american porn
homewatch the programprosecutingthe businessspecial reportsdiscussion
photo of taylor
interview: bruce taylor

... I think I have prosecuted more obscenity cases in the history of the United States, just because I've been involved in 700 or 800 obscenity cases. I've done 100 jury trials in maybe 25 states. I've done 200-some appeals. There have been other prosecutors who did a couple hundred cases in a city, among their staff, but nobody has done like 700 or 800. ... From 1988 to 1995, we [the Justice Department] got 130 convictions, took in $25 million in fines and forfeiture, and convicted most of the kingpins of the pornography industry at least once

What is the essence of Miller v. California?

The Miller test -- and we still use it today in every state court, every federal court trial in the United States -- is a three-part test. The first two prongs use community standards; in other words, instead of asking the jury, "Do you think this is obscene?" you're supposed to decide whether you think an average person in the community of adults where you live or where you congregate would find that the material appeals to the prurient interest -- meaning, does it appeal to that shameful, morbid, lustful, lascivious, erotic interest in sex -- or does it appeal to a sort of a normal, healthy, educational reproductive interest?

Second prong: Would that average person, applying community standards, find that it depicts the sexual activity in a patently offensive way? The question isn't, "Is it offensive sex?" It's whether it depicts it in an offensive way. So there could be non-obscene movies about rape and incest and pillaging, and there could be obscene movies about Romeo and Juliet's honeymoon. It just depends on how explicit and how offensive.

And the third prong: Would a reasonable person find that it lacks serious literary, artistic, political, or scientific value? So you could have very explicit movies, hardcore pornography. They could be very prurient and erotic. But if they had serious value or a serious purpose to them -- sex education films, therapy films, classic art films -- then they wouldn't be obscene either.

So that's how the Supreme Court said that you could separate hardcore pornography that's OK from protected speech that may deal with sexual subjects

A federal prosecutor with the U.S. Department of Justice from 1989 to 1994, Taylor has been involved in more than 700 obscenity cases throughout his career. In the spring of 2001, he and others were invited to talk with Attorney General John Ashcroft about the prosecution of pornography. Taylor's interview here offers an historical overview of hardcore pornography in the U.S., including the cases that have been prosecuted since 1973, Americans' shifting attitudes on porn, and what happened to obscenity prosecutions during the Clinton era. Taylor also offers his views on what kind of pornography should be prosecuted by the Bush administration if it decides to move forward. He is currently president and chief counsel of the National Law Center for Children and Families. This interview was conducted in June 2001.

And it had to meet all three prongs?

Yes. A jury has to decide: Is it prurient, is it offensive, and does it lack serious value, in every state court, every federal court. The Miller test has been used since June 21, 1973, and it's still the test today. There have been a lot of cases in the Supreme Court and in other federal and state courts asking the courts to do away with the Miller test, to change it, or to say that hardcore pornography isn't obscene anymore.

But the Supreme Court has always upheld the test. They've said it applies not only to books, magazines, films that are sold over the counter and retail, but also the Internet pornography. As a matter of fact, in the famous 1997 Communications Decency Act case, the Supreme Court repeated that obscenity and child pornography are already illegal in cyberspace.

What was 1973 pornography like?

When I started doing prosecutions in 1973 and 1974, I started doing trials by the dozens. The kind of material we did in so-called adult bookstores, the hardcore shops in Cleveland, was pretty much the same material that you have today in adult bookstores or theaters or in videocassettes in the XXX section of a video store. It's penetration clearly visible, group activity.

We didn't see as much of the more extreme stuff [then] -- the bondage, the torture, the excretory material. You could get that, but it was underground; you had to know somebody, you had to talk to clerks, they had to know you were a real perv and all that.

Nowadays the difference is that all of the extreme material is available on the Internet, so if you go to some of these sites, they'll have group sex, they'll have adults of same sex, different sex, and then they have an animal picture and a urination picture and a torture picture all on the same site. ...

Who was in the business back then?

By 1973, the United States hardcore pornography industry was consolidated under one guy, basically, a guy named Reuben Sturman from Cleveland, Ohio. Sturman had a friend -- one not of his own choosing -- named Robert DiBernardo. DiBernardo worked for the Gambino family, the crime-Mafia family in New York. Matter of fact, Gambino is the guy who John Gotti had killed, and that's the reason John Gotti's in prison, because he had Sammy the Bull kill DiBernardo.

But DiBernardo went around the country with Sturman in what we call "the tour." He took Sturman around and retired all the other independent pornographers and said, "Reuben's our guy, he's going to take care of all the business. You people can be landlords, we'll send you a nice rent check, thanks very much."

And so, pretty much all of the peep-show business, all of the magazine and paperback book and all video and film production and distribution in this country was pretty much controlled by that one guy.

Out of Cleveland, Ohio?

Cleveland, Ohio. That's where he started in the late 1960s, selling comic books and porno. At one time, he supplied almost every adult bookstore in the country. ... Sturman was indicted for racketeering in Vegas in 1987. He was finally convicted in 1989 of tax evasion in Cleveland. We convicted him when I was at the Justice Department of racketeering and obscenity in 1991.

... He eventually died in prison, just a couple years ago. Now his empire is split up among maybe a half a dozen of his former lieutenants, who now control pieces of the country. So we now have six porno princes [in the distribution side] instead of one king.

Is the definition of hardcore a moving definition now?

I think the definition of hardcore has not changed since the Supreme Court started talking about it in the 1960s. Back in those years, in the Warren court, Frankfurter and Black and a lot of the more famous judges were instrumental in defining obscenity in the early days. They used to draw a distinction between the state's ability and the state's right to have obscenity laws that applied to maybe hardcore and softcore pornography -- more simulated than actual, not penetration.

But they also came to the conclusion that that it should be limited to hardcore pornography for the federal constitution and the federal law. Some of the states went that way, too. California and New York said, "Our obscenity laws only apply to hardcore pornography." They were talking about actual sex acts, people really doing it on the set, rather than acting on the set. If somebody made a movie, an R-rated love scene, where they were sort of naked and pretending to have sex, that's acting. But in the hardcore film, nobody's acting. It's prostitution.

... So, to me, hardcore pornography -- under the definition used by the Supreme Court, with penetration clearly visible -- is the kind of material we prosecuted in Cleveland. It's the kind that all the federal courts have prosecuted since Deep Throat and a lot of those regular movies.

And it is still the standard by which the Justice Department and most prosecutors enforce obscenity laws anywhere in this country. ... That's why we could say safely, without blaspheming or defaming anybody, that just about everything on the Internet and almost everything in the video stores and everything in the adult bookstores is still prosecutable -- illegal obscenity.

Just to be clear about it for people -- is any kind of oral sex the equivalent of penetration?

The Supreme Court in 1973 also gave us some examples of the kind of sexual conduct that could be found to be obscene by the jury. They said it could be ultimate sexual acts, normal or perverted, actual or simulated, and it could include masturbation, excretory functions, and lewd exhibitions of the genitals.

Because it includes lewd exhibition of the genitals and descriptions of sexual acts, magazines like Hustler and Penthouse have been found obscene by state and federal courts back in the 1970s and 1980s. But because they said that it could be actual or simulated, the states could go after simulated sex. Some of the cable versions of porno movies are prosecutable, and some prosecutors have prosecuted and gotten indictments against some of the Playboy Channel films and cable companies in years past. But the other part of it, the more explicit part -- normal or perverted acts that are actual [not simulated] -- that's universally at the top end of what the Miller examples were.

... What adjectives would you use to describe the mindset in America in the 1970s and 1980s about pornography? ...

In the 1970s, everybody knew that the hardcore stuff was sleazy because it looked sleazy. It was in downtown, back-alley, dirty bookstores. The only place you could get hardcore porn was in these little red and gold blinking light goofball places that the cops had to wear plastic bags on their shoes to go into there. The peep shows were full of diseases, and it was just awful.

People could see more of what it was. And so when somebody said, "We need a law," they would go, "Of course we need a law." If somebody says, "We need to enforce this law, these people are guilty," "Of course." And so it was a more matter-of-fact thing.

So there was a kind of easily understood community standard?

One of the results of the 1970s atmosphere ... was that the community standard was maybe more obvious. [When] you went to court, juries hadn't seen this. They knew this was way beyond anything that they had ever seen in polite company; it wasn't in the movie theaters; it wasn't in any magazines on your newsstand, it wasn't in an everyday common person's world. So it was easy to distinguish hardcore pornography -- clearly, community standards don't condone that.

That kind of comfortableness, knowing automatically what the community standard is, is maybe not as universal any more. It's easier for a defense lawyer, for a Paul Cambria from Buffalo or an Art Schwartz from Denver ... to tell a lawyer, "Well, we don't know what standards are. Look at all the pornography that's everywhere in our life, and maybe people have come to accept it. ... "

And a lot of jurors maybe are thinking, "Hmm, I don't know if I should make that decision," which then brings it back to the prosecutors. We're going to have to show them the difference between what is available everywhere on your coffee table and in your schools and theaters and in your community.

And if obscenity really isn't illegal, if hardcore pornography is within your community standards, then it doesn't have to stay in the video stores and in the adult bookstores and on porno websites. It could be everywhere. If R-rated movies can be everywhere, so could XXX. ...

The Meese Commission. I've had pornographers say, "It was the best thing that ever happened to our business, because the more taboo you make things, the better it is for our business."

The 1986 report of the attorney general's commission on pornography -- we call it the Meese Commission, but actually Attorney General Meese didn't have anything to do with that commission. It was formed by President Reagan and Attorney General William French Smith in 1984 and 1985. They happened to come out with their report when Ed Meese was the attorney general. So they call it the Meese Report.

But it really was an attempt by the government to restudy some of the issues of, is it harmful? What's the state of the technology? How much pornography is out there? What kind is it? They wanted to look at it again, since the 1970 commission report came out that Johnson had appointed in the 1960s. They came out with their report in 1970 when Nixon was the president. Congress condemned it, because the commission came to the conclusion that pornography really isn't that big a deal and that we should legalize it.

Of course, the kind of pornography they were looking at in 1969 was nowhere near as hardcore as it is now. By the time the commission did their studies in the late 1960s and then came out with their report in 1970, even the industry had changed. Sturman had gotten into this. There was hardcore pornography in the stores, whereas there wasn't hardcore pornography, even in 1968 and 1969 when they were studying it.

By 1985 and 1986, the industry had infiltrated every community, so the Meese Commission really kind of brought obscenity and pornography back up to be a public issue. So a lot of pornographers say, "It was the greatest thing that ever happened to us," because it made their issue kind of a popular social public issue.

In the final days of George H. Bush in the Department of Justice ... was it "Let's go get the pornographers"?

One of the recommendations of the Meese Report was that there should be some improvements in the law and all of that. But they said, "Gee, there should be a special unit at the Department of Justice that has lawyers who are experienced in doing obscenity and child pornography cases."

Ed Meese, the attorney general at the time, formed the National Obscenity Enforcement Unit. It's now called the Child Exploitation and Obscenity Section. I went to that section in 1989, and the attitude was, "This is a felony. This industry has not been prosecuted very much in the federal courts in 10 years or so since the Miami pornography cases that dealt with organized crime and the big porn figures in the early 1980s."

And the attitude was, "Hey, these are felons, we've got organized crime. Let's get serious and get some of the best lawyers in the country to come to Justice and take this on as a real felony task force kind of issue." So we looked around and ... asked the FBI and the Los Angeles police and other big police departments and the postal inspectors and the customs agents, "Tell us who are the biggest figures in the industry, who runs it, who produces it, who distributes it, where are they taking their money, are they paying their taxes. ... "

That became the sort of prosecution policy: Go after the people most responsible for the production and distribution at the highest levels of the companies. Local prosecutors can prosecute the people who distribute it and work as employees, but the federal Justice Department -- their ability to assemble grand juries and national prosecutions -- was focused on the top-level people, the people who really bring it home and create it.

Go for the head of the snake.

Yes. And in a sense, that's why the Justice Department prosecuted maybe the 25 biggest producers, and maybe two dozen of the biggest distributors of pornography. A lot of those people who were indicted and convicted or pled guilty to felony charged in the early 1990s are still the same people running the porn industry today and supplying the cable companies and the Hot Network. There's not many of them. They run the whole industry now. It isn't all under one guy, but it's under a table maybe seating 40, 50 men. And they run it today just like Sturman had them run it 20 years ago.

What is the effect of the aggressive prosecution?

The department was very effective in toning down the kind of material you saw because they were indicting the big shots. Everybody else in the industry said, "If they can get to the boss, they can get to us." And we were prosecuting not the worst kind of pornography. When we found the torture and the bestiality and the sadomasochistic and excretory materials, that was indicted, too. But we also were indicting the main type of product, their regular hardcore heterosexual material. ... That put a damper on the industry's willingness to distribute -- at least openly -- the more extreme stuff.

I think the biggest message that was sent is, "This is a crime, and we can get to you. The federal grand juries will indict you, and the FBI and postal inspectors will do the investigations. They will do searches with judges' authorizations, take your records and make you pay your taxes, and they'll make you go to jail. So that put the fear of the law back into the industry until maybe 1994-1995, when the prosecutions pretty much stopped. ...

Why? What happened?

The difference was that Janet Reno just did not like doing obscenity cases. She wouldn't prosecute obscenity violations when she was the prosecutor in Florida, and she didn't like doing it at the Justice Department. It's not that she's a bad person or anything; it's just that she didn't like doing it. Maybe she never saw it, or it wasn't properly presented. They still said that the Justice Department's units could do more extreme materials or organized crime people. But the idea that had started when the first President Bush was president -- we would enforce the federal law against everyone who was violating it -- that sort of stopped. ...

Out in the San Fernando Valley, they described the Clinton administration as "green lights and blue skies."

They thought, right from 1992 when President Clinton was elected, that all this stuff that had started in the Justice Department would go away. Now Janet Reno was the attorney general. She's a real prosecutor. And ... there were a lot of cases in the pipeline. No serious prosecutor is going to stop those cases. They're felony cases; they got to grand juries; federal judges have issued search warrants. So those in the industry thought that somehow Clinton or Reno would kind of stop all the cases that had started. That's not what happened.

A lot of the cases that started in 1987 to 1991-1992 were allowed to continue and finish, and most of those were wrapped up by maybe 1994, 1995. But as a result of that, in 1992, 1993, 1994, we're getting to trial. And a lot of these people who thought, "I thought you guys were going to go away; Clinton's our buddy," found themselves having to pay $1 million in fines and spend a year in jail. So it didn't work until, I think, the second Clinton administration, when he just changed the policy more and said, "Well, let's not go as aggressively against violations."

They also didn't get anything ... in the pipeline in 1993.

That's true. ... When Clinton was elected, they didn't encourage us to keep going. They told us to concentrate more on child pornography. They told us to find big gangsters and more extreme material. They didn't let the section continue with the projects with the mainstream hardcore porn industry. So that was becoming obvious, that we were going to get the people who had already been charged and investigated. But the people who hadn't gotten indicted in the first round probably wouldn't see another prosecution until there was a change in the White House.

Did you guys in the obscenity section have a sense then that the Internet was a monster that was emerging on the scene?

[When I left] the department at the end of 1994 ... I don't think I even had a sense that the Internet was going to have the explosion that it did. I had lived through dirty bookstores turning into product and video stores. It started to get on cable in 1980, and people said, "Oh, if it ever gets on cable, the battle is over because everybody will look at it." Then they started distributing it in video stores in the early 1980s, and people said, "Oh, if it ever gets into neighborhood video stores, the battle is over." Then they got into dial-a-porn and whatever.

I never thought it was a problem that the porn industry moved into new markets and new technologies, because it was sort of natural for them to do that -- to exploit whatever way they could to get their product out. But even I didn't see; ... who would have thought that the porn people would have been allowed to take one of the two or three biggest presences on the Internet, and to make real money at it? We didn't really expect that banks would let them use the credit card system, and that federal and state prosecutors would let them distribute hardcore stuff everywhere, in front of kids and adults and on Usenet newsgroups and World Wide webpages. I think we assumed that law enforcement won't let them take over this medium, because it's a crime.

But they did. Why?

The hardcore porn syndicate has been blessed by history in two ways. One is that they just happened to hit the Internet when it was exploding. In 1995, the Internet took off and became a private commercial venture. The AOLs and Prodigys and Compuserves brought it to every American home, and they had the money and the guts to go in there at a time when federal prosecutions were stopping.

If there had been continued federal prosecutions, you wouldn't see the Internet presence of the porn syndicate as big as it today. But the combination of the industry's willingness to go on the Web in a big way -- and the prosecutors not indicting them for that -- allowed it to explode beyond anybody's imagination. It was just that fluke.

Could AOL exist today if it was not for the pornography industry on the Internet?

AOL benefited by the explosion of the interest in pornography and sex chat. Even the article done in 1996-1997 by Rolling Stone said that maybe 60 percent, 70 percent of a lot of the traffic that was generated in the early AOL years was people hanging around in the sex chat rooms and looking at the kind of dirty pictures.

It wasn't as explicit, and it wasn't as rampant, so that the curiosity factor for mainstream America -- to finally get to see what all the ruckus was about with porn -- they [AOL] benefited by that. If they hadn't had that, if the prosecutions had kept going and didn't let the porn syndicates take over hardcore porn and sell that kind of product on the Web, and on 50,000 websites, I think AOL still would have become the dominant ISP. ... But I think they wouldn't have made as much money so quickly as they did without the porn thing. That was just them being in the right place at the right time. This explosion of porn benefited them even though they weren't really pornographers. The curiosity made them a big fat cat.

Describe what the industry was like right before Al Gore and George W. Bush decide to run against each other, say, a year ago.

Even last year [2000], I think the industry had reached maybe its pinnacle -- in their eyes the best of times; in law enforcement's eyes, the worst of times. The industry had gotten rich for the first time. They were really making money on Internet pornography. They were billing credit cards and they were raking in dough from private people sitting at home giving their credit cards to look at dirty pictures. They were making millions for the first time, and I don't imagine they have to give it all to the organized crime Mafia families anymore, so they're keeping a lot of money.

The law has been drawn a long time ago: hardcore penetration clearly visible is still on the other side of the obscenity line. I don't think juries are going to disagree with us.

So here the porn people are big, and in mainstream World Wide webpages, a lot of companies are sticking up for them. Big national and international companies -- otherwise legitimate, grandfatherly industries -- are getting into business with them and carrying them on satellite or cable, and advertising banners on their webpages.

So these guys are flying high. They're making money and they think, "Oh, we're invincible, nobody's prosecuting us. The Justice Department doesn't care what we do. We can rape, pillage, and plunder, and use everybody up," and they're having a great time.

I think part of that bravado is going to be their downfall. The kind of material they were willing to put out on the webpages -- ... not just the hardcore soft hot tub sex films, but all of the more explicit, the fisting, ... the animals, and the bondage and the torture and the excretory stuff -- and that stuff has been [out] there for a year.

So ... they were willing to steal and to put out the worst kind of material that they wouldn't have dared sell in the dirtiest bookstore on Times Square or San Francisco run by the mob three years ago they now are putting on the webpage.

This arrogance of the industry, ... one, it shows that it's still the same industry. These are a bunch of pimps who make hardcore porn films by hiring people, turning them into prostitutes, and then distributing illegal obscenity. ...

You talked about these kind of grandfather companies, the big, clean businesses in America. Who are they, and how are they connected to pornography?

... In years past, some of the cable channels ran things like the Playboy Channel, which had a lot of naked women in it but didn't have hardcore pornography. There was a Spice Network that had a sort of cable version -- a lot of sex; it wasn't really softcore, but it wasn't really hardcore either. Well, now there's this new thing called the Hot Channel, which is supposedly just the same kind of hardcore XXX penetration movies that they have in adult bookstores.

So if it's true that AT&T or General Motors or some of these other cable or Internet companies are making deals with porn syndicate producers or distributors, and becoming their partner in the production or distribution of obscene material, then they're breaking the law, just like the pornographers are.

For instance, in the past, AT&T became the first company in the phone system who said, "We're not going to collect for dial-a-porn. We're not going to get into the dial-a-porn business." Nynex said, "Oh, we'll lease our lines to anybody," and they leased a lot of them to dial-a-porn. AT&T said, "No, we're not going to do that. We're not even going to collect for these people. If it's legal for them to do it -- or even if it's not -- we may have to carry their phone messages, but we're not going to make the money on it; we're not going to participate."

And if that has become a different corporate policy ... Are they so desperate for money now that they're going to try to make $100 million or $200 million off of porn? ...

Well, the chairman of AT&T said, "Look, it's a competitive business decision. Somebody's going to do it, it's a free country ... and I'm just the post office anyway; I'm just a pass-through."

... But it's not true. Everything that he bases that assumption on is completely wrong. One, it isn't legal. All of the material that's hardcore pornography is prosecutable. It's obscene and can be indicted and convicted in any state court by any local prosecutor. A local D.A. could indict the chairman of AT&T if you could prove that the material is obscene and that the chairman engaged in a knowing contract with the pornographers to put it on.

They're not just the post office; they're not the common carrier. When a radio, a TV, or an Internet company is a carrier, they just carry someone else's traffic, words, pictures, phone traffic from one place to another, The common carrier is not guilty under federal law. But once a company makes a contract with a producer or a distributor, then they're not just the carrier. Then they are a conspirator, and then they are just as guilty under the aiding and abetting laws of the federal conspiracy statues as the person who made the obscene movie or supplied these obscene movies. ...

What are the odds on a conservative, Republican, business-oriented administration going after AT&T?

I don't think AT&T's chairman is going to get indicted. Could he be indicted? Yes. Should he be afraid of Ashcroft? Well, they should be worried about Ashcroft, because if Ashcroft is an honest and fair prosecutor, he may say, "Listen, we've got people producing, people distributing, and we've got people making deals and putting it on the air. And if they're all guilty on federal law, if they all fit within the conspiracy statute, we may have to do them all."

So if Ashcroft enforces it at all, he may have to enforce it against everybody. But even if they didn't, even if they said, "OK, we'll stick with the worst people we can find first, the biggest shots in the industry; we won't go after the otherwise-legitimate people." ... But that doesn't prevent some local prosecutor ... from indicting these people. There was a state prosecutor in Alabama that indicted some of these cable and satellite companies and GTE. And the federal grand jury in Utah had a grand jury investigation into the satellite pornography. ...

What about the ability of the AT&T Broadbands and the Dish Network, etc., to make five categories of porn and sell three, or five categories of what they now call euphemistically "adult material"?

The porn syndicates have tried to sell the idea in the last couple years that hardcore pornography means the extreme animals, bondage, torture, defecation, rape, incest -- that kind of material. The law doesn't make that distinction. The Supreme Court has distinguished between hardcore pornography and softcore pornography, but that's a question of how explicit it is.

To me, as a prosecutor -- and I've been doing cases for 28 years -- hardcore pornography meant any kind of sex that was penetration clearly visible; whether it was rape, incest, torture, or animals didn't matter. If it was explicit, it was hardcore obscenity. If it was simulated, then maybe it could be prosecuted by some local prosecutors, but that's softcore pornography, regardless of what it is.

... I think that the bondage and the torture is easier to convict. But any hardcore pornography with penetration -- whether it's one guy and one girl or two girls or two guys or whatever, it doesn't matter -- all hardcore pornography is within the scope of every state and every federal obscenity law. So it's not going to help them to say, "We're good pornographers."

But the counterargument is that times have changed. As Larry Flynt says to us,"Stuff that I got arrested for you can see anytime you want on HBO." Do you watch "Sex and the City"? Have you seen "Middle of the Night Taxicab Confessions"? ...

I'll admit one thing: that it may be a different showdown two years from now than it was two or five years ago. ... Now that people have seen softcore porn infiltrate the popular culture in a way that hadn't been done before, it's going to be a little bit more difficult to get unanimous juries 90 percent of the time. But I still don't buy into it. The pornographers may say, "Hey, it's a different world. The Internet has made everybody into porn customers." Well, that may be true. But all it really does is it means now all of my jury is going to know what we're talking about.

All of our jurors are going to have felt the effects of pornography. I still believe that pornography has a bad effect on society and on families, and it's not a good thing for guys to look at. It's like the training manual for how guys get to be chauvinist jerks. I mean, you don't treat a woman well if you treat her like she's treated in a porn movie. It's not the kind of thing you want your boy to be looking at or that the guy who comes to date your daughter is looking at. You don't want your husband looking at it. You don't want your boyfriend looking at it. You don't really want your wife looking at it. ...

We may tolerate a lot more sex and nudity and simulated material on cable or in magazines -- in its place. I don't think the American public is willing to tolerate explicit hardcore prostitution pornography on school networks and in libraries and on movie theater screens and on network television. I still think the law has been drawn a long time ago: hardcore penetration clearly visible is still on the other side of the obscenity line, and I don't think that the juries are going to disagree with us. It may be a bloodier fight, but I still think that hardcore porn is going to stay illegal.

But somebody's buying this stuff, and it's not just being bought in New York, in Massachusetts, and California, right?

Maybe less so.

Who's buying it?

A lot of people in this country are looking at it, because it's on the Internet and guys can go in their basement and look at it. ... With the Internet, nobody knows you're doing it. For the first time, America feels anonymous and invisible to peep at the forbidden fruit. So I think that most men are looking at it at least a little bit. Most kids are looking at it because they get it unsolicited in emails. If they go into chat rooms, they get hit on by pedophiles, or other kids sending porn to each other.

So everybody is seeing it. But the whole liberal-conservative Gore-Bush voter-state thing -- I don't buy into that. I grew up doing a lot of my trials in the state that you would have seen on the map going to Gore, the Democrat states. ... In Boston, they haven't lost an obscenity trial in 25 years. So this myth that it's only the Bible Belt, it's only the suburbs -- I don't think that's true. I think that the big cities have done the best job. I think big city juries and big city prosecutors have a better feel for how to handle vice crimes.

People still know, "No, I don't want that." So I think the American public has a standard that's always going to be higher than they're willing to do. People always have a higher standard than we can accomplish. Men will always be willing to look at stuff that we know we shouldn't. Kids will tell lies even though they know that lying is not the best policy, and people will take stuff that isn't theirs even though they know that stealing is a crime. I think it's the same thing with porno; it's just a vice, and vice has an attraction. And people still can feel that, "It's not good, but if nobody's looking, I'll try it."

So George W. Bush gets elected president and nominates John Ashcroft. From the Valley's perspective, the Christian soldiers are now going to come marching out the White House and out of Washington in their direction. ...

The most obnoxious things about the porn industry is when they thought that, regardless of who was going to get elected, Bush or Gore, they thought either one of those men is going to put in a more conservative prosecutor. ...

So they knew they were in trouble. Their reaction to that isn't to clean up, start paying their taxes, start paying their girls, improving the living conditions, making it so that they don't catch AIDS on the set. Instead, they go the other direction. They start producing the worst stuff they can find and dumping it on the Web and in the video market and in the bookstores. ... They were starting to dump bondage and torture and incest and defecation and fisting and all this other weird stuff that they wouldn't have dared sell anywhere in the country. Now they're dumping it on the Web.

And why do they do that? ... I think the industry thinks that by dumping the most extreme types of porn ... the rest of their product, the other hardcore, won't look so bad, and two, they think that prosecutors will only go after that material and they'll leave the rest of their industry alone.

What did you make of the Cambria list when you first heard about it?

I think it's almost comical. ... First they flood the market with real extreme ... animals, bondage, torture stuff, and rape and incest. And then the companies who did that, they're now trying to blackball so that the other people in the porn syndicate say, "Well, now we want to be the kind of good pornographers, and we're going to condemn the bad pornographers." So even they're drawing a line in the sand.

I hope it doesn't work that prosecutors go after only the more extreme material, and I hope they don't look at the industry and say, "There's good guys and bad guys." All of the people selling obscenity should go to trial. Grand juries could be shown that some of the people in the main part of the industry were responsible for some of that extreme material, that fraud that they're trying to perpetrate on the jury pools, just like Larry Flynt dumbing down his magazine when he opened his store in Cincinnati, and then gradually making it more explicit until he got to trial, and then after the trial is over he goes back to doing hardcore pictures. ...

Do you believe that it would be appropriate as a strategy to prosecute individuals for downloading pornography under the equal protection argument?

... The federal Department of Justice policy on obscenity is that you go after major producers and distributors, interstate, international. You do the big shots in the business. It doesn't mean you go after the worst material. It means you go after the worst people, the people most responsible. Local prosecutors, district attorneys, city prosecutors ... they can go after the more retail end of the traffic, the employees and the local distributors. But it's only fair that if people are indicted for producing and distributing obscenity, and if the combination of the porn industry flooding the Internet with pornography and people downloading obscenity, that some customers are going to get indicted.

In the past, people were indicted for getting mail-order pornography when they wouldn't stop it after the mail was intercepted, and they just never learned their lesson. Or they would start to import torture or bestiality stuff. So those customers who are downloading the more extreme kinds of pornography may find themselves getting in trouble from local prosecutors.

But federal prosecutions are going to have to start with, and concentrate on the people who are most responsible for the national and international traffic. We still supply the world. It's not foreign pornography; it's United States pornography. And our porn syndicates are the ones who are going to have to stand trial first. ...

There's this kind of explosion of the mainstreaming of porn in America. What's up with that? Why is that happening?

I've always said that the whole pornography thing is the great debate of American society. Sex, religion, and politics are the three things we like to argue about the most, and I think sex is maybe something that everybody has an experience with. Everybody has an opinion about religion, whether you have it or not, and about politics, but you don't really have to participate. Everybody has an opinion about sex and pornography. And because they made so much money in the last five years off the Internet, it has lured a lot of other companies. A lot of other Internet and technology and communications companies are making sideline profits in the share of this billion-dollar boondoggle.

So I think that the media's interest in this and Wall Street's interest in this, "How is all this money going to be spread around? We want a piece of it too," or whatever. But a few well-placed prosecutions will bring this all back down to reality. In other words, once it becomes obvious that this really is a federal felony instead of just a form of entertainment or investment, then legitimate companies, to stay legitimate, are going to have to distance themselves from it. And maybe the house of cards will fall back down. ...

When I talked to every single one of these people, they all say this is the story of really three uniquely American precepts. Free economy and unfettered business is a great thing ... [And] this is First Amendment, freedom of speech, protected constitutionally, a very closely held American value. And love and affection and romance. And they say, "Yes, it may not be the kind of vanilla sex I may want. But for some people, it gets them off. Who are you, who is the United States government to get in the way of any of those three things?"

The Supreme Court has always said, "Obscene material and child pornography are not protected by the First Amendment." So obscenity still isn't protected by the First Amendment; you don't have a right to distribute it. The real question is, are juries going to still say it's obscene? I'm still convinced that hardcore pornography is going to be found by juries across the country, federal court, state court, to be obscene. So, to me, the hardcore porn industry with penetration -- obscenity -- is still obscene. It is still illegal. It's not protected by the First Amendment. And all the money they make on it they should have to pay over in fines and forfeitures to the government who incur the expense of cleaning it up.

But you're right, people think, "Well, is this just another form of entertainment?" But the juries aren't given the privilege of just deciding whether consenting adults want to have obscenity. A jury's decision is, "Here's the law from the Supreme Court. If it applies to this material, you've got to convict, whether you like it or not. It's the law." And juries still have to follow the law; even if a lot of people want it, even if a lot of people are making money on it.

The Supreme Court also said in 1973 that obscenity is a crime even for consenting adults. So there's a big competing set of values there. People want freedom. They want to be able to do what they want. They want to be left alone. There's a forbidden fruit; people want to see pornography. But when they go to court, they have to say, "But now we have to obey the law, now we don't create the law, we don't repeal the law, we have to apply it."

And that's why, as I said, when I was at Justice and I brought an indictment in Los Angeles in federal court, the industry decided not to take me to trial. Not because so much that Bruce Taylor's the greatest trial lawyer -- I'm just a kid who prosecutes obscenity cases -- but they couldn't take the risk that the jury, the inner-city jury, one-third minorities and poor people and city people, were going to sit on that jury and say, "No, this is obscene."

Then all of a sudden their house of cards fell apart, and they couldn't afford to do that. I think they're still going to find that they can't afford to go to trial, because they'll win a few, but they're going to lose too many. They have to win them all to stay out of jail. The prosecutors only have to win some to put them in jail, and that's where the lesson is going to come.

Who would you go after if you were back in there? Would you aim for Flynt? Flynt says, "Yes, it's going to be a hassle, yes, it's going to be a drag, I got this list, I'm into plain old vanilla sex, they're not going to come for me."

A lot of the pornographers are betting their lives that, because they created this other side of the porn industry that handles the more extreme material, now that they've set up these really bad guys to do extreme porn, that those are the ones the prosecutors are going to go after, and that the other guys, like Flynt or Vivid Video or whoever else is not going to get prosecuted.

If this new Justice Department prosecutes like the old Justice Department, where they didn't care who you were or what you did -- as long as it was hardcore pornography, it was obscene and everybody got a chance, from all levels. So they took some from the extreme end, when they found it, and they took from the middle where it's just hardcore. If that's done again, then they're not going to be able to hide behind it. I don't think you're going to see Larry Flynt be the main target of prosecution just because he may not be as vivid or as explicit as some of the others.

But that doesn't mean some local prosecutor won't do him. I don't think he's any less of a pornographer than somebody else. But because he's been a public figure, a lot of prosecutors are going to say, "Let me do him next, not first." Maybe he'll enjoy the fruits of his notoriety ... but it's a crapshoot, and I think that the porn industry has been built on crapshoots. It's going to be fun to watch how this next round goes.

The economics of the business -- the distributor takes, what, 60 percent, 20 percent, 80 percent? What does AT&T Broadband get out of a Vivid movie?

The real figures on how much money they make and how they split the thing is a fairly closely guarded secret. Some of the information I have is still grand jury confidential that I can't talk about. But it's pretty well known that there are a few producers who make the movies, and they pay the performers, the girls and the guys, per act. Some of the people were convicted under the prostitution laws of California for hiring the people to make the movies, because they pay them to do sex acts, and that's prostitution.

And they pay them more to do more yucky stuff, and less to do just regular intercourse. But then those movies by the producers can only be given to a few distributors. The distributors still sort of control this business, because that's the way Sturman controlled the industry. You could be producers, but you had to give your films to us.

The producers take the biggest chunk of that, maybe half of the money, but then they supply them to video stores and to TV outlets and whomever else. Some of the bigger companies that distribute on cable or satellite can make a lot of revenue off their subscribers that they don't really have to give back to the pornographers, because the pornographers, when they're dealing with a big company, can make $1 million by giving a bunch of films to a big media outlet. But that's all they get. The big media company might make $10 million. It might make $50 million. But they get to keep all of that.

So the economics are changing. The industry is getting a bigger cut of a bigger pie, but they now have to share it with so many companies. Legitimate companies still take more of the money than the porno people do. But it's still that the producers still make a little bit of money. The performers don't make much. ... But the big money is still made in the middle.

With the growth and apparent imminent explosion of Hustler Hollywood and all these sort of sex shops -- Larry Flynt's daughter, Theresa, just opened a store that was a defunct Blockbuster and defunct Boston Chicken. She knocked the wall down and made it a Barnes & Noble of sex. ... What do you make of that? They say this is proof that we've finally joined the Europeans and are no longer a puritanical, hung-up society about sex.

... I know that a lot of people want to look at pornography because it is interesting. If you said to a guy, "Do you want to see a picture of a pretty naked lady having sex?" He'd go, "Yes, I'd like to be in that kind of a movie." That's not the mystery. People like the new Hustler stores and the new mainstreaming of pornography in communities is a good example of, "If you legalize marijuana a lot of people would smoke it again. If you legalize any vice, people would do it for a while." But they still don't admit that they do it.

It's still not become acceptable. I think that once people get into it, once these giggling couples take one of these movies home, and then the wife or the girlfriend finds out that her husband or her boyfriend really is thinking about her like the babe in the movie, you know, you're not Alice anymore, now you're "Glory," or you're "Luvvy Cravezit."

And he's going to start treating you like the people get treated in those films, and that's something that's a lesson that's hard to learn. You hate to see people have to go through that. Pornography is still a handbook for exploitation and it's living, right now, as a kind of curiosity factor. It's kind of out of the dirty closet. But I think now that it is, people are going to see that the closet really is dirty.

So I'm hoping that people don't lose their perspective, because I still think pornography's kind of a rotten thing to do to women, and it's not the way men and women get along with each other. If we ever want to have couples have true love and respect each other's rights, it's not going to be this way.

You were in the meeting with John Ashcroft on that Thursday, a few weeks ago, when many people came to ... advise or talk to the attorney general about this. What's your general characterization of the meeting, the tone, and the result?

The meeting with the attorney general was more of a pleasant occasion for the attorney general to hear from pro-family groups from all across the country that, "Yes, we really would like to see the Justice Department do obscenity cases, just like you're going to be doing a lot of other cases. But we think obscenity has been ignored. It is something that should become more of a priority. You've always done drug cases, you've always done some child porn cases. But you really need to get back into doing obscenity."

When General Ashcroft said, "Listen, I'm going to be the nation's prosecutor. I'm going to enforce all the laws. But I also think obscenity is one of those laws that I should enforce," the pro-family groups and the citizen groups who were represented thought, "Well, good, we've accomplished our concerns here."

They didn't ask us what to do; we didn't tell him what to do. I probably gave him more advice about what he should do than anyone else did, but that's just because I'm kind of a die-hard prosecutor. But it was really more of almost a social meeting. On a general category, we asked him, "Is obscenity going to be a crime priority for the Justice Department?" and he said, "Yes." That was pretty much all the groups wanted to hear, so we'll take him at his word.

As you've said, you're the most experienced prosecutor in this territory in the history of the country. What did you say to the attorney general about prosecuting these cases?

When it was my turn ... I wanted him to know that this is something that has been done in the past -- we made money on it, we didn't cost the taxpayers money. The pornography industry had to pay more in fines than it cost the criminal justice system to prosecute them, and it wasn't just animals, bondage, and children that we prosecuted.

So I wanted to remind him that it was all obscenity, against all of the people, and it was successful. I said to him, "If you do this again, you should include both the federal agencies -- not just the FBI, but the postal inspection service and customers agents, as well as big city police departments, like LAPD in Houston and Chicago and Cleveland and Dallas, wherever." All of the major police departments have a lot of information. So that idea that it's a cooperative effort between the federal and the state prosecutors, it's all of the products, and it's kingpins first is the message I wanted to let him know should still be the way that he could be successful if they were going to try it again.

Any sense of how well received that was or not?

From the attorney general's reaction, I think he was glad to hear that. I think he knew it from his years in the Senate. I'd testified on the Hill a whole lot of times; they've had a lot of obscenity go through with hearings about how bad the problem had gotten on the Internet. So General Ashcroft was pretty well familiar with the Internet and the pornography issues and the organized crime angle, and the porn syndicate.

I think he just was glad to hear that even an experienced prosecutor like I was still willing to say, "We did it once and I still think we can do it again." I think his sense of, "I'd like to do it. Can we still win?" And I said, "Yes. Your people are still better than their people. They're still as much of a criminal enterprise as they ever were. The juries, even if they're living through it right now, aren't going to like it. And they're going to uphold the law when a federal judge tells them to swear on a Bible, on an oath, to obey the federal statues. I think they'll do that."

home . introduction . prosecuting . the business . special reports
watch the program . if you were the juror ...  . quiz . do you use porn? . discussion
interviews . readings & links . tapes & transcripts . press reaction . credits . privacy
FRONTLINE . wgbh . pbs online

some photos copyright © 2002 photodisc all rights reserved.
web site copyright 1995-2014 WGBH educational foundation

SUPPORT PROVIDED BY

NEXT ON FRONTLINE

The Rise of ISISOctober 28th

FRONTLINE on

ShopPBS