The 2008 Presidential Election and Its Impact on Enforcement of Federal Obscenity Laws :: Catholic News Agency
The 2008 Presidential Election and Its Impact on Enforcement of Federal Obscenity Laws



When I say “adult” obscenity, I am talking about hardcore pornography that does not depict actual children under age 18.  A considerable amount of “adult” obscenity, however, does depict youth who are 18 to 19 years of age and who often look even younger.  “Adult” obscenity also encompasses “pseudo child porn,” which purposefully conveys the impression that one or more participants are under 18 years of age.  The world of “adult” obscenity also includes hardcore pornographic depictions of adultery, bestiality, fisting, gangbangs, group sex, unsafe sex, incest, sex with excrement, sex with she-males, and the degradation, rape and torture of women.   


Most people know that the First Amendment does not protect child pornography.   Most people may not know that the United States Supreme Court has repeatedly held that obscene material is also unprotected by the First Amendment; and that there federal and state obscenity laws now on the books which can be enforced against hardcore pornography.


“Obscenity” is a legal term, and in Miller v. California, 413 U.S. 15, 24 (1973), the Supreme Court limited the reach of obscenity laws to materials or performances “which taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”


At one point in the Miller case (at page 29), the Court said that its obscenity test was intended to “isolate ‘hard core’ pornography from expression protected by the First Amendment.”  Typical “hardcore pornography” (e.g., a magazine, DVD, pay TV film or Web site) consists of little if anything more than one hardcore sex act after another (i.e., it’s “wall-to-wall” sex).  Today, the predominant form of pornography marketed in the United States is “hardcore.”


In another 1973 obscenity case, Paris Adult Theater I v. Slaton, 413 U.S. 49, the Supreme Court said that “even if it is feasible to enforce effective safeguards against exposure to juveniles,” enforcement of obscenity laws furthers other “legitimate governmental interests.”  These other interests include protecting the community environment, public safety, morality and family life and maintaining a “decent society.”  It ought to go without saying, however, that the U.S. is doing a horrible job of shielding minors from pornography.  The Internet in particular is awash with hardcore pornography that is available to minors without cost or proof of age. 


History of Enforcement of Federal Obscenity Laws (in brief)


Obscenity laws have been on the books at the state level since the early days of our nation and at the federal level since 1842; and throughout most of our nation’s history it was “assumed” that the First Amendment did not protect obscenity.  As the Supreme Court observed in a 1957 obscenity case, Roth v. United States, 354 U.S. 476, 481:

Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press.  [Italics added]


Thankfully, the Roth Court went on to “hold that obscenity is not within the area of constitutionally protected speech or press” (354 U.S., at 485), but the Court also revised the obscenity test, making obscenity laws more difficult to enforce.  The revision process continued into the 1960s, and by 1966 the Supreme Court had revised the obscenity test to the point where obscenity laws were virtually unenforceable.  Juries would still convict in obscenity cases, but on appeal the Court routinely reversed the convictions.  See, e.g., Phyllis Schlafly, “The Morality in First Amendment Jurisprudence,” Harvard Journal of Public Policy, Winter 2008.


In the 1973 Miller v. California case (see above), the Supreme Court corrected some of the definitional problems it created in the 1960s.  Federal and state obscenity laws were again enforceable, but by 1973 most prosecutors had stopped enforcing these laws and the so-called “sexual revolution” was also in full swing.  As a result, the 1970s and 1980s were in large measure a hey-day for producers and distributors of pornography.  But by the early 1980s, a “backlash” was growing, led by religious Americans and feminists.


President Reagan responded in various ways.  During his first term, he opened the doors of the White House to leaders of organizations opposed to pornography.  This sent a message both to federal law enforcement agencies and the public that the President viewed obscenity as a serious social problem.  As a result of an operation that became known as “MIPORN,” the Justice Department also successfully prosecuted individuals nationwide on obscenity charges.  Most if not all of these individuals were connected in some way with organized crime. 


During President Reagan’s second term, Attorney General Ed Meese established a Commission on Pornography, which led to the formation of an Obscenity Unit in the Justice Department in 1987.  Within two years, the Unit (re-named the Child Exploitation & Obscenity Section) had commercial purveyors of “adult” obscenity on the run, and it kept them on the run until 1993.  In his 1986 State of the Union Address, the President also had this to say: “Confident in our future and secure in our values, Americans are striving forward to embrace the future. We see it…as families and communities band together to fight pornography….” 


During President Reagan’s terms in office, there was also a considerable amount of enforcement of obscenity laws at the state level.  The primary target was “adult bookstores,” but some cable TV operators were also indicted as a result of carrying pay pornography channels.  It wasn’t until President Clinton occupied the Oval Office, that cable TV pornography proliferated.


President George H.W. Bush was also tough on purveyors of obscenity.  John Weston, an attorney who represented pornographers, described the crackdown on Los Angeles area pornography companies as “a holocaust.”  Gene Ross, an editor at Adult Video News, added that traffic in “X-rated” videos “peaked a couple of years ago and is on a downward trend.” (John Johnson, “Into The Valley of Sleaze,” L.A. Times Magazine, Feb.17, 1991).

During the 1992 Presidential election, it appeared that both the incumbent and the challenger supported enforcement of federal obscenity laws.  It was Bill Clinton who issued the strongest statement: “Be assured that aggressive enforcement of federal obscenity laws–particularly by the Child Exploitation and Obscenity Section–will be a priority in a Clinton-Gore administration.”


But President Bill Clinton nominated Janet Reno for U.S. Attorney General; and he couldn’t have made a better choice, if the goal was to unleash a torrent of obscenity into the mainstream.


When Janet Reno served as State Attorney in Miami from 1978-1993, she refused to devote more than token resources to prosecuting obscenity cases, despite the fact that the Miami Police Department and Sheriff’s Office actively investigated obscenity cases and despite the fact that during the 1980s the U.S. Justice Department successfully prosecuted dozens of pornographers in Miami as part of its MIPORN operation, proving that obscenity laws could be enforced. 


Enforcement of obscenity laws was not a priority when Janet Reno served as State Attorney, and it did not become one when she became U.S. Attorney General. By the end of 1994, enforcement of federal laws against commercial distributors of “adult” obscenity had come to a virtual halt.  In 2000, during a meeting of the Free Speech Coalition (a “trade association for the adult entertainment community”), attorney Jeffrey Douglas described the Clinton and Reno years as an “eight-year free ride…at the federal level” (Adult Video News, April 2000).


When President George W. Bush’s choice for U.S. Attorney General, John Ashcroft, was confirmed by the Senate in February 2001, organizations fighting obscenity fully expected a return to the aggressive enforcement of obscenity laws that characterized the Justice Department under Presidents Reagan and Bush – and so did the hardcore pornographers.  [See, e.g., Mark Cromer, “Porn’s Compassionate Conservatism,” The Nation, Feb. 26, 2001]


But Mr. Ashcroft rejected the advice of those with a proven track record of enforcing obscenity laws.  Instead of aggressively enforcing federal obscenity laws against large-scale hardcore pornographers, the Justice Department targeted primarily small operations that trafficked in the most extreme hardcore pornography and prosecuted very few of them. The Department seemed more afraid of losing an obscenity case than of losing the war against obscenity.


Organizations that fight pornography also expected good things from Attorney General Alberto Gonzalez, and he did get off to a good start.    He spoke publicly about the obscenity problem.  He told U.S. Attorneys that he expected them to enforce the obscenity laws.  He scheduled a training session for prosecutors.  And most importantly he established an Obscenity Prosecution Task Force and named a tough-on-obscenity former U.S. Attorney Brent Ward to head it.  Unfortunately, Mr. Gonzalez didn’t follow through.   For a period of time it appeared that he would get the job done; and then, without explanation, obscenity ceased to be a priority.


As for Michael Mukasey, President Bush’s third choice for Attorney General, while it is now apparent that enforcement of obscenity laws is not among his priorities, he hasn’t done what Janet Reno did – namely, bring enforcement of federal obscenity laws to a virtual halt.


Having criticized the Bush Administration for its failure to get the obscenity law enforcement job done, in fairness it must also be said that this Administration has made some progress.  The main problem, as I see it, is that the record of enforcing federal obscenity laws is about five years behind what it should be.  Efforts similar to those described in the next five paragraphs should have been launched or achieved in the first 2-3 years of this Administration.


By my count, over the past seven years the Justice Department has initiated about 20 obscenity prosecutions against commercial producers and distributors of “adult” obscenity.  While most of the cases involved small fries, several cases have involved significant pornography operations. 


Most recently, in June a federal jury in Tampa convicted a California-based pornographer of distributing obscene materials.  The Tampa victory followed two federal jury convictions in Phoenix last year for distributing obscene materials.  One of the Phoenix cases involved a major porn spammer; the other case involved materials produced by a California based pornographer. 


In April, a federal grand jury in Washington, D.C. also indicted another Los Angeles-based pornographer.  If the Justice Department means business about fighting obscenity it must target Los Angeles based pornographers because California is still the “porn capital” of the world.

Two additional pornography operations (one of which was connected to organized crime) were successfully prosecuted through use of other criminal laws (fraud, racketeering, and misleading domain name); and the FTC has initiated civil proceedings against several porn spammers.


While they are still rare, obscenity prosecutions at the state level may also be on the increase.  In August, a jury in Staunton, Virginia found an “adult” video store and its owner guilty of violating the state obscenity law.  In June, individuals connected with the operation of a pornographic website pled guilty in Pensacola, Florida to state RICO-obscenity charges. 


Why the 2008 Presidential Election Is Important


I am aware that what the Supreme Court described in 1973 as “the tide of commercialized obscenity” and what former U.S. Attorney General Ed Meese described in the late 1980s as an “explosion of obscenity” is not the only moral problem that our nation faces.


But I would maintain that what has now become a floodtide of obscenity is one of the most pressing moral problems of our time, primarily because of its effects on marriages and children.  Most hardcore pornography is also degrading to women and much of it depicts violence against women.  The floodtide of obscenity also undermines the right of every American to live in a decent society and undermines our military’s efforts to curb religiously based terrorism.


I also think that our nation is at a crucial juncture in the war against obscenity.  Despite the Bush Administration’s failure to enforce obscenity laws vigorously, it has shown that obscenity cases are winnable.  What we need now is a President who will build on the progress.  The last thing this nation needs is another eight-year “free ride” for hardcore pornographers.


Furthermore, Brent Ward, the Director of the Justice Department’s Obscenity Prosecution Task Force, does not need an army to get the job done.  What he needs are (1) a team of prosecutors and FBI Agents committed to investigating and prosecuting obscenity crimes, (2) cooperation from U.S. Attorney Offices and FBI Field Offices as needed and (3) discretion to bring cases against major distributors of hardcore pornography, even if they don’t offer extreme materials.  The resulting fines and forfeitures would offset if not pay for the entire effort.


I also think the American people will support a President who isn’t afraid to take on the hardcore pornography racket.  In April 2008, MIM commissioned Harris Interactive to ask this question in a national survey: “Were the next president to do all in his or her constitutional power to ensure that federal obscenity laws are enforced vigorously against commercial distributors of hardcore pornography, would you support or oppose the President in this matter?  An astounding 75% said they support the President; only 19% said they wouldn’t.


How then do we explain John McCain and Barack Obama’s failure to state publicly whether they support enforcement of federal obscenity laws, despite repeated requests to do so?  Frankly, I find this puzzling, since both candidates profess to be concerned about the family, children and moral values; and both are working to win the women’s vote.  Neither candidate is timid when it comes to abortion and homosexuality.  Why then the silence on pornography?


Can it be that both major party candidates are ignorant of the harm that pornography is causing to marriages, to children, to society’s moral fabric, to our national image and to women?   Can it be that both candidates are more concerned about offending consumers of hardcore pornography than they are about the harm it is causing?  Can it be that neither candidate views the floodtide of obscenity as a serious moral issue meriting his attention?  


Representatives of the McCain Campaign have stated privately that the Senator supports enforcement of federal obscenity laws.   They have also said that a written statement would be forthcoming.  We are still waiting.   Coincidentally, today (as I write) I learned that the 2008 Republican Party Platform, unlike the 2000 and 2004 Platforms, does not include language in support of enforcement of federal obscenity laws.   Sarah Palin, John McCain’s choice for Vice President, also comes from one of the very few states that do not have any obscenity laws.


The Obama Campaign has ignored letters and emails asking the Senator to state his views on enforcement of obscenity laws; and to my knowledge, the Democratic Party Platform has never included language in support of enforcement of obscenity laws.  When he chaired the Senate Judiciary Committee, Joe Biden, Barack Obama’s choice for Vice President, also voted against the Pornography Victims Compensation Act of 1992.  That Act was intended to provide a victim of rape or sexual child abuse with a cause of action for damages against the producer or distributor of obscene material or child pornography (which are not protected by the First Amendment) if that illegal pornography was a “substantial cause” of the sex offense.


According to an article in the July 2008 Corporate Counsel magazine (“Remodeling Plans: The presidential candidates lay out their plans for the Justice Department”), John McCain intends to go after trafficking, online predators and child pornographers.  For Barack Obama, the article continues, “it seems like the Justice Department would look a lot like the one under President Clinton.”  The word “obscenity” does not appear anywhere in the article. 


I may be a “voice crying in the wilderness,” but I think the American people deserve a truthful answer to the following question, before the November elections:  If elected President, will you do all in your constitutional power to ensure that obscenity laws are enforced vigorously?

One step the next President can take is to nominate individuals to serve as Attorney General, FBI Director, and U.S. Attorneys who will take the obscenity problem seriously.  Another step is to talk publicly about the obscenity problem and why enforcement of obscenity laws is needed.  


One reason that the Bush Administration did not accomplish more in the war against obscenity is because President Bush didn’t use his bully pulpit to address the subject of “adult” obscenity. What a President talks and writes about publicly sends a message to those who serve in his Administration about what is important to him.  It also educates and motivates the public.


The Question of Harm


I stated above that the floodtide of obscenity has become “one of the most pressing moral problems of our time, primarily because of its effects on the family and children.”  I thought it would be helpful before closing if I set forth evidence to support that claim.


In a marriage it is usually the husband who becomes addicted to pornography.  This addiction can negatively affect (destroy) a marriage in a number of ways.  A husband may lose sexual interest in his wife; or he may act out his perverse or violent porn fueled fantasies with his spouse; or he may choose instead to act out his porn fueled fantasies with a prostitute(s).  He may also spend thousands (tens of thousands) of dollars a year feeding his sexual addiction.   Even if the addiction doesn’t destroy a marriage, it can cause the innocent spouse great pain. 


Many women are also concerned about the effect of a father’s porn addiction on their children.  A child may see the father viewing pornography or may find it on his computer (or elsewhere).  In some cases there is concern about sexual abuse.  In particular, the latter becomes a concern when the father’s interest in pornography includes “teens,” incest, pseudo child porn, or actual child pornography.  Children are also affected when pornography addiction leads to divorce.


In particular, I would think “political conservatives” would be concerned about the impact that addiction to pornography is having on marriages, because historically the traditional family has been the building block of society; and to the extent that traditional families are losing their influence in society, government will invariably increase its influence. 


In a statement published in TIME (“The Candidates on Faith,” Aug. 7, 2008), Barack Obama stated: “I also think we must remember that there are a range of moral-values issues that must be addressed in our families.”  I would assert that pornography addiction is one such issue and that reducing the supply of obscenity through vigorous enforcement of federal obscenity laws will help reduce addiction.  Enforcement will also send the message that pornography is a moral evil.  In particular, children, teens and young adults (America’s future) need to hear that message.


For more information about pornography’s effects on marriages, see the following:


Testimony of Jill Manning, Hearing on Pornography’s Impact on Marriage and the Family, Subcommittee on the Constitution, Committee on Judiciary, U.S. Senate, Nov. 11, 2005, published at


Dr. Victor B. Cline, “Treatment & Healing of Pornography & Sexual Addictions,” published at


Craig W. Fall, Pornography’s Harms from a Catholic Therapists Perspective, published at


John W. Kennedy, “Help for the Sexually Desperate,” Christianity Today, Mar. 2008, published at


Helen Neill, “Male sex addict cases ‘increase,’” BBC Radio 1, Jan. 10, 2008, published at


Robin S. Whitehead, “What Do the Courts Say?  Child Custody, Visitation Rights & Pornography,” published at


Rory Reid & Dan Gray, Confronting Your Spouses Pornography Problem, Silverleaf Press, 2006; and Pamela Paul, Pornified: How Pornography Is Transforming Our Lives, Our Relationships, And Our Families, Henry Holt & Company, 2005


I would think that both political parties would also be concerned about the exposure of children to pornography.   According to a study reported in Youth, Pornography, and the Internet (National Research Council, 2002, at page 78), about 74% of “adult oriented” websites displayed “adult content on the first page (accessible to anyone who visits the page)…and only 3 percent required a credit card or other ‘adult check’ to proceed past the first page of the site (that is, most sites allow the user to take a ‘free preview’ in which some additional content is provided).”


Evidence abounds that many children are being inadvertently exposed to pornography or are purposefully seeking it out.  For example, according to a study conducted by the Crimes Against Children Research Center at the University of New Hampshire, the percentage of children (ages 10 to 17) who said they had an unwanted exposure to sexual material in the past year rose from 25% in 2000 to 34% in 2005; and 13% of these youth said they had “gone to an X-rated site on purpose in the past year,” compared to 8% in 2000.  Among 16- and 17-year old boys, 38% said they had visited X-rated sites on purpose in the past year.  According to a survey conducted in 2004 by the National Center on Addiction and Substance Abuse, 45% of teens (ages 12 to 17) had friends who regularly view and download pornography from the Internet. 


Not every child who is exposed to pornography gets a wrong idea about sex from it or becomes addicted to it; but many children do get wrong ideas, while many others become addicted. 

For information about the effects of pornography on children see the following:


Testimony of Dr. Mary Anne Layden, Hearing on the Brain Science Behind Pornography Addiction, Subcommittee on Science, Committee on Commerce, Science and Transportation, U.S. Senate, Nov. 18, 2004 (“Pornography…is an equal opportunity toxin…It is more toxic the more you consume, the ‘harder’ the variety you consume, and the younger and more vulnerable the consumer”), published at


S. Kraus & B. Russell, “Early Sexual Experiences: The Role of Internet Access and Sexually Explicit Material,” CyberPsychology & Behavior, Apr. 2008 (“males with Internet access during the ages of 12 to17 reported significantly younger ages for first oral sex compared to males without Internet access”), published at


Tori DeAngelis, “Web Pornography’s Effect on Children,” Monitor on Psychology, Nov. 2007 (“investigators see links between young people who access Web porn and unhealthy attitudes toward sex”), published at


Kim Kurtis, “Sex Offenders Younger, More Violent,” Associated Press, Jun. 09, 2007 (“42 percent have been exposed to hardcore pornography”), published at,4670,YouthSexOffenders,00.html


Susan Gilbert, A Conversation with Lynn Ponton: An Expert’s Eye on Teenage Sex, Risk & Abuse, N.Y. Times, Jan. 15, 2002, (“I see boys who are addicted to sex on the Internet …[I]t affects those boys’ sexual lives”), published at


Elizabeth Landau, “When sex becomes an addiction,”, Sep. 5, 2008 (“A lot of teenagers develop their sexuality with pornography, and then find that relational sex isn't as satisfying, Weiss said. Porn gives them a "very strong chemical hit," and alters ways of thinking about sex, A lot of teenagers develop their sexuality with pornography, and then find that relational sex isn't as satisfying, Weiss said. Porn gives them a "very strong chemical hit," and alters ways of thinking about sex, A lot of teenagers develop their sexuality with pornography, and then find that relational sex isn't as satisfying, Weiss said. Porn gives them a "very strong chemical hit," and alters ways of thinking about sex, A lot of A lot of teenagers develop their sexuality with pornography, and then find that relational sex isn't as satisfying, Weiss said. Porn gives them a "very strong chemical hit," and alters ways of thinking about sex, teenagers develop their sexuality with pornography and then discover that relational sex isn’t as satisfying…Porn gives them a…‘chemical hit,’ and alters ways of thinking about sex”), published at


One concern that I have about so many of today’s youth and young adults (a study conducted in 2007 by researchers at Brigham Young University found that 21 % of male college students view pornography “every day or almost every day” and another 27% view pornography “1 or 2 days a week”) is the effect that this exposure is going to have on their ability to make a marriage work and even their willingness to enter into a marriage.  There is evidence that many young men would prefer to masturbate in front of their computers than to spend time with a young woman.  See, e.g., David Amsden, “Not Tonight, Honey.  I’m Logging On,” New York Magazine, Oct. 20, 2003; Naomi Wolf, “The Porn Myth: In the end, porn doesn’t whet men’s appetites – It turns them off to the real thing,” New York Magazine, Oct. 20, 2003.


In the late 1990s, Congress twice attempted to enact legislation to restrict children’s access to Internet pornography.  The federal courts invalidated both laws based on the judges’ misguided belief that it is totally up to parents to protect their children from Internet pornography. 


“Adult” obscenity laws, however, can still be enforced against websites that commercially distribute hardcore pornography without taking reasonable steps to restrict children’s access.  The Congressionally created COPA Commission concluded in its October 2000 Final Report: “Law enforcement resources at the state and federal level have focused nearly exclusively on child pornography and child stalking.  We believe that an aggressive effort to address illegal, obscene material on the Internet will also address the presence of harmful to minors material.”


Unfortunately, not an awful lot has changed since 2000.  For the most part, the Justice Department and FBI continue to focus almost exclusively on child pornography and predators.

Not only is the refusal to devote little more than token resources to the war against “adult” obscenity exposing an entire generation of children to hardcore pornography, it is also undermining government efforts to curb sexual exploitation of children and sexual trafficking.


The explosion of obscenity contributes to sexual exploitation of children in a number of ways. 

First, child molesters use “adult” obscenity to entice, arouse, desensitize and instruct their child victims.   See, e.g., Kenneth Lanning, “Child Molesters: A Behavioral Analysis,” National Center for Missing & Exploited Children, pp. 55-57, 70 (2001).


Second, many men arrested on sexual exploitation of children charges begin their downward spiral by viewing not child pornography but “adult” obscenity.   See, e.g., Lou Michel & Dan Herbeck, “Confessions of a child porn addict” (Buffalo News, 10/17/07), where we read:

“Clarence once enjoyed the adult pornography sites he viewed on the Web.  But after a while, the thrill was gone.  So he started clicking on some of the ads that popped up on his computer above the naked adults he was watching.  He was seeing something new – young teenagers and even young children, posing in the nude, having sex with each other, or being molested by adults.  At first, [Clarence] was appalled.  But once the shock wore off, he couldn’t get enough.  Like thousands of other men…he was hooked.”

Third, many men who are addicted to obscenity use prostitutes to act out their porn fueled fantasies.  See, e.g., the article, “Help for the Sexually Desperate” (see citation above) (“Viewing pornography is nearly always accompanied by masturbation…‘If a guy masturbates to something it would take a prostitute to do, he’s more likely to find one.’”).  See also, “A facilitator's guide to Prostitution: a matter of violence against women,” 1990, WHISPER - Women Hurt in Systems of Prostitution Engaged in Revolt, Minneapolis, MN (“80% of prostitution survivors at the WHISPER Oral History Project reported that their customers showed them pornography to illustrate the kinds of sexual activities in which they wanted to engage.”)(published at  To the extent that addiction to pornography helps maintain or increase the demand for prostitutes, it also helps maintain or increase the demand for women and children who are trafficked into prostitution. 


Fourth, addiction to obscene materials is also destroying countless marriages, which puts children at greater risk for sexual abuse.    See, e.g., “One-parent Households Double Risk of Child Sexual Abuse,”, 3/14/07.


The evidence set forth above is not intended to be a summation.  It is the tip of the iceberg.  The evidence also doesn’t address other harms, for example:


The link between pornography addiction and violent sex crimes [See, e.g., Robert Peters, “The Link Between Pornography and Violent Sex Crimes, ” Mar. 2004, published at]; and


Making the war against religiously-based terrorism more difficult [See, e.g., Richard Burkholder, “Iraq and the West: How Wide is the Morality Gap,” GALLUP, Nov. 25, 2003 (“Gallup's Poll of Baghdad asked a representative sample of adults to describe -- in their own words -- what, if anything, they most resent about the West… More than a third (36%) of Baghdad residents said they believe Western culture has undermined moral standards by spreading sexually indecent influences (‘pornography’ and ‘fornication’)…”), published at].


Printed with permission from Morality in Media, Inc.


Latest Videos:

Follow us: