"I am concerned about obscenity," Ashcroft told the House Judiciary committee in June 2001, adding that prosecutions of Web pornographers "would be an objective of ours in this respect."
Then jets slammed into the World Trade Center and the Pentagon, and Ashcroft unexpectedly had real problems on his hands. Nearly three years later, as far as I can tell, the number of federal Internet obscenity prosecutions is precisely zero.
Look for that to change.
Ashcroft appears ready to make an example of online porn purveyors who specialise in hardcore raunch and ribaldry. In an election year, it's also an easy way to rally conservatives, who are otherwise lukewarm toward a president who spends like a drunken Democrat.
"I would expect that very soon we'll see a real uptick in prosecutions," says Michael Schwartz, vice president of government relations at Concerned Women for America, a conservative group that is steadfastly antiporn. "We had a lot of complaints about the department's performance in this area up to this point. Obscene material is not protected by the First Amendment. It is prohibited by law. Yet it is an extremely lucrative business."
Most forms of pornography are completely legal. But in 1973, the U.S. Supreme Court voted 5-4 to ban obscenity, or anything found to "appeal to the prurient interest" and that lacks serious literary, artistic, political, or scientific value.
In an early hint that Ashcroft was beginning to ready his forces, the Justice Department convened a training session for prosecutors in 2002. "The Internet is perhaps the most pernicious medium for obscenity," Ashcroft said. "The Department of Justice is committed unequivocally to the task of prosecuting obscenity."
Because Ashcroft wasn't moving fast enough, Congress ratcheted up the pressure. Last November, the Senate unanimously approved a nonbinding resolution warning that the "Internet has become a conduit for hardcore pornography that now reaches directly into tens of millions of American homes."
Antiporn police
Ashcroft got the message. Recently, he hired Bruce Taylor, probably the most aggressive antiporn advocate in the United States, to jump-start the effort. Taylor, 53, started out as a porn prosecutor for the state of Ohio, then joined the Justice Department. He left to start his own antiporn group, the National Law Center for Children and Families in Fairfax, Va., and now is special counsel to Christopher Wray, the assistant attorney general for the criminal division.
I've known Taylor for almost nine years, and I have no doubt that he's deadly serious about putting owners of smut-sites in prison. The odd thing is, though, Taylor can't be characterised as a bluenose religious conservative. He's not: He smokes Lucky Strikes; he drinks; he unapologetically reels off phrases like "Comstock was an amateur!" and "Nothing protects pictures of a women's genitalia being nailed to a board!"
It's not personal. Taylor relishes the chance to clash with First Amendment lawyers. "Every year we'll put a bill in there, every other year, just to keep the ACLU in business," he told me a few years ago, talking about his efforts to lobby Congress. "They should send me Christmas presents instead of hate mail. I'm putting their rotten little kids through private school."
"I think we should be worried," says the ACLU's Barry Steinhardt, whose children went to public schools. "We're assuming that by hiring Bruce Taylor, by issuing these threats (of prosecution), at some point they're going to act on them."
On Friday, a spokesman for the Justice Department acknowledged that "there is a renewed emphasis on obscenity prosecutions across the board."
Double trouble
Complicating matters is a 1998 law called the Child Online Protection Act (COPA). It targets operators of commercial Web sites with "harmful to minors" content not behind a credit card firewall. The maximum penalty is a US$50,000 fine and six months in prison.
After a federal appeals court in Philadelphia struck down COPA as a violation of free speech, the Supreme Court heard oral arguments in the case. If the law remains on the books, it would give Taylor and his allies a disturbingly powerful new weapon in their campaign against offensive Web sites.
The problem is that COPA is worded so broadly that it endangers far more than just sex sites. That's why the plaintiffs in the COPA case include the American Booksellers Foundation for Free Expression, Salon.com, Philadelphia Gay News, Planet Out, and the Internet Content Coalition. (CNET Networks, publisher of News.com, is a member.) The appeals court recognized that COPA "is not narrowly tailored to proscribe commercial pornographers and their ilk, as the government contends, but instead prohibits a wide range of protected expression."
Still, even if COPA is shot down, the enforcement of existing obscenity laws remains worrisome. Obscenity laws deal with "community standards," but how does that concept apply online? Could juries in the most prudish community veto what's publishable in more liberal ones? How can any U.S. law hope to shutter pornographic Web sites hosted in places like the Netherlands?
In the not-so-distant past, obscenity law has been used to suppress unpopular ideas. Its victims include a literary review with works by Jack Kerouac and William S. Burroughs, Henry Miller's "Tropic of Cancer," the classic tale of "Fanny Hill," James Joyce's "Ulysses," and, in the last decade, comic book artist Mike Diana.
Obscenity prosecutions, in other words, tend to start with pornography but not to end there. In his dissent in a 1973 obscenity case, Justice William Douglas put it best: "Obscenity, which even we cannot define with precision, is a hodgepodge. To send men to jail for violating standards they cannot understand, construe and apply is a monstrous thing to do in a nation dedicated to fair trials and due process."
The last paragraph says it all. Judges should be reminded that clarity and clear understanding is essential. We are not interested in their own individual befuddled moral standards or the standards of a few right wing moralists. We want laws which are clear, concise and acceptable to the majority.