Jan 10, 2017 11:52 AM PST    Text size: 

WASHINGTON — Donald Trump’s pick for attorney general said today that he would consider reconstituting a special Justice Department unit to prosecute "obscenity" laws.

Testifying before the Senate Judiciary Committee Tuesday in a confirmation hearing, Jeff Sessions was asked by Sen. Orrin Hatch whether he would more “vigorously” prosecute adult "obscenity" laws targeting porn (former Attorney General Eric Holder disbanded the Obscenity Task Force during President Obama's first term).

Hatch, the Utahn senator, referred to porn as a “public health” concern in his line of questioning.

Sessions remarked: “That unit has been disbanded. I’m not sure I knew that, but it was a part of the Department of Justice for a long time and I would consider [reviving it].”

Industry attorney Paul Cambria told XBIZ this afternoon that his firm will be ready to defend the protected speech of adult entertainment if the Justice Department revives the unit.

“Our belief that the community standard is not exceeded by adult entertainment has not changed,” Cambria said. “The law prohibiting child pornography should be enforced but when it comes to adults, as long as the activity is consensual and adults are accessing it in my opinion juries will see that the community accepts this for adults and that money should not be wasted paying investigators, prosecutors and taking up court time with such matters.”

Joe Obenberger, another industry attorney, said that it looks like it's obvious more to Sessions than anyone else that he has some homework in front of him regarding "obscenity" law.

"He will learn real quick why the Obscenity Task Force was disbanded," Obenberger said. "It was essentially impossible to staff that initiative with competent and successful assistant attorney generals and to enlist the support of committed and competent FBI agents. The odds are he doesn't know that. He will find out quick.

"He will also come to learn quickly exactly why this is the case," Obenberger said. "Juries have started to laugh in open court at prosecutors who brought obscenity cases in Arkansas with an obscenity task force sitting at the table. He already knows that contemporary community acceptance hinges upon which obscenity law swings.

"He will soon learn that hardcore sex on the internet has become deeply engrafted into the contemporary values of American society and is likely to have been a part of the life of the prosecutors and FBI agents without whom he cannot prosecute a traffic ticket," he said.

"And if, defying all odds, he fails to do his homework his boss, whose grandfather made the family fortune by running a brothel, is likely to educate him in a heartbeat."

Obenberger continued: "It is obvious from his answer that he did not see this one coming. That speaks volumes about the importance or lack thereof that Jeff Sessions and his confirmation sponsors attach to the prosecution of porn. Enough with all this paranoia."

Industry attorney Corey Silverstein told XBIZ that today's confirmation hearing confirms the fears that many free speech advocates had when Trump won the presidential election. 

"The adult industry must stand together against further restriction and government enforcement on free speech because if Sessions follows through with this quasi-threat, this will impact everyone — content producers, performers, website operators, etc. — operating in the adult entertainment industry," Silverstein said.

"Given the prior comments that Jeff Sessions has made related to pornography I’m not very surprised to hear Sessions suggesting the return of Obscenity Task Force; nonetheless I am hopeful that before Jeff Sessions makes any final decision, the Trump administration will quickly realize that there are far bigger issues to deal with in the U.S., and it would be a waste of resources to bring back the Obscenity Task Force. 

"It’s also troubling to learn that Sessions didn’t know that the Obama administration had disbanded the Obscenity Task Force, given he is being appointed to one of the most powerful positions in the U.S. government. Finally, it's important to note that many people including myself and the Obama administration believe that the Obscenity Task Force didn’t work when it did exist or produce meaningful results; it makes no sense to try it again." 

Industry attorney Marc Randazza told XBIZ that Sessions’ remarks about adult entertainment aren’t surprising.

“Sessions has never made it a secret how he feels about porn,” Randazza said. “We have, however, a drill for this.

“The first thing I would do, if I produced adult content, is to start doing more pre-release review,” Randazza said. “If I produced anything remotely outside the mainstream, I would make sure to have a significant defense fund built up somewhere. The sky is not falling. We have been through this before with John Ashcroft."    

Industry attorney Jeffrey Douglas, who also is board chair of adult trade group Free Speech Coalition, said there are “structural and administrative obstacles” to reinstating a specialized anti-"obscenity" unit.

“The late, unlamented Obscenity Task Force could not find any trial attorneys willing to accept a permanent assignment,” Douglas told XBIZ. “The consequent poor quality of legal work doomed several of its attempted prosecutions. 

“The DOJ still has never attempted any prosecutions of Internet only businesses. There are legal issues unique to the Internet that could be fatal to obscenity cases. And, perhaps most importantly, the public is either indifferent or hostile to allocating resources to prosecute obscenity cases particularly of material they themselves watch online. 

“With great effort prosecutions could come, but it is highly unlikely that the government could put together 30 prosecutions at a time as they did under Reagan and Bush 1. 

“While they can succeed in destroying some people's lives, they cannot affect the content consumed or the ubiquity of the distribution.”  

Another industry attorney, Karen Tynan, told XBIZ that Sessions’ statements today were “alarming.”

“Jeff Sessions and [incoming Vice President] Mike Pence are a deadly combination against adult entertainment,” she said. “Based on his statements, we can expect prosecutions in 2017.”