Porn prosecution fuels debate

8-2-2009 National:

President Barack Obama’s Justice Department has quietly agreed to move a pornography prosecution out of socially conservative Montana to more urbane New Jersey – fueling perceptions by some attorneys that the new administration is stepping back from the aggressive approach the Bush administration took to prosecuting obscenity.

“This is a substantial change of position,” said Louis Sirkin, an attorney who has represented many in the pornography industry, including Hustler publisher Larry Flynt. “The new administration has come in there and made a new determination….It certainly is different than what we have seen in the past.”

“I think it has a lot to do with the change in administration,” said a former federal prosecutor, Laurie Levenson of Loyola Law School. “It makes you wonder how far they were pushing the envelope before…..These cases are fraught with problems and are not a high priority.”

The Justice Department issued a press release Friday evening announcing that Barry Goldman, 58, of Jersey City was indicted by a New Jersey federal grand jury for shipping what prosecutors said were obscene DVDs to Virginia and Montana. Goldman allegedly operated a web-based business called the “Torture Portal.”

The press release didn’t mention that Goldman was indicted by a federal grand jury in Montana last August for some of the same shipments, which he unwittingly made to the FBI. Nor was it mentioned that Justice Department prosecutors challenged a federal judge’s ruling transferring the case to New Jersey—before abruptly dropping the fight in May and agreeing to the transfer.

Since a 1973 Supreme Court decision required juries to assess “contemporary community standards” in obscenity cases, the venue for such prosecutions has become a pivotal issue. Critics of Republican administrations have accused them of deliberately bringing such cases in conservative places like Tennessee, Mississippi and Oklahoma.

Venue “is everything in obscenity cases. It’s the whole ball of wax,” said Larry Walters, an adult-industry defense lawyer.

Social conservatives railed against the Clinton Administration for not prosecuting adult obscenity and were disappointed when few such cases were brought in the early years of the Bush Administration. Things perked up a bit in 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.

“Ward is still around. This has been somewhat surprising to a lot of us,” Sirkin said.

Since Obama’s inauguration, prosecutors have pressed on with pending obscenity cases and accepted guilty pleas in one high-profile prosecution brought in Pittsburgh. However, there have been no announcements of new adult obscenity indictments, a trend that Justice Department officials declined to discuss, though they did note that federal prosecutions for child pornography have continued apace.

Earlier this year, Goldman’s public defender, David Merchant, asked Billings, Montana-based Judge Richard Cebull to transfer the case to New Jersey because there was no apparent connection to Montana aside from undercover FBI agents asking Goldman to send the DVDs there. “There is no doubt that this case…is the epitome of venue shopping,” Merchant wrote.

In March, Cebull, an appointee of President George H.W. Bush, agreed to ship the case out to New Jersey. He noted that an undercover FBI agent from Virginia first met Goldman at an adult entertainment convention in Las Vegas in 2006. “This court is concerned with taking up Montana court time with out-of-state defendants who could potentially be prosecuted elsewhere,” the judge wrote.

Prosecutors quickly moved for a stay of Cebull’s order and then filed a rare mid-case appeal with the 9th Circuit, asking the court to expedite its consideration of the issue. After the judges agreed to hear arguments in early June, the Justice Department abruptly reversed course, saying that the indictment should never have been sought in Montana in the first place.



“The government has re-examined its charging decision,” prosecutors wrote on May 22. “After further internal deliberation and consultation, the government has now determined that initiation of this particular prosecution in the district of receipt, although legally appropriate, is not consistent with an internal Department of Justice policy,” the government said.

Prosecutors said that 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.

A Justice Department spokeswoman, Tracy Schmaler, declined to discuss the internal deliberations that led to the government’s change in position. The department determined “that the most appropriate venue in which to charge the case is New Jersey, where the defendant resides and from where the material was allegedly mailed,” Schmaler said in an e-mail.

Asked about the Justice Department’s official explanation for its change of heart, Merchant told POLITICO: “I’m afraid my government is not telling the truth in this case.”

However, the defense attorney said he doubted the move had to do with Obama appointees. “I’m still waiting for the audacity of hope to appear…It has nothing to do with this administration,” Merchant said. “Nobody can figure out why they took their ball and went home, except for the idea that they were going to make bad law” if they lost the appeal.

“I’m actually surprised to hear they re-indicted the case,” Merchant said. “In New Jersey, everybody’s going to shrug their shoulders and say, ‘Who cares?’”

A conservative anti-pornography crusader, Janice Crouse of the Concerned Women for America, said she was troubled by the move. “New Jersey is far more lenient on these kinds of matters than Montana,” Crouse said. “So this represents a softening of the DOJ. Pornographers….are now finding circumstances where they can get a better deal than they have in the past.”

But Patrick Trueman, a former obscenity prosecutor pressing the new administration to do more to battle pornography, said critics were jumping the gun by blaming the Obama team for moving the Goldman case.

“I don’t think it’s any indication the Obama Administration is taking a dive,” he said, while adding, “If I was in the department, I’d be arguing against doing this.”

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.

Analysts see other political factors at play as well. The U.S. Attorney who brought the first Goldman 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 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. ..Source.. by JOSH GERSTEIN