House Subcommittee Criticizes DOJ for Not Prosecuting Internet Obscenity

(May 24, 2000) Republican members of the House Telecom Subcommittee and Department of Justice officials squared off in an angry and theatrical debate over prosecution of Internet obscenity at a hearing on Tuesday, May 23.

The House Commerce Committee's Telecom Subcommittee held a hearing to address the Department of Justice's refusal to prosecute Internet obscenity. The Subcommittee invited Alan Gershel, Deputy Assistant Attorney General of the Criminal Division, to explain why the Department of Justice (DOJ) is no longer prosecuting obscenity. The Subcommittee also invited a panel of anti-obscenity activists.

The hearing was chaired by Rep. Billy Tauzin (R-LA). However, it was largely organized by Rep. Steve Largent (R-OK). The drama began when Rep. Tauzin reversed the usual order of witnesses. Normally, government witnesses testify on the first panel, and are then followed by one or more private sector panels. Government witnesses usually depart before the second panel begins.

At this hearing, Rep. Tauzin put the anti-obscenity activists first. This required Gershel and his staff to wait, and listen to their critics.

Gershel walked out of the hearing room.

This gave Rep. Tauzin the opportunity to preach to the choir. "I find this a great example of the absolute arrogance of current Justice Department officials that they couldn't sit and listen to witnesses who want to complain about the fact that the Justice Department has been totally negligent in enforcing obscenity laws on the Internet," said Rep. Tauzin.

Rep. Tom Bliley (R-VA), the Chairman of the Commerce Committee joined in. "I feel that the Justice Department has not done enough in this area. The fact remains that people are breaking the law every day."

"I think it is shameful that they would not listen to citizens, and to hear their complaints. We see that too often in federal agencies -- that they go their own way -- and they are not interested in listening to the people whom they are supposed to be looking out for. And that is a shame," said Rep. Bliley.

Rep. Largent quoted from a trade publication of the porn industry. "Publications for the adult industry have been puzzled over how likely it is that the adult entertainment industry will enjoy, and I quote, benevolent neglect, under the next administration, that they have enjoyed under Janet Reno. It is my understanding that there have been no prosecutions of Internet obscenity by the Department."

The Department of Justice officials returned to the hearing room.

When it was finally time for Gershel to testify, Rep. Tauzin left the hearing room. He left Rep. Largent in charge as the acting Chairman.

Rep. Steve
Largent
(R-OK)

Gershel proceeded to testify, but not about the subject matter of the hearing. He addressed only the DOJ's prosecution of child pornography.

Rep. Largent rapped the bench with his gavel. "That is not what this hearing is about."

"The focus of this hearing is on the prosecution of obscenity, not child pornography. You may continue."

Gershel continued to testify -- about child pornography.

When he concluded, a fuming Rep. Largent stated, "If in fact this Committee holds a hearing on child pornography, that will be important testimony."

"However, this hearing is about obscenity, and the lack of prosecutions thereof," said Rep. Largent.

Then the Republicans laid in to Gershel, who refused to admit that the DOJ is not prosecuting Internet obscenity.

Rep. Largent asked: "We have testimony that between '89 and '95 the Justice Department's Child Exploitation and Obscenity Section, which you are a part of today, brought, actually not brought, but had 126 individual and corporate convictions with obscenity violations -- not child pornography -- 126 individual and corporate convictions for obscenity violations, which resulted in the imposition or award of more than 24 million dollars in fines and forfeitures. My question is, since 1996, how many convictions have there been of individuals or corporate entities for obscenity violations, obscenity violations, and how many dollars in fines and forfeitures have occurred?"

"We don't have those figures available," said Gershel.

"I'd take an estimate," pressed Rep. Largent.

Gershel had none.

"But you are responsible for the Child Exploitation and Obscenity Section," said Rep. Largent, "and you don't have any idea!"

"So, what happened to the million dollars that the Congress appropriated to the Department of Justice to prosecute -- not child pornography -- but obscenity?" demanded Rep. Largent, pointing out that the Congress appropriated money for both obscenity and child pornography cases. Gershel said that the obscenity funds were spent on child pornography prosecutions.

Rep. Largent asked Gershel, "do you have any idea who the largest producers and distributors of hardcore, sexually explicit material are?" Gershel could not name any.

Rep. Chip
Pickering
(R-MS)

Rep. Chip Pickering (R-MS) asked Gershel to name one obscenity case brought by the DOJ. Gershel said they were listed in his written testimony. Rep. Pickering corrected him; his written testimony did not list any such cases. He asked again. Gershel could not name one. Pickering asked again. Gershel consulted with another DOJ attorney. He still could not name one obscenity prosecution.

Rep. Pickering also argued that "a culture of obscenity leads to a greater culture and exploitation of children." Rep. Pickering asked if there has been "a rise in the exploitation of children and child pornography over the last three to four years." Gershel replied that there has been a "dramatic increase."

"One of the reasons I believe you have a dramatic increase is because of the lax enforcement, or the lax effort to address obscenity. They overlap. They are integrated. They contribute to each other. And until you address both, you are going to continue to see a dramatic increase," warned Rep. Pickering.

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court laid out a definition of obscenity, which still stands today. The Court laid out a three part test for identifying material that may be banned as obscene:

1) the "average person, applying contemporary community standards" would find that "the work, taken as a whole, appeals to the prurient interest"

2) the work "depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"

3) the work, taken as a whole, lacks "serious literary, artistic, political, or scientific value"

Few of the Democrats on the Subcommittee attended the hearing. Only Rep. Gene Green (D-TX) and Rep. Tom Sawyer (D-OH) offered modest defenses of the DOJ.

"How can we apply the Miller test, using contemporary community standards, when the community that we are taking about, particularly with regard to the Internet, is virtually global in its scope," Rep. Sawyer asked rhetorically. "This is not only a matter of standards and values. This is question of technical feasibility, and a question, in this digital environment, of what we mean by community standards, when that community is as large as all of humanity."

Rep. Pickering argued that mail order obscenity involves multiple locales, but that did not stop previous administrations from obtaining convictions under the Miller standard.

Rep. Sawyer also defended the DOJ's use of its obscenity prosecution funding for child pornography prosecution.

The conflict at this hearing illustrated a fundamental characteristic of a government based on a separation of powers. The legislature can pass laws; but this does not guarantee that the executive will enforce them. Similarly, the legislature can appropriate money for a specific purpose; but this does not guarantee that the executive will spend it for that purpose.

Moreover, the Commerce Committee does not have oversight authority over the Department of Justice; nor does it appropriate its budget. On top of that, this is the final year of the current administration. Reno and Gershel can disregard the federal obscenity laws, and angry members of the Commerce Committee cannot do anything about it.

The Subcommittee heard from five anti obscenity activists:

These witnesses testified regarding the widespread availability of obscenity on the Internet, and the harmful effects that it has.

Jan LaRue testified, in addition, that pornography on "the Internet is turning America's public libraries into virtual 'peep shows' open to the children and funded by taxpayers. This is primarily due to failure of the Department of Justice to enforce federal obscenity laws."

Mark Laaser asserted that "research has shown that 60% of all web site visits access sexually related sites containing obscene material."

Neither Alan Gershel, nor anyone else at the hearing, advanced the argument that the ready availability of Internet pornography is a significant factor in creating consumer demand for PCs, software, and Internet services, and that if Internet obscenity were effectively prosecuted, these purchases would decrease.

The members who participated in the hearing included Billy Tauzin (R-LA), Tom Bliley (R-VA), Nathan Deal (R-GA), Robert Ehrlich (R-MD), Steve Largent (R-OK), Mike Oxley (R-OH), Chip Pickering (R-MS), John Shimkus (R-IL), Cliff Stearns (R-FL), Gene Green (D-TX), Bill Luther (D-MN), and Tom Sawyer (D-OH).