According to the U.S. attorney who filed the case, Pittsburgh’s own Mary Beth Buchanan, pornography is legal when it is being made. It’s legal when it is being viewed. But in between, when it is being sold from maker to viewer, it becomes -- suddenly and temporarily -- illegal.
Even porn stars might envy such contortions.
In 2003, Buchanan filed criminal charges against California-based Extreme and its owner, Rob Zicari, for selling hard-core pornography over the Internet. It’s the first high-profile federal obscenity case filed in decades.
By all accounts, Zicari’s films are utterly vile. For example, the “plot” of one film named in Buchanan’s indictment, Forced Entry, involves a serial killer raping and murdering women, including one who is pregnant. The violence is fake, but most of us wouldn’t want to live next door to the people making these movies. Many of us wouldn’t want to live next door to the people watching them.
But the feds say they aren’t stopping anyone from watching those films, or even from making them. “We’re not talking about the sexual freedom of the performers in an adult movie,” one of Buchanan’s attorneys explained in a Nov. 1 hearing before federal Judge Gary Lancaster. And thanks to a 1960s Supreme Court ruling, the government can’t prosecute you for owning such films either.
However, courts have held that selling those movies can be illegal. Selling pornography, Buchanan’s attorneys reason, is an evil in itself. Thanks to skin-merchants like Zicari, they contend, innocent citizens are subjected to such evils as sexually explicit spam e-mail. (And thanks to Buchanan’s case -- which includes references to computer files like “dp_gangbang7_genX.mpeg,” -- they may also be subject to explicit language when perusing federal court records.)
Pornography, then, risks prosecution only in its most dormant state: when it’s being downloaded on a computer or mailed to your home in a plain brown wrapper. As Buchanan herself told me last year, “The violation occurs when the [pornography] is distributed across state lines.”
Maybe. Or maybe this is just a government attempt to infringe on rights it can’t take away directly. As Judge Lancaster put it during a November hearing, Buchanan’s case is a little like “pass[ing] a law that makes the sale of ink illegal” -- while still claiming to uphold the First Amendment.
On Jan. 20, Lancaster tossed out Buchanan’s charges. The purpose of anti-obscenity laws, he noted, “was to uphold the community sense of morality.” But he pointed out that in 2003, the Supreme Court scrapped a Texas anti-sodomy law, establishing that society had no business prosecuting what consenting adults did in their bedrooms. If you can’t prevent people from engaging in or watching such behavior, Lancaster ruled, you can’t prevent them from selling films of it.
This case could go all the way to the Supreme Court -- if only because everyone has a stake in keeping it alive. Zicari, for one, gets free advertising. After Buchanan filed her indictment, he posted a statement on his company’s Web site claiming to “feel honored and privileged” -- and offered a discount on the films Buchanan was prosecuting.
And the case surely hasn’t hurt Buchanan’s standing with her boss, Attorney General John Ashcroft. Last summer, Buchanan was named director of the executive office for United States Attorneys, a Washington, D.C. post that puts her close to the Bush administration’s inner circle.
Other members of that circle, like Ashcroft and departing FCC chair Michael Powell, have made careers by catering to Puritan dismay. Powell recently took on ABC for a Desperate Housewives promo featuring a cast member’s naked back. Such actions have had a chilling effect: To avoid Powell’s wrath, the Fox network recently airbrushed the butt crack of a character on the cartoon Family Guy.
What does all this accomplish? ABC apologized for the Monday Night Football spot, but Desperate Housewives itself is still on the air, mocking family values. And despite Fox’s gesture, Bugs Bunny still isn’t wearing pants.
But maybe culture wars like this are better waged than won. A stalemate serves both sides, after all: Public titillators like Zicari and the producers of Desperate Housewives laugh all the way to the bank, while “values conservatives” laugh all the way to the White House.