Back to the Future -Hatch Calls for More Obscenity Prosecutions Just in Time for the Presidential Bids

Gas up the DeLorean, because Orrin Hatch is taking us back to 1984. “As the toxic waste of obscenity continues to spread and harm everyone it touches, it appears the Obama administration is giving up without a fight.” The previous sentence is part of a statement issued by Senator Orrin Hatch last week in the wake of his very public, very brazen call to the Department of Justice to increase obscenity prosecutions.
Hatch, the Republican Senator representing Utah, along with House Representatives Mike McIntyre (D-NC) and Randy Forbes (R-VA), sponsored the letters to the DOJ, effectually calling out the Obama Administration’s lack of “vigorous enforcement” of obscenity laws; one to his legislative colleagues and one to Attorney General Eric Holder. The letter to Holder, signed by dozens of Senate members, demands that the Department of Justice and the FBI step-up their efforts in prosecuting producers and distributors of “hardcore adult pornography.”
The letter urges General Holder to examine the evidence gathered by sources like www.pornographyharms.com, in order to fully comprehend the “crisis” caused by adult obscenity and “urgent need” for action by the government. Incidentally, the website referenced in Hatch’s letter is operated by anti-porn crusader, Patrick Trueman, CEO of Morality in Media and Director of the War on Illegal Pornography Coalition. If you still think there’s a glimmer of possible impartiality located within the “evidence” (let’s use that term loosely, shall we) provided via www.pornographyharms.com, take a look at Trueman’s press release on Hatch’s letter where he references the “grave social costs documented by a plethora of researchers at www.pornographyharms.com and at a groundbreaking conference held by the Witherspoon Institute at Princeton University entitled, ‘The Social Costs of Pornography’.” The Witherspoon Institute? The same Witherspoon Institute that brought us such neutral and fair-minded studies and literary masterpieces like, ‘Politics & the Devil’, ‘Medieval Wisdom for Modern Universities’, ‘Where in the Constitution is the Separation of Church & State?’ and who can forget ‘Did Pius XII Lie to Save the Jews?’.

But as much as we’d like to pretend that this is yet another divine alliance between the consistently overlapping groups of Republicans and religious conservatives, it is most definitely not. Several democrats, including the unexpected addition of Dianne Feinstein of California, signed on in support of Hatch’s demands. Feinstein’s backing of the letter comes as a surprise given the fact that the adult industry companies the letter is targeting are the very same businesses comprising her southern California constituency. When asked to comment on Feinstein’s involvement in this new resurgence against obscenity, a spokesperson for the Senator pointed to her support of “several measures targeting child pornography in recent years” – which of course provides a crystal clear explanation for jumping on the witch-hunt bandwagon targeting completely lawful speech engaged in by adults.

Even more disturbing might be Hatch’s extremist allegations that “experts warn” pornography is related to sexual harassment, violence against women and sex trafficking. As if the Orwellian undertones of the letter aren’t enough, Hatch is channeling us back to the 80s with over-broad, feminist far-left propaganda, reminiscent of the Dworkin-MacKinnon Era anti-porn crusade. Note: unsuccessful anti-porn crusade.

An Assistant Attorney General has responded to the allegations of being “soft on porn” with a letter of reply, stating that the DOJ has made the realistic decision to focus its “limited investigative and prosecutorial resources on the most egregious cases, particularly those that facilitate child exploitation…” Given the DOJ’s unsuccessful attempt at its last high profile obscenity trial against Evil Angel owner, John Stagliano, it’s really no wonder that the DOJ decided to turn its attention to prosecuting media involving children as opposed to consenting adults. Stagliano’s obscenity trial last July, which resulted in a judgment of acquittal on all counts, was likely the final nail in the coffin for the now-defunct Obscenity Prosecution Task Force. The Task Force was a special Justice Department unit set up during the first Bush administration as a result of conservatives reacting to the abundance of allegedly obscene material available on the Internet. This recent disbanding of the DOJ’s ‘Porn Police’ may have been exactly what Orrin Hatch was waiting for to drop his bomb on Capitol Hill. Between Hatch’s demands for action on the DOJ and the fact that the 2012 presidential bids are being tossed around; is it possible the next year or so could provide the perfect storm for a resurgence of the Obscenity Prosecution Task Force?

Given the vagueness of the Obama Administration’s stance on obscenity prosecution, the possibility of a Republican taking over in 2012 leads to thoughts of a Reagan-era anti-pornography agenda renaissance. How likely is it that the incumbent will be able to stave off the Republicans for another four years; obviously everyone in every industry has their own prediction, but we all know it’s too soon to tell. However, with Obama’s approval rating plummeting daily and the GOP’s recent accusations that the democrats aren’t taking the budget crisis seriously enough, it’s not so far-fetched to see Obama throwing the conservatives a bone by entertaining Hatch’s demands in the near future. What would Trump do?

Notably, as this blog post goes to print, reports of adult filmmaker, Ira Isaacs, having been indicted on five new obscenity charges are hitting the newswire. These latest indictments join Isaacs’s three previous obscenity charges originating in 2006. Originally slated to go to trial in 2008, the case was postponed due to the controversial recusal of Judge Alex Kozinski. The trial, now set for May of this year, could commence within days of Isaacs’s arraignment on the new obscenity counts, unless his defense attorney can push off the trial again, in light of the new charges. Is this latest news pure coincidence or a knee-jerk reaction by Obama’s DOJ to the news of the day? Let’s sincerely hope that it’s the former because it’s a little disconcerting that the Attorney General might find it more damaging to be considered “soft on porn” than proceeding with a baseless fishing expedition against an easy target for the sole purpose of flexing his judicial muscles in some inter-branch, alpha-politician contest with Orrin Hatch.

So how does all this ambiguity ultimately affect the adult industry? This industry has traditionally been used as a tool in political agendas, unfortunately resulting in the First Amendment as the inevitable loser all too often. As referenced earlier in this post, Republican administrations going as far back as Reagan, have displayed blatant aggressiveness against the adult industry, citing the same ‘moral decay of society’-type rationale currently demonstrated by Senator Hatch and his supporters. On the other hand, the Democratic Party has traditionally been more receptive to the adult industry in general, but if recent years have shown anything, it’s that ‘liberal’ does not necessarily mean ‘libertarian.’ And now, especially with Capitol Hill reeling from some of the most volatile bipartisan infighting this country has seen in decades, one can’t help but wonder if adult entertainment is going to be a scapegoat yet again. So batten down the “Hatch’s” and get ready for another round.

*Note: This article was drafted with the purpose of addressing all political agendas affecting the adult entertainment industry and in no way was intended to act as a political endorsement of any candidate. It should also be noted that the author is not associated with any election campaigns or a member of any political party.

COICA – Friend or Foe?

Between the entertainment industry honing in on infringers and the current presidential administration looking to “crack down” on illegal content online, it’s no wonder that Senator Leahy’s “Combating Online Infringement Act” (COICA) has been making headlines again the last few months.
Briefly, COICA enables the Attorney General to institute an in rem action against the domain name of a website deemed to be “dedicated to infringing activities.” This means, if a site “engages in” any type of infringing activities where such activities, if “taken together” are “central to the activity” of the site, the site is in violation of COICA. Upon a finding of infringement, courts are authorized to issue injunctions against the domain name itself (as opposed to the registrant of the domain name), which may consist of ordering the domain name’s registrar and registry to “lock” the domain name. This “lock” effectively bans access to the site via the domain name. Courts would also be authorized to enjoin any “operator of a nonauthoritative domain name server,” a definition that could potentially extend liability to Internet Service Providers, requiring the operator to “take technically feasible and reasonable steps designed to prevent [the] domain name from resolving to that domain name’s Internet protocol address.”
Many believe that the problem with COICA lies in its lax due process procedures, as a U.S. court can essentially shut down a website operated anywhere in the world without an judicial determination of illegal activities or any application of structured dispute resolution. Most jurisdictions would call such a process an unlawful prior restraint on speech, but Senator Leahy and his supporters are taking a route we’ve seen all too often in recent years, with the mentality of ‘if you aren’t doing anything wrong, then you have nothing to worry about.’
Although the Obama Administration has made copyright enforcement a key issue in the last two years, the feds have really been bringing on the heat, recently. The reasoning? Supposedly to promote economic growth and competition, job creation and protection of American innovation. One can’t help but look at such an altruistic statement with a healthy dose of skepticism when massive legislation like COICA pops up and the witness list endorsing the Act in Senate Committee hearing are corporate giants like the Go Daddy, Visa and Verizon.
So what about free speech? What about censorship? What about the right of ISP’s, domain registrars, domain owners, payment processors, and advertising associates to not have to cut off all services to a website simply because the site has been accused of something? As the Electronic Freedom Foundation has pointed out, the fact that the government can block the whole domain and not just the infringing “portion” of the site is what fuels the censorship fire. Critics also cite to the fact that copyright owners have already been provided the means to combat online infringement via the DMCA. EFF has stated, and probably accurately so, that
“COICA streamlines and vastly expands [misuse of DMCA provisions resulting in damage to fair use and free expression]; it would allow the Attorney General to shoot down a whole domain including all the blog posts, images, backups, and files underneath it. In other words, it’s not just possible but probable that a great deal of legitimate, protected speech will be taken down in the name of copyright enforcement.”
Leahy’s quote that, “There’s no First Amendment right that protects thieves […]” sums up the rebuttal, I suppose. It’s true that not all communications fall into the realm of protected speech, but is shutting down a communicative business without any recourse to an adversarial hearing, and possibly extending that same liability to its business affiliates, the most reasonable way to regulate theft of IP? Supporters claim that the legislative intent of the Act is to block sites whose principal business purpose involves engaging in blatant IP infringement, not those who utilize material protected by fair use or “accidentally link to a copyrighted image.” Simple enough, right? It’s not like the federal government is trying to pass a bill unabashedly resulting in Internet censorship and effectually extending U.S. Attorney General jurisdiction to, well, everywhere. Oh, wait…
And what about that proposed legislation that would allow the President to push a button to shut down the Internet?
It’s too soon to tell for sure if COICA will go through, and Senator Leahy most certainly continues an uphill battle. But with an issue like global Internet regulation and the kind of conglomerate lobbying that COICA is garnering in Washington, this whole thing has to make even the most faithful supporter of the American political system ask themselves, ‘Is this going to be a case of money talks and freedom walks?’