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Porn and Politics in a Digital Age  by Nicholas Confessore

Back in the late 1980s and early 1990s, under Republican presidents Ronald Reagan and George H.W. Bush, the federal government went on the offensive against pornography. Then came a Clinton administration that had different priorities. To what extent did the new political environment permit the explosive growth of the porn industry during the 1990s? And how much was due to technological and cultural forces beyond any administration's control? This is where the politics of porn gets complicated.

Feb. 7, 2002

Last May, Janet LaRue, who serves as director of legal activities at the Family Research Council, joined a dozen or so fellow conservative leaders at the Department of Justice on Pennsylvania Avenue. There, in John Ashcroft's private conference room, LaRue, her colleagues, and the attorney general of the United States chatted for an hour or so about hardcore pornography. "He was very attentive, took his own notes, listened, asked good questions," recalls LaRue. "Mr. Ashcroft," she notes approvingly, "reaffirmed his commitment to enforce all of the federal laws on obscenity."

For LaRue -- and for the others in the room, including such veteran anti-pornography activists as Bruce Taylor of the National Law Center for Children and Families, Tom Minnery of Focus on the Family, and Beverly LaHaye of Concerned Women for America -- the meeting with Ashcroft was a watershed. For nearly a decade, they had watched the American pornography business undergo a massive expansion. Not only had porn deluged the Internet and seeped into mainstream movies and TV shows, the adult industry was increasingly (if quietly) being embraced by the corporate world.


Nicholas Confessore is a senior writer at The American Prospect and has written for The New Republic, The Atlantic Online, and Salon.com.

For years they had tried to get the Clinton Administration to try and stanch the flow of porn -- starting with purveyors of "hardcore" adult films, which became enormously popular during the 1990s -- under federal obscenity laws. (Legally speaking, all "obscenity" is illegal, but not all porn is necessarily "obscene.") Few prosecutions resulted. "They lent lip service, you know, 'Gee, thank you for the information,'" recalls LaRue. "It was a tragedy," says Patrick Trueman, a former Justice Department prosecutor. "They really did nothing."

Now, Trueman hopes, things will change. During the 2000 presidential campaign George W. Bush promised to "vigorously enforc[e] federal anti-pornography laws," and once in the White House he appointed Ashcroft -- a champion of the religious right -- to head up the nation's law-enforcement apparatus. Sometime soon, they hope, the Justice Department will deliver on President Bush's promise, beginning to actively prosecute new obscenity cases for the first time since Bush's father was in office. With the Justice Department preoccupied with the war on terrorism, "a lot of the industry people, at least, think that the heat's off," says Taylor. "The porn lawyers, the pornographers -- they're counting on institutional paralysis to keep them in business. I hope they're in for a big surprise."

The Rise of the Anti-Porn Movement

Federal campaigns against the porn industry are a relatively recent innovation -- largely because the current incarnation of the porn industry is itself a recent innovation. Forty years ago, the porn industry was effectively invisible. A demimonde of grainy stag films and sleazy peep shows, porn was ghettoized in red-light districts, produced by a handful of operators, and patronized mostly by proverbial dirty old men.

That had begun to change by 1973, when the Supreme Court handed down its landmark decision in Miller v. California. (Miller defined "obscenity," in part, as material that an "average person, applying contemporary community standards" would find offensive.) By incorporating "community standards" into the test for obscenity, Miller presumed that porn was a local problem, to be dealt with by local communities. But at that very moment, porn was evolving into a full-blown industry with a mass market.

Increasingly relaxed attitudes about sex and curiosity about explicit material had created a new appetite for adult films, especially among Baby Boomers -- and the introduction of commercial VHS technology in 1974 gave would-be porn entrepreneurs a new way to meet the demand. Video was far cheaper to work with and easier to distribute than film. It was also more private. "Unlike adult films, which had to be viewed in theaters that generally were in unsavory urban areas, adult videos could be viewed in the privacy of one's home," writes Frederick S. Lane in his recent book, Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age (2000). By altering the venue of consumption, video vastly broadened the audience for porn to include a growing number of couples and women.

But the same cultural revolution that gave porn a mass market also produced a political counter-revolution: the rise of the New Right, the conservative movement that would help elect Ronald Reagan in 1980. As with abortion, homosexuality, and school prayer, pornography was a call to arms for the new conservative activists -- yet another indicator of the permissiveness and moral decay that they felt pervaded society. Indeed, like the New Right generally, the modern anti-pornography movement began life at the grassroots level, as a series of local crusades. Famed anti-porn activist Don Wildmon, for instance, was a Methodist minister in Tupelo, Miss., when he launched a boycott against convenience stores that carried Playboy. Bruce Taylor came to fame waging hundreds of successful obscenity cases as a local prosecutor in Cleveland -- most famously against Hustler publisher Larry Flynt.

By the end of the 1970s, the anti-porn movement had gone national, led by groups such as Wildmon's National Federation for Decency (founded in 1977) and Citizens for Decency through Law (which Taylor joined in 1979). Reagan's election gave the new groups their first big chance. Taylor, Wildmon, and others eventually convinced Reagan and his attorney general, William French Smith, to appoint a commission charged with examining how "the spread of pornography could be contained." (The commission came to be known as the Meese Commission, after Smith's successor, Edwin Meese.)

Though the commission was less than successful in proving, as its proponents had hoped it would, a causal link between pornography and such social ills as drug use, prostitution, and spousal abuse, Meese acted on the report's main recommendation: the formation of a Justice Department task force to prosecute the porn industry. Known as the National Obscenity Enforcement Unit (NOEU), the task force, like the commission, was staffed with veterans of the anti-porn movement, including Taylor, North Carolina prosecutor H. Robert Showers, and eventually Patrick Trueman, who had founded an anti-abortion group called Americans United for Life. Simultaneously, Meese mandated that one prosecutor in every U.S. Attorney's office in the country be assigned to obscenity cases. He had to. At the time, career federal prosecutors regarded porn as a local matter; many of them were unhappy with the idea of porn prosecutions taking resources away from drug-trafficking or organized-crime cases.

But the NOEU had Meese's blessing. And so, in 1987, at the tail end of Reagan's second term, they went to work. The porn industry, Reagan declared in a speech that year, was "employing new technologies and reaching new audiences." Foremost among the technologies in question was, of course, VHS, and that's where the NOEU began -- first targeting mail-order distributors (in an operation known as POSTPORN) and then, during the early 1990s, targeting both producers and distributors (an operation called WOODWORM). By then the task force, renamed the Child Exploitation and Obscenity Section (CEOS), had been given its own budget line, and had succeeded in driving seven of the largest adult video distributors in the country out of business.

The most effective technique used by Trueman and his prosecutors -- and encouraged by Meese -- was "multiple-district prosecution." The NOEU would coordinate with local prosecutors to charge a single mail-order company in as many as four jurisdictions simultaneously, making a court fight prohibitively expensive. Rather than match resources with the federal government, many defendants chose to settle. Under a law passed in 1988, prosecutors could dictate a dollar amount, known as a "liquidated forfeiture" -- in essence, a fine. Under the new law, WOODWORM alone took in $23 million, bankrupting several adult firms. Those who went to court usually fared no better. "We never lost a jury trial," says Trueman. "We would match shot for shot these big-time defense lawyers. It was easy."

The Clinton Years and the Impact of New Technologies

But the federal anti-porn crusade proved short-lived. When Bill Clinton took office in 1993, he and his attorney general, Janet Reno, had little interest in devoting attention and resources to new obscenity prosecutions (which declined dramatically during the first few years of the Clinton administration). Most of the Bush-era porn activists decamped to various conservative legal groups. "It was pretty obvious that we weren't going to be allowed to do new obscenity cases," says Taylor. He and fellow prosecutor J. Robert Flores went to the National Law Center for Children and Families (NLCCF), which had been founded by former CEOS chief H. Robert Showers in 1991. Trueman joined Don Wildmon's new organization, the American Family Association (AFA).

This is where the politics of porn get more complicated. The 1987-1992 prosecutions were in truth the only period of sustained federal obscenity prosecution in history -- that is, those years were the exception, not the rule. Why? In essence, the Reagan-era and Bush-era prosecutions -- and the relatively broad interpretation of the obscenity statutes that Trueman, Taylor, and others brought to them -- were a consequence of conservative activists flexing their political muscle within an administration sympathetic to their ideological concerns. Indeed, Citizens for Decency through Law had so many alumni at the CEOS that, as a Washington Post article put it in 1993, CDL's "causes and targets became virtually indistinguishable from those of the Justice Department." But the anti-porn movement had no such muscle within a Democratic administration. "[Clinton] appointed Janet Reno as his attorney general," says Mark Kernes, an editor at the trade publication Adult Video News. "And she did not think that persecuting people who want to watch adult material in the privacy of their own homes should be a law enforcement priority."

Even if obscenity prosecution had been a priority, it's not clear that it would have mattered. By 1993, federal courts had weighed in on multi-district prosecution -- "a persistent and widespread campaign to coerce [defendants] into surrendering their First Amendment rights," as one opinion put it. After a federal judge barred the Justice Department from using multiple prosecutions against Adam & Eve, a large distributor of adult materials, prosecutors settled the case. By November 1993, Justice officials announced that they would cease multi-district prosecutions -- giving up what had been their most useful weapon against the porn industry.

The trends that made porn difficult to proscribe in the age of video are making it even harder to proscribe in the age of the Internet. Still more interesting, there's no evidence that the Reagan-Bush anti-porn campaign had any long-term effect on the fortunes of the porn industry -- or on the public's appetite for porn. Both sides agree that some porn companies temporarily shied away from extremely hardcore porn (such as that featuring mock rape, incest, and physical violence), and it may be fair to assume that renewed prosecutions would have a similar effect. But the video-rental industry -- of which porn rentals are generally considered a cornerstone -- continued to boom throughout the Meese Commission years. For example, Movie Gallery, the first major rental chain to carry adult videos, launched in 1985, had only five stores in 1987, expanded to 37 stores in 1992, and had 73 stores two years later -- all the while continuing to carry adult product. The government's campaign "had virtually no impact on the consumer," argues Jeffrey Taylor, a lawyer for the adult industry who defended some of the Justice Department's targets in the 1980s and 1990s. "When mail-order companies were driven out of business, the video companies expanded their mail-order business, and new companies came in to replace the [old mail-order] companies."

Prosecuting porn would become even more problematic when the adult industry, and the would-be porn warriors, were overtaken by another set of new technologies: pay-per-view, satellite television, and then the Internet. Like video, pay-per-view and satellite TV offered consumers a new way to watch a wide variety of adult films on demand. Unlike video, though, you didn't have to leave your home at all. The Internet -- especially as it got cheaper, faster, and easier to use during the late 1990s -- further expanded the variety of and ease of access to porn. Both technologies were cheaper, safer, and even more anonymous than video, continually shrinking the distance between producers and consumers of adult material.

As with video, the porn industry quickly realized the possibilities. Firms that had grown big and profitable off of video -- Vivid Video, VCA Pictures, even the Playboy empire -- could repackage and resell their product almost endlessly and distribute it, cheaply, via several media nationwide: rental and mail-order video, home and hotel pay-per-view, websites, porn magazines, and satellite TV. During the mid-1990s, they began to form partnerships with large mainstream firms like AT&T, Marriott, and even General Motors (which owns DirecTV, a satellite TV company). By the end of the 1990s, a Jenna Jameson film produced by Vivid might be rented in a video store, bought through the mail, watched on the AT&T-owned Hot Network, or ordered in a hotel room.

The ease of consumption made porn even more popular -- and more profitable. Between 1992 and 1999, according to research by Showtime Event Television, pay-per-view revenues went from $54 million to $367 million. In 1998, the adult content market earned roughly $1 billion, according to Forrester Research. By 2001, the total was up to $14 billion -- bigger, according to some estimates, than football, baseball, and basketball combined. "What investors and bigger corporations soon discovered," according to The New York Times, "was a vast audience for pornography -- once the privacy barrier was eliminated."

The Politics of Porn in a Digital Age

From their perches at conservative advocacy groups like the American Family Association and NLCCF, the anti-porn activists regrouped to meet the new threat. Lacking influence in the White House, they turned to Congress -- where, following the midterm elections of 1994, socially conservative Republicans now controlled most of the House and Senate committees. For the next few years, Taylor, Trueman, and others pitched in as consultants and policy advisers to various members of Congress, notably Senator Dan Coats (R-Ind.), Senator James Exxon (D-Neb.), and Representative Bob Franks (R-N.J.). Beginning in 1996, they helped pass a succession of laws designed to restrict "indecent" material on the Internet, most importantly the Communications Decency Act (CDA) and the Child On-Line Protection Act (COPA).

The anti-porn activists were, on the whole, remarkably successful -- both at promulgating legislation and pressuring politicians on both sides of the aisle to support it. Indeed, by the mid-1990s, the political argument over porn was essentially over. Few politicians were willing to risk being branded "pro-porn," and the likes of AT&T and Marriott declined to flex their lobbying muscle on behalf of the adult industry. The CDA and COPA bills passed the House and Senate with little opposition, and Clinton, notably, signed both of them into law.

But the anti-porn movement was somewhat less successful in the courts. There, Janet Reno's Justice Department attorneys (whose job it was to defend the new laws) and the porn activists (who busied themselves providing legal expertise and amicus briefs) were challenged by a coalition of civil-liberties activists, adult-industry lobbyists, and even media companies -- some of whom, like Salon.com and Philadelphia Gay News, believed that the new laws could be applied to their own, putatively non-obscene publications

Both CDA and COPA tried to restrict material on the Internet that was deemed "harmful to minors." But in both cases, civil-liberties advocates were concerned that the bills were written so broadly as to impinge on the right of adults to view non-obscene pornographic or sexually explicit material. The Supreme Court unanimously struck down CDA in 1997. COPA is currently before the court and a decision is expected this spring.

The court's decision, civil-liberties advocates argue, could have sweeping ramifications. Because COPA effectively imposes one nationwide "community standard," it could, if it passes constitutional muster, invert the very quality that makes the Internet so amenable to porn -- namely, the blurring of traditional, geographical notions of community across a global network. "Once you create the website, anybody -- whether they are in Memphis, Tenn., or Las Vegas, Nev. -- can access your speech," says Ann Beeson, who has argued against both CDA and COPA for the American Civil Liberties Union. "You could be subjected to the community standards of the least tolerant community, simply by putting your speech on the Web." This, of course, is exactly what the court's Miller decision did -- theoretically -- to purveyors of mail-order porn. Which raises the question of whether prosecutions of Internet porn would be any more effective.

Ultimately, what the Internet bequeathed to the porn industry was radical decentralization -- not just of consumption, but also of production and distribution. On the Internet alone, there are now some 200,000 commercial porn sites run by thousands of operators. A few large companies make most of the money, but mom-and-pop sites can thrive, making anywhere from a few thousand dollars to a few million per year. Inexpensive home computers, amateur production software, and a surfeit of "content" -- one company even sells a $200 "starter kit" of digital videos and images -- combined with the Internet's capability for cheap worldwide distribution, make porn a major industry and a cottage industry simultaneously. "The barriers to putting up a basic low-tech site are so low that you've ended up with a million small sites," says Malcolm Maclachlan, a researcher for International Data Corporation. "All you need is access to a few pictures and some HTML, and there you are."

The trends that made porn difficult to proscribe in the age of video are making it even harder to proscribe in the age of the Internet. The more decentralized porn becomes, the more money, time, and effort prosecutors would have to put into prosecutions -- reducing the fight against porn into a fight among competing political and budgetary pressures. Today, the economics of the porn business are such that for every large operator the Justice Department might shut down, a hundred smaller sites might bloom. (Not to mention the effect of increasingly popular "peer-to-peer" file-swapping software, which allows individuals to search for and trade any manner of digital media, turning every hard drive connected to the Internet into a potential porn distribution hub.)

"The growth of the Internet is almost inconceivable. Every day, tens of thousands of sites go up," says Jeffrey Douglas, a lawyer for the porn industry who defended some of CEOS's targets in the early 1990s. "No matter how aggressively you prosecute, there's no way you could prevent a guy in, pick your state, from putting naked pictures up on a site. The reason [porn] grew so much has nothing to do with the prosecutorial environment. It has to do with the demand, and the cheap mechanism of distribution."

The anti-porn activists argue that even a few major obscenity prosecutions could send a message -- both to those who make pornography and to those who enjoy it. "Laws are obviously schoolteachers," says Steve Watters, an Internet research analyst at Focus on the Family. "We look to some kind of parameters, and an attorney general that enforces obscenity laws at least begins to communicate that boundaries exist, that there are things that are protected and not protected." Perhaps. But the market, too, can be a teacher. When technology and desire can so easily trump political will, the politics of porn may simply be irrelevant.

Editor's Note: For more on the pending Supreme Court cases see this detailed summary. Also, read FRONTLINE's interview with former prosecutor Bruce Taylor.

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