Pornographers Face A New Generation of Activists
July 7, 2008 - 8:02 PM
(CNSNews.com) - A prominent First Amendment lawyer addressing Web masters at a recent convention of Internet pornographers in New Orleans predicted that the next administration will be hard pressed to get convictions, as in the days of Ronald Reagan, if prosecutors decide to bring a wave of lawsuits against "adult" material.
"Things will be different this time," said Paul Cambria, a veteran porn defender with offices in Buffalo, NY, and Los Angeles, "because the community is much more educated now about adult material."
Ten or 15 years ago, a majority of jurors had never seen "adult" material. But today's juror - "unless that person dropped out of a tree" - has either rented sexually explicit videotapes or seen such material on their home computer, he said.
The fact that more Americans have seen pornography, possibly making them less likely to convict, was, from the porn executive's point-of-view, the first positive note Cambria had struck in a series of forums over the weekend. Most of his remarks were replete with warnings about how a new administration - especially a George W. Bush administration - could bring a wave of prosecutions that would generate high legal bills, possibly putting pornographers out of business.
Cambria and other industry lawyers repeatedly endorsed the Democrats. The last eight years of a Clinton-Gore administration "has been peaches and cream as far as prosecutions are concerned. We've had some state prosecutions, but by-and-large, no federal prosecutions," Cambria said.
Americans have undergone a sea change in their outlook on illicit sex since the 1980s. The evidence was everywhere, porn defenders say. The president was caught having sex with a young woman who was little older than his daughter. The country stood by him, and the Senate refused to impeach him.
Cambria's most famous client, Larry Flynt, was the subject of sympathetic treatment in a recent Hollywood movie.
The American Library Association still refuses to filter from its computers what it bans from its shelves - on First Amendment grounds, too.
Legislators around the country repeatedly vote against filtering software for school computers, also on First Amendment grounds.
Technology is making censorship impossible. Sexually explicit material reaches American homes through cable and satellite TV, telephones and home computers, neighborhood video outlets, and the US mail.
Like drugs, pornography will always be available to consumers in some form, and the part the government and the legal system plays in the regulation of porn distribution and the prosecution of porn producers appears to be fast diminishing, analysts say.
Minors Comprise Largest Category of Porn Consumers
However, what nags Internet pornographers is the growing realization that a new wave of consumers is bringing a new wave of critics - and anti-porn activists. The more people are exposed to unwanted pornography, the higher the likelihood of prosecutions.
Canadian researcher Dr. William Marshall said that, of the child molesters he treated, 87 percent who molested girls and 77 percent who molested boys admitted to regular use of hard-core pornography.
A study by former Michigan police officer Darrell Pope found that, of 38,000 cases of sexual assault on file in Michigan over a 20-year period, 41 percent involved the use of pornography immediately prior to or during the crime.
In Oklahoma County, the district attorney reported that rapes in the city declined during the years 1984 to 1989 when prosecutors vigorously enforced obscenity laws. After closing 150 out of 163 sex businesses, rapes declined 27 percent in Oklahoma City while rising 19 percent in the rest of the state.
"The empirical research on the effects of aggressive pornography shows with fairly impressive consistency that exposure to these materials has a negative effect on attitudes towards women and the perceived likelihood to rape," concluded researchers JS Lyons, D Larsen, and RL Anderson in A Systematic Review of the Effects of Aggressive and Non-Aggressive Pornography.
Prosecutors and the FBI note a clear link between the use of hard-core pornography and violent crime.
In a speech given to the Los Angeles County Board of Supervisors in February, 1987, Attorney General Edwin Meese noted: "In the 15 years since the previous commission submitted its report on pornography, the obscene materials being distributed in the United States have become more and more frequently associated with violence and depravity.
"Consumers of this more violent and perverted material are now the major portion of the pornographer's clientele. This clientele has been reported to have a frightening, but not surprising degree of overlap with the police blotter's list of sex criminals and violent assailants. Pornography hurts people by the way in which it is made and the way in which it affects people who get hooked on it, which can happen all too easily," Meese stated.
Public opinion polls reveal that a large majority of Americans favor a crackdown on all illegal pornography. On the question of sexual violence and child pornography, the figure of those who favor tough enforcement jumps even higher.
Official studies have determined that pornography is not a "victimless" crime. Federal commissions in 1970 and 1986 found that minors comprise the largest category of consumers of pornography in America and that even "soft" porn could well have a serious, harmful and lasting effect on the mind of a child.
Pornography was found to be physically, psychologically and socially damaging. Rape and child molestation are the principal physical harms associated with the use of pornography. Psychological damages range from suicidal thoughts and behavior to the abuse of alcohol and other drugs. Social problems include financial loss, divorce, promotion of racial hatred, promiscuity, prostitution and sexual harassment.
Anti-Porn Activists Call for Better Education
Porn producers also face a new wave of activists, some of whom are porn victims themselves. Instead of calling for unpopular crackdowns on porn in the name of religion, this new generation is pushing to have the debate out in the open, stressing mental and physical health issues.
"We want people to talk about it, and we want people to talk about both sides," said Kimberly Drake, a wife and mother who was addicted to pornography for 11 years. Today, Drake speaks on education and awareness and victim's assistance on behalf of Citizens for Community Values.
"Years ago, we never talked about the fact that domestic violence was an issue, so the women suffered silently. Similarly, porn addicts and women who are being exploited by the porn industry are suffering silently right now. If we turn our heads and pretend it doesn't exist, the porn promoters are going to set the standards for us, and we've seen that happen," she said.
Tonya Flynt, daughter of Hustler publisher Larry Flynt and head of The Tonya Flint Foundation Against Pornography and Sexual Abuse, is pushing for programs that will educate communities on the harmful effects of pornography, modeled on anti-drunk driving classes sponsored by Mothers Against Drunk Drivers.
"Today, if you sue for divorce, you have to attend classes on the effects this will have on your children. Similarly, sex offenders should have to listen to people whose lives have been destroyed by porn, just as drunk driver offenders have to listen to members of MADD," said Flynt, who was sexually molested as a pre-teen by a perpetrator who used pornography to break down her inhibitions.
"If anything, governments are helping the porn industry by not drawing attention to how harmful it is," she said.
Pornography and the Law
While legal experts are reluctant to define pornography and obscenity, the US Supreme Court in 1973 ruled that material is obscene if all three of the following conditions are met:
The average person, applying contemporary community standards, will find that the work, taken as a whole, appeals to the prurient interest [in sex]; and
The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state [or federal] law; and
The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The court also ruled that obscenity is legally akin to libel, slander and false advertising and cannot be considered free speech protected by the First Amendment.
Prevailing community standards determine what pornography is obscene, the court said. What is obscene, or illegal, is determined by what is successfully prosecuted in a community. The First Amendment presumptively protects pornography until a court - normally in a jury trial - determines it to be obscene. Once a court determines items of pornography to be obscene, these items then serve as a guide for community standards.
The Final Report of the US Attorney General's Commission on Pornography, set up by Edwin Meese in 1985 during the Reagan administration, found that the enormous differences among states and among other geographic areas in obscenity law enforcement are due not to differences in the laws, but to differences in the methods, zeal and frequency with which the laws are enforced.
"Anyone who knows anything about the laws the founding fathers had on the books directed toward sex crimes against children know that these guys never expected the First Amendment to excuse obscenity," said Steve Baldwin, a conservative Republican assemblyman from California's 77th District. "The First Amendment in their view was a tool for the average citizen to speak out against the government."
Baldwin has been battling lawyers from the American Civil Liberties Union who successfully blocked his anti-obscenity bills in the California Legislature.
Other anti-porn activists agree that the First Amendment was never intended to defend porn. "What we have a right to do, and what's right to do, are worlds apart," said Tonya Flynt. "We have a Bill of Rights without a list of responsibilities. We have to realize as a society that what we do has consequences. Free speech is not absolute and never has been."
The First Amendment was enacted in 1776 when 11 out of the 13 colonies already had anti-porn laws on the books, legal analysts note. None of these laws were overturned by the enactment of the First Amendment.
"Lincoln said the people are the rightful masters of courts and Congress, not to overthrow the Constitution but to overthrow men who would pervert the Constitution," Flynt said. "Porn as free speech is clearly a perversion of the Constitution. People need to realize that."
Prosecutorial successes in Atlanta and Cincinnati, for example, indicate to anti-porn activists that the laws are available for those areas that choose the course of vigorous enforcement. The commission found, however, that with few exceptions, the obscenity laws that are on the books are not enforced. Manpower shortages in most large cities were cited.
The commissioners concluded that, with respect to the criminal laws relating to obscenity, there was a striking "under-enforcement" that resulted from "under-complaining, under-investigating, under-prosecution," and "under-sentencing."
Next in This Series: The Fight Against Child Pornography