Statement of Patrick Trueman, Hearing on Obscenity Prosecution, U.S. Senate (Opinion)

Posted on July 30, 2012, in Opinion, Pornography Laws

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March 16, 2005

My name is Patrick Trueman. I currently serve as senior legal counsel for Family Research Council in Washington, D.C. I also serve as a consultant and law enforcement coordinator to Capital City Partners on its contract from the U.S. Department of Health and Human Services Rescue and Restore Campaign on Human Trafficking. For the Rescue and Restore Campaign, I work with and train federal, state, and local law enforcement officers on human trafficking. Also, I serve as counsel to the Paul and Lisa Program of Connecticut, a leading child advocacy organization which helps child and adult prostitutes get off the streets and to reclaim their human dignity. While I am not testifying today on behalf of Capital City Partners nor the Paul and Lisa Program, I mention my work with these groups because 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. 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…

From the end of the Administration of President Ronald Reagan in 1988 to the end of the Administration of President George H. W. Bush, I also served in the United States Department of Justice as Chief of the Child Exploitation and Obscenity Section (CEOS) in the Criminal Division. For the year prior to this, I served as the deputy in CEOS. CEOS prosecuted federal child sexual exploitation and abuse, child pornography, and obscenity crimes and coordinated the investigation and prosecution of these crimes nationally. During those years, under three Attorneys General, the Department of Justice had a very active and successful prosecution effort under way against the major producers and distributors of obscene material in the United States. The effort involved numerous nationwide federal obscenity prosecutions with indictments returned in many federal districts.

It has long been clear to prosecutors and the public that obscenity lies outside First Amendment protection. The Supreme Court has said as much in a number of cases. [Roth v. United States 354 U.S. 476 (1957)] In Miller v. California, 413 U.S. 15 (1973) the Court said “to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment…It is a ‘misuse of the great guarantees of free speech and free press.”

Although the constitutional status of obscenity was clear, however, the Department prosecuted only a handful of cases in the twenty years prior to the establishment of CEOS. Because the Department was ignoring obscenity crimes, pornographers were emboldened, producing and distributing illegal products throughout the country, in stores, on cable/satellite television, and through the mail. Then the Department reversed course and began vigorously prosecuting obscenity. The impetus for the increased prosecution effort, starting in 1987, was the Attorney General’s Commission on Pornography. That Commission, which began its work under Attorney General William French Smith, reported its findings in a “Final Report” delivered to Attorney General Edwin Meese III in 1986. Attorney General Meese followed a key recommendation of the Commission’s Final Report and established a “strike force” (later called CEOS) in Washington D.C. to prosecute obscenity cases and to coordinate U.S. Attorneys in doing the same. General Meese, following the Commission’s recommendations, also ordered his staff to draft key updates to the federal obscenity and child pornography laws and encouraged Congress to pass them. Congress did so in passing the Anti-Drug Abuse Act of 1988, PL 100-690, 102 Stat. 4489, Title VII, § 7521 (adding sections 1466 and 1469 to Title 18 of the U.S. Code), overwhelmingly in both the Senate and House.

It goes without saying that leadership from the Attorney General, the nation’s chief law enforcement official, is critical in defeating crime. That certainly was the case with General Meese and his two successors in the Bush Administration, Richard Thornburgh and William Barr, who took a strong hand in making sure that U.S. Attorneys, as well as federal investigative agencies, pursued obscenity cases. That support and continued involvement of these Attorneys General was critical to our success.

During my several years at CEOS, we found obscenity law quite workable and, moreover, well understood by jurors who had to make decisions on the guilt or innocence of fellow citizens. 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. Those opposing obscenity prosecutions often claim that such prosecutions take resources from child exploitation cases. However, we don’t hear that bank fraud or tax evasion prosecutions take resources from child pornography cases.

Pitting child pornography prosecutions against obscenity prosecutions makes no sense to a concerned parent who might ask: “Why is the government spending tens of thousands of dollars prosecuting and incarcerating Martha Stewart rather than the criminal who spams hardcore pornography to my children?” When I hear law enforcement authorities pit child pornography against obscenity, I see it as is an excuse for doing nothing on obscenity crimes.

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