"What he and his conservative supporters are trying to do is create a congressional record that will demonstrate there is a compelling reason to abridge the free speech rights of adults in the United States," Michelle Freridge, executive director for the FSC, told XBiz. "But you can't take away those types of constitutional rights without a really strong reason."
The hearing, which comes on the heels of another Brownback hearing on porn addiction, featured three conservative panelists with strong leanings toward pro-censorship and a clearer delineation between protections provided by the First Amendment and the pursuit and prosecution of commercially "obscene" materials, making particular reference to the recent 10-count indictment dismissal against Extreme Associates owner Robert Zacari.
Brownback also urged the Justice Department to bring obscenity prosecutions anywhere in the country, not just in conservative states, and to target not just the most explicit material like that of Zacari's, but also more mainstream content produced by the major studios.
According to Freridge, one of the panelists, Dr. Frederick Schauer of Harvard, demonstrated a better understanding of the history and application of obscenity law than the other two panelists, Patrick Trueman of the Family Research Council and Robert Destro of Catholic University.
Schauer suggested that current obscenity law is effective and should not be changed, and he argued that underlying criminal activities such as kidnapping, child pornography and sex trafficking should be prosecuted as criminal activities rather than attacking obscenity based on a product created during the activity. Schauer also said that the best way to regulate sexually explicit speech would be to treat it as an industry and focus on commerce laws.
While adult industry representatives were not invited to participate in the hearing, the FSC, along with industry attorney Lawrence G. Walters, have submitted written testimony that will be entered into the congressional record, which will later be referenced if new obscenity legislation is drafted.
According to Freridge, there were numerous inaccuracies noted in the hearing, in particular the repeated misuse of terms such as “pornography.”
"Both the Chair and witnesses inaccurately used the words 'pornography' and 'prostitution' almost interchangeably while talking about the evils of sex trafficking," Freridge said. "Another described obscenity law as 'a mess' that 'couldn’t do much' to regulate the industry."
Freridge said that Brownback's next expected action will be either to schedule another hearing or he will begin drafting legislation, which she thinks will be a tough fight, even for Brownback and his strong conservative backing.
"Case law had defined obscenity for quite some time and the three-prong test, or community standard, has been the standard as determined by the Supreme Court," Freridge told XBiz. "For Brownback to start with new legislation, he is going have to find something that is logical and more effective to convince other lawmakers to get it passed."
Freridge added that the FSC has been in the process of identifying and interviewing lobbyists in Washington and that an announcement should be expected in the coming weeks.
"We will continue to work to present our perspective in Washington so that lawmakers can fully evaluate all sides of the issues that affect the adult entertainment industry,” Freridge said.