The Censorship Crisis

Update (12/13/08): According to AVN, “Hard2Find Videos owner Loren Jay Adams was sentenced today in U.S. District Court in Martinsburg, W. Va., to 33 months in prison for shipping obscene DVDs through the U.S. mail. U.S. District Chief Judge John Preston Bailey also ordered Adams to serve three years supervised release and to forfeit his Web site domain name and all copies of DVDs involved in the case.”

The Bill of Rights, being the natural Republican reaction to the increased Federalization of America that came with constitutional ratification, was designed to ensure freedom. Specifically, the centralization of government meant an increase in authority that increased the chances of tyrannical rule. Thus, this group of ten amendments was crafted to guarantee that even under an abusive and corrupt government, certain minimal rights would be protected, if for no other reason than to facilitate change through rebellion. Of course, to do so every 20 years, which Jefferson regarded as ideal is both impractical and highly disruptive to technological, educational, and economic progress. So, excluding the prospect of an armed revolt, the rights outlined therein were established as the absolute minimum to which citizens are entitled, regardless of how broadly the government may choose to abusively overextend its reach.

In American history, a few presidents have done a particularly noteworthy job of fighting to defend these essential liberties. Perhaps most noteworthy among them are Grover Cleveland and Calvin Coolidge. The former, a classical liberal, was the father of the short lived and all too often forgotten Bourbon Democrats. While fighting against patronage and corruption, they also stood against governmental imperialism, oppressive taxation, and market-limiting policies. In many regards, they were the Libertarians of their day. And following this political philosophy, Cleveland vetoed 584 bills in his two terms, surpassed only by the four term fascist FDR. His proclivity towards rejecting pork barrel bills is often regarded as the primary factor behind his 1888 defeat. Yet, once returned to power in 1892, he continued to oppose the sort of unconstitutional legislation that he always fought against. The example that stands out most prominently in my own mind is the response he gave when vetoing the 1887 Texas Seed Bill. With elections around the corner, he stood in support of justice and liberty in a way few others would have dared, declaring that “I can find no warrant for such an appropriation in the Constitution; and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadily resisted, to the end that the lesson should be constantly enforced that, though the people support the Government, the Government should not support the people.” Sadly, he was the only Bourbon Democrats to win the office of the President.

It was not until the Amherst-educated former governor of Massachusetts, Calvin Coolidge, became president in 1923, following the death of then-president Warren G. Harding, the fit leadership resumed. Though not quite as veto-oriented than Cleveland, his less than two full terms resulted in his refusal to sign 50 bills. He fought against governmental discrimination, pointing out the injustice of specifically limiting Japanese immigrants among all foreigners seeking residence, and support the right of women to vote. His laissez-faire economic policies and reluctance to enter into foreign affairs that were not vital to the national interest helped to counter some of the damage done by the inadequate leaders elected after Cleveland. What marks his presidency as special, much like Cleveland’s, is that it was not about expanding government or overhauling programs that ought not exist in the first place. Instead, it was about attempting to reign in the growth of governmental reach in an era where broader federal involvement has mass appeal. This is something he personally acknowledged, stating that “perhaps one of the most important accomplishments of my administration has been minding my own business.”

Unfortunately, these men are rare exceptions. With the exception of Washington, and debatably Jefferson, none of the other leader of this nation ever stood up for liberty, constitutionalism, and governmental restraint. While many claimed otherwise when campaigning, history reveals that men on both side of the political aisle have failed in this regard. The specifics of their failure vary greatly over time, with issues ranging from economic tyranny through hyper-taxation, to Japanese internment, to limitations on the availability of abortion. At present though, the greatest affront to liberty is the ongoing assault on the First Amendment by those opposed to supposedly obscene and indecent material.

Obviously, censorship is not new, and efforts to limit the availability of certain material have existed in some capacity or another throughout all of American history. But much of it was at the local level, and thus arguably not protected by the Constitution, depending upon how broadly one sees states’ rights as being. Indeed, excluding the isolated and short lived Sedition Act of 1798, national censorship would not become a serious problem until the early 20th century. First among the major censorship issues was the Supreme Court case of Schenck v. United States in 1919. Anti-war Socialist Charles Schenck was criminally convicted of speaking out against the World War I draft, and appealed this decision, which was upheld by the Supreme Court, which claimed that insubordination was not protected. At the same time, the more alarming Frohwerk v. United States case took place, wherein a journalist was criminally convicted under the Espionage Act of 1917 for writing editorials against American involvement in foreign wars. Thankfully, such cases, which were rampant at the time, are no longer the chief First Amendment issue. Instead, what we now face is one that federally started with the Radio Act of 1927, which is indecency and obscenity.

In essence, the present concern is over whether or not both indecent and obscene material are protected by the First Amendment, and if so, to what extent they may be regulated. The prevailing Supreme Court opinion is quite clear, and seriously threatens liberty. It has long held that indecency is legal, but that its time and place may be limited. Thus, television programs that might be regarded as indecent, such as the now-deceased Showtime original Family Business, could legally be shown on network television, provided it was after 10 PM. And, on cable or premium television, such a show could air at any hour, be it 3 AM or 3 in the afternoon. The justification for this, which history and biology both find to be illegitimate, as covered in the excellent Marjorie Heins book Not In Front of the Children, is protection of youth. Obscenity law is also well established through a series of Supreme Court rulings, with the present conclusion that such material is legal to own, but illegal to create, sell, trade, exhibit, or send through the mail for persons of any age. There is not an established list of acts or content specifically obscene, as such a thing would likely be ruled unconstitutional. Instead, there is a three-pronged test that was established by the 1972 case Miller v. California. It ruled that for material to be obscene, “the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest,” ” the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law,” and “the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” While four of the justices disagreed with case outcome, the ultimate conclusion established was that obscenity is illegal. In response to the verdict, the number of obscenity cases skyrocketed in subsequent years.

Throughout the 1990’s, such cases, though still existent, were less frequent than is presently the case. Since the 2000 election of George Bush, prosecution of obscenity has risen both at the state and national level. One highly noteworthy case was that of United States v. Extreme Associates, wherein the District Court judge ruled against the established Supreme Court position on obscenity. Unfortunately, a re-trial is ongoing, as it is not considered valid for a lower court to disregard the precedent of higher courts in cases where doing so would fundamentally alter the law. Two more alarming recent cases are those against Red Rose Stories and JM/Five Star. The former regarded a website devoid of still or moving images, and which contained nothing other than sexually explicit written stories. Membership required credit card payment to prevent youth access, and the total membership of the site was less than 30 people. Since the site owner has serious agoraphobia issues, and could not tolerate a lengthy legal battle, she was forced to plead guilty less than two weeks ago. Consequently, there is now precedent to declare mere written words obscene, a notion that hasn’t had legal support for many decades. In the JM/Five Star case, the government went after films whose emphasis was on ejaculation and oral sex footage. Having been found guilty of the “transportation of obscene material for sale or distribution” over the film “Gag Factor 18″, there are now serious questions over the safety of producing such mild and popular material.

Presently, there are multiple ongoing obscenity cases that deserve attention. At the state level, the Virginia case against After Hours Video, which will begin in August, is highly troubling. After police came into the store under cover and purchased many adult videos, the store owner is facing criminal charges. He stands accused of selling 12 obscene videos…none of which have ever previously be found to meet the legal standards of obscenity. So, the store had no reason not to stock the niche material that they anticipated would sell, yet is being subject to criminal prosecution on the chance that the material might possibly be found obscene. But there are two federal cases that should command greater attention, since their verdicts will likely carry more legal weight in the future.

First is the case against Loren Jay Adams, the owner of Hard2Find Videos. A long time collector of rare adult material, Adams used the internet to meet new enthusiasts with whom he could swap material. Soon, demand among adult entertainment enthusiasts who lacked video fit to trade compelled him to begin selling these tapes. Among his rarities were many beastiality tapes, for which he is now facing federal prosecution. It is worth noting that the act itself is legal in many states, and that video of it has never been declared illegal in any previous court case, or federal law. What makes this case especially alarming is that he already served prison time in 2002 for a state conviction over this material. In other words, he is facing repeated punishment for an old “crime” he has spend time in prison for having committed. His first court appearance for this renewed assault on his rights is set to take place on June 12.

Second, and ongoing, is the case of Max Hardcore. Previously, efforts to convict him on child pornography charges, based on the youthful appearance of the ADULT performers in some of his video titles failed, in part due to a timely Supreme Court verdict on the issue of virtual/non-real child images in pornography. This new obscenity case focuses on five titles from his massive catalogue of material, and has a total runtime 510 minutes in length. While his attorneys are doing an excellent job thus far in countering the illegal, evasive, and underhanded tactics of the prosecution, their efforts are being thwarted by the constitutionally illiterate Judge Susan C. Bucklew. She continues to ignore established procedure, including forcing the jury to watch in full all five videos submitted to the court. While a recent revelation to the court indicates the Mr. Little (aka Max Hardcore) did not mail the videos in question, but that it was Jaded Video that did, will hopefully aid him in avoiding jail, it does little to help the fight for free speech. If he is acquitted, it will be because of this technical detail, not because the material is found to be legal. Thus, no matter the outcome, there will be severe negative ramifications, whose impact will continue to be felt for years to come. The failure to further clarify the obscenity standards by way of this case will undoubtedly force many niche companies underground, as happened when the Extreme Associates case was first filed by Ashcroft.

Many find this to be a trivial issue, in light of concern over the economy (which is improving), the increasing scarcity of oil (due to governmental restraints on new drilling), and Iraq (whose cost is extremely burdensome). And to a point, such individuals are right. After all, man can quite easil live without access to a handful of specific pornography titles. However, it must be remembered that what defines the United States, or at least what ought to, is the legal protection of liberty and individual freedom. Continued assault on adult material does just the opposite, and helps to ruin one of the great things about this country. Caving into the pressure of the religious right, as federal and state governments appear content to do, is not only an unconstitutional union of church and state, but a hindrance to progress, tolerance, justice, and human rights. Even if you do not find yourself personally affected by this issue, it is important to remember that when liberty is curtailed, it often starts through attacks against easy targets, such as adult material. Failure to confront the assault on freedom only allows for greater reduction of it, until such a time as those rights you cherish are no longer safe. So please, in an election year, where we have the chance to impact freedom, write to your senators and representatives, and tell them you expect stronger defense of your constitutionally enshired legal rights.

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