As of the time of this writing, however, the often predicted and much anticipated tidal wave of prosecutions has simply not materialized. To be sure, a number of obscenity cases have been brought by the government, including the Extreme Associates prosecution, but there has not been anywhere near the 50 cases that Extreme Associates prosecutor Mary Beth Buchanan indicated were in the works at the beginning of that case.
Consequently, after years of frequent and sometimes passionate warnings by adult entertainment attorneys (myself included) about the real potential of catastrophic industry-wide prosecutions that have yet to occur, it is not surprising that many adult entertainment entrepreneurs now discount the threat. In fact, the relative lack of industry prosecutions has admittedly made the industry's attorneys look a bit like a flock of Chicken Littles — or worse, just a bunch of greedy, fear-mongering paranoia profiteers.
But the truth is that the industry is not out of the woods yet. In fact, the current political circumstances facing the Bush administration and the Republican Party as a whole have produced an unusually powerful mix of motivational forces that could incentivize aggressive enforcement action against the industry in advance of the midterm congressional elections. So at the risk that some may interpret the following as more "sky is falling" attorney-speak, let me tell you why my message really is: "The election is coming — heads up."
The Republican Party controls the presidency, the Congress and the courts. That's real power that can be used to do real harm to the adult entertainment industry. Given the disproportionate influence by the Religious Right on the Republican Party, in general, and on President Bush, in particular, it has been somewhat of a mystery that the adult entertainment business has not seen more prosecutions.
There are many theories why this has not happened. Perhaps the war on terror forced the Department of Justice to divert attention and resources from a planned prosecutorial sweep, spoiling former Attorney General John Ashcroft's stated plans to cripple the industry. Perhaps Bush never seriously planned to wage war on the business, but instead just promised to do so for the evangelical vote. Perhaps Bush has wanted to attack the industry all along but was counseled against doing so by his political advisers, who may have pointed out that a huge number of Republican and independent swing voters are free-minded consumers of sexually explicit content. Perhaps Bush and his advisers realized that an administration attacked daily for its incompetence would appear even more so if it redirected resources from the war on terror, border security, disaster relief, avian flu preparedness, etc., to the investigation and prosecution of people who sell sex movies to willing adults demanding them in record numbers. Maybe the industry has been spared a prosecutorial holocaust because of all or none of the above.
Political Change?
One thing for sure, however, is that the political status quo has recently changed and the Republicans find themselves on the defense and in serious trouble with voters. Because of the administration's repeated intelligence failures, the incompetent prosecution of the war in Iraq, the Katrina debacle, record deficit spending and most importantly, Bush's failure to secure the country's borders, the Republican Party is in serious trouble with its conservative base only five months before the interim elections. The Republicans know that many conservative Republicans may stay at home in the fall to express their displeasure with the party. As a result, Republicans fear that the loss of control of Congress is a very real possibility. They also know that if they do lose control of even one house of Congress, the Democrats, who will then control critical congressional committees, will unleash a nonstop torrent of congressional hearings into the administration's many alleged abuses of power. This could mean a Republican political bloodbath of epic proportions in the 2008 election.
All of this is, of course, is causing the Republicans to fall over one another. For example, with much fanfare, the Republicans have introduced an anti-gay marriage constitutional amendment pushed by the Religious Right, even though the amendment has absolutely no chance of ever becoming law. More tellingly, regarding the issue of border security, the Republicans have clearly elected to risk the loss of the Hispanic vote to respond to the demands of their conservative core constituency in passing tough illegal immigration reform without any form of amnesty.
But what does all this mean for the adult entertainment industry? I think that current political conditions point to a disquieting possibility that whatever has restrained the Bush administration from broadly prosecuting adult entrepreneurs in the past might now be trumped by a desperate desire to respond to its evangelical constituency's visceral abhorrence of adult content. It is important to note that Bush's lack of prosecutions of the adult industry has not gone unnoticed by the evangelical right. In fact, they have complained loudly and bitterly for more than five years that the administration is not doing enough to get rid of porn.
Many evangelical leaders have even termed Bush "a disappointment" in the area of controlling pornography. What is even more distressing about the political logic of a "war on porn" is that it would be a sexy issue that would get lots of favorable media play for the administration and many Republicans in close re-election battles. Such a crusade, which would inevitably be characterized as "necessary to protect the kids," could even potentially benefit Bush by acting as a distraction from the administration's many problems and seemingly endless failures.
There is, of course, no certainty that the administration will prosecute the industry en masse no matter how politically expedient that strategy might be. Bush has so squandered his "political capital," as he has called it, and has screwed up in so many other ways, I would not be surprised if prosecuting adult entertainment businesses was in fact the best thing for his party, he'd screw that up too. After all, his inept political leadership has probably soured the Hispanic vote for his party for at least a decade.
But if the Republican's political woes put the adult industry in a period of increased prosecutorial danger, what can an adult entertainment entrepreneur do in response?
In part two we'll look at some suggestions for dealing with an increased level of prosecutorial danger.
Gregory A. Piccionelli is one of the world's most experienced Internet and adult entertainment attorneys. He can be reached at Piccionelli & Sarno at (310) 553-3375 or www.piccionellisarno.com.
