A View from Riverside Drive

Commentary by Ed Hynes
February 2005

Obscenity law takes a hit in Pittsburgh

The obscenity case was supposed to be a "slam dunk" for the Justice Department. It wasn't.

The defendants, Robert Zicari and his wife, Janet Romano, produce and distribute pornographic videotapes through their company, Extreme Associates. They produce videotapes showing women being degraded and sexually assaulted.

The videotapes have been described as "horrible, unwatchable, disgusting, aberrant movies." The author of that opinion is Paul Fishbein of Adult Video News, the so-called trade paper for people in the porn racket. It may have been a compliment.

Mr. Zicari told ABC News, "You might not like what you had just seen. It might have disturbed you, it might have given you all sorts of emotions. But are you going to limit and be that person that has the right to say 200 million other citizens cannot watch that because you don't like it."

In Pittsburgh on January 20, Federal District Court Judge Gary Lancaster decided he wasn't going to be that person. The Constitution, he said, wouldn't let him. He decided "the obscenity statutes are unconstitutional as applied to the defendants' conduct in this case."

The Justice Department is expected to seek a reversal in the Third Circuit Court of Appeals.

Citing a recent Supreme Court decision (Lawrence et. al. v. Texas) that struck down the Texas sodomy law (which made it a crime for two persons of the same sex to engage in intimate sexual conduct), Judge Lancaster found that, "as applied to this case, the federal obscenity statutes violate the constitutional guarantees of personal liberty and privacy of consenting adults who wish to view the defendants' films in private. Accordingly, the indictment will be dismissed."

Judge Lancaster went beyond that to say that the decision in the Texas case "can be reasonably interpreted as holding that public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual sexual conduct even if that conduct is deemed offensive to the general public's sense of morality."

For perspective, see Webster's New Collegiate. The 1981 edition says the word "moral" means "of or relating to principles of right and wrong in behavior. . ." and that "morality" means, "a doctrine or system of moral conduct… conformity to ideals of right human conduct." Gilbert Keith Chesterton defined morality as, "Drawing the line somewhere."

Thus the judiciary at two levels and in two cases rejected an act of the Texas legislature, weakened an act of Congress, and dismissed the public's sense of morality as of little importance. Here we have the judiciary, not for the first time, taking upon itself the role of super legislature, if not petty tyrant, perhaps forgetting that government in our system is based on the consent of the governed.

It's not just U.S. courts that are out of control
Flashing children from living room window is okay in Canada

LifeSiteNews reports that "a British Columbia man will not have to close his drapes when he commits indecent acts in his living room" because the Canadian Supreme Court has ruled that that "a person's private abode, even if it is in full view of the neighborhood children, cannot be considered a public space."

Germany to unemployed women:
Take jobs as prostitutes or lose benefits

Editor's note: We have been informed that the news story that originally ran here, about unemployed women in Germany being forced to take jobs in brothels, on pain of losing their unemployment benefits, may not be true. According to an article just published on the Urban Reference Legend Pages of Snopes.com, an article in the Berlin newspaper Tageszeitung "merely presented the concept of brothel employment as a technical possibility under current law; it did not provide any actual cases of women losing their benefits over this issue. The article also quoted representatives from employment agencies as saying that while it might be possible for employment agencies to offer jobs as prostitutes to 'long-term unemployed' women, they (the agencies) could not require anyone to work in a brothel."

Broadcasters told not to worry about complaints

Somewhere down the list of outrageous stories, but outrageous in its own way, was an editorial that ran under this headline in Broadcasting & Cable magazine on December 20: "Fight the Tyranny of the Minority." The editorial's point is that "a flood of indecency complaints is no barometer of broad-based opposition to media content." How's that? B&C explains it's because the "flood" has been organized by the Parents Television Council in e-mail campaigns that make it easy for people who want to complain to do just that. "Frankly," the editorial goes on, "you can get a half million people to endorse (or complain about) almost anything. But if we start magnifying those minority views through a distorted lens, the view isn't pretty" (whatever that means). Some minority. The editorial makes only a passing reference to the complained-of program content that is created by the industry B&C claims to speak for.

Senate considers tenfold increase in fines for broadcast indecency

While Broadcasting & Cable was urging calm, Senators Sam Brownback (R-KS) and Joe Lieberman (D-CT) on January 26 introduced a bill that would increase the penalty for violations of the Broadcast Indecency law tenfold, to $325,000 for each violation, with a cap of $3 million for any single act.

"The Senate overwhelmingly agrees that the FCC needs better tools to enforce broadcast decency laws—the original Decency bill passed 99 to 1 last year," Brownback said. "We must have punitive damages to give some teeth to the current fine structure so there will be meaningful deterrents to broadcasters who may air indecent or obscene broadcasts."

"In a media culture that increasingly pushes the envelope on sex and violence, the role of the FCC is to ensure that broadcasters do not cross that line of decency," Lieberman said. "This legislation gives the FCC more leverage to do its job by increasing the consequences of violating our broadcasting standards."

Current law caps penalties at $32,500 per offense.

Additional Senate sponsors of the bill include Senators George Allen (R-VA), Jim DeMint (R-NC), Elizabeth Dole (R-NC), John Ensign (R-NV), Michael Enzi (R-WY), Lindsey Graham (R-SC), Charles Grassley (R-IA), Chuck Hagel (R-NE), James Inhofe (R-OK), Jon Kyl (R-AZ), Blanche Lincoln (D-AR), Trent Lott (R-MS), Mel Martinez (R-FL), John McCain (R-AZ), Mark Pryor (D-AR), Pat Roberts (R-KS), Rick Santorum (R-PA), Jeff Sessions (R-AL), Craig Thomas (R-WY), and John Thune (R-SD).

A similar bill has been introduced in the House of Representatives by Rep. Fred Upton (R-MI).

U.S. Customs press global child porn investigation

The U.S. Immigration and Customs Enforcement service (ICE) is pressing a global child porn investigation. ICE, part of the Department of Homeland Security, reported January 11 that the president and marketing director of Regpay, a Belarus-based Internet billing company allegedly linked to more than 1,000 child pornography arrests worldwide, have been extradited from France to face money laundering and child pornography charges in the United States.

The two were arraigned and ordered held pending trial, which is scheduled for March 1. Their arrests were part of the first phase of an ICE case known as the Falcon investigation. The investigation also focused on Connections USA, of Ft. Lauderdale, Fla., a credit card processing company. Connections USA and two of its officers have pleaded guilty in cooperating plea agreements with the government.

The investigation is ongoing and focuses on thousands of people around the globe who allegedly purchased child pornography subscriptions from the Regpay sites. To date, ICE agents have arrested 190 individuals in the United States.

Reports of suspected child pornography climbed 39% in 2004, to more than 106,000 reports, according to the National Center for Missing and Exploited Children.

Career day advice to 8th grade girls: stripping pays well

Eighth grade girls in Palo Alto were told by a speaker at their school's annual career day that they could earn up to $250,000 a year as strippers, depending on their bust size, the Associated Press reported January 14.

The school principal, Joseph DiSalvo, heard about the incident the next day in a phone call from an angry parent, who heard about it from her son. Mr. DiSalvo says he may bar the speaker from next year's career day. A school board member didn't expect the speaker's comments to cause lasting damage.

Californians pride themselves on their cool.

In case you hadn't heard…

Columbia House record club has made a deal with Playboy to sell pornographic videos. The New York Post reported January 6 that videos from other porn producers also will be sold through Columbia.

Playboy will also be peddling porn through cell phones, but according to the New York Daily News of January 12, while Playboy "is the biggest name to announce plans to put porn on phones, the House that Hefner Built isn't the first." And it won't be the last, but the Justice Department could put a damper on the whole sordid business by enforcing obscenity laws.

Essence, most successful of the black women's magazine, "is taking on the slut images and verbal abuse projected onto black women by hip hop lyrics and videos," according to The New York Daily News of January 3. The magazine's editor, Diane Weathers, told the News, "We started looking at the media war on young girls, the hypersexualization that keeps pushing them in sexual directions at younger and younger ages. . . . We found the rap lyrics astonishing, brutal, misogynistic. ... So we said we were going to pull no punches, especially since women were constantly being assaulted."

Yahoo is host to ads for prostitutes, with lines like these:

"Larry Flynt's retail expansion throughout the country demonstrates faith in the mainstream marketplace and recognizes that Americans are not as uptight about sex as the FCC commissioners and some members of Congress." That's the opinion of Robert D. Richards and Clay Calvert, who are professors of communications and law at Penn State University and co-directors of the Pennsylvania Center for the First Amendment. The Supreme Court has held, however, that the First Amendment doesn't prevent enforcement of federal and state obscenity laws against distributors of hardcore pornography.

In San Francisco, "sex and free speech walk hand-in-hand often donning leather chaps or a G-string." That's according to Lee Romney of the Los Angeles Times, in a story December 19 about "steep fees that clubs charge strippers from cash that customers hand over for private lap sessions. . . Some say private lap dances encourage prostitution." We're shocked. Shocked!

A Las Vegas porn spammer has been shut down temporarily by the Federal Trade Commission for failing to put a required warning label — SEXUALLY EXPLICIT — on its e-mail. No mention in the Reuters story January 15 of any Justice Department action for obscenity. The FTC has jurisdiction under the so-called CAN-SPAM Act of 2004. Unwanted pornography and other forms of spam account for up to 85 per cent of all e-mail, up from roughly 55 per cent when the CAN-SPAM Act took effect one year ago.

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