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Legal leverage: Laws to fight pornography aren't being used, anti-porn activists say

Published: Tuesday, July 9 2013 12:00 a.m. MDT

Others, like Patrick Trueman, president and CEO of Morality in Media and chief of the Child Exploitation and Obscenity Section in the Department of Justice from 1988-1993, point to a successful history of obscenity prosecutions in the country and say there's no reason existing laws can't be used to prosecute Internet offenders — especially if the public steps up and once again demands legal action.

"I don't think that obscenity is no longer prosecutable — it is," says Robert Showers, founder of the National Law Center for Children and Families and chief of the Child Exploitation and Obscenity section at the Department of Justice in the 1980s. "But it would take, quite frankly, an avalanche of public sentiment … saying, 'We're not putting up with this anymore.'"

LOCAL BATTLES

Fourteen years ago in a Provo courtroom, defense attorney Randy Spencer asked a jury of Utah County residents to consider the following numbers:

19,389 adult pay-per-view movies rented from DirectTV in three years.

1,416 adult pay-per-view movies purchased during a nine-month test run of "Spice TV" in Provo, Spanish Fork and Payson. (Response was so good corporate headquarters wanted the local affiliate to offer "Playboy TV" as well.)

20 percent of profits at Orem movie store Sun Coast Video came from adult video sales — only 2.5 percent of its total inventory.

3,444 non-cable-edited X-rated movies purchased by patrons at the Marriott Hotel — literally across the street from the courthouse.

How could the county charge his client Larry W. Peterman with violating community standards of decency, Spencer asked the jury, when Utah County residents themselves had accepted, albeit clandestinely, adult entertainment being sold in their malls and viewed in their homes?

Peterman was acquitted on all charges.

Results like that make prosecutors hesitant to file porn cases, says Raymond Robertson, the Commonwealth’s Attorney for Staunton, Va., and one of the last prosecutors to successfully get an obscenity conviction against a pornographer over the last decade.

"I don't know if they're too busy, or they don’t care, or they think the law is one thing when it's actually another,” he said. “But the law is pretty clear and it's clearly on the side of … if it's obscene, it's illegal."

The law he’s talking about is called the Miller test, a 1973 Supreme Court decision that defined obscenity using a three-prong test: Would the average community member find that the material in question appeals to a morbid or degrading interest in sex? Does it show or describe sexual content in a patently offensive way? And then, considering a broader, nationwide audience, does it lack literary, artistic, political or scientific merit?

If the answers are yes, then the material is obscene, regardless of who used it, how they used it, where they used it, and how pervasive it is around them, Robertson says, emphasizing that prosecutors have to stand firm on those prongs and avoid getting derailed by defense attorney’s arguments about free speech and tolerance.

The Free Speech Coalition, the trade association for the adult entertainment industry, has a different perspective on the law.

"The more people there are who enjoy adult entertainment, the harder it becomes to make the argument that adult entertainment is patently offensive to the average person," the trade group argued in its most recent report on the state of the industry. "If adult entertainment is, in fact, widely accepted by mainstream populations, then the use of criminal obscenity law to regulate it is unconstitutional."

FEDERAL FIGHTS

As Mary Beth Buchanan, the U.S. Attorney for the Western District of Pennsylvania, initiated an obscenity case against a Los Angeles-based pornographer in 2003, the letters began pouring into her office.

"How can you, as an attorney in Pittsburgh, prosecute a couple in California?"

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