A new FBI task force recently began to address an issue that Attorney General Alberto Gonzales has described as a top priority: pornography. The “anti-obscenity squad” will devote 10 agents exclusively to investigating and gathering evidence against producers of sexually explicit material.
Rather than targeting the serious problem of child pornography, the anti-obscenity squad will focus on pornography both created and consumed by consenting adults. This focus continues a trend that began in May when Gonzales created an Obscenity Prosecution Task Force under the Department of Justice’s criminal division. The task force will rely on the efforts of trial attorneys who previously focused on child pornography prosecutions.
The anti-obscenity squad is a troubling development in the administration’s ongoing war on pornography. Most obviously, the focus on materials created and consumed by adults diverts attention and resources from critically important child pornography investigations. More troubling, however, the squad also represents an attempt to erode individuals’ right to express themselves freely, without fear of government intrusion.
It is beyond argument that people hold a wide range of opinions about pornography. However, the First Amendment does not only protect speech that meets the approval of certain individuals or groups, it also extends to forms of expression that are unpopular or controversial.
Obscene materials – those that violate contemporary community standards – fall outside the protection afforded by the First Amendment. But not all, or even most, pornography is obscene. The mere fact that Americans spent $230 million last year on online pornography alone and upwards of $10 billion on all forms of adult entertainment combined suggests that a large number of people find mainstream pornography neither offensive nor unacceptable according to community standards.
Even if the anti-obscenity squad does focus on materials that virtually everyone would describe as obscene, it is questionable how effective its efforts will be. As adult industry attorney Paul Cambria has observed, no major pornography studios produce such fringe content, so the FBI would essentially be targeting “people shooting in their backyard garages.” One must question whether such small- time operators deserve to be proclaimed one of Attorney General Gonzales’ top priorities.
Theoretically, the investigation of a few small-time operators wielding hand- held video cameras might serve some desirable deterrent or punitive purpose. But prosecuting such individuals will do nothing to further the objective that anti-pornography crusaders cite most frequently to justify their opposition to pornography: protecting children and families. Most of the material that would fall into the category of “obscene” is produced in foreign countries, and therefore will remain available over the Internet regardless of the anti-obscenity squad’s efforts.
Given the other things that currently deserve FBI attention – the war on terror, for example – it is difficult to believe there aren’t tasks for highly trained agents that are more important than surfing the Internet for low-budget pornography.
Potential costs extend beyond the agents’ time and salaries. Since a large amount of pornography is disseminated over the Internet, the FBI will have to finance the sophisticated technology necessary to pursue online investigations and solicit help from its already-preoccupied technology experts.
At its core, the anti-obscenity squad constitutes political maneuvering by the current administration at the expense of free speech. Pornography has long been a target of religious conservative groups that form a cornerstone of the Bush administration’s political base, and many have expressed disappointment at the lack of attention obscenity prosecutions have received. The anti-obscenity squad is most accurately seen as an attempt to placate these groups.
Attempts to restrict free expression to please a vocal minority would be troubling at any time, but when America is facing serious problems such as terrorism, violent crime and public corruption, such political maneuvering is inexcusable. Gonzales and the FBI should reconsider their priorities and redirect the efforts of the anti-obscenity squad.
Nancy Leong is a third-year student at Stanford Law School and a 1997 graduate of Heritage High School in Littleton.
