Feds Ramp Up Obscenity Strategy

Gretchen Gallen
WASHINGTON, D.C. – Members of the adult entertainment industry have long speculated that a flurry of federal obscenity prosecutions have been teetering over their heads ever since President Bush took office in 2000.

Those fears were further confirmed with the appointment of John Ashcroft to the post of U.S. Attorney General, and further underscored by the Department of Justice's recent re-appointment of federal prosecutor Bruce Taylor as senior counsel to the Assistant Attorney General for the Criminal Prosecution Department.

Taylor worked for the DOJ from 1989 to 1994 as a special attorney for the National Obscenity Enforcement Unit, and then later as an attorney for the Child Exploitation and Obscenity Section (CEOS). He prosecuted nearly 100 state and federal obscenity jury cases during the first part of his career, including numerous trials on prostitution, child pornography, and child sexual abuse.

But recent words from U.S. Attorney Mary Beth Buchanan, Pittsburgh's top federal prosecutor and the lead prosecutor in the case of U.S. vs. Extreme Associates and owner Rob Zicari, indicate that the federal government is ramping up its strategy to take another swing at the online adult world, and this time it intends to file indictments in small towns where social and religious mores are more conservative than other areas of the U.S. and where jurors might be more apt to believe that the material fits the 1973 U.S. Supreme Court definition of what is obscene.

Buchanan's prosecution of Extreme Associates was the first major obscenity case brought by the federal government in more than a decade. Attorneys in the case are still filing pretrial motions, according to the Pittsburgh Tribune-Review. But instead of filing charges against Zicari in his home state of California where the likelihood of getting a more liberal-minded jury was far greater, videotapes depicting the material that later ended up serving as evidence for obscenity charges against Zicari were ordered from and mailed to Pittsburgh.

"We believe the crimes were committed in other jurisdictions as well," Buchanan told the Pittsburgh Tribune-Review. "But we investigated it here and decided to prosecute it here. I personally viewed this material and found it disgusting. But it doesn't matter what I believe. It's what the average person in the Western District believes."

According to reports, 50 obscenity indictments are currently under consideration in the U.S., and 17 cases are in the hands of federal grand juries nationwide. This compared to 83 obscenity convictions in 2003. Three obscenity cases are underway in Kentucky, five in southern West Virginia, six in Utah, and eight were filed in eastern Virginia last year.

However, Pittsburgh remains a longtime favorite spot for obscenity trials because of the socio-economic conservatism that is more likely to produce jurors with more mild interpretations of what is obscene.

"We have just had a proliferation of this type of material that has been getting increasingly worse and worse," said Buchanan. "And that's why it's important to enforce the law, and to show the producers that there are limits. There are limits to what they can sell and distribute throughout the country,"

Current federal laws on pornography make only explicit, hard-core sexual material that involves children or anyone under 18 years of age illegal, whereas all other porn content considered "obscene" must be tried before a jury.

In 1973, the U.S. Supreme Court defined obscenity as material appealing to a degrading interest in sex, depicting it in a patently offensive manner, and lacking any serious artistic, literary, or scientific value.

"We're focusing our resources on the most egregious offenders," said Buchanan. "So, we're looking at the producers and distributors who are producing the worst material, the largest quantity of material, the largest area of distribution."