Crackdown on *********** Is Being Launched by Bush (From NY Sun 9/15/03)
Indictments Are Expected To Be Handed Up Within Months ENDING AN ‘EIGHT-YEAR STRETCH OF NONENFORCEMENT’
By LUIZA CHWIALKOWSKA Staff Reporter of the Sun
WASHINGTON — The Bush administration is launching a “historical” crackdown on makers and distributors of material deemed to be obscene, after nearly a decade without prosecutions under federal obscenity laws, senior officials say.
At least 49 makers and distributors of *********** are under investigation, and indictments are expected over the next few months.
The Justice Department is “going back” to enforcing federal obscenity laws that were largely ignored under the Clinton administration, the deputy assistant attorney general for the criminal division, John Malcolm, told The New York Sun in an interview.
“The lack of federal enforcement over the previous eight years sent a message to those who produce and distribute this material that they would get a free pass and enabled this to proliferate,” Mr. Malcolm said.
“Absolutely we are doing more,” Mr. Malcolm said. “More charges will be brought in the future.” Over the past year, there have been 19 federal obscenity-related convictions, and indictments have been brought in eight more, he said.
The FBI, U.S. Customs, and Postal Service agents involved in the effort appear particularly interested in bestiality, ****** violence, and unusual uses of human waste.
In the first major federal prosecution in years, the owners of Extreme Associates, a California-based company accused of distributing videos portraying **** and murder,pleaded not guilty in Pennsylvania to 10 counts relating to the production and distribution by mail of obscene materials. [***] and [***] could face 50 years in prison and a fine of up to $2.5 million if a Pittsburgh jury finds the material obscene.
In another case, four defendants pleaded guilty in U.S. district court in Beckley, W.Va., August 25 to one count each of conspiracy to mail and distribute obscene material over the Internet. They sold videos and DVDs that mingled *** and excretion.
Officials say their interest in sexually explicit material is wide-ranging.
“There is no particular behavior that is off the table,” Mr. Malcolm said.
In a letter to conservative groups, a senior Justice Department official attempted to assure the impatient groups that, contrary to accusations, the antiobscenity efforts are “far from failing.”
“After an enervating eight-year stretch of nonenforcement during the previous administration, the Department once again considered obscenity enforcement to be an important priority and is once against vigorously enforcing federal obscenity laws,” the head of the child exploitation and obscenity section, Andrew Oosterbaan, wrote in an August 7 letter obtained by the Sun.
Producers of material considered more “mainstream” are not immune.
“One current case involves the owners of approximately 100 adult stores located in a number of states that pander ‘mainstream’ videos,” Mr. Oosterbaan’s letter states. “Another target is one of the largest producers of sexually explicit videos in the world.”
The renewed effort comes at a time when the administration is already squaring off against free speech advocates in litigation over campaign finance laws, but not soon enough for anti-*********** groups who have criticized Attorney General Ashcroft for ignoring ***********.
The letter states that the department is making “tremendous and historical progress” in combating “the scourge of obscenity.”
The Justice Department is planning its second Obscenity Training Seminar next month to teach U.S. attorneys across the country how to go after offenders. A High Tech Investigative Unit staffed with “computer forensic experts” is being staffed to investigate offensive content on the Internet.
“There have been technological advances that have allowed this material to explode into every household,” Mr. Malcolm said. “We think this is wrong and worthy of federal resources to combat it.”
But anti-*********** groups want not only more indictments — they want the effort to be high-profile. Last week, leaders of more than 100 groups wrote to President Bush asking him to issue a presidential proclamation on *********** Awareness Week, October 26 to November 1.
“As the Governor of Texas, he issued proclamations, but since he has become president this is an issue he hasn’t really addressed once,” said the president of Morality in Media, Robert W. Peters, who organized the letter.
“We’re well aware that President Bush has many concerns, but the bottom line is that the president’s bully pulpit is a very powerful one,” he said.
Mr. Peters said the administration has assured him more indictments are coming. “That’s what they’ve told us, off the record and on the record, that there are several prosecutions under way that will expectedly result in prosecutions,” he said
The appointment of Mr. Ashcroft, a lay minister and social conservative, raised high hopes among the groups, but they were dashed over the past two years as obscenity was pushed off the table by terrorism.
“The pace of change has not pleased anybody on our side of the issues,” Mr. Peters said.
A Santa Monica, Calif., criminal-defense attorney, Jeffrey Douglas, who is representing a Web site under prosecution under federal obscenity law, says obscenity prosecutions are politically motivated.
“There is no better way to excite fundamentalist groups than by attacking ***********. It presents a great opportunity with a great payoff for the administration,” said Mr. Douglas, chairman of the board of the Free Speech Coalition, the *********** industry’s trade association, and former president of First Amendment Lawyers Association.
But he said he doubts that convictions will be easy to get.
“Prosecuting anything involving the Internet is extremely challenging,” he said. Prosecutors must prove that the material in question offends contemporary community standards. Courts have been unclear on how to define the community standard that applies in cyberspace. Part of that standard depends on what else is available in the community, said Mr. Douglas.
“What distinguishes the Internet is that everything is available on the Internet,” Mr. Douglas said.
“Without question this is the most complicated, technical and abstract crime.You find out you’ve committed a crime only after a jury tells you so,” said a First-Amendment lawyer in Silver Spring, Md. Jonathan Katz.
The jury has to find that the material appeals to an unhealthy or morbid interest in ***, based on contemporary community standards, based on not what an individual juror believes — but what he or she believes the community standard to be.
But Mr. Malcolm said the law demands that a distributor must comply with the community standard in any community across the country where they sell or market their material.
Citing spam and misleading Web site names, he said, “This is being thrust onto people in the sanctity of their private homes.”
But Mr. Katz retorts that the material would not enter some communities, if not for undercover postal inspectors ordering it, as in the case of Extreme Associates. “They wrote to the company, got the materials, and expressed shock!” he said.
