WASHINGTON (BP)–Willful disregard of obscenity as a federal crime worthy of prosecution appears destined to be a legacy of President Clinton’s two terms in the White House.
The Department of Justice under Clinton and Attorney General Janet Reno has dramatically de-emphasized obscenity prosecutions, former DOJ officials and anti-pornography activists charge.
While critics inside and outside Congress have decried the Clinton administration’s approach, the most telling comment on its policy probably has come from the pornography industry itself. In the March issue of Adult Video News, Free Speech Coalition lobbyist Kat Sunlove wrote in a legal column about the 2000 presidential election: “How likely is it, would you say, that we are going to enjoy the same benevolent neglect that the industry has enjoyed under Janet Reno?”
The statistics support such analyses, showing a rapid decline beginning in 1996.
DOJ’s Child Exploitation and Obscenity Section gained 126 obscenity convictions from 1989 to 1995, with forfeitures and fines totaling $24 million, former DOJ official Robert Flores said at a congressional hearing in May. Since 1996, there have been no more than 20 prosecutions, not convictions, for obscenity exclusive of child pornography, DOJ’s Alan Gershel said later in the hearing.
What made the difference?
A change in the White House, former DOJ staffers say.
When Clinton became president, he fired all the United States attorneys and replaced them with “ACLU types, liberal law-school professors,” Pat Trueman told Baptist Press. Trueman, now director of governmental affairs for the American Family Association, was chief of the Child Exploitation and Obscenity Section for five years during the Reagan and Bush administrations.
“So it’s just a matter of Clinton’s moral fabric laid down upon our federal government, and pornography to him is not a problem,” Trueman said.
Flores was with CEOS when the change occurred. The pornography industry was “running scared” under the pressure of the federal government’s prosecutions when Clinton entered the White House, Flores told BP. The shift from such diligence against obscenity was swift, he said. The section, however, had enough prosecutions under way to keep it busy on obscenity cases during the first few years of the Clinton White House, Flores said. After it concluded those, the section’s efforts to start new obscenity prosecutions died, he said.
There was a new push within DOJ. The word, Flores said, was: “We want you to concentrate on a certain kind of case. The message was made clear on a number of fronts by many, many people.”
The focus would be on child pornography, section officials were told, said Flores, who served at CEOS during the Bush administration and was acting deputy chief of the section until his departure in 1997. His boss and he agreed to the new approach in order to save the section from being placed under another section, said Flores, now senior counsel for the National Law Center for Children and Families.
As the “problem continues to get drastically worse,” there is a narrower focus of cases, Flores said. “And now it almost seems like the only cases they will do are stalking cases [pedophiles pursuing children].”
Meanwhile, obscenity’s growth on the Internet since 1995 has exploded, Flores said in written testimony for members of Congress. It is estimated there are anywhere from 40,000 to 100,000 pornographic sites on the World Wide Web, Rep. Steve Largent, R.-Okla., said at the May hearing.
Pornography not only has become pervasive, but it has become viler in content. Free “teaser” images for websites include bestiality, orgies, mutilation and excretory functions, Jan LaRue, senior director of legal studies at the Family Research Council, testified in writing.
While the Department of Justice has focused its attention on pornography that includes images of children, forms of adult pornography that critics consider obscene have become easy for children to access, sometimes unwittingly.
FRC’s LaRue told BP “the message has gone out [from DOJ], ‘We’re not doing anything but child pornography.’ The message has gone out to the pornography industry that anything goes. There is material on the Internet that would be prosecuted in Los Angeles,” said LaRue, who worked with that city’s police department in the past.
Last fall, LaRue and other representatives of pro-family organizations met with James Robinson, DOJ’s assistant attorney general for the criminal division. They gave him a stack of images found on the Internet. They included images of bestiality, orgies and a vile homosexual practice, she said.
The letter they received from Robinson after the meeting “essentially blows us off,” LaRue said. “Anybody who could look at them and say they don’t meet the Miller test is a fool.”
The Miller test is the three-pronged standard established in a 1973 Supreme Court opinion that must be met before something can be ruled obscene. The material must appeal to a “prurient” interest in sex, be “patently offensive” and lack social value. This stringent standard is based on the local community’s standards.
DOJ had an opportunity to defend its approach to obscenity prosecutions at the May hearing before the House of Representatives Telecommunications, Trade and Consumer Protection Subcommittee. Its representative failed to convince some subcommittee members of the correctness of its strategy, however.
In often testy exchanges, Largent and Rep. Chip Pickering, R.-Miss., grilled Gershel, a deputy assistant attorney general, on the department’s focus on child pornography to the nearly total exclusion of obscenity.
In the midst of Gershel’s testimony at a hearing devoted to obscenity on the Internet, Largent, acting as subcommittee chairman, interrupted to inform him the “focus of this hearing is on the prosecution of obscenity, not child pornography.”
The department takes “the view that child pornography is the worst kind of obscenity, and we believe that is the primary mission of [CEOS] at this time,” Gershel told Largent. Child pornography is where the department’s resources in Washington and in the 94 United States attorney’s offices “are being primarily devoted,” he said.
In 1999, DOJ filed an all-time high of 510 federal child-porn cases resulting in 378 convictions, Gershel said. He told Largent, however, there had been only 14 to 20 obscenity prosecutions exclusive of child porn since 1996.
What had DOJ done with $1 million Congress appropriated for obscenity prosecutions? Largent asked.
It was used to combat child pornography by hiring more prosecutors, instituting training programs and purchasing equipment, Gershel said.
“Well frankly, I’m astounded that the gentleman that’s responsible for this kind of investigation is confusing or merging two terms, legal terms of art, that everybody understands are mutually exclusive,” Largent responded. “Obscenity is not the same as child pornography. So when Congress says we appropriate a million dollars to prosecute obscenity, we’re not talking about child pornography. We gave you money for that too.”
Gershel acknowledged there had been a “dramatic increase” in child porn in the last three to four years, and Pickering said the department’s “lax effort” on obscenity may be the reason.
Obscenity and child pornography “overlap. They’re integrated. They contribute to each other. And until you address both, you’re going to continue to see a dramatic increase [in child porn],” Pickering told Gershel.
“It seems like you’re fighting a losing battle on child pornography. Would you consider having a dual front, a dual effort, where you emphasize equally both obscenity and child pornography? Would you consider a change in strategy or a change in policy, and then can Congress help you implement a new policy where you equally emphasize obscenity as well as child pornography?” said Pickering, who also asked if $10 million or $50 million in appropriations from Congress would help bring a change.
The department would entertain Pickering’s recommendations, Gershel said, but made no further commitments.
“The signals you are sending right now are very disturbing,” Pickering said.