Untruth and Consequences

Porn prosecutors have a new book to throw at defendants.

The Meese Commission on Pornography was one of the greatest bloopers in American government history, a fiasco in excelsis. I was there. I saw everything—the public hearings and the private executive sessions. I witnessed unexplained phenomena like the debate over outlawing vibrators, the testimony condemning Bob Hope's USO tours, and the slide show on Playboy centerfolds from 1953 to 1985. All in all, it was a very bizarre experience.

Today, almost four years after the commission delivered its final report, many people have forgotten about it. But the effects of the Meese Commission are still being felt. The commission's report condemning pornography was, at best, intellectually shaky. Nevertheless, it has provided a basis for a more vigorous government attack on erotic material.

When the Meese Commission was formed, some people were surprised. After all, in the previous 15 years, government panels in three different Western democracies had examined pornography and decided that it was essentially harmless. And when Ed Meese packed the commission with antiporn crusaders, it was clear that his commission was not going to undertake the sort of rigorous study that previous panels had done. Even the most jaded observers found the commission's hearings a bit kooky. We watched as a procession of chronic masturbators, militant lesbian activists, research psychologists, and former centerfolds defended their ideas on the effects of erotic images.

Despite a last-minute rush to craft a presentable document, the 1,960-page final report was murdered in all the smart places. Leading the critical onslaught were two of the commission members. Woman's Day editor Ellen Levine and rape expert Judith Becker issued a scathing dissent, saying that "no self-respecting investigator would accept conclusions based on such a study" as the commission's.

The most controversial finding, of course, was the alleged connection between pornography and violence. Where other commissions failed, the Meese majority succeeded: They purportedly found the missing link.

But it was not easy. The arguments were slippery and the language imprecise. Although the final report cited not a single scientist or study pointing to a clear porn-rape nexus, the majority tossed aside the rules of evidence and dared to claim one anyway.

Commissioner Frederick Schauer offered this defense of the commission's dubious claims: "Thus we reach our conclusions by combining the results of the research with highly justifiable assumptions about the generalizability of more limited research results." In other words, maybe we don't have real solid data, but we know cause and effect when we see it. Schauer also observed, "The absence of evidence should by no means be taken to deny the existence of a causal link."

The Meese majority demanded a sweeping crackdown on violent and degrading materials in the form of 87 legislative, administrative, and research recommendations—from seizing the profits and property of convicted dealers under the RICO statute to reviving the notion of pornography as a violation of women's civil rights.

Despite the weird hearings and strained arguments of its report, the Meese Commission served its purpose. Thanks to the commission, a limited war against pornography is now being fought by the federal government.

Ed Meese reversed the policy toward pornography that the federal government had followed for most of the previous 15 years. In 1970 another presidential commission had found that pornography caused no harm and had recommended repealing all obscenity laws for consenting adults. Afterwards, federal prosecutors tended to avoid putting sex magazines and movies on trial.

Prosecution of mainstream films such as Carnal Knowledge became a thing of the past. And while local prosecutors still went after porn films from time to time, federal prosecutors lost interest in dirty movies. It was usually a no-win proposition. Defense lawyers threw the verdict of the 1970 commission in their faces and convictions were hard to come by. In 1983, for example, Attorney General William French Smith obtained zero indictments against the producers of adult pornography. But in 1986, courtesy of the Meese Commission, the antismut crusaders got their own government report.

In December of that year, Meese acted on two of commission's key recommendations. He announced the formation of a special smutbusting squad called the National Obscenity Enforcement Unit to help U.S. attorneys probe and prosecute obscenity cases around the country and he agreed to direct all of his U.S. attorneys to initiate investigations into the manufacture and distribution of obscene material.

Currently, Attorney General Richard Thornburgh has 11 lawyers assigned to the unit. The annual budget is $1,376,000. These puny resources are hardly sufficient to bring low an estimated $8-billion industry, but the federal porn fighters plug away in their Sisyphean fashion regardless. Sixty-six indictments for obscenity were secured in 1987 and 37 in 1988. This may appear to be a drop in the bucket, but compared to 1983's zero base, it is practically Armageddon.

On the congressional front, the Meese Commission bore fruit in the Child Protection and Obscenity Enforcement Act signed by Ronald Reagan in December 1988. This clunky piece of legislation incorporated several of the panel's recommendations, including the simplification of prosecuting interstate traffic and applying RICO's forfeiture provisions against pornographers.

Several provisions of the act were quickly deemed unconstitutional by the courts. In May 1989, the U.S. District Court of the District of Columbia threw out two overzealous sections of the bill. Originally, in a ham-handed attempt to protect minors from sexual exploitation, the act mandated that producers or distributors of any nude images—whether in books, magazines, films, or photos—maintain birth records of the actors and models so depicted. This requirement was made retroactive to 1978. The court accepted the argument of the American Library Association and other mainstream amici curiae, from the American Booksellers Association to the Read Foundation, that such record keeping was an impossible burden.

The ALA et al. also challenged the part of the forfeiture provision that allowed government seizure before trial. For example, if the owner of a book or video store were indicted for possession of obscene material, the feds could confiscate every volume or cassette in the joint, whether or not they were obscene. The court regarded pretrial forfeiture as prior restraint and struck it down, but post-trial forfeiture was allowed to stand.

Thanks to the relaxed interstate rule and RICO, the Justice Department can chase down the big-time producers and distributors and conceivably wipe them out. Consequently, mail order stings are the wave of the present in obscenity cases. Here's how they work. An undercover postal inspector obtains an adult film catalogue from one of the large mail order businesses and sends for the most shocking S/M tapes advertised. The trick is in the zip code of the "customer." The requests tend to originate from places like Utah and Alabama where prosecutors believe community standards are incompatible with depictions of very rough sex and juries are more likely to vote the feds' way.

Barry Lynn, legislative counsel of the Washington office of the American Civil Liberties Union, followed the Meese Commission closely, exposing its shoddy arguments and single-minded attack on explicit material. Although Lynn labored mightily to sabotage its work on television, in court, and through op-ed pieces, he admits a grudging respect for its accomplishment.

"The commission regenerated an absolutely dormant movement and gave the opponents of porn a weighty tome to wave around city halls and state legislatures to justify the creation of new laws," he says. "Yet less than 50 percent of the U.S. Attorneys have active obscenity cases. Most still don't regard selling a video to consenting adults as important as selling crack to a six-year-old."

Tom Minnery sits at the right hand of ex-commissioner James Dobson, the founder and president of Focus on the Family, an organization dedicated to preserving "traditional values." Minnery edited Pornography: A Human Tragedy and closely tracks the antiporn battle as Dobson's vice president for public policy. Speaking from his office in Pomona, California, Minnery expresses delight in stepped-up prosecutions but laments a certain lack of energy. He would like to see many more mail violations pursued.

"We don't want an out-and-out crusade, but just the enforcement of the existing obscenity laws," Minnery says. "The U.S. Attorneys are undermanned. We're willing to be reasonable."

The federal government began its new war on pornography without any real discussion about the need for such an effort. Indeed, the Meese Commission may have destroyed any chances for serious public debate on the effects of porn. Given the availability of the stuff, we should be concerned about the effects, good or bad, of sexual images, especially on young persons.

But erotica is not a subject that should be deliberated solely by ambitious federal prosecutors and antiporn zealots. A bent inquiry such as the Meese Commission's poisons the atmosphere, taints the research, and further polarizes people on both sides of the issue. That is the Meese Commission's most important legacy.

Philip Nobile is a freelance writer living in Scarsdale, New York, and coauthor, with Eric Nadler, of United States of America vs. Sex: How the Meese Commission Lied About Pornography.