Washington's new crackdown on pornography.
Only the man himself can say for certain, but I'm pretty sure that Attorney General John Ashcroft would disapprove of the Realdoll, a life-size $5,999 sex dummy that boasts "a completely articulated skeleton which allows for anatomically correct positioning." Nor, I imagine, would he have any kind words for the Extreme Bonk'er™ sex trapeze, the mango-scented Cum-Kleen personal wipes, or the thousands of hardcore videotapes and DVDs that are for sale here at the Adult Entertainment Expo, a bustling trade show for sexual entrepreneurs sponsored by the adult video trade magazine AVN in January at the Venetian Hotel in Las Vegas.
Perhaps what Ashcroft would find most distressing about the event, however, is the crowd it has attracted. Elsewhere at the Venetian, in the casino's own Guggenheim-Hermitage Museum, where Picassos and Manets adorn walls designed by prize-winning architect Rem Koolhaas, admission is only $15, but there are few takers. At the Adult Entertainment Expo, it's a different story. The show is open to fans as well as those in the business, and by noon hundreds of people are standing in line for tickets, ready to hand over $40 for a chance to meet the stars of Weapons of Ass Destruction 2, The Incredible Gulp, and other X-rated fare.
Ultimately, nearly 16,000 fans will attend the four-day show. Those in line today attest to the democratizing power of double-penetration videos: Businessmen toting expensive digital cameras stand next to leather-clad bikers, who stand next to frat dudes in baseball caps and sports jerseys. There are whites, blacks, Asians, and Latinos here, and many of them are female. There are people in wheelchairs, aging hippies, bespectacled lesbian hipsters, curious tourists, a member of the Backstreet Boys, and Mike Tyson. The only other place where such diversity flourishes is at the Department of Motor Vehicles.
Inside the show, it's one giant gang hug as packs of happy fans pose for snapshots with half-dressed porn stars. The biggest draw, though, is Larry Flynt, arch-nemesis of Jerry Falwell, numerous federal prosecutors, and propriety in general. Dressed in a crisp navy blazer, his head as big and waxy as any senator's, Flynt signs copies of Hustler for an endless procession of admirers with efficient magnanimity. For a man who claims to have lost his virginity to a chicken, he looks remarkably statesmanlike.
A few dozen yards away, in a small, no-frills exhibition booth, a pair of less beloved pornographers holds court. Robert Zicari, known in the industry as Rob Black, is a stocky 30-year-old who looks like he could play the role of, say, Wiseguy No. 3 on The Sopranos. He wears a black velour tracksuit with white piping and white high-top sneakers, and his dark, auburn-tinged hair is cut short on the sides and longer and somewhat spiky on top. He has a trim goatee, a wide face, and an air of restless, Barnumesque intelligence, always figuring angles and always looking for opportunities to stir things up.
His wife Janet, known in the industry as Lizzy Borden, has long, bleached blonde hair and the enigmatic smile of a slutty Mona Lisa. At 26, she's already a six-year porn veteran, starting out as a performer in the late 1990s, then switching to directing after she started to date Zicari. Under the banner of their company, Extreme Associates, the pair are known for producing material that even fellow pornographers find objectionable. Their videos are products of a jaded, hypermediated era: explicit porn coupled with the over-the-top gore of slasher movies and the stunts and gross-out spectacles of reality TV. In the Extreme universe, women drink viscous cocktails of semen, spit, and other bodily fluids. Dead fish are considered sex toys. U.S. Marines save a female reporter from Osama bin Laden, then rape her themselves after cutting off Bin Laden's head. Jesus comes down off the cross and rapes an angel.
God has yet to render judgment on that particular blasphemy, but others are showing less patience. Decorating the Extreme Associates booth at the Adult Expo is a poster of Janet Zicari posing inside a boxing ring, ready to battle in fishnet stockings, a skimpy, cut-off T-shirt, and fists swathed in Everlast hand-wraps. "Fight for your right to watch porn," the poster urges in bold red print. In smaller print, on a ring card announcing the next bout in the never-ending Culture Wars, the text reads "Lizzy Borden vs. Mary Beth."
"Mary Beth" is Mary Beth Buchanan, U.S. attorney for the Western District of Pennsylvania. On August 7, 2003, Buchanan announced that a Pittsburgh federal grand jury had indicted the Zicaris on 10 counts of violating federal obscenity laws. Social conservatives hope and civil libertarians fear that this case marks a new stage in Washington's crackdown on pornography, a sign that Ashcroft's Department of Justice is—take your pick—a champion of traditional values or a threat to free expression.
The Zicaris face a more concrete threat: They each face maximum sentences of 50 years in prison and $2.5 million fines. By comparison, the maximum sentence for actual rape in Pennsylvania is 20 years.
Although the First Amendment promises that Congress "shall make no law…abridging the freedom of speech," obscenity prosecutions are almost as old as the nation itself. In 1815 six citizens of Pennsylvania were tried and convicted for privately exhibiting, for money, "a certain lewd, wicked, scandalous, infamous and obscene painting, representing a man in an obscene, impudent and indecent posture with a woman." In 1842 the first federal law against obscenity was passed, and in subsequent decades several more were added to the books.
But what was it, exactly, that qualified certain books and pictures as obscene? In 1868 an English case, Regina v. Hicklin, established a test that was ultimately adopted in the United States as well: If a work had the power to "deprave and corrupt those whose minds are open to such immoral influences," it was obscene and therefore illegal. This definition evolved over time until 1973, when, in the course of ruling on the case Miller v. California (which reaffirmed that the First Amendment does not protect obscenity), Chief Justice Warren Burger established a three-part test for determining obscenity that was so jurisprudentially limber that it has managed to survive for more than 30 years. To be considered obscene, Burger wrote, a work had to appeal to the prurient interest as determined by "the average person, applying contemporary community standards"; it had to depict or describe sexual conduct in a "patently offensive" way; and, taken as a whole, it had to lack serious literary, artistic, political, or scientific value.
While Burger also offered some advice on what general types of material might qualify as obscene, he ultimately left final determinations in the hands of jurors, so that individual communities could apply their own local standards on a case-by-case basis. In effect, then, the Miller test permits everything and nothing. A jury in California might decide a specific work is perfectly legal, while a jury in another state might say the same work is obscene.
In an age of suicide jets and anthrax spam, obscenity cases feel faintly anachronistic, the comfort crimes of the legal system. If prosecutors still have time to punish Americans for thoughtcrime, bad taste, or simply a robust instinct for overexposure, the world can't be that close to Armageddon.
Those who take it upon themselves to ensure the nation's moral fitness have a different perspective, of course. They blame pornography for divorce, the dissolution of families, the debasement of sex, and general spiritual dissolution. If left unchecked, they suggest, it's a cultural virus that has the same capacity to destroy America as a thousand suitcase nukes.
This dire take on the situation isn't particularly novel. In 1873 Anthony Comstock, America's first great vice hunter, lamented the state of the union in his diary. "Why is it that every public play must have a naked woman?" he complained. "It is disgusting; and pernicious to the young. It seems as though we were living in an age of lust." In 1965 Citizens for Decent Literature produced a movie called Perversion for Profit. "A floodtide of filth is engulfing our country in the form of newsstand obscenity," its narrator intoned. "It is threatening to pervert an entire generation of our American children." In June 2002 John Ashcroft continued the tune, unbroken for over a century now, at a symposium for federal prosecutors in Columbia, South Carolina: "Obscenity invades our homes persistently through the mail, phone, VCR, cable TV, and now the Internet. Never before has so much obscene material been so easily accessible to minors."
Never before, indeed, except for the last time and the time before that. Perhaps because we somehow managed to survive Comstock's age of lust and Perversion for Profit's floodtide of filth, and perhaps because the idea of the federal government as marriage counselor lacks a constitutional underpinning, the pornography-as-moral-threat argument isn't entirely convincing to many Americans. To make their crusade more appealing to such people, vice hunters frequently emphasize the even darker perils of porn. Invariably, they link consensual adult pornography with child pornography and other forms of child abuse. Invariably, they champion the notion that porn can systematically turn otherwise healthy, law-abiding individuals into violent sexual criminals.
Consider the August 2003 conviction of Michael J. Corbett and his ex-wife, Sharon Bates. Their crime: selling Outdoor Pooping Paradise, Scat Sampler #2, and approximately 50 other videos and DVDs via their Web site. For this, Corbett received an 18-month prison sentence, three years' probation, and a $30,000 fine. Bates got a 13-month sentence, three years' probation, and a $10,000 fine. They also forfeited $15,010 seized from their bank accounts and the equipment they used to produce their videos. In order to save their home, which was legally the government's to seize because it was used in the sale of obscene materials, they agreed to pay an additional $60,000. Finally, their Internet domain name, Girlspooping.com, is now the property of the United States.
In the wake of this conviction, Deputy Assistant Attorney General John G. Malcolm, head of the Justice Department's Child Exploitation and Obscenity Section (CEOS), strained to convey the import of the victory: "This type of material has a coarsening and desensitizing effect on our society, and can lead some to commit other degrading, and sometimes violent, sexual offenses against others."
I'll spare you the details, but the affidavit that summarizes the content of these videos makes absolutely no mention of violence or any other form of coercion, either real or feigned. Instead, the videos mostly appear to depict solo, purely elective pooping and urination in a sexualized context. Gross? Yes. Potentially illegal under the arbitrary standards of federal obscenity laws? Sure. But how was Malcolm able to conclude, either empirically or rationally, that these happy celebrations of human elimination cause some of their viewers to commit "violent sexual offenses" against others?
Making the Porn Industry's Fears a Reality
While today's vice hunters employ rhetoric like that on a regular basis, what may be most unsettling about many of them is how reasonable they appear to be. In conversation, Morality in Media President Robert Peters is genial and open-minded, a far cry from the stereotypical finger-wagging crotch cop. When I ask him what he hopes to accomplish in his Sisyphean battle against obscenity (he's worked for Morality in Media since 1985), he replies: "If we could just send a message to people that this is not what sex is all about, we will have won more than half the battle. Whether you're a creationist or a Darwinist, sex is linked to something greater than masturbating to depictions of other people having sex. It's linked to a person. We have a capacity to love."
Mary Beth Buchanan, the U.S. attorney overseeing the Extreme Associates prosecution, is, like Peters, even-keeled and pragmatic. "We don't have the resources to prosecute every instance of the illegal distribution of obscenity," she concedes. "But if the law isn't enforced, the material is going to proliferate and become more violent, more degrading, and more disgusting. So there have to be limits."
In other words, just go after the worst of the worst, right? Not quite. Today's vice hunters may seem relatively tolerant at first, but their tolerance has definite limits. Buchanan, for example, isn't concerned only about content; when it comes to obscenity prosecutions, size matters too. "We're trying to focus our resources on the material that causes the greatest harm," she says. "And the greatest harm could be caused by producing the most egregious material, but it could also be caused by a distributor with a large area of distribution."
This is exactly what today's most fervent vice hunters want to hear. To them, cases against fringe operations like Girlspooping.com are little more than annoying foreplay. "The prosecution bar is far too high," complained Jan LaRue, chief counsel of Concerned Women of America, in the aftermath of the Girlspooping.com conviction. "Come on, DOJ. Go after the big guys….It's time to make the porn industry's fears a reality. It's time to send a message to the white collars on Wall Street who think selling porn is a good way to improve the bottom line."
Three years ago, LaRue and her anti-porn colleagues believed George W. Bush and John Ashcroft were the answer to their prayers. Throughout history, vice hunters have blamed the scourge of pornography on various nefarious entities: the French, the Communists, the Mafia, and of course Satan himself. But most recently, an even greater fiend has taken the blame for the current floodtide of filth. "For the eight years during Bill Clinton's administration, [obscenity] laws were not enforced, and that's why the sale of obscene pornography became so rampant across the country and on the Internet," charges Citizens for Community Values President Phil Burress.
According to Morality in Media's Peters, federal obscenity prosecutions climaxed at 80 during 1989, then dwindled to six in 2000. "If you want to make certain offenses a priority, you have to make sure that you have the resources to investigate them, and that you have prosecutors who are trained to prosecute them," says Mary Beth Buchanan, who served as an assistant U.S. attorney from 1988 to 2001. "During the Clinton administration, those things were not happening."
According to the American Family Association Journal, George W. Bush promised during the 2000 campaign that "his administration would make it a point to enforce obscenity laws." To seal the deal, he even signed a "letter of commitment" after repeated entreaties from the American Family Association. Ashcroft made similar promises in the early days of his tenure, meeting with representatives from more than a dozen anti-pornography groups in May 2001. "We gave him a ton of information and actual evidence as to who the major pornographers were," Phil Burress recalls, "and he seemed determined to do something about it."
Then came 9/11. Momentarily, at least, the terrors of the Code Orange Age were deemed a greater threat to the nation's well-being than pornography. The vice hunters were sympathetic at first, but they've grown increasingly restless as the promised prosecutions have failed to materialize in sufficient numbers. The announcement of the Extreme Associates indictment in August pleased them to a certain degree, because while Extreme isn't a major player in the porn industry, it is the highest-profile producer that the Department of Justice has gone after in more than 10 years. Still, they yearn for a bigger, more ambitious crackdown, one that will put the fear of prosecution into the hearts of every hard-core pornographer, including the most mainstream ones. "I've almost done handstands with joy about what's happening with digital downloading," says Robert Peters, referring to the music industry's decision to file lawsuits against individuals who engage in unauthorized file sharing. "There's no way they're going to stop downloading through law enforcement alone, but it really has sent a phenomenal message. Supposedly, file sharing has been cut by 50 percent. So a relatively little law enforcement could go a long way."
"Aggressive [obscenity] prosecution had a major impact in the '80s," says Phil Burress. "They took homes, they took boats, they took cars, they took property. They took millions and millions of dollars in assets, and they basically drove the pornographers back underground and made the industry smaller."
In certain respects, this is true. Campaigns like Project Postporn, a Department of Justice initiative which targeted pornographers who marketed their products through mail-order catalogs, did put many companies out of business. Still, the government's efforts had little impact on the demand for adult videos. According to AVN, U.S. viewers rented 75 million adult videos in 1985, 490 million in 1992, and 686 million in 1998. In other words, the increase in annual rentals was actually highest during the time that the Department of Justice was most aggressively prosecuting obscenity cases.
Phil Harvey, a First Amendment activist and the founder of the mail-order catalog Adam & Eve, was the target of two obscenity indictments in the '80s. (Full disclosure: He has also donated to the Reason Foundation, the nonprofit that publishes this magazine.) It took him eight years, $3 million, and one lawsuit to successfully defend his company against the charges the federal government brought against it, but there was an unexpected upside to this effort to put him out of business: Adam & Eve grew substantially during those years, as the government improved its market opportunities by shutting down other mail-order companies. "For about four years, there were fewer outlets and less competition for us," he says. "Other competitors stayed away because it was a high-risk environment."
Vice hunters sometimes talk as if law enforcement, or the lack thereof, is the only factor in the proliferation of porn. Press them, and they'll acknowledge that technology has played a major role too. In the '80s, VCRs brought porn into the nation's living rooms; in the '90s, premium cable and pay-per-view eliminated the need for furtive trips to the video store, and the Internet brought porn into the workplace. Still, none of these developments would matter much if there were no demand for the product: Porn proliferates mostly because millions of people enjoy porn.
The vice hunters press on, though, organizing, proselytizing, and constantly demanding that police and prosecutors enforce obscenity laws. While a few figures in the adult entertainment industry have defended their rights with a similar zeal, passive expediency is a more common reaction.
"Too many people in my business haven't stood up and fought," exclaims Robert Zicari. "The feds are kicking themselves in the balls right now because they hit me first. Anybody else in this industry would have already copped a plea, and that's just what the government wants. They don't want millions of people debating this issue. They don't want a big firestorm of publicity. They want to do this quietly."
Son of a Pornographer
Zicari is a second-generation pornographer. In the late '60s, before he was born, his father owned nearly 40 adult bookstores in upstate New York and the surrounding area. By the time Zicari was a teenager, his father had scaled back his operation to just four stores. Zicari started working at one of them at the age of 14, sorting quarters from the peep show booths into rolls in an upstairs room. "I got to keep whatever didn't fit into these $100 boxes, so I'd hit the batting cages with, like, $80 worth of quarters," he remembers.
When Zicari turned 18, he started managing his father's store in Rochester. But he had other ambitions too, including college. In 1996, however, without telling his father, he used some of his school money to produce and direct his first porn movie, Tender Loins. After Zicari completed a second video in similarly clandestine fashion, his father found out and they had a temporary falling-out. During that time, Zicari moved to Los Angeles and created the character Rob Black, a loudmouthed provocateur who was determined to shake up the porn industry by producing filthy, twisted porn that boasted as much violent misogyny as standard Hollywood fare, along with lots and lots of spit, gaping orifices, and surreal images like men ejaculating onto crackers at an outdoor picnic. The difference between Zicari and Black? "I have bad taste," explains Zicari, "but Rob Black has even more bad taste."
Zicari immediately alienated many of his porn industry brethren. In 1996, when he first started releasing videos, the aggressive federal crackdowns of the late '80s and
early '90s felt like a thing of the past. Suddenly, the industry was penetrating the mainstream in a completely consensual, very profitable manner, everyone was making money, and almost no one was going to prison. To keep things this way, virtually every producer of commercial consequence scrupulously obeyed a set of unwritten guidelines: Urination, defecation, and rape and incest themes were all taboo, and bondage videos could not show penetration.
Then people like Zicari and a former UPI photographer who called himself Max Hardcore started flouting standard industry decorum. Their tapes were controversial, but thanks to their novelty, the attention they received, and their taboo nature, they were also popular. In 1998 AVN named Zicari Best Director at its annual awards show. Soon other producers were jumping on the shock porn bandwagon, and with the Internet making it increasingly easy for anyone, including international producers, to make and distribute pornography, the kind of material that was relatively hard to find just five years ago is now only a mouse click away.
As all of this played out, however, Zicari himself seemed to lose interest in the pornography business. In 1999 he founded a professional wrestling league called Xtreme Pro Wrestling. In 2001 he ran for mayor of Los Angeles. But with the inauguration of George W. Bush raising the specter of another federal crackdown on obscenity, Zicari found a new cause to take up. In an episode of the PBS newsmagazine Frontline that aired in February 2002, an interviewer asked Zicari if he worried about the possibility of an obscenity charge. "I'm not out there saying I want to be the test case," Zicari replied. "But I will be the test case."
Zicari's appearance on the show put him on the Justice Department's radar, and in the spring of 2002, under the direction of Mary Beth Buchanan, the federal government started pursuing a case against Extreme Associates. Eventually, a postal inspector used an "undercover credit card" to purchase five videotapes from the company and to join the members-only section of its Web site and view at least six of the video clips that were available there. Buchanan presented this material to a grand jury, and on August 6, 2003, it filed an indictment against Extreme Associates and Robert and Janet Zicari, charging them with conspiracy, sending obscene materials through the mail, and distributing obscene materials via an interactive computer service.
While Buchanan says her office has received numerous requests from citizens to enforce obscenity laws, did any Pennsylvania resident actually complain that Extreme Associates content was available in the state? "I can't comment on that," Buchanan says when I ask her. Zicari, on the other hand, has plenty to say on the subject. "Nobody walked into a video store and was forced to look at this stuff," he argues. "You couldn't even go into a store to purchase Forced Entry. We knew it was strong material, so we didn't even make it available to video stores. You had to go to our Web site or call us up and request it."
Unlike the Miller test, Zicari's own definition of obscenity is extremely specific. "You know what obscenity is to me in the adult industry?" he says. "It's a child getting fucked, or a dog. And people laugh at me when I say dog. They're like, 'Dog? Who gives a shit about a dog?' But personally, I find that fucking obscene."
Zicari's general sense of decency actually extends beyond prohibiting child porn and dog sex. "I'm not a person who thinks that everybody should watch pornography," he insists. "If you want to open up a giant porno store with jack booths and stuff like that, and you're gonna plop it inside a [residential] community with nice lawns, and they don't want it, I'm the first person who's like, 'Dude, you're totally right, it's kind of fucked up we put this place right here in the middle of your neighborhood.'" But he also believes that people should be able to view his videos in the privacy of their own homes. And he thinks that he should have the right to make and sell them without facing obscenity prosecutions.
To a certain extent, the federal government agrees with him. In the 1968 Supreme Court case Stanley v. Georgia, Justice Thurgood Marshall concluded that "the mere private possession of obscene matter cannot constitutionally be made a crime." In other words, it's OK to own obscene materials—you just can't buy them.
Now, thanks to the way technology has changed how pornography is distributed, Zicari and his attorney, First Amendment specialist Louis Sirkin, plan to argue that this state of affairs no longer makes sense. "In 1973, the Miller test had merits," says Zicari. "It gave people a way to control these seedy fucking porno stores in their community. Now, a private citizen buys my shit from the privacy of his own home, and that's where he watches it. Why is the community involved? If you happen to live in an Amish town, does that mean you're not allowed to watch porno or horror tapes? Anything the Amish would object to, you can't watch in your own home?"
The Internet further complicates matters, because anything that's available online is essentially available to all communities. In the analog world, pornographers have often avoided shipping their wares to places known to have very strict community standards. But if a pornographer wants to make his content available to potential customers in New York or San Francisco, people who live in other regions will have access to it too. If the Zicaris and Extreme Associates are convicted on the charge of using an interactive computer service to distribute obscene material, they'll have to shut down their Web site and forfeit their domain name to the federal government. Effectively, the community standards of Pittsburgh will serve as the community standards for the world.
As of yet, no trial date has been set, but Robert Zicari thinks the government's case may already be crumbling. "When they raided our office, they seized five movies," he says. "But then they only indicted us on three. So either the grand jury said those two other movies weren't obscene, or the government didn't present those movies to the grand jury. And one of those movies was Ass Clowns #3, where Jesus comes off the cross after being crucified and rapes an angel. So now my question is, why is the rape in Ass Clowns all right, but the rape in Forced Entry isn't?"
Zicari has a lot of similar questions, if it comes to that. For example, why is pornography held to a higher standard of decorum than other genres of pop culture? Are the two amateurishly simulated murders in Forced Entry somehow more offensive than the dozens of expertly simulated murders in Jason vs. Freddy or Gangs of New York? Is the difference between eating semen-spattered dog food in a porn movie and eating raw pig rectums on Fear Factor really so pronounced that the former deserves a jail sentence while the latter becomes a prime-time major network staple?
"What's the difference between us and Hollywood?" asks Zicari. "We show explicit sex, and they don't. And they make hundreds of millions of dollars, and we're going to have to spend $300,000 [in legal fees] to keep from going to jail. And it's a shame, because it makes me bitter about the United States, and I'm like the biggest fucking patriot motherfucker in the world."
To help finance his case, Zicari has reached out to some of his better-funded peers in the porn business, including Larry Flynt. So far, he hasn't gotten much response. "There's a lot of people in this industry who think it's not them, it's me," Zicari says. "But honestly, if those motherfuckers think that Ashcroft has hired 25 prosecutors to get me and that's it, then they are unbelievably delusional. Are you gonna tell me that Jerry Falwell sits at his desk, and he's got a box of porn, and it's divided into the porn he likes and the porn he doesn't like? You think he holds up a movie from [mainstream producer] Vivid and says, 'This is good porn!' You know what, man, he takes that box and says 'Burn it! Burn all of it! It's all fucking blasphemy!'"
Except for the swearing part, Zicari is undoubtedly right. In starting with him, though, he believes that the Justice Department is taking a risk. "This is the World Series, and they're the Boston Red Sox," he exclaims. "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."
Meanwhile, in the Shadow of the Dildoes…
As the afternoon progresses at the Adult Entertainment Expo, the crowds only get bigger. In a small conference room downstairs from the main event, a seminar entitled "Key Legal Issues Facing the Adult Industry" is taking place. It lacks the flash of what's happening upstairs—there aren't any nubile strippers or artisan-quality dildoes on display, just Lou Sirkin, three other attorneys, and some PowerPoint slides. Each of these four speakers sounds notes of caution, gloom, and alarm, and to some observers, they probably seem a little paranoid, or at least unreasonably pessimistic. After all, haven't they checked out the show upstairs: the hundreds of booths, the vast array of products, the thousands of fans?
Still, they've been defending the adult industry for a long time, and they know how much certain people would like to shut it all down—not just Extreme Associates and its ilk, but every company in every booth on the floor above them, the whole shamelessly hedonistic spectacle. "I consider censorship a cancer," Sirkin warns at the end of his talk. "Once it starts, it spreads pretty rapidly."