.

Failure to comply with the rules could result in five years prison time for first time offenders and up to ten years for a second offense.

Adult entertainment industry lawyers immediately charged that the new 2257 regulations would place what it called “burdensome” record keeping requirements on distributors and websites. The fear being that the rules could potentially inhibit the production and distribution of all adult material. Eventually they formed their own advocacy group Free speech Coalition, challenging the 2257 requirements in federal court where they now await a decision from a Denver judge who will decide whether an injunction will be issued.

“When you have a new regulation that broadly interprets and expands the government’s power, that’s a significant event” said First Amendment attorney Bob Corn-Revere in Washington DC.

“Under the justice department’s new interpretation, its authority under 2257 is actually very broad, so as a result, we will all be watching to see what the courts have to say about it” he said.

While recognizing the depravity of child exploitation, some critics of the 2257 regulations argue that they serve as smokescreen for a broader agenda since most pedophiles operate in a shadowy, underground world amongst themselves. In addition, they say there are clear distinctions between purveyors of child pornography and the more established adult entertainment industry.

The current crusade against porn has roots in the Reagan administration when then Attorney General Edwin Meese led a commission that would strengthen criminal penalties against the then, less regulated adult entertainment industry. After not meeting with much success, commission members discovered the way to win the public’s sympathy was by using child protection talking points as a means to meet an end.

“The mandate of the Meese Commission was how to get rid of porn, and after a number of attempts to win public support, what they found was that there were two hot button issues people respond to, the big one being kids” said New York photographer and artist Barbara Nitke.

Nitke, whose work includes erotic S/M imagery is among plaintiffs challenging the federal Communications Decency Act, another measure intended to place potentially sharp limits on sexual material on the Internet. She says the use of children in the rhetoric makes it difficult for people to speak up against the new moves by the DOJ.

““With every law regarding adult material, it is always about protecting children, but I’m cynical enough to believe they don’t really care about kids” she said.

Recognizing the bread and butter risks it now faces from more aggressive DOJ officials, the Adult Entertainment Industry says that it has taken new steps in its online networks to police its distributors and consumers including the creation of the Association of Sites Advocating Child Protection. A spokesperson for the group, Joan Irvine, said the industry employs a number of technologies meant to protect and prevent children from exposure to pornographic material. The technology includes subscriptions that require credit card and age verification.

Among civil libertarians watching the crop of new obscenity prosecutions is the American Civil Liberties Union.

“The DOJ can make themselves look heroic, saying we’re just protecting children” said Marvin Johnson, legislative counsel for the ACLU in Washington.

Still others warn that pedophiles and child pornographers have indeed utilized the internet and other distribution networks, but they say, the last thing are worried about is compliance with DOJ rules.

“This is a moment where there is a great deal of exploitation of children through images, and the internet has been a major facilitator of how people can do that,” said Amy Adler, law professor at New York University.

But she added “Pedophiles are criminals, on the fringes of society and are probably not worried about complying with 2257 in the first place.”

ACLU’s Marvin Johnson says he understands how the controversial and uncomfortable nature of adult entertainment makes it difficult for politicians to be outspoken, but he says the fact is, there are already existing laws and computer technologies that if enforced, would accomplish the stated mission of protecting children from pornography.

“There are laws on the books that specifically protect children without having to restrict any one industry or free speech” he said further pointing out that parents can install blocks to adult content when necessary.

Even still, the very topic, marketing and consumption of pornography by adults, presents a difficult political land mine that even the most liberal leaders find difficult to defend, an industry seen by millions as nothing more than a factory of “smut” and cultural corruption.

But in spite of widespread disdain for pornography, there are those who say DOJ efforts to rid the country of pornography is an illegal government intrusion that will ultimately fail because of what they say is a greater threat to free speech.

When asked about the latest increase in DOJ obscenity prosecutions despite new industry self policing efforts and the available technologies, a DOJ spokesperson said it was a matter of official policy that comes directly from the White House.

It is no secret that the White House has used hot button social issues, from Gay marriage to abortion in its attempts to appease the Religious Right. Indeed, one of the longest running stated goals of the social conservative movement has been the elimination of pornography. But in this case, it appears that the Bush DOJ was not only willing to make obscenity prosecutions a top priority, it would also utilize the resources offered by members of these groups as tools for carrying out that goal.

Back in June, 2005, Family Research Council president, Tony Perkins, revealed that he had been assured by Attorney General Alberto Gonzales that the DOJ was undertaking what it called a new war on pornography. Perkins told readers of his widely read Washington newsletter at the FRC web site, that the attorney general said he “intends to smash these criminal enterprises on the Internet and elsewhere” with what Perkins called a “new obscenity strike force.” Perkins went on to write ‘this is the only way to handle hard-core pornographers.”

Perhaps even more telling, a 2002 report from PBS “Frontline” written by reporter Nicholas Confessore detailed a meeting between a cast of conservative players and then-Attorney General John Ashcroft. The Confessore report said that Ashcroft assured the dozen or so leaders in attendance that aggressive prosecution of the pornography industry was a top priority of the Bush Administration Among those at the meeting in Ashcroft’s private conference room were Tom Minnery of Focus on the Family, Beverly La Haye of Concerned Women of America and Bruce Taylor, and attorney and prosecutor who got his start in law as a Cleveland city attorney.

Bruce Taylor has said that he has gone after more pornographers than any other prosecutor in the nation. Among those Taylor prosecuted, Hustler magazine Larry Flynt.

“Bruce claims to be the architect of a number of Internet laws that were eventually stricken by the courts,” noted ACLU’s Marvin Johnson who added with a sigh, “Bruce has been around a long time.”

In fact, Bruce Taylor was general counsel to Charles H. Keating’s Citizens for Decency Through Law or CDL, which had pressed for Flynt’s 1977 prosecution and was also instrumental in the highly publicized 1990 indictment of The Cincinnati Contemporary Art Center then-director Dennis Barrie in the infamous Robert Maplethorpe exhibition flap.

In 1990, Charles Keating was convicted of fraud for his role at Lincoln Savings part of the nation’s saving and loan scandal of the 1980’s.

In the meantime, Bruce Taylor went on to head The National Coalition for the Protection of Children and Families which is now located near nation’s capital in Fairfax, Virginia. Presently, that organization describes itself as a “law enforcement assistance and public education center” providing resources to state and federal prosecutors, police investigations and legislators. In recent years, the group has focused much of its energies on cyber pornography.

After the 2000 election of President George W. Bush, Bruce Taylor found himself in a new job at the Department of Justice, senior counsel to John Richter, the assistant attorney general in charge of the criminal division. Richter is the official that the new Obscenity Task Force reports to. Efforts to reach Taylor weren’t successful, but reports show that in addition to other duties, Taylor edits the new task force newsletter that appears on the official Department of Justice web site. There, readers can find information about recent obscenity and child exploitation convictions.

By 2005, a few weeks before the June meeting between Focus on the Family’s Tony Perkins and current Attorney General Alberto Gonzales, another group of leading conservatives gathered once again to strategize on how best to fight what they see as the scourge of obscenity.

Headlining the meeting on May 19 was Florida Republican Congresswoman Katherine Harris, then more famous for her role as that state’s Secretary of State during the heated 2000 Bush-Gore election who was then also a Senatorial candidate.

During the meeting, Harris lambasted pornography for its misogynistic content as well as the potential for porn to incite crimes against children.

“Too many studies have linked pornography with horrific crimes against children and women for responsible lawmakers to remain silent,” Harris reportedly said at the meeting.

Also attending the May summit was a U.S. assistant attorney general and leaders of at least two groups that appear to have risen to quasi governmental status, providing assistance to the current Department of Justice. Each, Morality in Media and Enough is Enough are now featured on the official Department of Justice web site alongside official government agencies including the FBI and U.S. Postal Service- as resources or entities where citizens can “report” obscenity or child exploitation violations.

The president of Enough is Enough is Donna Rice Hughes, who first came to national prominence after photos of her sitting on the lap of then-Senator Gary Hart on a boat named “Monkey Business” appeared in national media and eventually sunk the Democrat’s 1988 presidential ambitions. For a number of years, Rice’s group shared office space in Fairfax with Bruce Taylor’s National Law Center for Children and Families as well as the National Coalition for the Protection of Children and Families. When visiting the Enough is Enough website, readers can view recommendations for sexual counseling along with reading suggestions like the book “Crisis in Masculinity” and “The Battle is the Lords.”

A few hundred miles away in New York City is “Morality in Media”. That organization is headed by its president Robert Peters. Each fall, the group sponsors a visibility action called White Ribbons Against Pornography. In 1992, the organization’s then-Massachusetts chapter’s president spoke to the group’s religious undertones when she said “we are a Christian nation.” Peters himself is no stranger to controversial positions as shown by his claim that the television program “Queer as Folk” is a “frightening indication of how far the gay rights movement has come.”

Further evidencing a new found cooperation between the DOJ and conservative interests was money. In 2005 as liberal eyebrows rose over Bush administration funding cuts meant to combat hate crimes, the DOJ secured and distributed discretionary grants of $500,000 to Enough is Enough and $150,000 to Morality in Media.

Artists, free speech activists and other observers are clearly concerned over these relationships and what they see as greater threats to free speech. However, they acknowledge that the controversial topic pornography has led to a more nuanced reaction. Additionally, some have advised caution when attempts are made to interpret the current efforts of the DOJ.

“While some of the conservative political supporters of this administration have been talking about wholesale censorship, you can’t necessarily impute what they say in the political market place and assume it will have an impact on what is going on within the justice department” said attorney Bob Corn Revere in Washington.

New York Artist Barbara Nitke worries that the American public is not paying attention to the greater issue of free speech.

“I think you’re going to have trouble getting the average person to really care about this particular topic because people simply don’t understand the broader free speech principals at stake,” she said.

“It’s going to creep up on people and it’s going to be to late.”

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