The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Sunday, September 12, 2004

Is Ashcroft contributing to the October surprise party?

The back-story is that genial John Ashcroft, inserted into the Department of Justice as a sop to the Republican right, notably the Brent Bozell Tendency, has long been castigated by them for fallen down on the job in prosecuting adult obscenity cases (as distinct from child pornography) [1].

Ashcroft tinkered with the DOJ organisation chart, and got some investigations going: and, according to last Sunday's 60 Minutes (helpfully summarised here), the marquee prosecution [2], of Extreme Associates, is due to come to trial this autumn.

The show talked to
Mary Beth Buchanan, the U.S. Attorney for the Western district of Pennsylvania, and the point person in the Justice Department's campaign to rein in pornography.

(The Keystone State seems to be Porn Law Central this year - piece earlier today.)

Extreme Associates is a rank case of venue shopping: Mary Beth selected Pittsburgh to maximise the chances of conviction. According to this piece, this is general DOJ policy on porn prosecutions:
Federal prosecutors scored obscenity convictions in New York and Los Angeles in 2003, but they also racked up wins in western Missouri and southern Texas and West Virginia.

Moreover, prosecutions are being filed across the country -- one in Pittsburgh, three in Kentucky, five in southern West Virginia, six in Utah and eight in eastern Virginia last year.

(Should Pittsburghers be offended to find themselves in such company?)

Mary Beth makes what she might find an unhelpful admission to CBS:
We're focusing our resources on the most egregious offenders. 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.”

Buchanan says it's not the Justice Department's intention to shut down the adult entertainment industry, or eliminate all sexually explicit material -- even if it could.

I'm wondering whether that raises questions of abuse of prosecutorial discretion.

A greater problem for USG would be a challenge to the constitutionality of the obscenity law itself: in particular, the applicability of a test of community standards in the current environment. (The quotes from EA suggest they will be taking that argument: the (I read) stomach-turning nature of the vids in question may make any other than a directed verdict [3] from the jury a foregone conclusion.)

Community standards were also an issue in the Ashcroft v ACLU web smut case (June 29).

They are not an issue in the issue of FCC indecency censorship enforcing 18 USC 1464; but if media companies fined for shock jock or wardrobe malfunctions successfully attacked root and branch the constitutionality of indecency censorship, that might establish a climate favourable to a similar root-and-branch attack on the obscenity laws.

  1. The record of both the Clinton and Bush administrations on prosecuting adult porn I looked at as long ago as November 11 2002.

  2. Mentioned here on April 7.

  3. I'm not sure of the procedure; presumably there will already have been motions filed on the constitutional questions raised. Perhaps it will only get to the jury if those questions are decided against the defendants. Uninspired to research the point for the moment.


Earlier in the year, Adult Video News endorsed Dean, with Kerry as First Reserve.

Forum thread on the Extreme Associates case here.


Whilst on the subject of porn, I have seen no sign of any constitutional litigation on the provision of the PROTECT Act that replace the law on virtual child pornography struck down by Ashcroft v Free Speech Coalition. I surmise that the FPC, and other adult porn representatives, were content to leave contesting the law to those prosecuted under it.

The Pennsylvania case mentions US v Hilton , a 2004 1st Circuit decision on the effect of the FPC decision on those prosecuted under the law it struck down. (Noted just in case.)

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