U.S. Anti-Porn Effort Is Found Wanting

Sometimes, Phil Burress wonders whether his faith in John Ashcroft was misplaced.

Three years ago, the anti-porn activist was looking to Ashcroft and the Justice Department to wage an aggressive crackdown on smut. Federal obscenity prosecutions had flagged during the Clinton administration.

The new attorney general, with his fervent Christian credentials, looked to be the ideal warrior to take on the nation’s burgeoning and multibillion-dollar pornography industry.

“We thought, ‘It is not going to take a long time to get this back up to speed,’ ” said Burress, who heads the Cincinnati group Citizens for Community Values, which started in the heyday of federal obscenity suits in the 1980s.

Today, the odds of a major federal revival in prosecuting porn appear to be fading. The Justice Department has picked up the pace and is filing more suits, but it has been mainly targeting smaller distributors that deal in the most radical fare. One exhibit: A North Hollywood adult-film maker called Extreme Associates that produces movies depicting fictional rapes and murders of women was indicted in August.

Critics said the strategy ignores the explosion of graphic sexual content that has become readily available over the Internet and elsewhere and that has become the porn industry’s bread and butter.

Justice Department officials said they must pick their targets carefully because of scarce resources and the agency’s all-consuming war on terrorism. But they also strongly defend their record to date and say more prosecutions are in the works.

Civil liberties groups have declared Ashcroft’s tenure a disaster, primarily because of his department’s response to the Sept. 11 attacks, including the detention and deportation of hundreds of illegal immigrants.

But it has also turned out to be a mixed blessing for the Christian right and other conservatives, who have long supported Ashcroft and whom Bush was looking to mollify when he named Ashcroft attorney general in December 2000.

In Ashcroft, “conservatives celebrated what they thought marked the end of hard-core’s unchecked reign” says an article in the December issue of Citizen, the monthly magazine published by Focus on the Family, the Colorado Springs, Colo., evangelical ministry. “But now, almost three years into Ashcroft’s tenure, those celebrations have given way to disappointment.”The debate over the pace of obscenity suits shows the crucial role of career Justice Department employees and how they respond to political pressure. The department’s top obscenity cop, while hand-picked by Ashcroft, is also a Justice Department veteran who has resisted much of the political heat.

Besides pornography, conservatives are chafing at the department’s record on abortion, including a decision last year to follow through on the prosecution of a Washington-area abortion foe that stemmed from a prayer vigil outside a women’s clinic. The case was originally filed during the Clinton administration.The defendant, Patrick Mahoney, who heads a group called the Christian Defense Coalition, said he and his attorney believed that the new Justice Department would let the case drop. Instead, government attorneys went back to the trial court to seek a new injunction. Mahoney, who said he attended prayer meetings with Ashcroft when Ashcroft was in the Senate, was surprised to find himself “praying he wouldn’t put me in jail.” Ultimately, he signed a consent order restricting his activities.

Justice Department spokesman Mark Corallo said the concerns being expressed by conservative groups illustrate how the Justice Department under Ashcroft has been applying the law evenhandedly.

“During his confirmation, the attorney general pledged to enforce federal law evenly, fairly and uniformly across the nation,” he said. “In making good on that pledge, certain political groups on both sides of the political spectrum were bound to have disagreements with him from time to time.”

But Ashcroft’s battles with the right have made him a more divisive figure at a time when his public approval ratings have been slipping and when he has become an issue in the presidential campaign. A Harris Poll taken last month found that Ashcroft’s favorable ratings dipped to 42% from 57% six months earlier.

Conservative activists say they don’t want to be seen as adding to what they perceive to be the public tarring of the attorney general from the left. But they are also troubled by some of the things that he has done.

Connie Mackey, chief lobbyist for the Family Research Council, said her group, among others, fears that a section of the terror-fighting Patriot Act could be used to prosecute anti-abortion activists.

The push to enlist the new attorney general in the anti-porn battle began soon after he took office. Burress, the Cincinnati activist, organized a private meeting with Ashcroft three months after he was confirmed. Among those attending were representatives of about a dozen anti-porn groups, including Morality in Media and the American Family Assn.

The coalition was starved for action: Under former Atty. General Janet Reno, obscenity enforcement focused mainly on child pornography.

Burress and the other leaders were looking to Ashcroft to change the terms of the debate -- much like Edwin Meese III did in the 1980s when, as President Reagan’s attorney general, he appointed a national commission on pornography and the department flooded the courts with suits that resulted in a number of high-profile porn operators going to prison.

Besides philosophy, some also saw the issue in political terms: The groups had formed a bedrock of support for Ashcroft when Senate Democrats sought to torpedo his nomination during his confirmation hearings in 2001. Now, they were looking for quid pro quo.

“Having gotten him through, there were certain expectations about how aggressively he would pursue a number of things, one of them being the enforcement of obscenity laws,” said one conservative activist who requested anonymity.

The anti-porn coalition lobbied Ashcroft to choose an obscenity prosecutor from the 1980s to lead what they hoped would be a bold new initiative. In a further effort to jump-start the process, it pulled together a list of U.S. attorneys who had prosecuted obscenity cases and who could file suits right away.

Justice Department officials, however, said they felt like they were starting from scratch. The dearth of obscenity suits filed under Reno had left a void of prosecutors with experience in the area. The rise of the Internet as an outlet for porn presented new and different investigative challenges, compared with shutting down bricks-and-mortar arcades and video stores.

The test for what constituted illegal porn -- whether under “contemporary community standards” the material is patently offensive and lacks serious artistic or literary merit -- had been set in 1973 by the U.S. Supreme Court. But those standards and public attitudes about porn have also changed.

“It’s a totally different investigation requiring totally different skills than 20 years ago,” said John Malcolm, a deputy assistant attorney general who oversees the department’s child exploitation and obscenity section.

The section started gearing up, hiring high-tech computer sleuths and holding retreats where prosecutors were taught how to build a successful obscenity case. With just 18 lawyers, the unit also scrambled for resources, which were scarce after Sept. 11. The unit also oversees cases involving child prostitution and human trafficking.

But that deliberate, methodical approach was not what the anti-porn interests had in mind.

Burress began needling Justice Department officials in private meetings and at White House functions, passing along electronic links to pornographic Web sites that were “just laying out there” ready to be prosecuted. A self-described former porn addict, Burress believes that the government should be locking up “white-collar pornographers” like Internet service providers that facilitate pornographic spam and hotels that operate X-rated pay-per-view channels.

Last year, Morality in Media created a Web site -- obscenitycrimes.org -- where citizens can report what they consider Internet porn. The information is verified before being put in affidavit form by a retired FBI porn investigator and forwarded to the Justice Department for review. About 34,000 complaints have been lodged to date.

Another group, Concerned Women for America, which calls itself a pro-family lobby, began sending letters this spring to scores of U.S. attorneys offices around the country to see what they were doing about porn.

The response: “More excuses than answers,” said Jan LaRue, the group’s chief legal counsel.

It didn’t help that Ashcroft spurned the groups’ recommendations to head the department’s obscenity section, instead selecting Andrew Oosterbaan, a respected prosecutor and trial attorney who had helped crack an international online child-porn ring.

Since the summer, the unit has had success in some high-profile cases, including the prosecution of a former Dallas policeman and his wife who were charged in June and convicted of marketing obscene videotapes over the Internet and the August indictment of Extreme Associates.

In September, federal authorities indicted members of a Texas family on racketeering and obscenity charges for operating a multimillion-dollar chain of adult bookstores and arcades in seven states. In all, about 20 convictions have been secured since 2001, and about 50 other investigations are ongoing.

Still, critics fear the moves are too little, too late.

“I fail to see how three additional years of inaction have contributed to an environment where obscenity convictions would be more likely,” said Patrick Trueman, a consultant to the Family Research Council and a former federal obscenity prosecutor.

But Malcolm, of the Justice Department’s criminal division, said critics do not fully appreciate the difference between being outraged at the growing exposure of porn in society and making a federal case out of it. On the latter score, he said, the department has made great strides.

“They are not setting our enforcement strategy. But I understand their frustration,” he said of the anti-porn interest groups. “I am glad they are giving us their input.”