Zombie Porn Hunters

[I]n 2005 when Attorney General Alberto Gonzales set up an Obscenity Prosecution Task Force, which ultimately focused on prosecuting fetish, bestiality and so-called fringe porn.

Six months into the Obama Administration, the task force is still in business and is still headed by a former U.S. Attorney for Utah under President Ronald Reagan, Brent Ward.

From Politico.

The task force was accused of venue shopping for conservative juries by arranging FBI stings that ordered allegedly obscene materials in conservative rural jurisdictions and then securing adult porn obsenity indictments in those places. A key finding that juries must make in adult porn cases to reach a guilty verdict is the determination that the material is obsene in light of "community standards." (A subject addressed at length in this recent article.)

Adult porn prosecutions had virtually vanished prior to the creation of the task force by the Bush Admininistration in 2005, in the wake of changing community standards and appellate court rulings that provided strong free speech defenses to prosecutions. Adult obsenity cases also took a back seat in prosecution priority because they are victimless crimes involving consenting adults. The federal government even regulates the adult porn industry's record keeping requirements in order to simplify child pornography prosecutions, where there are far fewer legal defenses because child sexual abuse is a serious crime and is considered inherently involuntary. But, in the wake of the task force, which has led programs for state and local prosecutors on prosecuting adult obsenity case, as well as conducting its own prosecutions, the trend has reversed.

Convictions have even been secured for a comic book depicting child porn in a clearly drawn rather than photograph derived way, and for obscene, unillustrated written pornography.

The link above relates a sting set up by the Task Force where materials were ordered from a New Jersey company in Montana and an indictment was issued last August (under the George W. Bush Administration). This May, the Obama Administration quietly assenting to a judge's ruling change the venue in the case to New Jersey, where a conviction is likely to be much harder to secure due to the differences in the jury pool.

The case also sheds interesting light on another not widely known fact. There are many types of prosecutions that courts have held that the federal government has the power to make (such as prosecutions of cases under federal law for crimes where there have been acquittals in state trials, prosecutions for mere intentional failure to file a tax return without other tax charges, and prosecutions for check fraud under $75,000), that internal Justice Department policies direct its attorneys not to bring. One of those policies involves the kind of case brought by the Task Force in the Montana case:

[A]n internal Department of Justice policy. . . . dating to 1979 or earlier and included in the U.S. Attorney’s Manual, says postal obscenity cases “should not ordinarily” be filed in the district where an undercover agent had materials sent unless the defendant had some other contacts with that district.

Violations of these policies are not directly subject to judicial review, but failures to follow these policies might prompt new statutory or judicial rulings against the practices that could limit Justice Department bargaining power and legal rights in future cases. One reason the Justice Department may have dropped its appeal to the 9th Circuit in the Montana case, in addition to a change in administration policy, may have been to avoid the chance that a binding appellate court precedent limiting Justice Department power would be created.

Some of these Justice Department policies, which in principal can be changed at the whim of the Attorney General, amount to part of the unwritten constitution of the United States (a concept attributed in the English context to Walter Bagehot, which has increasing relevance in U.S. law and politics).

There are other political considerations in these cases as well:

Obscenity cases are politically sensitive for the Obama Justice Department because the deputy attorney general, David Ogden, was criticized by Republicans during his confirmation for his past legal work for Playboy and other purveyors of sexually explicit material. . . . The U.S. Attorney who brought the [Montana obsensity] case last year, William Mercer, had close ties to the Bush administration and in an unusual arrangement served as the No. 3 official at the Justice Department. In addition, complaints from [Obsensity Task Force leader] Ward about alleged resistance to bringing obscenity cases reportedly played a role in the firings of at least two of the U.S. Attorneys whose dismissals by Bush in 2006 sparked controversy and investigations.

Adding a new political dimension to the saga, the case filed against Goldman last week was assigned to Judge Joseph Greenaway Jr. of Newark, a Clinton appointee. In June, Obama nominated Greenaway to the U.S. Court of Appeals for the 3rd Circuit. The Senate has not yet acted on the nomination.

The reasons that U.S. Attorney appointments should be political, the counterarguments, and the federalism concerns implicated by these prosecutions are explored in another recent piece of legal scholarship.