In Defense of Extreme Pornography

Why Janet Romano and Rob Zicari have no business being in federal prison.

In late September, as a controversial movie director spent the first week of her year-long sentence at FCI Waseca, a federal prison in Minnesota, Harvey Weinstein didn't bother to circulate a petition demanding her release. Debra Winger didn't issue a statement protesting the director's incarceration and anticipating her next masterwork. Peg Yorkin, founder of the Feminist Majority Foundation, didn't publicly wonder why the government had spent the last seven years trying to put the director in jail.

Maybe Janet Romano should have drugged and sodomized a 13-year-old. Or, at the very least, had better cinematic taste. Unlike Roman Polanski, Romano has never won an Oscar for Best Picture. In fact, the 31-year-old porn auteur, ?whose credits as a director include Pain and Suffering, I Love to Hurt You, Cannibalism, and Sexual Intrusive Dysfunctional Society 2, has never even won an AVN Award for Most Outrageous Sex Scene.

Still, you'd think many of the creative types rallying around Polanski would be equally sympathetic to Romano's plight. Essentially, she's in prison for rape, too—as is her husband, Rob Zicari. But as Whoopi Goldberg might have put it, ?the rape that landed them in the slammer wasn't actually rape-rape. It wasn't even '70s-style-libertine rape. Instead, it was movie rape, a scene enacted by consenting adults.

Zicari and Romano, known in the porn industry as Rob Black and Lizzy Borden, were the primary figures behind Extreme Associates, a production company, which, along with a few others, began pushing the boundaries of what the mainstream adult video industry depicted in the late 1990s.

Of course, it wasn't just porn that was growing more extreme in those days—all pop culture was. It was the heyday of Marilyn Manson and Eminem, South Park, professional wrestling, Jackass, Fear Factor, World's Wildest Police Videos, Girls Gone Wild, Tom Green, and most of all, the Internet, where websites like Rotten.com and Stileproject.com were assembling vast visual libraries of any taboo or depravity that could be digitized: gruesome crime and accident scene photos, animal snuff, people disfigured by bizarre medical conditions.

Along with everyone from NBC executives to computer nerds living in their parents' basements, Zicari and Romano simply jumped into the fray. Hollywood slasher films chopped nubile teens into pieces, so why couldn't they simulate similar antics in their own efforts? Hollywood reality shows featured contestants eating pig rectums for money, so why couldn't they engage in their own gross-out stunts?

In their videos, female performers (and the occasional male one) were slapped, spat on, and verbally degraded. Rapes and murders were depicted. Vomit was vomited, then consumed again along with other bodily fluids. And of course there was explicit hardcore sex. Had Zicari and Romano stuck to just rape and murder, with some R-rated nudity to complement artful scenes of mutilation and dismemberment, as Hollywood does in movies like Hostel and House of 1000 Corpses, they could've avoided a lot of trouble. Likewise, had they focused on hardcore sex and kept the violence and puke out of it.

By mixing these various elements, however, they earned a 10-count indictment on obscenity charges in 2003. In the eyes of many in the adult industry, they'd brought this trouble on themselves. A year earlier, a PBS Frontline documentary on porn included shots of Romano filming simulated rapes and murders that the members of the Frontline crew found so disturbing they fled the set. At a time when anti-porn organizations were increasingly pressuring the Bush Administration to resume obscenity prosecutions against the adult porn industry—which had fallen by the wayside during President Clinton's years in office—this was not exactly the kind of PR effort that mainstream adult companies like Vivid Entertainment and Wicked Pictures wanted to put out there. Nor was Zicari's combative rhetoric appreciated. "We've got tons of stuff they technically could arrest us for," Zicari told Frontline. "I'm not out there saying I want to be the test case. But I will be the test case. I would welcome that."

In 2004, when I interviewed Zicari for a Reason article on the federal government's newly energized campaign against the porn industry, he remained defiant. "This is the World Series, and they're the Boston Red Sox," he exclaimed. "They're getting a chance that they haven't had in 9 billion years, and if they blow this, they can never come back. Because where can you go after a jury says there's nothing wrong with these movies? How do you go after a movie involving a husband and wife and the guy's wearing a condom? How do you get someone to go after that, when you couldn't even prosecute a tape where the guy comes in the girl's mouth, and then he fucking stabs her? This is their one shot, and they fucking know it."

In January 2005, it seemed as if the federal prosecutors had whiffed—U.S. District Judge Gary Lancaster dismissed the charges against Romano and Zicari, ruling that federal obscenity laws were unconstitutional because they violated one's "right to sexual privacy, which encompasses a right to possess and view sexually explicit material in the privacy of one's own home." Later that year, however, an appeals court reversed this controversial ruling, and the government resumed its case against the couple.

As the case dragged on, it attracted less and less attention, ultimately becoming the the judicial equivalent of the celebrity who you thought died years ago but is actually quite extant. And while the federal government never really ramped up its crusade against the porn industry enough to satisfy the anti-smut forces or terrify Playboy subscribers, it did continue to intensify its efforts. In 2005, Attorney General Alberto Gonzales expanded the government's anti-obscenity efforts by creating the Obscenity Prosecution Task Force, which, he explained, would be staffed with the DOJ's "best and brightest" prosecutors.

In 2008, those prosecutors won a victory against Paul Little, aka Max Hardcore, convicting him on 10 counts of violating federal obscenity laws, a verdict that led to a 46-month prison sentence. Earlier this year in March, just a few weeks before their own case was scheduled to go before a jury, Zicari and Romano accepted a plea bargain when the government offered to reduce its case against them to a single count of conspiracy to distribute obscene material.

"We felt like they had the best chance to get the least amount of time if they pled," says Jennifer Kinsley, an attorney at Sirkin Pinales & Schwartz, the law firm that represented Zicari and Romano throughout their seven-year legal battle. "Financially, this case really destroyed them. People became afraid to do business with them on the production side and the distribution side." Their business no longer exists. Neither one has produced or directed a video since 2005. "They went from living in a very nice house that they owned to sharing a small apartment with a roommate."

Now, they're in prison, Romano at FCI Waseca in Minnesota, and Zicari at FCI La Tuna in Texas. According to Kinsley, Zicari was supposed to serve his sentence at FCI La Tuna's minimum-security satellite facility, but he mistakenly reported to its primary facility 30 miles away. Instead of transferring him to the satellite facility, however, prison officials kept there. "But then they ended up putting him in solitary confinement [for nearly a month] because that was the only space they had available," Kinsley says.

Granted, hardcore pornographers don't make for the most sympathetic victims, even when they're financially strapped and thrown in the hole simply ?for poor navigation skills.

Ultimately, however, two American citizens are currently spending a year in prison for making movies that involved adult actors participating in fictional scenarios with their full consent. The rapes and murders they staged were no less imaginary than the rapes and murders Hollywood stages with far greater verisimilitude every day. The gross-out stunts they engaged in were no grosser than the bug-eating contests of reality TV or the bodily fluids gags that can be found in countless Hollywood comedies.

Unfortunately, Romano and Zicari had the audacity to mix genres of entertainment that, while permissible on their own, are apparently not allowed to be combined. And thus they managed to achieve what not even John Waters ever accomplished: They were sent to prison for having bad taste.

But those with better taste shouldn't expect immunity now that the Obscenity Prosecution Task Force has extended it winning streak. As Rob Zicari told Frontline 2002, it's not as if anti-porn advocates make distinctions between good pornography and bad pornography: "They want to get rid of everybody. The Christian right, the fundamentalists, they don't like pornography. It doesn't matter if their movie is a married couple having sex in the bed, and they're loving each other, or it's our kind where it's like some pimp having sex with some street hooker in an alley for crack or something. They don't look at it that way. They look at it as sex, filming it, and distributing it to the masses…"

Currently, the Obscenity Prosecution Task Force is led by Alberto Gonzales appointee Brent Ward, a man who once led a crusade in Utah to get nude art-class models to wear bikinis. According to Jennifer Kinsley, the Task Force isn't just continuing old cases that began in the Bush era, it's also actively seeking out new ones. "Someone was asking me the other day why this is still happening," she says. "I think the reason is that Brent Ward is still there. Had he been asked to resign, I don't think these cases would still be going on. But basically the Obama Administration has left the previous decision-makers in their offices."

Those decision-makers remain in office in part, no doubt, because so few people have even acknowledged, much less objected, to the fact that our federal government is sending people to prison for thought-crimes. In the July 2009 issue of Reason, Jacob Sullum reported on the case's outcome, but throughout the mediasphere, coverage was scant. The New York Times made no mention of Zicari and Romano's conviction or subsequent sentencing. Nor did The Washington Post. The Los Angeles Times ran a 131-word AP story. Now that the two convention-flouting provocateurs are actually sitting in jail, though, perhaps their ordeal will seem compelling enough to inspire their Hollywood brethren to at least circulate a petition or two on their behalf in the name of artistic freedom.

Contributing Editor Greg Beato is a writer living in San Francisco. Read his Reason archive here.