Statement of Patrick A. Trueman
Hearing on obscenity prosecution
Subcommittee on the Constitution, Civil Rights and Property Rights
Committee on Judiciary
March 16, 2005
My name is Patrick Trueman. I currently serve as senior legal counsel for Family Research Council in
From the end of the Administration of President Ronald Reagan in 1988 to the end of the Administration of President George H. W. Bush, I also served in the United States Department of Justice as Chief of the Child Exploitation and Obscenity Section (CEOS) in the Criminal Division. For the year prior to this, I served as the deputy in CEOS. CEOS prosecuted federal child sexual exploitation and abuse, child pornography, and obscenity crimes and coordinated the investigation and prosecution of these crimes nationally. During those years, under three Attorneys General, the Department of Justice had a very active and successful prosecution effort under way against the major producers and distributors of obscene material in the
Although the constitutional status of obscenity was clear, however, the Department prosecuted only a handful of cases in the twenty years prior to the establishment of CEOS. Because the Department was ignoring obscenity crimes, pornographers were emboldened, producing and distributing illegal products throughout the country, in stores, on cable/satellite television, and through the mail. Then the Department reversed course and began vigorously prosecuting obscenity. The impetus for the increased prosecution effort, starting in 1987, was the Attorney General's Commission on Pornography. That Commission, which began its work under Attorney General William French Smith, reported its findings in a "Final Report" delivered to Attorney General Edwin Meese III in 1986. Attorney General Meese followed a key recommendation of the Commission's Final Report and established a "strike force" (later called CEOS) in
It goes without saying that leadership from the Attorney General, the nation's chief law enforcement official, is critical in defeating crime. That certainly was the case with General Meese and his two successors in the Bush Administration, Richard Thornburgh and William Barr, who took a strong hand in making sure that U.S. Attorneys, as well as federal investigative agencies, pursued obscenity cases. That support and continued involvement of these Attorneys General was critical to our success.
During my several years at CEOS, we found obscenity law quite workable and, moreover, well understood by jurors who had to make decisions on the guilt or innocence of fellow citizens. To those who argue that the prosecution of obscenity crimes is a waste and an unwise use of resources, I would point out that during the time I was section chief of CEOS we received more than $24 million in fines and forfeitures as a result of our aggressive prosecution activities. This amount was in excess of the budget of CEOS during those years. Those opposing obscenity prosecutions often claim that such prosecutions take resources from child exploitation cases. However, we don't hear that bank fraud or tax evasion prosecutions take resources from child pornography cases. Pitting child pornography prosecutions against obscenity prosecutions makes no sense to a concerned parent who might ask: "Why is the government spending tens of thousands of dollars prosecuting and incarcerating Martha Stewart rather than the criminal who spams hardcore pornography to my children?" When I hear law enforcement authorities pit child pornography against obscenity, I see it as is an excuse for doing nothing on obscenity crimes.
There were two large obscenity prosecution projects undertaken by the Department while I worked at CEOS and I would like to mention each today. Under my predecessor, Robert Showers, CEOS and multiple U.S. Attorneys teamed with the U.S. Postal Inspection Service in "Project Postporn" targeting the major mail order distributors of obscenity. It targeted those who were widely distributing sexually oriented advertisements through the mail offering obscene material. Most often, the advertisements themselves were obscene, and many were prosecuted as such. The offending companies would often send these advertisements to children who happened to be on a purchased mailing list. Prosecutions were brought in districts from which citizen complaints emanated. "Postporn" resulted in 50 individual or corporate convictions in 24 cases in 20 federal jurisdictions and nearly every mail-order distributor of obscenity caught in its net. These convictions all but ended the practice of sending pornographic advertisements through the mail.
For the second large-scale prosecution project, we targeted the major producers and suppliers of obscene material in the
About 20 companies of the 50 or so on that list were convicted under this project. I want to emphasize that these were major producer/suppliers, so convictions against them made a significant difference in the amount of illegal products distributed in interstate commerce. We were beginning the second phase of this project when the Bush Administration ended and the next administration all but halted obscenity prosecutions.
Our prosecution strategy in this project was ultimately to bring cases against all the major producer/suppliers of obscenity, and to bring those cases in every state where such material was produced and distributed. We prosecuted cases from
In addition to the two prosecution projects mentioned above, the Department also prosecuted many local, large-scale pornographers owning multiple pornography shops in various cities. Examples include Ferris Alexander, who monopolized the illegal pornography industry in
I believe that our prosecution strategy during the years I was at CEOS was a correct one and it is a shame that it was abandoned when President Bush left office. Though our efforts were cut short by a change of presidential administrations, we made a very substantial dent in the obscenity industry in the
By the end of the administration of President George H.W. Bush, we were successful not only in gaining convictions throughout the country, but in changing the nature of hardcore material produced. Themes of rape, incest, bestiality, pseudo-child pornography (in which adults dress and act like children while engaging in sex) -- all common themes prior to our prosecution efforts--disappeared from store shelves and were no longer produced by the major pornography companies. Some distributors of hardcore pornography refused even to ship products to those states where convictions were obtained.
The Department's numerous cases during that era gave ordinary people sitting on juries across
Over the last few years some have said we should adopt a "go slow approach" in order to stay within the legal boundaries set by the Court, which may otherwise loosen or jettison altogether the Miller community standards framework. But Miller has remained vital for over three decades, suggesting that vigorous enforcement of the obscenity laws is well within constitutional bounds. Moreover, vigorous prosecution could well promote the "community" aspect of community standards. Some believe that prosecutions must "start with the hardest material" such as bestiality or rape films because the public's attitude toward pornography has changed. Then, it is suggested, once a number of convictions have been secured involving the most extreme material, prosecutions can begin against less extreme material. Yet, public attitudes are more likely to change for the worse precisely because of this strategy. If pornographers know that only the most extreme obscene material will be prosecuted, they will believe they are safe in distributing virtually all obscenity into communities and on the Internet and cable/satellite TV. Hence, it should not be surprising that we have seen an explosion of hardcore pornography in our society, and that, correspondingly, our young people have become desensitized to ever-more brazen obscene material.
Some argue that there exists no evidence that obscene material harms, and thus there is no reason to enforce obscenity law. That is merely an argument for substituting the prosecutor's judgment for the judgment of the people, expressed through their elected representatives. It is also perhaps an argument for the need for more research. However, the common sense of the people, as reflected in the valid government interests identified by the Supreme Court, also has a place in the discussion. In Paris Adult Theater I v. Slaton, 413
I believe Attorney General Alberto Gonzales and federal prosecutors would have great public support if the Department vigorously prosecuted obscenity crimes. Indeed, a great segment of our society is clamoring for it to do so. A poll conducted by Wirthlin Worldwide in March of 2004 found that eighty-two percent of adult Americans surveyed said that the Federal laws against Internet obscenity should be vigorously enforced. Perhaps more telling is the number of complaints or reports of potential obscenity crimes by the public. The exact number is unknown but one indication of that figure comes from Morality in Media. That organization set up a very helpful tool for both the public and federal prosecutors. The tool is a Web site, www.obscenitycrimes.org where citizens who receive pornographic spam or find potentially obscene material on the Internet may file a report. The report of the incident is then forwarded to the Department of Justice in
Printed with permission from ObscenityCrimes.org.