19

THE POLITICS OF PROFANITY

As technology made distribution of seamy materials easier, sexually explicit content once relegated to backrooms, adult bookstores, and stag parties became accessible to wider audiences. Within a brief period of time explicit, once-illicit motion pictures became tolerated and even common. The availability of adult materials pushed the First Amendment to its limit and revealed the politics of profanity.

As mainstream audiences discovered blue movies, moral guardians found renewed motivation. The revived reform movement was politically charged, pitting proregulation believers against First Amendment advocates. Political regimes either went after smut or turned a blind eye as obscenity infiltrated everyday life in America.

The emergence of the pornography industry in America can be dated to the early 1970s. The earliest aboveground theatrical exhibition of adult films unspooled in Mona: The Virgin Nymph (1970) and Boys in the Sand (1971). X-rated entertainment gained ground with the one, two, three punches Deep Throat (1972), Behind the Green Door (1972), and The Devil in Miss Jones (1973). This taboo triumvirate was hailed—or reviled—as the “porno chic.”

Another turning point occurred with Jim Buckley’s Debbie Does Dallas (1978). Debbie was wildly popular, featuring Bambi Woods, a girl-next-door type, in the recognizable Dallas Cowboys cheerleader uniform.1 The film was an important historical marker, both serving as the end point of the porno chic era and signaling hardcore’s ascendance in home media.

Debbie Does Dallas was one of the first adult films to become widely available on video, meeting with phenomenal success in the new medium. The title was named “most popular adult product” by the Video Software Dealers Association for several years running—a perennial favorite that has been called one of the highest-grossing pornographic films of all time by the New York Times.2 Although it won awards and made money on home video, Debbie met resistance in the theatrical market. The film was banned as obscenity on theater screens in Alabama, Florida, and Texas.³

As the porn industry penetrated the mainstream consumer home video marketplace, a counterbalancing force gathered strength on the side of state regulation. The federal government’s initial attempt to justify more stringent regulations was stymied by its own study. Released in September 1970, the report of the Commission on Obscenity and Pornography delivered unanticipated results, finding that “the availability of explicit sexual materials is . . . not one of the important influences on sexual morality.”⁴ President Nixon distanced himself, announcing on October 24, 1970, “I have evaluated that report and categorically reject its morally bankrupt conclusions and major recommendations. So long as I am in the White House, there will be no relaxation of the national effort to control and eliminate smut from our national life. . . . The Commission on Pornography and Obscenity [sic] has performed a disservice, and I totally reject its report.”⁵

The pendulum swung away from Nixon’s socially conservative stance as Carter took office in 1977. Obscenity prosecutions found less favor. Two representative cases came down in the Texas Court of Criminal Appeals in 1980: Berg v. State and Keller v. State. These cases, which dealt with the distribution of allegedly obscene films theatrically and via home video, were setbacks for the state.

In Berg a theater owner was convicted for commercially exhibiting obscene materials.⁶ Berg had programmed a double feature at the Trail Drive-In that included a film entitled Deviates in Love (1979). The jury found the film obscene and assessed punishment at 180 days in the county jail and a fine of $1,000. Berg appealed. At issue was the measure of contemporary community standards. A witness for the defense proffered evidence of comparable materials purchased in the Dallas–Fort Worth area to demonstrate contemporary community standards. The trial court excluded the ten items from evidence, reasoning that “such materials were not purchased close enough in time or distance to the event.”7 The decision was overturned on appeal; it was a reversible error to exclude such evidence. Judge Samuel Houston Clinton Jr. concluded, “An average jury could have reasonably found the State’s case significantly less persuasive had these exhibits been admitted.”⁸

Five months later Texas considered Keller v. State. Once again the cause of action was the commercial distribution of obscenity, but here the material at issue was the sale of a Swedish erotica home video entitled Oversexed Secretary (1979). Keller was convicted, sentenced to thirty days in the county jail, and fined $500. At trial, defense attempted to introduce evidence that Deep Throat had been playing theatrically in Houston continuously for four years, selling over 350,000 tickets. The evidence was excluded. Once again the decision was reversed. Judge Wendell A. Odom opined, “The statistical evidence of community patronage of the movie Deep Throat was offered as circumstantial evidence of contemporary community standards. Widespread attendance indicates community acceptance. We find such evidence was legally relevant to the issue.”⁹ Statistical evidence concerning the number of people patronizing Deep Throat in nearby Houston was probative of community standards and should not have been excluded.

By 1980 pornography had moved toward the mainstream, even in socially conservative Southern states like Texas. Cities tolerated and many viewers patronized films such as Deep Throat at theaters and watched dirty videotapes in their homes. Carter’s term drew to a close, and the pendulum swung once again as Reagan took office in 1981.

Under President Reagan the home video revolution reached new heights. The medium witnessed massive growth in all areas, but adult titles in particular flew off the shelves. As emphasis shifted away from theatrically released adult films, the number of sexually explicit videotapes skyrocketed from 400 new releases in 1983 to 1,600 in 1985. Revenues from the sales of X-rated titles nearly doubled from $225 million in 1983 to $425 million in 1986.¹⁰ These statistics moved the regime to take action. One month into his second term, Reagan commissioned the Attorney General’s Report on Pornography, or as it became familiarly known, the Meese Report.

Released in 1986, the Meese Report’s findings were diametrically opposed to those of the Commission on Obscenity and Pornography sixteen years earlier. The Meese Report found that erotic materials had a negative effect on individuals and communities and were a significant cause of crime, delinquency, sexual deviance, and emotional disturbance. Pornographic materials, the report stated, could have an accessory role in child abuse, violence against women, and familial breakdown. Finally, the report also made a connection between organized crime and the porn industry—a claim far less tenuous than the others. The report recommended intensified enforcement of existing regulations.

The Department of Justice looked for a case to reinforce the Meese Report’s findings. In 1987 federal prosecutors brought suit against the owners and an employee of a chain of adult entertainment stores in United States v. Pryba.11 The Prybas’ Virginia-based franchise sold books and videos as well as offered peep booths. The jury found several videotapes obscene, including She-Male Confidential: Bizarre Encounter 9 (1985), The Girls of the A-Team (1985), Wet Shots (1981), and The Punishment of Anne (1975).

Three years earlier, in 1984, obscenity had been added to the schedule of underlying crimes on which a federal prosecution under the Racketeer Influenced and Corrupt Organizations Act (RICO) could be based. Pryba was the first case brought under RICO in which the racketeering activity charges were based entirely on obscenity crimes.¹² The defendants were found guilty and sentenced to time ranging from ten years’ imprisonment to three years’ probation.¹³ The Fourth Circuit upheld the convictions and the Prybas appealed. The Bush administration urged the Supreme Court to deny certiorari, which they did.¹⁴ Justice White wrote a rare dissent to the denial of certiorari.¹⁵ The most controversial aspect of the Pryba case was the penalty meted out to the corporate entity: all assets—including inventory, bank accounts, automobiles, and office furniture—were seized.¹⁶ In their appeal the Prybas claimed that such forfeiture of a businesses engaged in constitutionally protected activities (i.e., the distribution of materials not found to be obscene) amounted to a prior restraint of speech. While the obscene materials could be proscribed, the Prybas argued that the extreme penalty offended the principles of the First Amendment as a de facto ban on further communications. The Supreme Court did not agree.

As the legal battle continued on the issue of obscenity projected on theater screens and distributed via videotape, a new medium was emerging: the Internet. By 1993 Netscape introduced a user-friendly web browser that enabled the technology to reach a wide audience. The first generation of web entrepreneurs launched visionary services, but the real prime movers were pornographers.

While she was probably not the first to post naughty pictures online, Danni Ashe, a former stripper and softcore video performer, put a comely face on Internet porn. Ashe began posting images on Usenet bulletin boards in 1994; within a year she launched a website called Danni’s Hard Drive. The Wall Street Journal profiled Ashe, detailing how her move to cyberspace had raised her earnings from $1,500 to $15,000 a month. Within two years her site boasted over seventeen thousand members bringing in over $2 million in revenue.17

Despite the publicized cyberporn phenomenon and a handful of forward-thinking companies, most commercial interests struggled for traction on the web. In 1996—in an opinion that is difficult to comprehend today—Pennsylvania Judge Dolores Korman Sloviter wrote, “The Internet is not exclusively, or even primarily, a means of commercial communication. Many commercial entities maintain web sites to inform potential consumers about their goods and services, or to solicit purchases, but many other[s] exist solely for dissemination of non-commercial information.”¹⁸ That situation would change.

By 1998 the advent of secured servers allowed for online credit-card billing.¹⁹ With new technology and a system for secured transactions in place, dirty words and filthy pictures could reach an ever-growing home-computing audience that had naughty curiosities, voracious appetites, and valid credit cards.

The Clinton regime allowed the Internet to develop. Inheriting forty-two federal obscenity prosecutions from the Reagan and Bush administrations, Clinton shifted priorities. By 1997 only six prosecutions of obscenity remained on the docket.²⁰ Porn helped fuel an economic boom. Smut producers were important innovators on the web, creating content as well as systems to bill, secure, and track payments online. The Clinton administration’s laissez-faire attitude encouraged growth in the new medium. While obscenity prosecutions slowed, the Department of Justice did address concerns caused by the content, the quantity, and the accessibility of porn on the newly connected World Wide Web.

The response from Congress, embodied in Title V of the Telecommunications Act of 1996, was controversial from inception. The Communications Decency Act (CDA) was intended as a regulation analogous to the FCC’s oversight of broadcasters. On February 8, 1996, immediately after the president signed the CDA into law, twenty plaintiffs filed suit to challenge the statute. A week later Pennsylvania district court judge Ronald L. Buckwalter entered a temporary restraining order against enforcement of the CDA.²¹ Attorney General Janet Reno appealed the decision up to the Supreme Court. In Reno v. ACLU the first ruling on the Internet was handed down in a unanimous decision.

The Supreme Court struck down the government’s attempt to regulate the web. At issue were two provisions intended to protect minors from indecent communications. Writing for the Court, Justice Stevens agreed with Buckwalter’s conclusion that the statute’s prohibitions of indecent and offensive communications “were so vague that criminal enforcement of either section would violate the fundamental constitutional principle of simple fairness and the specific protections of the First and Fifth Amendments.”22

The government’s argument relied on Ginsburg, Pacifica, and Playtime Theatres. In Ginsburg, the Court upheld the constitutionality of a New York statute that prohibited selling material to minors that would be considered obscene to them even if not obscene to adults (e.g., “nudie magazines”). Pacifica, the George Carlin “Filthy Words” case, maintained the state’s authority to regulate broadcast media based on accessibility to young audiences. In Playtime Theatres, a zoning ordinance that blocked adult theaters from residential neighborhoods was upheld. Taken together, the state’s argument was that the CDA was merely cyber-zoning on the Internet to protect minors from harmful, offensive, or age-inappropriate materials.

The attorney general also raised a new argument: “The Government asserts that—in addition to its interest in protecting children—its equally significant interest in fostering the growth of the Internet provides an independent basis for upholding the constitutionality of the CDA. . . . [T]he unregulated availability of indecent and patently offensive material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves or their children to harmful material.” This was one step too far; Stevens continued, “We find this argument singularly unpersuasive.”²³ The concern that the CDA would abridge protective speech carried the day. In striking down the Internet regulation, the Court dealt a blow to the DOJ’s war on obscenity.

The war on obscenity continued as the government rebounded to defend the Child Pornography Prevention Act of 1996 (CPPA). The CPPA addressed virtual child pornography by prohibiting any sexually explicit depiction that “appears to be” of a minor or that is distributed or advertised in such a manner as to “convey the impression” that the depiction portrays a minor. The state’s argument prevailed in the First, Fourth, Fifth, and Eleventh Circuits, covering wide swaths of the country, but suffered a setback when the influential Ninth found the law overbroad.²⁴ Judge Donald W. Molloy wrote, “We hold that the First Amendment prohibits Congress from enacting a statute that makes criminal the generation of images of fictitious children engaged in imaginary but explicit sexual conduct.”25 Based on this jurisdictional split the Supreme Court granted certiorari.

The war on obscenity had been deprioritized during the Clinton years and hindered by Reno v. ACLU and Free Speech Coalition v. Reno. However, when George W. Bush took office in 2001 the fight against filth took on a renewed urgency.

The second Bush regime promised a return to the aggressive enforcement of obscenity laws. Attorney General John Ashcroft resumed the battle to uphold the CPPA’s ban on virtual child pornography. Justice Kennedy delivered the 6–3 opinion, finding the CPPA “cover[ed] materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment. The provision abridges the freedom to engage in a substantial amount of lawful speech. For this reason, it is overbroad and unconstitutional.”²⁶

Ashcroft was undeterred. A month after Ashcroft v. Free Speech Coalition was decided on April 16, 2002, Ashcroft v. ACLU came down. The ACLU case took on the Child Online Protection Act (COPA), which regulated online communications that were potentially harmful to minors based on contemporary community standards. The Eastern District Court of Pennsylvania declared COPA overbroad and issued an injunction. The government appealed. The Third Circuit affirmed. The government appealed again. At last the state found the result they wanted. In an 8–1 opinion delivered by Justice Thomas, the Court held that COPA’s reliance on community standards to identify material harmful to minors did not by itself render the statute overbroad for First Amendment purposes.²⁷ The case was remanded on other matters.

Justice Stevens was the lone dissenter. Five years earlier he had voted with the majority in Reno v. ACLU, but in Ashcroft v. ACLU he saw far-ranging issues with localized limits. He reasoned, “In its original form, the community standard provided a shield for communications that are offensive only to the least tolerant members of society. . . . In the context of the Internet, however, community standards become a sword, rather than a shield. If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web.”²⁸

Back in the Third Circuit the injunction was upheld against COPA.²⁹ The ACLU demonstrated that the law was not narrowly tailored and restricted protected speech. On a return to the Supreme Court in 2004, the circuit court’s ruling was narrowly upheld.³⁰

Suffering setbacks with legislation, the George W. Bush regime pursued a policy of vigorously prosecuting producers and distributors of pornography. In 2005 Attorney General Alberto Gonzales established the Obscenity Prosecution Task Force. The official press release stated, “The Task Force will be dedicated to the investigation and prosecution of the distributors of hardcore pornography that meets the test for obscenity. . . . The Justice Department is committed to respecting and protecting the First Amendment rights of all individuals. However, the welfare of America’s families and children demands that we enforce the laws on the books.”31

The task force’s initial targets were Joe Francis and Extreme Associates, respectively. Francis had gained infamy with his Spring Break softcore sexploitation video series Girls Gone Wild. At issue were several titles produced during 2002–2003, including Ultimate Spring Break, Girls Gone Wild on Campus Uncensored, Totally Exposed Uncensored and Beyond, and Girls Gone Wild: College Girls Exposed/Sexy Sorority Sweethearts. Francis and his production company were charged with failure to maintain age identification records. On September 12, 2006, Francis pled guilty; he was fined $500,000, and his production entities were fined $1.6 million.³² The DOJ claimed a renewed victory in its battle against obscenity. Francis’s troubles escalated with a myriad of civil suits that hounded him for years, concluding with Plaintiff B v. Francis (2011).³³

Extreme Associates was the husband and wife team of Robert Zicari a.k.a. Rob Black and Janet Romano, a.k.a. Lizzie Borden. Extreme produced a series of hardcore videos that often featured rough sex and erotic humiliation; at issue were several titles, including Extreme Teen 24 (2002), Ass Clowns 3 (2002), and Forced Entry (2002). Zicari and Romano were charged with violating federal obscenity law and distributing allegedly obscene content via mail and Internet.³⁴ In United States v. Extreme Associates, Inc. the Pennsylvania district court handed down a verdict in favor of Extreme. Applying a strict scrutiny analysis, Judge Gary L. Lancaster found “that the federal obscenity statutes burden an individual’s fundamental right to possess, read, observe, and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials.”³⁵

On appeal, the Third Circuit reversed. Judge D. Brooks Smith wrote, “We are satisfied that the Supreme Court has decided that federal statutes regulating the distribution of obscenity do not violate any constitutional right to privacy.”³⁶ Extreme appealed to the Supreme Court, but certiorari was denied. On March 11, 2009, Zicari and Romano pled guilty and were each sentenced to a year in prison.³⁷

The task force next targeted Danilo Simoes Croce, a Brazilian national operating out of Florida. Simoes Croce offered allegedly obscene videos for sale that depicted defecation, urination, and vomiting in conjunction with sex acts, as in Toilet Man 6 and Scat Pleasures. He was charged with using the mail for delivery of obscene materials and pled guilty on June 7, 2007.38 He was fined $100,000 and forfeited all equipment and materials connected with his U.S. business operations, including copies of the films and Internet domain names.³⁹

In 2004 Loren Jay Adams became the focus of a federal obscenity investigation. Adams, based in Indianapolis, unknowingly met with a government agent and offered fetish and bestiality DVDs, including a video entitled Anal Doggie and Horse. Adams was found guilty in September 2008. An appeal to the Fourth Circuit affirmed the holding.⁴⁰

The task force already boasted a string of victories when federal prosecutors set their sights on a high-profile smut producer who worked under the moniker Max Hardcore.⁴¹ Hardcore was the porn persona of Paul Little. A columnist frequently writing on the adult industry commented that Max Hardcore’s movies “focused on the systematic degradation of his female costar of the moment who was not infrequently dressed up to resemble a child: wearing pigtails, discovered on a playground, sucking on a lollipop.”⁴² In another report, Hardcore’s films were characterized as displaying rough, forced, and physically and verbally abusive sexual intercourse. Even Larry Flynt saw Hardcore’s videos as “not within the norm. . . . That’s somebody who’s got some kind of deep-seated hatred toward women.”⁴³ Little was indicted in May 2007 and charged with ten counts of violating Title 18, Section 1461, of the U.S. Code. The complaint named several titles, including Max Hardcore Extreme Number 20, Pure Max 19: Euro Edition, Golden Guzzlers 7: Euro Edition, and Fists of Fury: Euro Edition, which appeared on DVD as well as in electronically transmitted streams and downloads.⁴⁴ Little was scheduled for hearing in Florida, not far from where Francis and Simoes Croce had been tried.⁴⁵

Following a seven-week trial, Little was convicted in June 2008 of transporting obscene matter by use of an interactive computer service. Judge Susan C. Bucklew handed down the sentence: three years and ten months in federal prison. His company was fined $75,000.

To arrive at this verdict the jury applied the three steps prescribed in Miller. Two irregularities in the Max Hardcore case deserve mention. First, in May 2008 a juror asked Judge Bucklew if it was possible to be shown clips in lieu of the full motion pictures at issue. The judge initially ruled that full movies must be shown, since Miller required works to be considered as a whole. But after forty minutes of viewing graphic, intense, and abusive pornography, Bucklew revised her ruling.46 It is possible that this decision—not playing the material as a whole—violated the spirit of Miller.

The second irregularity concerned the elusive measure of contemporary community standards. In United States v. Little, the court defined the community as the Middle District of Florida, where the servers that hosted Little’s websites were located and where federal investigators had opted for the DVDs they purchased to be sent. But the region had full Internet access to a broad range of adult materials. The disconnect between regional and worldwide standards had been raised in Reno v. ACLU and again in Ashcroft v. ACLU. Echoing Justice Brennan’s original comment, the influential Ninth Circuit provided guidance, writing, “To avoid the need to examine the serious First Amendment problem that would otherwise exist, we construe obscenity . . . as defined by reference to a national community standard when disseminated via the Internet.”⁴⁷ The Eleventh Circuit was not persuaded.

In United States v. Little, an unpublished per curiam opinion, the court affirmed both the reliance on local community standards as well as the clips serving to properly present the materials “as a whole.”⁴⁸ Little served thirty-one months and was released in July 2011.

The pendulum of pornography was swinging once again. When President Barack Obama took office in 2009, partisan eyes monitored how his administration would handle obscenity prosecution. The answer arrived in an action pending since 2008; Obama’s DOJ had inherited its first obscenity prosecution.

Barry Goldman was a Miami-based producer doing business under the names Torture Portal and Masters of Pain. As his entities might indicate, he specialized in S&M videos featuring scenes of extreme and explicit bondage and erotic discipline. The Bush-era Justice Department had unsealed their indictment in the socially conservative venue of Montana, charging Goldman with three counts of using U.S. mail to deliver allegedly obscene DVDs, which included Torture of Porn Star Girl, Pregnant and Willing, and Defiant Crista Submits.⁴⁹ Six months into Obama’s term came a sign that may have alarmed anti-obscenity pundits. In July 2009 the DOJ moved the case to the more socially progressive venue of New Jersey, signaling to some that the new administration was stepping back from aggressive prosecution of obscenity.⁵⁰ But no change of venue could save Goldman. By July 2010 he reached a plea deal and quietly disappeared under the radar. The Goldman victory was not even announced in a DOJ press release; this was a far cry from the Obscenity Prosecution Task Force’s chest-thumping during the Bush era.

The task force had seen better days. In 2007 the unit began investigating adult filmmaker John Stagliano. Stagliano had launched his career in 1983. By the end of the decade his signature “gonzo pornography,” low-budget, amateurish POV-style scenes, proved to be hugely popular and lucrative. Unlike Max Hardcore, Stagliano was an adult industry insider, a celebrated entrepreneur, and one of the most successful porn filmmakers of the 1990s, consistently lauded at the Adult Video News (AVN) Awards. His Fashionistas (2002) was named Best Adult Film in 2003 and adapted into a Las Vegas stage show that ran from 2004–2008 at the Rio Hotel and Casino—evidence of Stagliano’s crossover appeal to mainstream audiences.

By 2008 Stagliano had become an outspoken voice in the porn industry. At the AVN Awards that year he lampooned government censors who were “coming for them all.”51 Perhaps this was the trigger. Within three months U.S. prosecutors indicted him in federal court in the District of Columbia.⁵²

At issue were several DVDs that FBI agents had obtained from Stagliano’s Evil Angel website. Titles included Milk Nymphos (2007) and Storm Squirters 2: Target Practice (2007). Despite the lactation and enema-themed entertainments, the government was unable to make their case. In a stunning turn of events considering the task force’s track record, Judge Richard J. Leon found the evidence “woefully insufficient to link defendants to the production and distribution of two DVD videos at the heart of the case.”⁵³ The vindicated pornographer commented, “This is bad for my autobiography. . . . I was hoping for a better fight than they put on.”⁵⁴

A single obscenity case remained on the docket.⁵⁵ In January 2007 the FBI raided the offices of Stolen Car Films in Los Angeles. Among the materials discovered were three videos entitled Gang Bang Horse: Pony Sex Game, Mako’s First Time Scat, and Hollywood Scat Amateurs 7. Ira Isaacs was charged with importing and distributing obscene materials. Isaacs’s niche content, which included bestiality and scatological imagery, was not commercially available, being distributed only via an underground network. Isaacs positioned himself as a “shock artist,” claiming his films were not pornographic “because there is nothing erotic about scat movies.”⁵⁶

Even with this extreme content, the task force’s days of slam-dunk convictions were over. The saga of United States v. Isaacs saw two mistrials before concluding with a guilty verdict in April 2012. On January 16, 2013, Isaacs was sentenced to forty-eight months. The shock artist appeared unremorseful, stating, “I feel like I just won the Academy Award. If an artist can offend so many people that he has to go to prison to protect society, that’s really saying something. . . . Most shock artists dream of this kind of attention, without the prison part.”57

John Stagliano in production. Courtesy of Evil Angel.

Despite the guilty verdict, it was a battle of attrition. Attorney General Eric Holder shuttered the Obscenity Prosecution Task Force in 2011, folding the unit into the Child Exploitation and Obscenity Section. The move angered antipornography groups and prompted criticism of Obama as soft on porn. Isaacs was the last adult obscenity case pending in the federal court system, signaling an end to the aggressive enforcement of obscenity that had been revitalized under Bush.58

The pendulum still swings. The underlying question is reconsidered by each new regime: does the First Amendment—should the First Amendment—protect the production, distribution, and exploitation of such extreme sexually explicit materials as have emerged? The politics of profanity continue to vie for control of American culture and the hearts, minds, eyes, and wallets of an ever-changing audience.