Editor’s Note: When considering the current legal climate for the adult entertainment industry, and the present Justice Department’s attitudes on obscenity law, it’s sometimes helpful to look not just at individual government actions (such as the signing of the new 2257 regulations) but also at the bigger picture. Is a pattern developing that can tell you something about the government’s intentions towards adult entertainment? For example, we have a new Attorney General at the Justice Department; during Gonzales’s few months in office, what has the Justice Department said and done about adult entertainment? Is this a pro-censorship or pro-Free Speech regime? Industry attorney J.D. Obenberger recently pieced together the following informative chronology of events that helps adult webmasters and adult industry professionals to take a bird’s eye view of the government’s recent attitudes and actions towards adult entertainment. J.D. has kindly given YNOT permission to republish this chronology here so that our readers can benefit from the excellent organization of this important information. More information about current legal events can be found on J.D.’s website, xxxlaw.net.1. January 6, 2005. Alberto Gonzales nomination hearing, Senate Judiciary Committee: Mr. Gonzales stated six particular goals. Number six was “Obscenity.” The AG-to be explained, “I think obscenity is something else that very much concerns me. I’ve got two young sons, and it really bothers me about how easy it is to have access to pornography.”
2. Fourteen days later, on January 20, US District Judge Gary Lancaster declared the federal obscenity statutes to be unconstitutional – at least as applied to the activities of Extreme Associates, Inc., Robert Zicari, and Janet Romano in shipping obscene material by mail-order and in selling access to a pay web site containing material that was conceded by the defense to be obscene for the purposes of the motion. His decision rested strongly on the right to Privacy as articulated in Lawrence v. Texas, 539 U.S. 558 (2003) and Stanley v. Georgia, 394 U.S. 557, 564-6 (1969).
3. On February 14, 2005, Alberto Gonzales was sworn in as the eightieth Attorney General of the United States. He faced an immediate and urgent decision as to whether the government should appeal from the decision in Extreme Associates. One year to the day earlier, Bruce Taylor’s appointment as Senior Counsel to the chief of the DOJ Criminal Division had been quietly announced in the LA Times.
4. Two days later, on February 16, the Justice Department filed its notice of appeal from Judge Lancaster’s dismissal of the Indictment. “The Department of Justice places a premium on the First Amendment right to free speech, but certain activities do not fall within those protections, such as selling or distributing obscene materials,” Attorney General Alberto Gonzales proclaimed in a written statement. “The Department of Justice remains strongly committed to the investigation and prosecution of adult obscenity cases.”
5. Twelve days later, on February 28, 2005, the Attorney General spoke at the Hoover Institute and laid out a vision for his term: “Another area where I will continue to advance the cause of justice and human dignity is in the aggressive prosecution of purveyors of obscene materials. I am strongly committed to ensuring the right of free speech; the right of ordinary citizens and of the press to speak out and to express their views and ideas is one of the greatest strengths of our form of government, but obscene materials are not protected by the First Amendment, and I am committed to prosecuting these crimes aggressively.”
6. Very quietly, a short time later, a publication named DOJ Obscenity Prosecution News made its appearance on the US DOJ Criminal Division web page, ominously describing itself as “Spring 2005, Volume I, Issue 1” of a new periodical edited by Bruce Taylor and apparently dedicated to chronicling a new wave of adult obscenity prosecution. AVN’s Mark Kernes wrote an article detailing the newsletter, attributing the tip to XXXLAW. It may be found where it is discretely hosted on the DOJ Criminal Division page, at http://www.usdoj.gov/criminal/obs032604.pdf, as well as on xxxlaw.net.
7. On March 16, Senator Brownback’s Subcommittee on the Constitution, Civil Rights and Property Rights of the U.S. Senate Committee on Judiciary held a hearing in reaction to the decision in Extreme Associates. Senator Brownback first ridiculed the reasoning of Judge Lancaster’s decision by observing: “Judge Lancaster cobbled together hand-picked strands of 14th Amendment substantive due process, decisions from Roe, Lawrence and others, and ruled that the statutes at issue violated an unwritten constitutional right to sexual privacy.”
8. On May 3, 2005, Attorney General Gonzales spoke to a group of prosecutors and law enforcement officers at a conference in Gaitlinburg, Tennessee and significantly addressed adult obscenity, listing the prosecution of obscenity second among his goals as Attorney General:
“From street corners to web sites, obscenity and child pornography rip at the heart of our moral values and too easily corrupt our communities. I’ve made it clear that I intend to aggressively combat the purveyors of obscene materials … enforcement is absolutely necessary if we are going to protect citizens and children from exposure to obscene materials … I have directed Department officials to carefully review federal laws to determine how we can further strengthen our hand in prosecuting obscenity. Our goal is to assess all the law enforcement methods we use – and identify the tools we may still need to more effectively investigate and prosecute these crimes.”
9. Two days later, on May 5, the Chief of the DOJ Criminal Division announced the formation of an obscenity prosecution task force composed of CEOS trial attorneys and dedicated exclusively to the prosecution of adult obscenity. Counsel to the task force is Bruce Taylor. The task force will obtain assistance from the Organized Crime, Computer Crime, and the Assets Forfeiture units. In the DOJ Criminal Division press release, Chief Wray explained that the global traffic in obscenity required a specialized response in the computer age. He pledged to enforce “the laws on the books.”
10. Twelve days later, May 17, 2005, the Attorney General signed an order approving revised regulations implementing 18 USC Section 2257.
