TDOJ Officials at the National Cybercrime Law Conference in Chicago: Major Online Initiative Against Adult Obscenity Imminent
I told the Montreal legal seminar attendees that, in the first week of May, I had attended the National Cybercrime Law Conference at John Marshall Law School in Chicago, a three-day seminar, promoted on its Website as follows: "Hear the experts who are involved discuss where we have been, where we are, and what the future may hold. Speakers include practicing experts from government and industry who are making and enforcing the law today." That turned out not to be much of an exaggeration. A significant number of policy-forming officials from the highest ranks of the U.S. Department of Justice spoke at the event together with representatives of the Federal Trade Commission and the offices of several state attorneys general along with various experts who do contract work for prosecutors at the national level. The attendance was overpoweringly dominated by FBI agents, Assistant U.S. Attorneys, and other prosecutorial and law enforcement personnel. It would be inaccurate to say that no defense lawyers spoke, because two did, nor that there were no defense lawyers in the audience, because there was at least a scattering of them. However, the prosecution spirit was prevalent enough and defense representation was scant enough that in the main, it simply would not be unfair to call the event a prosecution seminar even though it was conducted by a law school and open to lawyers in general. And, as a defense lawyer at the forward edge of the battle area defending materials destined for online publication, I surprisingly found myself in the midst of the anti-porn camp as they at least indirectly discussed their order of battle in open discussion, and more directly in smaller gatherings.

I had the opportunity to hear and speak with DOJ officials from the highest levels, persons quite close to both Attorney General John Ashcroft and to the Child Exploitation and Obscenity Section (CEOS), a Justice Department body charged with enforcement and policy direction regarding the prosecution of federal obscenity laws, though its head was not in attendance. I was told that there was a "major online initiative" that was about to commence against adult obscenity and that an obscenity symposium, bringing together prosecutors from around the nation to plan strategy, would be held in the end of the first week in June at the National Advocacy Center, a Justice Department training center. I also had a brief conversation about Section 2257, about the poor fit its implementing regulations have with the Internet, and about the very real risks that the existing Section 2257 notice regulations pose to the safety and well being of small content providers and camgirls. It will suffice to summarize the icy tenor and demeanor of a Justice Department representative's response to say that he really did not care whatsoever about their fate as he professed an affirmative disinterest in any revisions to those regulations.

When the National Cybercrime Law Conference ended, I searched the Web and the Website of the National Advocacy Center to find information which would tend to confirm what I had been told about a national prosecutors' obscenity symposium, I found nothing in early May. The only clue I could find that tended to confirm that something was in the air was contained in a new revision to the Obscenity Page of Justice's Child Exploitation and Obscenity Section, announcing that its "... resources are well suited for the prosecution of Internet related obscenity cases.".

But it did not take long for solid evidence to emerge confirming that the Symposium did take place just as I was told in Chicago, that John Ashcroft himself attended the event, and that he addressed the gathering with remarks that show present and serious intention to begin a new round of prosecutions against erotic expression on the Internet using obscenity laws.

Ashcroft Convenes "National Obscenity Symposium" and Calls for Aggressive Federal Obscenity Prosecution
On May 7, 2002, Attorney General John Ashcroft announced an Obscenity Law Enforcement Symposium to be held in early June at the National Advocacy Center, he invited all U.S. Attorneys to participate in and support this "initiative," and he invited a "partnership in launching and sustaining this important endeavor." Under his manual signature, the Attorney General wrote the following memo to all of the U.S. Attorneys:

As I am sure you are aware, the proliferation of obscenity, both via the Internet as well as through more traditional channels, has become a pervasive and destructive element in our society. I am committed fully to dedicating the resources necessary to combat this burgeoning problem.

To that end, I am pleased to announce an initiative aimed at developing a national obscenity strategy for aggressive federal prosecutions of such cases. On June 6-7, 2002, at the Department's National Advocacy Center in Columbia, South Carolina, the Executive Office of U.S. Attorneys and the Criminal Division's Child Exploitation and Obscenity Section are sponsoring an Obscenity Law Enforcement Symposium. This symposium will provide a forum to discuss the current state of the sex industry, the legal challenges in investigating and prosecuting obscenity cases, and the policies and guidelines necessary to develop our strategies in a thoughtful and deliberate way.

I encourage you and your staff to support and participate in this initiative and the upcoming symposium. I look forward to our partnership in launching and sustaining this important endeavor.

Ashcroft to Vindicate "The Right of the Nation to Maintain a Decent Society" Through Obscenity Prosecutions
Ashcroft's fire in Columbia was not only directed at child pornography and the effects of adult pornography on children, but more broadly and generally he addressed himself to the material that he characterized as "obscene." The full text of Ashcroft's June 6th, 2002, prepared remarks to the nationwide gathering of prosecutors and law enforcement officials at the National Advocacy Center has now been posted online at nationallawcenter.org/Remarks%20of%20Attorney%20General%20John%20Ashcroft.htm.

The Attorney General described the Internet as "perhaps the most pernicious medium for obscenity" and "a conduit for child exploitation and obscenity that respects no boundaries and recognizes no jurisdictional lines." Citing the text of the 1973 United States Supreme Court Opinion in Paris Adult Books v. Slaton for support, authored by then-Chief Justice Warren Burger, a decision announced by the High Court on the same day that Miller v. California was announced, Ashcroft asserted the public's interest "in the quality of life," and the "right of the Nation [sic] and of the States to maintain a decent society." Claiming that this industry has ties to organized crime (in the present tense, but offering no support for that proposition), and asserting that the availability of pornography has adverse societal consequences, Ashcroft observed that, "In addition to harming children directly, obscenity has tremendous consequences for our broader society. For instance, clinical and experimental evidence show a correlation between exposure to sexually violent materials and an increase in aggressive behavior directed towards women."

Ashcroft pledged that "[t]o prevent such debasement, the Department of Justice is committed unequivocally to the task of prosecuting obscenity."

He indicated two first steps in support of that commitment. At a cost of $1 million, he has added two attorneys and five staff specialists to the CEOS office to work full-time "making prosecutions against child pornography and obscenity offenders using the Internet." Second, Ashcroft has directed that the "lockout" provisions of the U.S. Attorneys' Manual be revised to permit CEOS to investigate locally with only a notification to the U.S. Attorney in whose district the investigation is conducted, rather than with the consent of the local U.S. Attorney, as has been Justice Department policy to this point. This is done, he asserted, "to bring the full weight of the Department of Justice to the fight against child pornography and obscenity." (This may also reflect an understanding by Justice - as a result of the Supreme Court's various opinons and concurrences and dissent in Free Speech Coalition v. Ashcroft - that it looks very unlikely that local geographical community standards may be applied to judge the obscenity of materials distributed via the Internet. The main point of the earlier lockout provision was that a local U.S. Attorney was better poised to know than Washington what kinds of material were convictable obscenity under local standards and therefore what kinds of investigations would be a waste of time. Ashcroft's team may view the potential of "national standards" as a reason to justify more centralized control in the control of obscenity prosecution, a control which may decrease the influence of local U.S. Attorneys in charging decisions.)

Ashcroft said that CEOS will not "alone" prosecute obscenity cases and called for co-operation from the local U.S. Attorneys. The obvious suggestion is that CEOS itself does have plans to bring obscenity prosecutions.

Ashcroft mentioned and thanked various individuals from outside the Justice Department who participated in the Symposium, from the Organized Crime and Vice Division of the Los Angeles Police Department, from the U.S. Postal Service, from The American Center for Law and Justice, and from the National Law Center for Children and Families. He praised them collectively as "tireless in their efforts to support the Justice Department's mission to combat the proliferation of obscenity in our society."

Pressure From the "Moral Right" and Ashcroft's Response
All of this comes on the heels of several other developments. The Long Island Citizens for Community Values April 2002 Newsletter bears a photograph of the CEOS chief, Drew Oosterbaan, his boss, Deputy Attorney General John Malcolm (who heads the CComputer and Fraud Division of the Justice Department's Criminal Division, only one handshake away from Attorney General Ashcroft) and members of the Religious Alliance Against Pornography (RAAP) as they met together in Washington at the Justice Department last February 18. Ostensibly there to offer assistance to the newly appointed Chief of CEOS in his endeavors to prosecute child pornography and obscenity, the RAAP group, including the Commander of the Salvation Army, reiterated the points which were covered with Attorney General John Ashcroft in a prior hour-long meeting last year. They had requested that the Justice Department make obscenity prosecutions a priority. Dr. Kirk of RAAP also urged Ashcroft to return to the aggressive pursuit of violations of obscenity laws as demonstrated in the 1980s and early 1990s. According to that Website, Ashcroft had then promised "to do all in his power" to establish obscenity prosecution as a priority.

The National Obscenity Symposium and Ashcroft's remarks there put his May 1, 2002, National Victims of Obscenity Awareness Month statement into more readily understandable significance, a statement chiefly dealing with adult obscenity:

Pornography and adult obscenity are more than demeaning pictures in magazines and on the Internet - they are steps down a path to the degradation and, too often, the real abuse of predominantly women and children.

The Department of Justice is dedicated to prosecuting those who illegally distribute adult obscenity materials and child pornography. These prosecutions are a priority for this Department, and the Criminal Division's Child Exploitation and Obscenity Section and the 94 United States Attorneys across this country stand committed to enforce the federal statutes in this area.

Over the past year, the Department has made significant progress toward reversing an almost decade-long absence of adult obscenity prosecutions. With the recommendation of the Attorney General's Advisory Committee, the so-called "lockout provision" of the United States Attorneys' Manual was eliminated. Now, for the first time in many years, prosecutors from the Child Exploitation and Obscenity Section of the Justice Department have increased flexibility to initiate cases across the country. Additionally, the Child Exploitation and Obscenity Strategy [sic] has been working with our United States Attorneys to put together a June 2002 symposium to devise a common and coordinated approach to the prosecution of obscenity providers.

This Department is dedicated to vigorously enforcing the laws of the United States, and those who illegally distribute obscene material will be prosecuted aggressively.

ObscenityCrimes.org
Finally, all of this coincides with the launching of a new Website by Morality in Media under the name ObscenityCrimes.org, which provides a convenient form (including a handy means to check off such content items as "Anal Sex" and "Lewd Exhibition of the Genitals") to submit reports of allegedly obscene online material to Morality in Media, where it will be screened, and if deemed prosecutable by that organization, forwarded to the reporter's local U.S. Attorney with a request for investigation under the reporter's name. This report form and this site are exclusively concerned with adult pornography, and those persons with information regarding child pornography are directed to another site. No tips are accepted at ObscenityCrimes.org without geographical information about the location of the reporter, which is a real clue as to what the site is all about. After (misleadingly) advising the reader that "[m]ost obscene materials consist of little (if anything) more than depiction after depiction of hardcore sexual conduct," the site alludes to its real aim, that of applying pressure to local U.S. Attorneys: "MIM does expect U.S. Attorneys to take reports of possible violations of obscenity laws seriously and to initiate prosecutions in appropriate cases.... MIM will periodically publish on this Web site the number of reports forwarded to each U.S. Attorney and the number of obscenity prosecutions initiated by each U.S. Attorney."