Inquisition, Intercourse, and the Internet

By J. D. Obenberger, Attorney at Law
© MMI J. D. Obenberger, All Rights Reserved
Written for and Published on the World Wide Web by AVN Online, December 5, 2001

On November 21, Attorney General John Ashcroft took some action to let us know that he hasn't forgotten about the prosecution of Obscenity: He apponted a new chief of the office that heads Obscenity prosecution direction in his Department, an office called the Child Exploitation and Obscenity Section (CEOS) but formerly called the National Obscenity Enforcement Unit (NOEU) The appointment went to Andrew Oosterbaan, an Assistant U.S Attorney, who has served as the Deputy Chief of the CEOS in the Criminal Division since January 2000. It is a unit that some have always called The God Squad.

Mr. Oosterbaan has not attracted much national press attention in his years with the Justice Department. Not a great deal is known about him by either the Adult entertainment industry or the authoritarian right enemies of erotic expression. However, certain leaders of the moral right have expressed caution about him because he he worked closely with Janet Reno under her direction of Justice, and the authoritarians condemn her for her perceived (by them) "do nothing" attitude regarding pornography.

The moral crusade now does have a responsible national pointman in Mr. Oosterbaan, and it is to Mr. Oosterbaan that the Bush Administration will point its intolerant fundamentalist supporters when they come knocking on the door to complain about the availablity of graphic depictions of sex on the Internet, on cable TV, in adult bookstores, and at the video and convenience stores of America. Mr. Oosterbaan will have to have something to tell these folks, and if it doesn't offer some encouragement to their agenda, the moral right will surely feel betrayed.

What can and what will Mr. Oosterbaan be able to tell them? In other words, what agenda can he propose to placate their concerns about what they see as moral degeneracy in America's entertainment?

The worst fears of the adult entertainment industry will almost certainly not be realized: It is unlikely that he can become an American Ayatollah to crush and erradicate all explicit, graphic erotic expression even if that's the role he wants. The worst fears concerning Utah's so-called Porn Czar have just not played out so far, even in that bastion of moral conservatism, and despite the existence of certain foci of anti-porn militance, such as Cincinatti, it just doesn't seem realistically possible to take erotic expression anywhere back to the days before Deep Throat by prosectution or legislation.

I base that conclusion on three pillars of support:

First, it must be understood that 18 USC 2256 and 18 USC 2257 cut in two directions. Adult content producers and publishers well understand (well, at least as well as is possible through the murk and fog concerning the "secondary producer" regulations!) the restrictions that these provisions impose on the creation and dissemination of actual, explicit images of sex. What they don't frequently have occasion to consider is that the very existence of the provisions dealing with the dissemination of such images has a legal and societal effect of legitimating and preserving their creation and dissemination. Producers, publishers, and distributers can always point to the very existence of the provisions and convincingly argue that the government can't regulate the way in which such images are made and used and criminilize the practice at the same time.

Second, the holding of the United States Supreme Court in Brocket v. Spokane Arcades, 472 U.S. 491 (1985), strongly suggests that no matter how graphic material may be, if its appeal is to what society views as a healthy interst in sex, it is not prurient, and accordingly cannot be obscene. The focus of the Supreme Court's docket this year, and in all recent years, has been on restrictions in law to keep the materials from minors, and how to protect children from sexual exploitation, rather than on the nature of the materials themselves, a matter which preoccupied them and dominated the Supreme Court porn agenda through the Sixties.

Third, Penthouse and other like publications, and the cable providers, in presenting images of graphic sexual conduct, has brought this material into convenience stores and cable boxes and hotel rooms all through the land. (They never would have been able to get to this point without the preliminary work done by Hugh Hefner in the Sixties and the attitudes and beliefs of the generation which came of age in the late Sixties and the Seventies, in part formed by Mr. Hefner.) The Internet is also on the vanguard of this social change, providing men and women a carnal cornicopia of graphic materials of every persuasion, without any need to go into an adult bookstore, without fear of being seen in the parking lot, without asking a clerk for materials, and without worrying whether a package will arrive in a "plain, brown wrapper" and in total seclusion. To see these images on the shelf at one's neighborhood convenience store, to see hard core insertions on one's local cable service on one's own TV in one's own home, to access sites with such materials on one's home computer, cannot but strongly and positively affect the legitimacy with which such materials are viewed by society at large.

What has been effected is a long-term social change creating a dominant cultural value that, however society looked at sex before, our sexuality is not a matter of shame any longer. People like Heffner, Guccione, Larry Flynnt, and Adam and Eve's Phil Harvey have led society to a point in the road where mainstream America tolerates frank and earnest sexual discussion and situations on TV and Radio. Coupled with the increasing militance of the gay pride movement and its increasingly legitimate perception in society, and as a function of the practices that are normal to gay sex, Amercians are tolerating a wider diversity of sexual conduct and expression of sexuality than ever before. And this is precisely the suff of which "community standards" are made.

So, I do not believe that Mr. Oosterbaan will even try to reverse the prevailing tolerance of society as to graphic depictions of consensual sexual conduct between men and women or gays. The subject of how "community standards" applies to the Internet is now largely up for grabs, and it is unlikely that Justice or the States can proceed with confidence in pure Internet obscenity prosecutions until the area is resolved with more precision by the United States Supreme Court. In a culture that increasingly accepts covert, secret government action, do not be surprised to find that federal involvement in State obscenity prosecutions is hidden and conceiled. My estimate is that, desiring to avoid the possibility of an embarssing mistake, and still sesnitive to accusations that the Bush Administration's attachment to the moral right is out of step with society's attitudes, the Administration will wait to see what the Supreme Court does in Ashcroft v. ACLU, and proceed with surrogate State prosecutions wherever it is possible to avert risk by doing so and masking its involvement behind the scenes.

It is, however, important to remember that the enemies of adult entertainment remain and will remain zealous, vigilant, well-funded, and wholly intolerant of any view that dissents from what they think God is telling them. It is important to remember that, as recently as last year, US Senator John McCain lost the Republican nomination for the presidency, in large part because of his courage in speaking out for tolerance and in distancing himself from the intolerant rants of the religious right. It is almost certainly not a point lost on Ashcroft and the other members of the Bush Administration.

The realistic members of the opposition to erotic expressive liberty know that sexuality, like the genie, cannot be stuffed back into a bottle marked "xxx" and off-limits for Americans. But they can and will do whatever they can, under the guise of "protecting the children", "protecting women from sexual degradation" and the like, to so restrict the availability of adult materials so that adults themselves can't easily get ahold of adult materials. Their aim will be oblique even if their target remains the same.

Certain pornographic content areas involving adults are still being prosecuted and their prosecution is likely to continue from time to time and from place to place, probably with the shadowy support of the Justice Department. Sexual conduct involving violence, torture, degradation, pain, and rape, bestiality, urinations and defecation, are all likely to attract attention and invite prosecution; This is where the tolerance or intolerance of community standards will be discerned in criminal prosecutions for obscenity. Images of persons published without their consent already have inspired criminal statutes around the country and proposals for the same at the federal level, and this area is also likely to inspire internet prosecutions.

It is in the investigation and prosecution of these matters, in intolerance, and in the ruthlessness and disregarding of traditional and fundamental American freedoms, that webmasters, content providers, publishers, and indeed all Americans must now be especially concerned.

From the day it happened, American public leaders have compared the events of September 11, 2001 to the bombing of Pearl Harbor, and the current war against terrorism to World War II. The mainstream media has fully co-operated in giving this impression to the people, and selling to it the idea that exceptional times and exceptional dangers will require exceptional sacrifices, and in urging us to forge an America united in its willingness to endure any hardship, surrender any liberty, and to grant to government any power that might aid in an ultimate victory in that "war".

As a result of the actual event, as a result of the government's actions, and as a result of the media's message, we have become a country transformed. Transformed in all of the ways that we do business and travel and in the enthusiasm in which we have surrendered the privileges of a free society, freedoms that we must always remember were earned and paid for with the blood of our patriot ancestors and war dead. Really. Brave men, sometimes little older than boys, endured amazingly hostile and torturous circumstances and willingly gave up their lives to that we could be free. Go look at the expanse of mortuary monuments at Arlington, across the street from the Pentagon, go walk through the Punchbowl, the Military Cemetary of the Pacific on a hill in Honolulu, and without a map and good navigation skills at either place, you will get lost in the ocean of the blood of dead patriots though which you will walk.

I stood in a Las Vegas airport when I flew home from Adultdex and watched from behind Plexiglas as the bags of random travelers and their most intimate contents were subjected to public search. Underwear, lingerie, you name it. No one dared to object, of course, because the safety of the Republic depends importantly not only on such searches, but on the fact that each is a public search embarrassingly trampling the privacy of persons, all in plain public view. But I'm not sure I understand why the Republic is safer when the curious traveler standing in line can see if some woman's vibrator will be the next thing to be held up to view by the security personnel on the other side of the Plexiglas. My own thought is that such a search protocol is no more effective in finding explosives or guns or toenail clippers with files than one conducted privately, with due regard to the dignity of law abiding travelers moving about as citizens of a free republic.

My dark and cynical nature tells me that an educational and didactic point was being made in the airport in the desert, a gesture engineered somewhere by somebody to desensitize the American pubic to the wholesale destruction of their privacy and liberty: "The Fourth Amendment just doesn't count anymore, your privacy is meaningless, your dignity is worth less, we will search whatever we want to search, we will look into whatever we want to look into without regard to your sense of personal dignity, and eventually, you will forget what it meant to have a zone of personal privacy in a free country."

Why else do it in public? A private search, respecting the notion of personal privacy against public glimpses into our personal belongings, would protect safety and security just as well.

What came to mind almost immediately in the airport was my first glimpse of the toilet facilities in basic training in the Army, in an old wooden barracks at Fort Riley, Kansas. The toilets were open, in line, without stall or partitition. And I realized, of course, what that would mean just as soon as I saw them. The point was clear and eloquent: You now belong to the United States Army, and you simply will have no privacy except that which we grant you, even in those areas which are most personal.

Now, America's airports have become a similary place of education, to teach society a similar lesson on the degree of privacy that it will tolerate. The searches I witnessed were the full equivalent of a border search by customs, performed without probable cause with respect to international travelers entering the United States simply because the government traditionally has the right to such searches when one enters the country. The searches I witnessed at McCarren Internatilonal, whether performed by government agents or not, were certainly performed under the direction and regulation of federal authorities. The inescapable conclusion is that the Fourth Amendment's guarantee against unreasonable domestic searches conducted without probable cause has simply evaporated in some places and under some circumstances.

In every age, in every country that has been free in any measure, certain agents of government have always had an argument that unique exigencies of special circumstances in allegedly critical times have justified the erosion or destruction of liberty. I'm sure that in most cases, the people aiming to scalp liberty are sincere people, but people nonetheless with an attenuated view of the importance of freedom, liberty, and privacy as fundamentally good things in themselves that require no justification, and the limitation or restriction of which is inherantly negative. In the fifties it was the Communist Menace. In the Sixties it was the Silent Majority's perception of the threat of the antiwar movement. In the Seventies and Eighties it was airplane hijacking and the War on Drugs.

What scares the hell out of me about this is the prospect that all of the changes that have been brought about seem to be calculated to change America permanently.

A few weeks ago, I attended a small dinner where a bright, sincere, young Congressmen from Illinois gave a keynote talk, centering on the administration's reaction to 9-11. He described the mood of President Bush and the urgency of the situation. I was delighted by his response to one questioner who asked when the government would stop pussyfooting around, declare marial law, put a muzzle on the press, and clamp down with an iron boot: The Congressman reminded the questioner that the whole point of our country is freedom, and that our nation isn't worth defending if it doesn't preserve fundamental freedom. That was encouraging. But less than encouraging was his response when he was asked who the enemy is and when we'll know when this "war" is over. Truthfully, he noted that there never will be any surrender, and that our enemy is a shadowy and elusive and informal loose association of persons. He said we'll know it's over when the terrorist events stop, and that it will be low key and quiet.

So, when will our liberties be restored if we don't know exactly when it's over? The smart answer seems to be "never". Because we'll never be sure. So the justification to prevent more terror will always justify whatever intrusions the government wants.

The shopping list of additional government powers that the Justice Department has been seeking for years has now become law, and we are less secure than ever in our use of phones and computers. They wanted these things for years before 9-11 and they argued that public safety required them. Now they have them, and your internet service provider must and will give up a list of the sites you visit and of your email traffic without any warrant at all, without probable cause, but just because the government wants those things. And not just if you are a suspected terrorist, but for any reason or no reason at all. I don't think that I'm any safer because of that, rather I think that all of us are more imperilled.

Don't hold your breath waiting for a day when anyone in government will tell us (or our great-grandchildren) that the "war" is over, that we have won, and that full liberties will now be restored. That day will never happen, if for no other reason than because it can't happen, because this ongoing effort is not a war against any nation, but an ongoing police action against individual criminals and small criminal units, and they will keep popping up forever.

Our Attorney General has become emboldened to advance his authoritarian agenda in other spheres as well, including a threat to take away the federal drug licenses of physicians in Oregon who assist suicide with drugs, a practice that is entirely legal in that state. Also in Oregon, a State that begins to look more heroic and appealing these days, Portland's acting chief of police, Andrew Kirkland, bucked Mr. Ashcroft by announcing he will not help the FBI question 200 Middle Eastern immigrants as part of the war on terrorism. The acting chief has invoked a state law that prohibits such interrogation persons not suspected of having committed a crime. As of this writing, Ashcroft still refuses to release the names of over one thousand persons his Department is detaining in incommunicado in secret locations and under conditions in which they cannot even talk to their lawyers privately. I personally have had contact with the detention of immigration suspects in Justice Department facilities in the Chicago area, and I have spoken with witnesses who had seen pregnant women deprived of drinking water and left to drink from the toilet. It was a facility that I was not allowed to enter one evening after a client was taken there, because I had not filed an appearance in some downtown office before it closed at 4:30 in the afternoon. I wound up calling a United States District Judge at home that evening to secure the freedom of my client. It has been my observation that the Justice Department gives those in its custody decent treatment only to the extent that Federal Judges require the treatment to be decent.

Now, as always, the only final checkpoint government must pass through before demolishing personal liberty is review by our judges and courts. And now those who justify such wholesale destruction of liberty have found a way around the judges, at least in some cases.

A few weeks ago, the President promulgated an executive order authorizing the "trial" of certain persons secretly by "Military Commissions". There were a lot of crazy things said in justification to the press by nameless administration spokesmen about why it was necessary, including a lot of outright malarkey. They said that the existence of classified material in some trials mandates such a procedure to protect the nation. They said that the Military Rules of Evidence are so "strictured" as to interfear with the government's aims. This is an area I know a bit about, being a graduate of the Army Judge Advocate General's School, being a former Army JAG Captain, and having done courts martial by the dozens for four years under the Military Rules of Evidence. These Rules have elaborate provisions for the safeguarding of classified information, because such material is routinely part of military operations and any military justice system must take that into account. The Rules of evidence used at regular courts martical do protect classified information. The Military Rules of Evidence themselves are almost identical in their main parts with the Federal Rules of Evidence, which any practicing trial lawyer will tell you are so broad and inclusive as to permit the government to admit almost anything that it would want to admit in a trial except maybe rank hearsay. They are so open-ended, so elastic in what they permit to be introduced in evidence that, with tongue in cheek, trial lawyers call them the "Federal Guidelines of Evidence".

No, the government wasn't honest about why it has authorized military commissions. The chief value of such commissions is that the Supreme Court, at the end of World War II, in refusing to review convictions of Japanese Generals tried for war crimes under such commissions, said that they were a pure exercise of executive military power and that civiilian courts had no power to review any of their findings or verdicts or sentences. Under the proceedings of "Military Commissions" the defendant has no rights that are worthy of being called "rights", no entitelements whose violation can be protected or compliance enforced by a real court, not even the right to be represented by counsel of his own chosing. Not the right to a speedy trial - No, he can languish as long as they want. Not the right to confront or cross examine the witnesses against him - he can be found guilty on pure hearsay. Not the right to a public trial. Not the right to be tried by a fair, neutral, and detatched magistrate, and certainly no right to a trial by jury.

It is a sad day when the government of Spain is in a position to teach a lesson about human rights to the United States of America. Spanish jurisprudence is best rememberd for the Inquisition, burning at the stake, the Fascism of Francisco Franco, and the garrote as a means of execution. Its cultural legacy in Latin America has inspired one military junta after another. But that day came on November 24, 2001, when Spain refused to extradite to the United States eight persons in Spanish custody and charged with conspiracy for the WTC bombings. The Spanish government refused to extradite the eight men until or unless the United States promised to give the men fair, civilian trials rather than Military Commissions. The nations of Europe are aghast at the action of the Bush Administration in promulgating rules for such a kangaroo court, and they are clearly distancing themselves from government murder under the pretense and empty form of trial and conviction without fundamental fairness.

It is a bit more than scary to any thinking person when the executive leaders of government take the power to try and execute anyone they please without a public trial or the possibility of review by a real judge. And that's what they've done. Really.

Perhaps the day will come when the American People will realize that an awfull but isolated terrorist event has transformed America into a police state, with their consent, and they may reconsider whether the actual threat justified the destruction of liberty: They have so acted in a climate where the seemingly unrelated dissemination of anthrax, a-la-unibomber, has been percieved as a related terrorist act when it almost certainly is not, where even the tragic but routine crash of an airplane in New York because of mechanical maintenance problems on the last day of Adultdex, and a host of other tragic but routine calamities, are wrongly percieved as parts of terrorist action because of the frenzy that has been whipped up in the public mind. By the time people look rationally at the scope of the actual risk we faced, and what liberties and freedoms we gave up at the urging of government, a few years from now, it is quite possible that it will simply be too late for the democratic process to be able to reverse what has taken place. It may already be too late.

We now first clearly and fully understand what Franklin really meant when he wrote: "Those who are willing to trade freedom for security deserve neither freedom nor security."

The Adult Internet will come of age during Mr. Oosterbaan's tenure in the God Squad. It will face new challenges and its more extreme content is likely to face prosecution in the months and years to come. Though all of this, the adult webmaster, the content provider, and the publisher will stand as vanguard, safeguarding the freedom of the Internet for all Americans: When the Internet is not free for erotic expression, it will not long be free for anyone's dissenting or unpopular expression. This age will test the mettle and strength of those who make their living in the adult erotic media, and we will, I think, shortly learn that not all of the heroes of freedom are dead soldiers in military cemetaries. Some of those heroes are likely to be people we've met at Internext. It will surprise me not at all to find that the emerging heroes will be people who sell porn for a living.

This industry has faced hositility and attack before, and it has survived and prospered. It can continue to do so if it unites in the spirit best articulated by John Kennedy on a cold January morning in 1961, during another conflict that challenged our national survival: "We shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, to assure the survival and the success of liberty."

So, let us all pray for America, and let us pray for the safety of the angel holding a torch of freedom, our national guardian angel, whose statue still stands on an island in the harbor of New York.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com