Let's say your taste in home video is for the work of John Stagliano, John Leslie, or Henri Pachard. You've been worried that the Justice Department's war on porn might one day prevent you from watching the output of these fine smutmeisters. Rest easy. Well, easier anyway. The Justice Department has suffered a series of setbacks that bode well for freedom of sexual expression.
For the last five years, federal prosecutors have waged a high-profile war against producers and distributors of sexually explicit material. Since obscenity is defined by community standards, the feds have indicted the firms in conservative, Bible Belt areas. But the strategy hasn't worked as well as the Justice Department hoped.
Further, court rulings have taken away some of the feds' most potent weapons by making it more difficult for the government to seize all of a company's assets under racketeering and anti-obscenity laws. Previously, the threat of seizure was so great that some companies agreed to go out of business rather than risk conviction.
The string of setbacks for the Justice Department began last fall, when an Oklahoma obscenity trial ended in a hung jury. Then in October, the jury in a Dallas trial returned guilty verdicts on only two of eight videotapes that prosecutors contended were obscene. During sentencing, the Justice Department asked the court to seize all of the distributor's assets under a 1988 anti-obscenity law. But presiding U.S. District Judge Barefoot Sanders rejected the government's move. Sanders held that seizing California Publishers Liquidating Corp.'s $10.2 million in assets because of two tapes valued at $9.90 was "Draconian" and would violate the First Amendment.
Last March, the U.S. Court of Appeals for the Ninth Circuit dramatically limited the government's power to close businesses and seize property under the federal racketeering (RICO) statute and declared pretrial seizure of assets in obscenity cases "unconstitutional on its face." Just a few days later, the first important result of these rulings may have occurred in Oxford, Mississippi, where California-based Vivid Video pleaded guilty to three counts of distributing obscene materials, paid a $500,000 fine, and agreed not to distribute its products in Mississippi for two years.
The porn industry considered the settlement a victory for Vivid, since the company and its officers were allowed to continue operating. (In all previous settlements, the government had insisted that the companies and individuals involved agree never again to distribute sexually explicit materials.) Further, if the officers of the company are not convicted of any felonies for the next three years, their criminal records will be expunged. Amazingly, further obscenity convictions will not count as felonies for the purposes of this agreement.
This article originally appeared in print under the headline "Talkin’ Dirty".