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Thursday, November 7, 2002 08:12 a.m.

Ashcroft and Porn - where's the beef?

But it was an area where he was, on appointment to the job, widely thought to be likely to instigate an active prosecution policy. If only to demarcate his tenure at the Justice Department from that of Janet Reno - according to Bruce Taylor [3], an obscenity prosecutor with the DOJ up till the cases more or less dried up in 1994 [4],

Janet Reno just did not like doing obscenity cases,

There were fevered prognostications of a general conservative clampdown in the DOJ from some early on in his tenure. And leaders in the porn industry, taking the line of least resistance, brought forth the Cambria List - a checklist [5] of those types of sexual activity to be avoided to minimise the risks of prosecution.

But, on prosecuting porn [6], at least, it seems Ashcroft has not been strikingly aggressive.

He's talked a good game; as in a speech to the Prosecutors Obscenity Forum in June this year [7]. He appointed Andrew Osterbaan (deputy of the CEOS in the Reno era) as 'a strong leader and aggressive career prosecutor' to head the section last November (a section supposedly demoralised and destroyed during the Reno era).

But now his performance is being questioned by pressure groups in the area. They're particularly concerned with internet porn and the large profits made from porn by the phone companies. No one, it seems, has been prosecuted on his watch for supplying regular porn online [8].

There is some genuine reason for this: though online obscenity is as liable to Federal prosecution as another other type, the difficulty of applying the constitutional rule [9] to net communications may have stayed prosecutors' hands. But, perhaps, as is being suggested, murkier political reasons also inform these decisions.

Certainly, as Bruce Taylor points out, the scope of the general Federal obscenity law goes well beyond the furthest excesses contemplated by the Cambria list - some scenes even of simulated sex might fall within its scope, and (potentially) outside First Amendment protection. In theory.

But the fact that the LA obscenity prosecution of Adam Glasser [3] was eventually dropped is some indication of prosecutorial reluctance to test a jury's opinion in a high profile case. And virtually any regular porn case the DOJ now brought, after so many lean years under Reno, stands an excellent chance of being high profile.

Perhaps the renewal of the people's mandate will give Ashcroft the boost needed to start filing charges....

1. Ashcroft v Free Speech Coalition

2. Ashcroft v ACLU

3. Interviewed for the Frontline series on American Porn - the online material includes (legally!) interesting interviews (dating from the summer of 2001) with the Los Angeles prosecutor and defence lawyer in the abortive Adam Glasser Tampa Tushy Fest case.

4. Apparently, 'in fiscal year 1998 — the last year Reno allowed statistics to be released, the 93 U.S. attorneys initiated only eight prosecutions and obtained only seven obscenity convictions — down from 26 during the last year of the first Bush administration'.

5. The list with lively commentary here.

6. Regular porn, that is - none of this refers to child pornography, where Ashcroft prosecutes, but has problems with a different set of laws (Free Speech Coalition case).

7. And the President has just recently made a (deliberately?) confusing speech eliding the two separate questions of child access to regular porn on the net and pornographic images of children - on which the DOJ effort is indeed to receive increased funding. It seems the regular and child porn functions of the DOJ are also elided - in the Child Exploitation and Obscenity Section (and not just in the name, either).

8. It's far from straightforward (if not impossible) to get detailed statistics online on obscenity prosecution - I couldn't manage it, at least!

9. Which I discussed recently in relation to Castillo v Texas, the Dallas comic-book case.