In January 2005, a federal judge threw out the Bush administration’s most prominent prosecution against obscenity, in an opinion that cast doubt on the constitutionality of every obscenity prosecution in the country. The Court of Appeals reversed that decision in December, but it did not question the judge’s conclusion that the U.S. Supreme Court had undercut the foundations of obscenity law. The Court may soon have to confront, for the first time in decades, the question of whether it makes any sense to say that obscenity is not protected by the First Amendment. The answer to that question sheds light on an apparently unrelated issue: the peculiar self-deceptions that underlie the practice of the “war on terror.”
The obscenity case, United States v. Extreme Associates, is the first high-profile federal obscenity prosecution in years. The video on which the charges are based, Forced Entry, shows rape-murders in a way that is clearly intended to be arousing to the viewer. (The film is advertised on the producer’s Web site as follows: “Homicidal Rapists and Serial Killers as well as the poor, lost sluts they Kidnap, torture, rape and Kill! . . . Not For The Squimish [sic]!”) The prosecution was the centerpiece of Attorney General John Ashcroft’s effort to reinvigorate obscenity prosecutions, an effort that Alberto Gonzales is continuing.
That task was never going to be easy. There was an enormous boom in pornography in the 1990s, fueled by the growth of the Internet and cable television. Large corporations such as AT&T, Hilton, and Marriott have joined in its distribution. (Half of all hotel guests pay to view adult movies in their rooms, according to a 60 Minutes broadcast from 2003.) The boom was abetted by a lack of interest among federal prosecutors, because Bill Clinton’s administration had other priorities. Clinton’s attorney general, Janet Reno, thought that only child pornography was worth prosecuting. Ashcroft arrived with a different agenda, but the distraction of the September 11 attacks meant that federal prosecutions of pornography have resumed only very recently. Material that would certainly have been suppressed a few decades ago, and that would offend nearly every community, is now available in vast quantities. A cursory Internet search quickly yields graphic sexual fantasies involving rape, torture, bestiality, excrement, vomit, cannibalism, and necrophilia.
Things might have been different had Republicans been in charge. The administration of the first George Bush went after pornographers with such excessive zeal that they successfully sued the Justice Department, as one of the leading marketers, Philip Harvey, recounts in his 2001 book The Government vs. Erotica. The DOJ adopted the clever tactic of filing multiple charges against the same distributor all over the country, with the avowed purpose of exhausting the defendants’ financial resources and for...
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