Fair. Balanced. American.

Friday, August 29, 2003

"I don't think there has to be a standard based on content"

[We are extremely pleased to post a second post by the late George magazine's senior political writer Peter Keating]

I generally find "slippery-slope" arguments intellectually lazy. But it's more than a little scary that as the Justice Department pursues its first obscenity prosecution in 10 years, administration officials are resolutely unwilling to describe the standard they are applying for quashing speech. And their vagueness reinforces the disturbing impression that John Ashcroft wants maximum clearance to haul anyone who runs afoul of his morals, or tastes, or feelings, off to court.

In April, postal inspectors searched the headquarters of Extreme Associates, a small-time purveyor of nasty pornography. Their search warrant noted that Rob Zicari, who runs the company, had "issued a challenge to Attorney General Ashcroft" on Frontline. Zacari had told the TV program that Ashcroft "could not do anything about his films," and apparently that was enough to get him targeted as a test case: he was arraigned this week.

But exactly what makes any particular producer worthy of federal legal attack? Andrew Oosterbaan, who heads the Justice Department's Child Exploitation and Obscenity section, ducked the question six times on Wednesday's Nightline:

KOPPEL: [M]aybe you can explain to me, Mr. Oosterbaan, where ultimately you're gonna draw the line between what the folks whom we have just met in those pieces are producing and the rest of the adult video industry.

OOSTERBAAN: Well, actually, Mr. Koppel, it won't be the job of a prosecutor to draw that line. Under the law of obscenity, it's the community's job to draw that line …

KOPPEL: What I'm asking you, I guess, is, it wasn't that the folks of a particular community in Pennsylvania came to you and said, please, Justice Department, you gotta do something about this. Or was it?

OOSTERBAAN: Perhaps not literally, but I can tell you that in my position I hear from the public quite often …

KOPPEL: You and I both know that … during the two terms of the Clinton Administration, when this was not a high priority with the Justice Department, there were no such prosecutions. So, it's all well and good to suggest that this happens as the result of community outrage but you and I also know that it doesn't go any further unless the Justice Department wants it to, and in particular, unless the Attorney General wants to. He has made it a priority, not the communities, right?

OOSTERBAAN: Well, that, that's true in part …

KOPPEL: So, what I'm still asking is, out of that, whether it's [a] $2.5 billion or $10 billion industry, where, if at all, do you draw the line in determining what you go after? You can't do it just on the basis of whether you have a bunch of e-mails or a bunch of letters from outraged citizens …

OOSTERBAAN: And your question assumes that that line is drawn solely based on content, and it isn't. That line is drawn, from a prosecutor's perspective, on a number of factors …

TED KOPPEL: Precisely my point … There are some of those porno companies out there making hundreds of millions of dollars a year. Why not go after one of the big ones?

OOSTERBAAN: And the answer is, because prosecutors are paid to be efficacious …

KOPPEL: Therefore you go after a company which is small but, clearly you feel has crossed some kind of a line. And at some point or another, you and I are gonna run out of time and then you don't have to answer the question, but still, what I'm suggesting to you is, there has to be a standard somewhere. Where is your standard?

OOSTERBAAN: I don't think there has to be a standard based on content because a community will determine whether content is obscene or not.

Does a Justice Department conference room count as a "community"?

- Peter

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