Legal News

Is the Holder DOJ Shifting Course on Pornography Prosecutions?

By Ashby Jones

So far, Eric Holder’s Justice Department has gotten more attention for aligning itself with the Bush administration’s department on certain issues (like extraordinary rendition), than it has for any abrupt change in direction.

But according to a Politico story out Friday, a recent under-the-radar move in a Montana case could signal that the Obama administration is looking to push away from its predecessor’s approach to pornography prosecutions.

Explains writer Josh Gerstein:

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.

So why is a simple change in venue all that significant? Venue "is everything in obscenity cases. It's the whole ball of wax," said Larry Walters, an adult-industry defense lawyer, to Politico. Gerstein explains that since a 1973 Supreme Court decision, Miller v. California, required juries to assess "contemporary community standards" in obscenity cases, the venue for such prosecutions has become a pivotal issue.

And for that reason, the move could be significant. "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."

That said, at least one thing hasn’t changed: the existence of an Obscenity Prosecution Task Force, set up by AG Alberto Gonzales in 2005, as well as the person heading that task force, Brent Ward, who served as a U.S. attorney in the Reagan Administration.

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.

Full post as published by Law Blog - WSJ.com on July 31, 2009 (boomark / email).