WASHINGTON, D.C. – Obscenity prosecution of mainstream adult entertainment took center stage at a Senate subcommittee hearing Wednesday in Washington D.C., all under the guidance of a staunch anti-pornography crusader and possible 2008 presidential contender, Senator Sam Brownback (R – KS).On Wednesday the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights held a hearing titled “Obscenity Prosecution and the First Amendment.” The hearing took place in room 226 of the Dirksen Senate Office Building.

Senator Brownback was the only Senator to attend the full hearing, although Senator Feingold (D – WI) did show up for a brief moment near the end of the hearing to apologize for not being able to attend.

The hearing, arranged by Senator Brownback, was stacked with well-known censorship advocates and other opponents of adult entertainment, although one of the speakers presented testimony that was somewhat surprising to adult industry observers.

Speakers included Patrick Trueman, legal counsel for the pro-censorship group Family Research Council, Professor Robert Destro, a professor at the Catholic University of America, and Professor Frederick Schauer of Harvard University, one of the principal authors of the Meese Commission Report that was used to launch a series of successful obscenity prosecutions against adult video companies during the Reagan Administration. Trueman and Destro were selected by Brownback, while Schauer was selected by Feingold.

Speakers from the adult entertainment industry were not invited to attend, and the Subcommittee rebuked offers by the Free Speech Coalition to supply expert testimony that could balance the flavor of the hearing.

Trueman, who served in a high-ranking role at the United States Justice Department during previous Republican administrations, touted his record of attacking and prosecuting mainstream adult entertainment companies. He also attempted to tie pornography to child abuse and prostitution.

“It is my observation, after nearly twenty years of working against pornography, that pornography is closely linked to an increase in prostitution, child prostitution, and human trafficking,” Trueman said. “I dare say that the belief that pornography is a powerful factor in creating the demand for illicit sex is a near universal observation of those involved in assisting the victims of prostitution and human trafficking.”

According to Trueman’s testimony, prosecuting adult businesses can mean big money for the government.

“To those who argue that the prosecution of obscenity crimes is a waste and an unwise use of resources, I would point out that during the time I was section chief of CEOS we received more than $24 million in fines and forfeitures as a result of our aggressive prosecution activities. This amount was in excess of the budget of CEOS during those years,” Trueman said.

Trueman then explained that obscenity prosecutions took a big hit when President Clinton took over in 1992.

“About 20 companies of the 50 or so on that list were convicted under [Justice Department efforts to target adult entertainment]. I want to emphasize that these were major producer/suppliers, so convictions against them made a significant difference in the amount of illegal products distributed in interstate commerce. We were beginning the second phase of this project when the Bush Administration ended and the [Clinton] Administration all but halted obscenity prosecutions.”

Trueman argued that obscenity prosecutions could be brought in any state, not just conservative states.

“It was my belief then, as it is today, that we could win federal obscenity cases in any state. It is difficult to imagine a part of America where citizen-jurors would assert that their community standards are so low as to embrace obscene materials.”

Repeatedly referring to mainstream adult content as “illegal” pornography, Trueman said the Justice Department should not fail to target less extreme adult content:

“If the Department of Justice shrinks back from enforcing obscenity laws or prosecutes only the most extreme material, it deprives the people of their lawful opportunity to rid their communities of obscene material. People are tired of an ‘anything goes’ community standard and want their community to be a decent place to live,” Trueman said. “Some believe that prosecutions must ‘start with the hardest material’ such as bestiality or rape films because the public’s attitude toward pornography has changed. Then, it is suggested, once a number of convictions have been secured involving the most extreme material, prosecutions can begin against less extreme material. Yet, public attitudes are more likely to change for the worse precisely because of this strategy. If pornographers know that only the most extreme obscene material will be prosecuted, they will believe they are safe in distributing virtually all obscenity into communities and on the internet and cable/satellite TV. Hence, it should not be surprising that we have seen an explosion of hardcore pornography in our society, and that, correspondingly, our young people have become desensitized to ever-more brazen obscene material.”

Like Trueman, speaker Robert Destro also attempted to tie pornography to prostitution.

“The production and distribution of pornography is part and parcel of a global sex trade that employs sex workers,” Destro said.

Destro also compared pornography to rape, accused adult entertainment professionals of assaulting human dignity, and called adult entertainers prostitutes.

“Unless and until this Congress comes to grips with the fact that pornography is no more about “sex” than rape is, the confusion will continue,” Destro said. “Pornography is about money, and those who sell it traffic in materials that are an affront to the human dignity of the men and women who, for whatever reason, engage in sex-for-hire.”

He later continued his comparisons of pornography and prostitution.

“Sex-for-hire has a name: prostitution. Hiring someone to have sex so that others can watch is pandering. Hawking the wares of prostitutes also has a name: pimping.”

Destro concluded with an attack on Judge Lancaster, the federal judge who recently dismissed all obscenity charges against Extreme Associates.

“If the courts really believe that there is no legitimate interest in regulating the interstate and international sex market, this Congress should write legislation that forces them to say so explicitly,” Destro argued. “If there is such an interest, Judge Lancaster’s opinion should be reversed. It’s that simple. The First Amendment has nothing to do with it.”

Judge Lancaster’s decision was based on individual privacy rights, not First Amendment rights.

Schauer, whose testimony was something of a welcome surprise to many adult industry observers, quickly pointed out that he did not have any ties to political groups that might influence his testimony to the Subcommittee.

“I should note in this connection that my political affiliation is independent, and that I have not registered as a member of a political party in almost thirty years,” Schauer said. “Moreover, I have no political, financial, organizational, or fiduciary connections with anyone who might be helped or hurt by any legislation or government action that might originate in this committee. Indeed, consistent with my longstanding practice, and consistent with my views about academic independence, I do not represent clients, directly or indirectly, nor do I draft or sign legal briefs, nor do I enter into any consulting relationships to provide legal services or legal advice.”

It was unclear whether Schauer meant the comments as a criticism of the other speakers, both of whom have ties to specific activist groups with an interest in the outcome of the hearing.

Schauer was the only speaker to explain that non-obscene adult entertainment is fully protected by Free Speech rights.

“Material that is not legally obscene, unless it is child pornography, or unless the restrictions relate to non-prohibitory zoning or broadcasting, remains fully protected by the First Amendment,” Schauer said.

Schauer explained that obscene speech can legally be prohibited without violating First Amendment rights. But according to Schauer, just because the government can do something doesn’t mean that it should do something.

“It is, of course, a basic principle of constitutional law, and one that is drummed into the heads of law students from the first day of a constitutional law class, that not [all] government action which is constitutionally permissible is necessarily desirable as public policy,” Schauer said. “As a matter of constitutional law Congress could eliminate speed limits on interstate highways, prohibit the growing of numerous crops, double the marginal income tax rate, and re-institute military conscription, but few people believe that the constitutional ermissibility of these and countless other actions is an argument for their desirability. So too with obscenity prosecutions, and the correct conclusion that obscenity prosecutions are permissible under the First Amendment merely shifts the inquiry to the question of whether it is desirable that they take place, and, if so, to what extent.”

Schauer went on to explain that one of the principal Justice Department officials in charge of obscenity prosecutions, Bruce Taylor, has a history of pushing for changes to obscenity laws that, if enacted, would call their legality into question.

“Because Mr. Taylor is now the principal individual managing obscenity prosecution at the Department of Justice, and because such a “per se” approach [as desired by Taylor] would be inconsistent with Miller, inconsistent with thirty-one years of obscenity law since Miller, and inconsistent with a proper understanding of the First Amendment, any move to increase the level and scope of federal obscenity prosecution in 2005 must be evaluated against the declared motivations of the official principally responsible for such prosecutions to attack the existing and well-settled state of the law, an attack supported by witnesses at this hearing, and to move obscenity law in a direction that has no grounding in any part of existing or historically identifiable First Amendment doctrine,” Schauer explained.

Schauer went on to question the motives of individuals pushing for an increase of obscenity law enforcement, and argued that a focus on adult obscenity could come at the expense of protecting children from real abuse.

“Because the production of child pornography by definition involves the abuse of real children, and because dealing with such child abuse should remain at the highest level of priority, there is a risk that increasing the quantity of obscenity prosecutions in a world of limited prosecutorial resources — both financial and human — will be at the expense of child pornography prosecutions,” Schauer explained. “Such a reallocation of prosecutorial efforts away from child pornography would be inconsistent with wise policy, inconsistent with the recommendations of the Attorney General’s Commission on Pornography, and, most importantly, inconsistent with the welfare of children.”

Schauer referred to the Meese Commission Report to argue that pornography does not necessarily result in criminal behavior despite the arguments of other speakers.

“Although the social science evidence is far from conclusive, we are on the current state of the evidence persuaded that [material that does nor endorse violence against women and that does not depict the degradation of women] does not bear a causal relationship to rape and other acts of sexual violence,” Schauer quoted from the 1986 Report.

Schauer argued that even pornography that might produce harmful effects would often still be protected by the First Amendment.

“Whether the harms be understood as environmental, or moral, or anything else, the vast majority of sexually-oriented or sexually-explicit material that would produce those harms is and will remain for the conceivable future fully protected by the First Amendment,” Schauer said.

Schauer then explained that there is no solid evidence that most pornography is harmful in any identifiable way.

“Apart from scientifically-unsupportable claims about so-called “pornography addiction” and such, there exists no evidence that sexual explicitness as sexual explicitness produces sexual violence or any other consequence with which government can or should deal. This was the conclusion of the Attorney General’s Commission two decades ago, and this conclusion, hardly the product of a group of libertines or sympathizers with the industry of sexually explicit material, remains consistent with all of the scientifically serious research that has been produced since the Commission issued its report.”

Schauer concluded by arguing that previous attempts to prosecute obscenity were focused around a concern for decreasing violence against women. He then questioned the motives of the other speakers and suggested that current anti-obscenity rhetoric is not concerned with the welfare of women or any other legitimate government interest.

“Indeed, there even seems to be some pressure from some groups to have the government conclude that violence against women is not the problem with respect to obscene material, and to conclude that the allegedly harmful effects of highly sexually explicit material are independent of its depiction of violence against or degradation of women.”