Drawing line: U.S. renewing its fight against pornography

Accused of violating federal obscenity laws, pornography producer Robert D. Zicari could have quietly pulled his company's films depicting fictional rapes and murders off the market. Instead, he announced that the videotapes targeted by authorities - which he nicknamed "The Federal Five" - were for sale at a discount online.

Zicari's case, which gets under way today in Pittsburgh, is among the first being tackled by the Justice Department in a renewed fight against pornography. Prosecutors all but abandoned such cases in the 1990s. Today they face a much-changed landscape, where the adult entertainment industry is a $10 billion business that is increasingly accepted as part of mainstream culture.


"It is hard to make a case against porn and say, 'This is so bad, this is where we need to draw the line,' because we just have a hard time as Americans saying, 'This is where to draw that line,'" said Dan Panetti, vice president for legal and public policy issues for the National Coalition for the Protection of Children and Families.

Annual rentals and sales of adult videos and DVDs grew from $1.6 billion in 1992 to more than $4 billion in 2002, according to the trade magazine Adult Video News. In California's gubernatorial recall race, notorious pornographer Larry Flynt is a candidate for the office, as is adult film actress Mary Carey. On the cable television channel Showtime, the reality program Family Business recounts the daily life of a porn executive.


Panetti's Cincinnati-based group supports the government's renewed crackdown on adult obscenity. But the industry is so pervasive that Panetti said his group has abandoned calling itself "anti-porn," choosing instead to be "pro-decency." Still, anti-porn activists have not surrendered, he said.

"It sort of works both ways," said Panetti, whose Cincinnati-based group supports the government's renewed crackdown on adult obscenity. "Because it's so prevalent, people become immune to it - or, because it's so prevalent, people really become offended by it."

In a number of test cases across the country, the government is preparing to find out which it is.

Federal investigators in Texas brought an obscenity indictment in June against a former Dallas police officer, Garry Ragsdale, and his wife, Tamara. The couple were charged with conspiring to mail obscene material for selling sexually violent videos through an Internet business that billed itself as "the real rape video store."

Earlier this year, Justice Department officials charged a couple from Lewisburg, W.Va., with mailing obscene videotapes and DVDs - described by investigators as depicting "graphic and sexually explicit scenes of defecation and urination." This week, defendants Michael and Sharon Corbett pleaded guilty and agreed to forfeit more than $75,000 and all materials associated with their business.

The case that has drawn the most attention, though, has been the one in U.S. District Court in Pittsburgh against Zicari, 29, also known as Rob Black, and his wife, Janet Romano, 26, who also goes by the name Lizzie Borden. They are scheduled to be arraigned today on a 10-count indictment alleging violations of federal obscenity laws for mailing sexually violent videotapes and DVDs, and for transmitting obscene video clips on the Web site for their North Hollywood business, Extreme Associates Inc.

The charges came as part of a sting operation conducted by criminal investigators with the U.S. Postal Service. Investigators said one of the tapes depicted the rape and murder of several women. Another showed women dressed to appear as teen-agers and included scenes suggesting incest.

The case is being closely watched, in part because Zicari and Romano are creators of adult films and they are based in California's San Fernando Valley - the heart of the adult entertainment industry. By bringing the charges in Pittsburgh, authorities ensured that the case would go to trial in a more conservative community.


The U.S. attorney for the Western District of Pennsylvania, Mary Beth Buchanan, said similar cases would follow. Attorney General John Ashcroft said the Justice Department would "continue to focus our efforts on targeted obscenity prosecutions that will deter others from producing and distributing obscene materials."

The adult entertainment industry, as well as those who oppose it, have expected a renewed effort to curb pornography distribution since Ashcroft was named attorney general by President Bush in 2001.

During the Clinton administration, Attorney General Janet Reno largely eschewed adult obscenity prosecutions, focusing instead on combating child pornography and online predators.

Ashcroft, whose political reputation was one of strict social conservatism, drew notice by the pornography industry in his first year on the job, when his department paid $8,000 for curtains to drape a bare-breasted statue, Spirit of Justice, and a male counterpart, Majesty of Law, at its headquarters in Washington.

"We knew that as soon as Bush came in that the wheels [would be] put in motion, because he owes a lot of his constituency to the religious right groups, who are opposed to pornography," said Mark Kernes, a senior editor with Adult Video News who writes about legal issues in the industry.

Extreme Associates, which made its mark with a line of violent, hard-core adult films, might have proved an easy target for the government's renewed fight. Appearing in 2002 on the PBS documentary program Frontline, Zicari and Romano were unapologetic about their approach to adult film.


"I don't shoot the lovey-dovey porno that you watch all the time," Romano said.

Zicari talked about big plans for the business: "I don't see us just as an adult company," he said. "I'd say the trajectory we'd like to be is more of, like, a Ted Turner or ... a Disney."

Kernes said authorities may have targeted the couple's hyper-violent materials because they think such a case could more easily pass the Supreme Court's obscenity test.

"Obviously, the government has a lot riding on this," Kernes said. "It's been seven or eight years since the last big obscenity prosecution and if they don't win at this, I don't see how they're going to bring anything else on the federal level. ... If you're going to win on the material, this is the material you're going to win on."

Still, Kernes doesn't see an easy victory for the government.

"I think the American people are tired of being told what they can look at, even if they don't want to look at it," he said.


To win an obscenity case, prosecutors must prove the materials meet the legal test outlined by the U.S. Supreme Court in a 1973 case, Miller vs. California. Jurors must decide whether the average person, applying community standards, thinks the work appeals to a prurient interest; whether the material depicts sexual activity in a patently offensive way; and whether the work lacks serious literary, artistic, political or scientific value.

Bruce A. Taylor, a former federal prosecutor who tried hundreds of obscenity cases in the 1980s, said that even jurors who are increasingly exposed to pornographic materials understand the Miller test and will be willing to convict.

"The law hasn't changed that much, and the material hasn't changed that much," Taylor said in a recent interview. Its wide spread, however, could produce a backlash for the industry as people grow tired of unseemly spam in their e-mail boxes or finding ads for porn rentals in their hotel rooms, he said.

"They've shown their ugly face to everybody now, and there are a lot of people who say, 'I don't like it,'" said Taylor, now president of the National Law Center for Children and Families in Fairfax, Va.

First Amendment attorney H. Louis Sirkin of Cincinnati, whose client list has included Hustler's Flynt, said the question is not whether people like the material but whether it makes sense for federal prosecutors to renew efforts to curb it.

"It's unfortunate that the government is devoting resources and time to really what is going on in people's private lives," said Sirkin, who is representing Zicari and Romano.


Sirkin said Zicari and Romano will seek to have the indictment dismissed through a legal challenge to federal obscenity laws. In an argument that Sirkin is pursuing in other cases, he notes that the federal courts have recognized expanding due process rights on sexual privacy, most recently in the Supreme Court's invalidation of a Texas sodomy statute this year.

A dissenting opinion from conservative Justice Antonin Scalia in that case, Lawrence vs. Texas, raised the question of whether the court's decision "effectively decrees the end of all morals legislation," including obscenity laws.

For Zicari and Romano, that dissent could provide a reprieve, Sirkin said.

"Their intentions are to vigorously fight this," he said. "We want to try this case, and we want an acquittal, and we think we can get it."