Commitment To Prosecutions

Gregory Piccionelli

In an interview recently published by the Daily Caller, the former chief of the U.S. Department of Justice’s Child Exploitation and Obscenity Section, Patrick Truman, revealed that Mitt Romney personally assured Truman earlier this year that Romney would “vigorously” prosecute pornographers if he is elected president. The same article also references an earlier public statement issued by Romney promising “strict enforcement of our nation’s obscenity laws.” Given the very real possibility Mitt Romney could be our next president, I think it is important to evaluate his recent statements and what they might mean for the adult entertainment industry.

This first thing to consider when assessing Romney’s commitment to vigorously prosecute pornographers is the context in which these “promises” were made. Some adult industry commentators have expressed the view that Romney’s porn prosecution promise to Truman, and his earlier anti-porn statement, are little more than election year pandering to the religious right. I generally agree. Republican candidates commonly genuflect, if not prostrate themselves to the religious conservative base of their party during the primaries. In fact, in this election cycle each of the republican candidates practically fell over themselves in their efforts to prove that they were more religiously conservative than all the other candidates. In that kind of political environment, a pledge to prosecute pornographers (a traditional favorite of politicians everywhere) is unadulterated political skull candy for religious conservatives.

If elected, Romney will certainly continue to need the good will of religious conservative groups who are currently very disappointed and frustrated by the last republican president’s failure to more effectively prosecute the adult entertainment industry.

But despite the fact that threatening producers of erotic materials with criminal prosecution has become a mandatory requirement for success in the Republican Party, I think the fact that Romney elected to make his porn prosecution commitment to Truman privately, is a rather encouraging development. I think it indicates that while the Romney campaign believes pornographer bashing has some tangible political benefits, they also know that it carries some real political risks as well. Perhaps the media firestorm ignited by Rick Santorum’s anti-porn rant earlier this year and the political backlash that it provoked was not lost on no-tit Mitt.

But I must part company from those who believe that Romney’s porn prosecution promises can be dismissed as nothing more than election year politicking. I also disagree with those who claim that such promises, in any event, cannot be kept because obscenity prosecutions have become too difficult for the government to win.

Romney ‘s statements promising porn prosecutions may well be politically motivated. And prosecution of mainstream adult content may well be an increasingly uphill battle for the government. But as reassuring as this might seem, it doesn’t mean that there isn’t a very real danger that the Department of Justice under a President Romney could launch a new round of prosecutions of adult entertainment companies and their principals.

If elected, Romney will certainly continue to need the good will of religious conservative groups who are currently very disappointed and frustrated by the last republican president’s failure to more effectively prosecute the adult entertainment industry. If Romney is elected, it is likely that these groups will be more demanding of results than ever before. It is therefore, neither unreasonable nor unlikely that Romney will be strongly motivated, if not compelled, to authorize some kind increased enforcement of the obscenity laws against the adult entertainment industry.

Fortunately, mainstream adult content has indeed become exceedingly difficult for the government to successfully prosecute. This is because mainstream adult content is widely consumed in virtually every community in the country. This fact, coupled with recent favorable court rulings like the one we obtained in the Ninth Circuit Court of Appeals that now requires the government in some cases to use a much more difficult national community standard to evaluate explicit adult content in obscenity cases, makes it clear to government prosecutors that prosecution of mainstream erotic materials will be difficult in most jurisdictions in the United States.

But it is important to note that regardless of how hard it has become for government prosecutors to successfully prove that mainstream adult content is “obscene,” as long as the so-called 2257 regulations (18 U.S.C. §2257, 18 U.S.C. §2257A and 28 CFR 75 et seq.) are alive and well, there will still be a potent mainstream obscenity prosecution strategy available to the government. Here’s why.

The government can elect to simultaneously prosecute an adult entertainment company and its principals for both obscenity and 2257 violations in the same case. This provides the government with the option of pairing obscenity allegations that are relatively difficult to prosecute with 2257 counts that are much easier to prove. Remember, the Department of Justice has maintained for over two decades that any violation of the numerous 2257 regulations is fully punishable under the law. This means that even simple and seemingly minor violations of the law, such as the omission of a copy of a single ID or the failure to properly cross reference a performer’s legal and stage names could result in prosecution subjecting the accused to potential incarceration for up to five years for the first count and ten years for each violation thereafter.

The combining of obscenity charges with alleged violations of the 2257 regulations dramatically shifts the prosecutorial odds for a conviction back in favor of the government, regardless of how difficult obscenity prosecutions of mainstream adult content has become. The government could use this strategy to pair up obscenity counts that it knows it is unlikely to win with 2257 counts that it knows it is not likely to lose given the difficulty of full and perfect compliance with the 2257 regulations. This strategy can be a powerful prosecutorial one-two punch to a significant part of the adult entertainment industry because it is likely that many companies are simply not in full and perfect compliance with the 2257 regulations.

The possibility that a Department of Justice headed up by a zealous anti-porn Attorney General might implement this strategy should be regarded, in my opinion, as a kind of potential weapon of mass destruction that could be used against literally hundreds producers of adult content that are not fully compliant with the 2257 regulations.

Given the cut and dry binary nature of 2257 violations, i.e., a party either is or is not in compliance, and given the difficulty of full compliance with all of the numerous technical requirements of the 2257 regulations, adding 2257 counts to an obscenity prosecution also provides the government with powerful leverage over a defendant to motivate the defendant to enter into a plea agreement. Such agreements commonly include punishments that would be less harsh than those the defendant might face if he or she were tried and convicted. The government knows that if a defendant is charged with both obscenity counts and 2257 counts, and if that defendant is also in violation of one or more of the 2257 counts, the defendant will probably be motivated to enter into a plea arrangement even if the defendant is fairly confident that he or she would be acquitted of the obscenity charges.

In the past, such as during previous obscenity prosecution sweeps under Reagan and Bush 41 (which did not involve any 2257 violations), the government often offered plea agreements that required the defendant to admit that the charged materials were obscene, pay a large fine, and permanently leave the adult entertainment business.

In the Daily Caller interview, Truman himself obliquely referred to his use of the tactic of offering defendants the choice of prosecution or exiting the business. Referring to his service during the Reagan and Bush 41 administrations Truman stated that “we had a target list put together by the LAPD and the FBI that consisted of about 60-65 top producers and distributors in the fifty states. We prosecuted them, and most of them went out of business or went to jail.”

Given that there are many more adult companies today than there were during the Reagan-Bush 41 era, it is not inconceivable that scores if not hundreds of companies could be forced out of the adult entertainment business in a relatively short period of time as a result of a round of vigorous hybrid obscenity/2257 prosecutions by the government.

Moreover, according to Truman, “Just a few federal inquests would likely frighten most companies — such as hotels and cable providers — into completely disassociating themselves from porn.” And as disturbing as that kind of thinking is coming from a former federal official sworn to uphold the Constitution, consider this additional chilling comment by Truman quoted in the same Daily Caller article: “Most U.S.-based porn websites, could easily be taken offline during a Romney administration.”

I believe that the adult entertainment industry should take notice of Truman’s assessment of the feasibility of a mass takedown of adult entertainment websites. I think it is, unfortunately, not entirely unreasonable and could, in fact, be effectuated via hybrid obscenity/2257 prosecutions given the large numbers of websites and content producers that are probably not in full compliance with all the 2257 regulations.

What should also be of great concern for adult entertainment businesses in the U.S. is the fact that a widespread anti-porn enforcement program under a Romney administration will likely be “sold” to the public as a self-financing, and even revenue generating, endeavor for the federal government because of the forfeiture provisions of the obscenity laws and the substantial monetary penalty provisions available to prosecutors under both the obscenity laws and the 2257 regulations. Obscenity prosecution sweeps under Reagan and Bush 41 resulted in the government’s collection of millions of dollars of fines and forfeited property.

Given the antipathy toward new government spending professed by fiscally conservative republicans, and the anti-porn positions taken by most culturally conservative republicans, a program that prosecutes pornographers and takes their money and other property to prosecute more pornographers, all at a net profit for the government, has got to be a GOP political advisor’s wet dream. Unfortunately, I think that is all to easy to visualize that this kind of morality police state prosecution-for-profit regime would likely be particularly attractive to the pandering antiporn politician and ruthlessly successful businessman, Mormon Mitt.

So while I agree that we should expect, and discount to some extent, the perennial antiporn rhetoric from republican candidates during an election year, I also think that it is unwise to completely dismiss the possibility that such talk could be followed by action.

Mitt Romney, while at Bain Capital proved that he could be a bane to workers employed by the companies his firm acquired. I don’t doubt for a minute that he has both the skill and the political motivation to be an even greater bane to our freedom of expression.

This article is not intended to be, nor should it be considered to be, legal advice. If you have a legal question or other matter related to the any of the topics discussed in this article, I strongly urge you to contact our office at the number below or seek the counsel of another qualified and experienced adult entertainment attorney familiar with the legal matters discussed in this article.

Gregory A. Piccionelli is an intellectual property attorney specializing in adult entertainment matters. He can be reached at Piccionelli & Sarno at (818) 201-3955 or greg@piccionellisarno.com.


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