American Lawbreaking

How Laws Die
The law, lawyers, and the court.
Oct. 15 2007 7:29 AM

American Lawbreaking

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In the Unites States, using a computer to download obscenity is a crime, punishable by up to five years in prison. Federal law  makes it a crime to use "a computer service" to transport over state lines "any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character."

Illustration by Alex Eben Meyer. Click image to expand.

Under the plain reading of the statute, most men in the United States may be felons. Statistics on the downloading of "lewd pictures" are notoriously unreliable, but according to some surveys, 70 percent of men have admitted to visiting pornographic sites at some point. Many such sites are probably obscene under the Supreme Court's definition of obscenity—that is, they, according to community standards, "appeal to the prurient interest," depict "sexual conduct" in an patently offensive way, and lack "serious literary, artistic, political, and scientific value."

Today, despite these laws, there are very few prosecutions centered on mainstream adult pornography. Over the last decade, and without the repeal of a single law, the United States has quietly and effectively put its adult obscenity laws into a deep coma, tolerating their widespread violation with little notice or fanfare. Today's obscenity enforcement has a new face: It is targeted against "harmful" porn (that is, child pornography and highly violent or abusive materials) and "public" porn, or indecency in the public media. This enormous transformation has occurred without any formal political action. And it illuminates just how America changes law in sensitive areas like obscenity: not so much through action as through neglect.

In 1968, the American pornography industry was new and shocking, and a "deeply concerned" Congress set up a $2 million commission to look into the growing problem. In a way that seems unimaginable today, the commission came back with findings that were exactly opposite to what Congress wanted to hear. To what Newsweek then called "the subcommittee's unconcealed horror," the commission concluded that society, not pornography, was the issue. "Much of the 'problem,' " wrote the commission, "stems from the inability or reluctance of people in our society to be open and direct in dealing with sexual matters." The commission recommended two legal reforms: repealing all obscenity laws at the state, local, and federal levels; and replacing them with new laws to protect children and to control public display. In short, the commission thought pornography, kept at home, was fine—it just had to be kept from minors and out of the public media.

In 1970, when the report came out, President Nixon and other politicians outdid one another condemning it. Nixon called it "morally bankrupt" and thundered, "So long as I am in the White House, there will be no relaxation of the national effort to control and eliminate smut from our national life." The Senate voted overwhelmingly to reject the recommendations. As a legal matter, the commission's ideas were dead on arrival.

But today, and to a remarkable degree, our pornography laws resemble precisely what the 1970 commission recommended. Prosecution of mainstream pornography is nearly nonexistent, and instead, everything is directed toward the protection of children and the zoning of the public media. Yet the laws haven't changed at all. So what happened?

Through the 1970s and '80s, prosecution of the producers of pornography remained vigorous, especially in certain regions. The Supreme Court had in the 1960s begun to create a formal legal divide between "indecency" on the one hand, and "obscenity" on the other—with indecency meaning "constitutionally protected speech." But in the 1973 case Miller v. California, Nixon appointee Warren Burger made clear that "obscene material is unprotected by the First Amendment." There would never be a Supreme Court-led legalization of all porn, in the same sense that Roe v. Wade legalized abortion. Prosecutions continued through the Reagan and Bush administrations, cheered on by the 1986 Meese Commission, which repudiated most of the conclusions of the 1970 commission.

But in the 1990s, mainstream pornography prosecutions slowed considerably and came to a near-halt, and statistically 1994 is the tipping point. That might be expected—President Clinton's speeches on the evils of sex and smut were infrequent. And, as Bruce Taylor, one of the nation's most prominent obscenity prosecutors, once told PBS, "Janet Reno just did not like doing obscenity cases."

During the Clinton years, says Taylor, porn producers were "flying high … [thinking] we're invincible, nobody's prosecuting us. The Justice Department doesn't care what we do. We can rape, pillage, and plunder, and use everybody up." Consequently, when the second Bush administration came to power, many expected a return to the old days. Early on you'd hear comments like this one, from Attorney General John Ashcroft, who said in 2002, "The Department of Justice is committed unequivocally to the task of prosecuting obscenity." Obscenity was made a "priority," and Ashcroft promised Congress a new crackdown on obscenity of 1950s proportions.

But nothing happened. Instead, adult obscenity prosecutions declined further during the first Bush term. George W. Bush is perhaps the most religiously conservative U.S. president in history. Yet his administration, despite its rhetoric, is looser on mainstream porn than Jimmy Carter or John F. Kennedy was. How did that come to be?

Ask prosecutors or former prosecutors to explain and the conversation is often strained. Some begin by shrugging and adopting a pained expression. "Those aren't easy cases to bring," says one former prosecutor from the Los Angeles office. "Juries don't like them." But didn't Ashcroft declare fighting pornography to be a national priority? "That's true," he admits.

Many prosecutors mention 9/11 and also say that given the enormous influx of all forms of pornography that came with the Internet in the 1990s, regular pornography simply became the lesser of several evils. "You deal with the white hot stuff first," says Joe DeMarco, formerly a prosecutor in the Southern District of New York. Or as Andrew DeVore, who also worked the SDNY, explains, "Child pornography was an obvious and vicious problem, and in part that's what you react to." 

DeMarco also suggests that at some level it doesn't matter who is president or attorney general; the prosecutors themselves need to see harm before they'll enforce the law. "No one wants to be chasing around Playboy or Lady Chatterly's Lover," says DeMarco. As another former prosecutor told me, "Would you rather be chasing terrorists, or some guy who reads Hustler?"

DeMarco's and others' views concede a change: While they'll fight stuff that's violent or involves children, mainstream pornography—"normal" sex—just doesn't strike prosecutors as all that harmful and is unlikely to be the subject of any kind of crackdown. Or as one former prosecutor put it, "When there are porn films in Holiday Inn or the Hilton, what do you expect?"

The Bush administration has made one last effort to resurrect the obscenity laws in the mid-2000s. In 2005, newly appointed Attorney General Alberto Gonzalez—under pressure from religious conservatives—created an Obscenity Prosecution Task Force within Main Justice, with the goal of pressuring local prosecutors to crack down. The result has been an uptick in cases brought against producers of "extreme" content involving violence or degradation. But there have been no actual prosecutions of the mainstream, multibillion-dollar industry, despite its obvious tension with the law. Hotels still have porn channels.

The task force faces an uphill battle. In 2005, Alex Acosta, a loyal Bush Republican, was appointed the new U.S. attorney for the Southern District of Florida, which includes Miami. He promptly informed local FBI officials that obscenity would be his "top priority." The reaction was as close to insubordination as you'll ever see in the U.S. government. Joining libertarian groups in complaining to the press were Acosta's own prosecutors and FBI agents. "Compared to terrorism, public corruption, and narcotics, [pornography] is no worse than dropping gum on the sidewalk," said Stephen Bronis, a Miami defense attorney. The insurrection seems to have worked: The records for Acosta's district do not reveal many porn prosecutions.

So, if there's almost no prosecution of regular porn, what is actually illegal?

First and foremost, the prosecution of child pornography retains its bitter intensity. Investigators and prosecutors of child pornography have no doubt about the rightness of their work, nor, apparently, does the nation. And there are few stories of juries nullifying child-pornography convictions.

The second area is the public media, which is more zoned than ever. The famous Janet Jackson "wardrobe malfunction" led to a record $550,000 fine for CBS. But that was the figurative tit of the iceberg. Afterward, Congress passed the Broadcast Decency Enforcement Act of 2005, which raised the "per-incident" fine for indecency from $27,000 to $325,000. Broadcasters call today's FCC enforcement the "star chamber," and networks like Fox privately admit that they face dozens of indecency prosecutions for material much less racy than what you can find on a Google image search. Howard Stern's radio show is light fare by contemporary standards—but it is Stern who was fined so heavily that he left conventional radio.

What all of these changes reflect are several major shifts in how the U.S. legal system views depictions of sex. The first reveal an acceptance of the libertarian idea that private consumption of nearly any material is not a public harm. That view excepts children and animals as victims, but not consenting women and men who have sex before cameras. In that view, the U.S. legal system has effectively and informally reached the same conclusion as the 1970 commission: Whether you like it or not, private consumption of pornography is just not harmful enough to merit public enforcement.

Yet at the same time, the United States has concluded that it will not be a place, like Europe, where bared breasts grace bus-stop billboards or soft-porn films can be found on regular late-night television. Americans love zoning—compartmentalizing behavior to designated times or places. It's how a diverse nation manages to live together. And so our obscenity system—much of which takes the legal form of an outright ban—is often in practice being used to move erotic content away from public places.

But who, exactly, reached all of these conclusions and made them our de facto law? Not Congress, the courts, or any individual president. Instead it was a combined product, over decades, of the decisions of hundreds of prosecutors, FCC officials, FBI agents, and police officers—all of whom decided they had better things to do than chase around pornographers the way they chase murderers. Their consensus—that normal pornography just isn't harmful in the sense that, say, drugs are—has driven the current law more so than any official enactment.

There are, by the way, strange consequences to the tolerated illegality of obscenity. Porn, considered as a regular product, is strong stuff. Yet it is free of most consumer safety regulation—the warnings, age limits, or worker safety rules that the American legal system insists upon for even fairly innocuous products. The United States is a country where fishing lures can warn, "Caution: Harmful if swallowed." Yet porn, banned but nonetheless tolerated, has ironically managed to avoid virtually all regulation.

The birth of a new law is something the media, lawyers, and academics pay great attention to. But the decay and death of old laws can be just as important, even when they're unobserved. The story of our obscenity laws highlights where, exactly, American laws go to die.

Tomorrow: How the rules of copyright are selectively enforced.