Varying Standards on Obscenity : ‘Adult’ Material: X in Chicago, Ex in Atlanta

A crusading prosecutor in Atlanta, supported by judges and juries, has driven all the “adult” bookstores and theaters out of the downtown area, where they once flourished.

In Chicago, by contrast, numerous X-rated establishments dot the city as citizens groups complain that laws against obscenity are being feebly enforced--and civil libertarians celebrate the scarcity of “blue noses” in positions of power.

The U.S. Attorney General’s Commission on Pornography, in its massive report July 9, cited a number of such enforcement disparities among cities. It praised vigorous efforts in Cincinnati and Atlanta while denouncing lesser exertions in Los Angeles, Chicago, New York, Buffalo and Miami.

The commission--saying that no major changes are needed in obscenity laws, only more enforcement--suggested that lenient sentencing by judges is the underlying cause of limited enforcement efforts across most of the country. Tougher sentencing would encourage prosecutors and police to allocate more resources to combat pornography, the commission theorized.

In interviews with The Times, a number of people who deal with the issue said that other key factors besides sentencing contribute to uneven enforcement. These include diverging community attitudes, varying interpretations of obscenity law and, perhaps most important, differing levels of dedication among prosecutors.

“I think it strictly depends on the personality and moral persuasion of the local prosecutor,” said Brad Curl, director of Morality in Media, a coalition of anti-pornography groups that conducts education campaigns and assists prosecutors. “Judges are very much influenced by prosecutors.”

Barry Lynn, legislative director of the American Civil Liberties Union, who disagrees with Curl on most aspects of the pornography debate, agreed with him on the vital role of prosecutors.

“A man or a woman with a mission can use the existing obscenity law in many jurisdictions to get rid of an enormous amount of material,” Lynn said.

In Atlanta, just such a man was Hinson McAuliffe, who closed down more than 100 sexually oriented businesses before he retired as a state prosecutor in 1981. His successor, Jimmy Webb, has kept the lid clamped on tightly.

Went Into Action

Shortly after the U.S. Supreme Court ruled in 1973 that the First Amendment to the Constitution does not protect pornographic material, the Georgia Legislature passed a law implementing the court’s guidelines on obscenity, and McAuliffe swung into action.

“Until all of the adult bookstores and all of the adult theaters were gone, we never did cease arresting people,” said McAuliffe, who remains active on the pornography issue as a Baptist layman. “Our conviction rate in the cases we brought before jurors was something in excess of 95%. So, these people that say, ‘I don’t know what obscenity is,’ I say look at the law. I don’t think it’s hard to determine at all.”

The Supreme Court said that a work could be deemed obscene if an “average” person, applying “contemporary community standards,” found that it appealed to a “prurient interest” in sex; if the work dealt with sexual conduct in “a patently offensive way,” and if it lacked “serious literary, artistic, political or scientific value.”

However, numerous lawsuits and legal commentaries trying to clarify virtually every word and phrase in the court’s definition of obscenity have sprung up since the decision.

McAuliffe’s crackdown, though supported by a citizens group called “We Care,” was sharply criticized and even ridiculed by Atlanta’s major newspapers and television and radio stations.

“We felt he was overzealous,” said Joe Dolman, an editorial writer for the Atlanta Constitution. “A lot of mainstream bookstore owners have complained about (law enforcement) guys just coming in and kind of going through the material. . . . I don’t think it’s a healthy situation when a legitimate bookseller has to worry about a coffee table photo book offending a police officer.”

Prostitution Attack Urged

The Atlanta paper has urged that, instead of going after “obscene” books and movies, prosecutors use public-nuisance laws to attack prostitution or other criminal activity around bookstores and theaters.

McAuliffe won the strong backing of local judges, who imposed heavy fines and helped McAuliffe go after not just the lowly store clerks and ticket takers but the difficult-to-catch big fish: the owners of “sham corporations” that served as fronts for the businesses.

“I ruled that the lawyers had to disclose who paid them (the small fry),” said retired Judge Dan Duke, who tried many of the cases. “Then McAuliffe could trace who had the company incorporated and this led back to people in drug trafficking, gambling and prostitution.”

Revolted by Materials

Duke, who professes admiration for the articles in Playboy magazine and considers himself “no hard-liner” on pornography, said he was revolted by the hard-core materials that were brought before him. He said he also was repulsed by the testimony of “so-called experts” who asserted that photos showing, for example, “a man urinating on the breasts of a woman” had “scientific value.”

The result: While magazines containing nudity such as Playboy and Penthouse remain widely available, slick color booklets, often carrying no publisher’s identity and showing a variety of sexual acts, have disappeared. Similarly, peep shows are gone, but prosecutions aimed at X-rated or similar movies like “Caligula” and “The Story of O” have failed.

The We Care group--which numbers about 300 citizens from churches, civic organizations and parent-teacher groups--has sought to pressure law enforcement agencies and persuade stores in Atlanta to stop selling “offensive” magazines.

Mrs. George Shell, a founder of We Care, said she agrees with the conclusion of the federal pornography commission that sexually violent material can cause actual sexual violence.

“We feel that this is not something that can be allowed to come into the community and destroy the safety of young people,” she said.

McAuliffe scoffed at those who charge that crackdowns on pornography inevitably lead to censorship of valuable works. He contended that First Amendment rights will be imperiled if pornography is not curbed.

“The best way to lose a right is to abuse a right,” he said.

In Chicago, citizens groups have claimed that enforcement of obscenity laws is extraordinarily lax.

“Nothing really is being done in Cook County,” said Ken Thrall of Chicago Statement, a church-based group that plans a billboard campaign in August proclaiming that “pornography victimizes women and children.”

Richard Jones, chairman of the Illinois Coalition for Decency, also protested that the state’s obscenity law, in contrast with those of most other states, sets a statewide “community standard” instead of locality-by-locality standards. Thus, in effect, the relative liberal standards of Chicago “form the lowest common denominator for the rest of the state,” Jones complained.

In response to the groups’ charges of weak enforcement, Chicago prosecutors and vice officers insisted that they have been moving aggressively against smut but said that their progress is being limited by lenient judges.

‘Have Terrible Time’

“Unfortunately, the judges don’t believe in the obscenity statute,” Chicago vice detective Thomas Bohling said. “We have a terrible time getting people convicted. We’ve asked judges in a nice way: ‘Are we missing something?’ The answer is, ‘We don’t think it’s obscene’ or, ‘We don’t think there’s anything wrong.’ I guess they don’t read case law.”

Philip Victora, an assistant state’s attorney who prosecutes obscenity cases in Chicago, declared that he brought 51 new cases in March, April and May and that 250 other cases are pending. However, he delicately suggested that his efforts are being frustrated by uncooperative judges.

“No judge has ever incarcerated a defendant for more than 10 days” on an obscenity violation, which carries a one-year maximum sentence in the law, Victora noted. Many defendants are simply placed under “supervision,” he said. Also, he added, “fines are not heavy,” ranging from $30 to $500. The maximum allowed is $1,000.

Fines Seem Acceptable

“I don’t know if the sentences are a deterrent,” Victora said. “As long as the fines and supervisions are acceptable to sellers of material, it’s not going to prevent them from continuing.”

Asked about allegations of leniency, a Cook County judge who has dismissed the only two obscenity cases that have come before him said that the prosecution simply failed to offer substantial proof.

“These were bookstore clerks who had sold magazines. One was a 50-year-old gray-haired woman that looked like anyone’s grandmother,” Judge Robert Smierciak said, quickly adding that he found the two defendants innocent not because of their status or appearance but because it was not shown that they had “knowingly sold something that fit the definition of obscenity.”

Under Illinois law, such knowledge has to be proved to convict.

Jay Miller, executive director of the Illinois ACLU, said he was pleased that Chicago is “a lot less blue-nosed than it was at one time. It used to be one of the few cities with a movie censorship board. But it’s not as up-tight as it was. Chicago used to be much more Midwestern in its feel. It’s gotten much more sophisticated. (Chicago-based) Playboy has played a major role” in making sexual attitudes more tolerant.

Lynn, Miller’s ACLU colleague, expressed the belief that there will be less enforcement of obscenity laws nationwide, despite the federal pornography commission’s call for a sweeping crackdown.

“Frankly, I think that most law enforcement people don’t see pornography as dangerous,” he said. “And I don’t think most taxpayers want to see resources diverted from bank robbers to booksellers.”

More Prosecutions Seen

On the other hand, the pornography fighters foresee prosecutions rising dramatically as the public, educated in part by the commission’s report, gains a new awareness of the problem.

“Several years ago, nobody cared about drunk driving. Then all of a sudden an education effort brought it from the back to the front burner,” said William Swindell, president of Citizens for Decency through Law, a national coalition group based in Scottsdale, Ariz. “That’s where we are with the porno issue. The public is becoming aware about the rough stuff being pushed on America.”

Times researchers Diana Rector in Atlanta and Wendy Leopold in Chicago contributed to this article.