By Jennifer Martinez
The Hill
09/01/2012
Read full and original article here: http://thehill.com/blogs/hillicon-valley/technology/247027-group-believes-romney-administration-should-prosecute-pay-per-view-porn-
An anti-pornography group believes GOP presidential candidate Mitt Romney will fiercely enforce federal obscenity and pornography laws if he wins the election — and is pushing for him to crack down on cable and satellite companies that offer pay-per-view pornography channels.
Morality in Media (MIM), a non-profit that states its mission is to curb obscenity and “uphold standards of decency in media,” applauded the GOP’s pledge to clamp down on pornography in the platform that was approved at the party’s convention this past week in Tampa, Fla.
“Current laws on all forms of pornography and obscenity need to be vigorously enforced,” the platform said under a plank titled “Making the Internet Family Friendly.” Patrick Trueman, president of Morality in Media, welcomed the adoption of that line in the platform, which added on to wording in previous versions that was limited to voicing opposition to child pornography.
After meeting with one of Romney’s top policy aides earlier this year, Trueman believes that a Romney Justice Department would be more aggressive in prosecuting against the distribution of pornographic films to the public — and that should include actions against cable and satellite providers like Comcast and Verizon.
“They violate the law more times per day than most of your biggest porn companies in California because they have those [pay-per-view porn] channels, and every time they rent them, that’s a federal violation,” Trueman said.
When Trueman met with one of Romney’s top aides, Alex Wong, earlier this year, Wong said the former Massachusetts governor felt strongly about prosecuting against the illegal distribution of porn–such as on the Internet, cable and satellite TV, and hotel and motel pay-per-view offerings–and would prosecute against that distribution if elected president, according to Trueman. Bob Flores, a former DOJ prosecutor against obscenity, accompanied Trueman to the meeting.
“We were sure Romney is with us 100 percent and he will enforce federal obscenity and pornography laws,” Trueman said. “We collected promises.”
The MIM president believes the Justice Department has chosen for years to look the other way as cable companies continue to offer lurid content.
“The Supreme Court has said you have a right to adult porn in your own home but you don’t have a right to have it delivered to you, so you can go ahead and make all the porn you want, but you can’t distribute it in interstate commerce,” Trueman said. Prior to his work at MIM, Trueman served as the director of the child exploitation and obscenity section of the Justice Department’s criminal division during the Reagan and George H.W. Bush administrations.
He said the line about enforcing pornography that made it into the GOP platform was proposed by Family Research Council President Tony Perkins.
The Reagan administration, in particular, was known for its tough campaign on pornography distribution, with former Attorney General Edwin Meese heading up a commission to study the effects of pornography. Prosecutions against porn distributors haven’t been much of a focus in recent years.
Verizon and Comcast declined to comment for this story.
But the GOP’s vow to enforce pornography laws doesn’t mean pay-per-view channels are necessarily in danger.
Communications attorney Andrew Schwartzman said it would be difficult for the Justice Department to force cable and satellite companies to yank their adult content. Government attorneys would have to convince a jury that the content on a porn channel is considered obscene, meaning it contains no redeeming values and “violates contemporary community standards,” which is a high bar for prosecutors to meet.
“When they tried to bring this to a jury, the Justice Department has repeatedly lost,” said Schwartzman, who also serves as an advisor to advocacy group Free Press. “In a pay-per-view context, one of the problems they have is they’re commercially pretty successful. If a lot of people are buying it, this suggests it is not outside of contemporary community standards.”
Those “contemporary community standards” are tied back to the landmark Supreme Court case Miller v. California, which established a three-part test to determine whether content is obscene. One of the three prongs of that test weighs whether the average person, “applying contemporary community standards,” finds the work appeals to the “prurient interest.”
Also clouding the chance of a winning over a jury is the popularity of porn sites on the web.
“The wave of porn on the Internet suggests the community standards have become more and more tolerant,” Schwartzman said.
The Federal Communications Commission also has the authority to enforce laws that clamp down on obscene and indecent programming, but the agency generally handles cases involving indecent programming during certain hours of the day.
The Supreme Court touched on the issue in a U.S. government case against Playboy’s cable channel in 2000, when it struck down a section of the 1996 Telecommunications Act that aimed to protect kids from viewing channels dedicated to sexually-oriented programming.
That decision makes it tough for prosecutors to go after cable porn channels because they would have to argue, for example, that kids know how to operate the video on demand function on the service or prove that adults aren’t adequately supervising what their kids are watching, according to Schwartzman.
Indecent speech is also protected speech.
“Because cable is invited into the home, it’s under a different First Amendment standard than broadcast, [which is] free and ubiquitous,” he said.
Trueman remains undeterred.
“I maintain you can get a conviction in any state in the union,” he said. “You’ll never know until you try. The problem is at the Justice Department, you’re never trying.”
Trueman also argues that the Supreme Court’s Playboy decision “had nothing to do with the enforcement” of federal obscenity law, but considered signal bleeding, which used filters to block some of the images on adult cable channels.
A spokesman for Romney couldn’t be immediately reached for comment on the type of action the former Massachusetts governor plans to take against such material.
But the line in the GOP platform has already sparked a war of words between one adult film company executive and Trueman.
Steven Hirsch, co-chairman of adult film company Vivid Entertainment, has called for the GOP to tamper down the anti-porn rhetoric, saying that Republican lawmakers need to get with the times.
“Responsible producers of adult entertainment created for and offered to adults already obey ‘current laws on all forms of pornography and obscenity,'” said Hirsch in a statement on Thursday. “The Republicans’ call for ‘vigorous’ enforcement of these laws is a hollow gesture and obvious pandering to ultra right wing conservatives. Republican officials shouldn’t take this platform idea as a license to start some kind of witch-hunt that would waste taxpayer dollars and accomplish nothing.”
Later, Trueman shot back: “Steven Hirsch bears much of the responsibility for pornography’s harm and no respectable politician should take his advice.”
