Going After the Poop Merchants

I'm waiting for my neighbors
To tell me what's obscene
- Kevin Gilbert, "Waiting"

Obscenity operates in a weird nether region of American law. Technically, it exists outside the First Amendment and thus does not enjoy its protection. However, concerns about chilling First Amendment speech animate the test of determining what is obscene and what is merely objectionable. That test includes the infamous "community standards" element to which Gilbert refers. If that isn't confusing enough, while it is a crime to distribute obscene materials, its mere possession cannot be criminalized.

With that legal landscape, you'd think that prosecutors across the country would use their limited resources on more dastardly criminals - drug dealers, child predators, and such. And that would probably not be the case, were it not for a push from the Religious Right. As this LA Times article explains, the Dobsons of the world have put great pressure on the Ashcroft/Gonzalez Department of Justice to pursue such cases:

Specifically, it raises a question of whether increasing public acceptance has shifted the legal standard of obscenity -- once aimed at the works of such authors as James Joyce, Henry Miller and William S. Burroughs -- so that only the most extreme margins of porn can be stopped.

The conservative groups who pushed for the initiative say no, and complain that it is virtually pointless to go after fringe figures whose material does not have the societal impact of big commercial productions.

Many federal prosecutors, meanwhile, feel obscenity cases are not worth the time and resources they take away from their main missions, such as stemming terrorism and organized crime.

By focusing on the most distasteful, extreme material, prosecutors are 'picking off the low-hanging fruit,' said Loyola Law School professor and former federal prosecutor Laurie Levenson. 'What does this accomplish? That is the question. These cases take a lot of prosecutorial resources.'

An example of that "low hanging fruit" is LA porn merchant Ira Isaacs, who specializes in bestiality and poop porn (I shit you not - we briefly had a client who dealt with the latter stuff, before a First Amendment group stepped in to represent him). Regardless of how nasty that stuff is, and putting aside the animal cruelty issues for the moment, is the return of convicting folks like Isaacs worth it given that the only people who see his stuff are adults who ask for it?

What of other priorities?

Within the Justice Department, resistance to the task force's mission figured in the U.S. attorney firing controversy that sparked Gonzales' resignation.

U.S. Atty. Dan Bogden in Las Vegas, who was one of the ousted attorneys, balked at assigning one of his prosecutors to a task force case against a man who sold videos of himself urinating on his own wife. Bogden told a congressional committee investigating the firings that the target was 'seemingly nonsignificant' and that his office was down eight assistant U.S. attorneys and facing several major trials, including a racketeering case against the Hells Angels. He didn't understand why four Justice officials had to fly out from Washington to pitch the case to him.

More sloppy governance from Duhbya's administration - push aside the violent biker gang prosecution in favor of locking some guy who makes scat porn!