Don't Say I didn't Warn You

There's been a lot of "Ding-dong-the-witch-is-dead" kind of celebration about the end of the Bush era and the promise of a new dawn for everyone who endured the last eight years in a state of permanent midnight.

Who can blame anyone for being glad to see the last of W. and his minions? I certainly am.

But I've said here and elsewhere that the new guy, for all his charms and graces, may prove little friendlier to the likes of us than his predecessor. He may make less of a big deal out of hammering at us, as his base is likely to regard that as a low priority, but there are elements in his coalition who have their own reasons for hating porn and their own agenda for doing something about it.

Here's what I had to say on this subject in my most recent business analysis column for trade journal X-Biz:

Hold the Champagne

As we’re all finally coming to understand, it’s impossible to discuss financial issues intelligently without taking politics into consideration. Starting at the top, we need to face the fact, clearly understood by both gentlemen in question, that Barack Obama is not Bill Clinton. Bubba wasn’t exactly a friend to porn, what with his ink at the bottom of both the C.D.A. and the original iteration of 2257, but he was willing to let it pass by with a nudge and wink. He did disband the D.O.J.’s anti-porn unit and there were no adult obscenity prosecutions under his administration.

While I don’t feature Obama pandering to the religious right with such prosecutions in the future, I don’t think he has a nudge or a wink in him. He may have a pretty clean, if short, voting history on First Amendment issues as a legislator, but he and his subordinates may be open to arguments from their own side of the fence that could work against us more damagingly as a group than the scattershot indictments favored by his predecessor.

The most ominous sign of what may lie ahead is the Obama campaign’s altogether-too-cozy relationship with U. Michigan law prof. and radical feminist porn-basher nonpareil Catherine MacKinnon. Back in the Eighties, tribal elders may recall, MacKinnon led a headline-grabbing attempt to legally define pornography as a form of sex discrimination, thus opening its creators to potentially ruinous civil litigation. That plan ultimately failed due to opposition from civil libertarians, mainstream feminists and, ultimately, appellate courts. But the strategy it represents lives on, and MacKinnon still advocates it vocally.

What she hasn’t been particularly vocal about until recently is presidential politics, but when Obama was struggling with feminist resentment for trumping Hillary Clinton, MacKinnon came off the bench for him with a big endorsement in that peerless tribune of progressive thought, the WSJ. She stumped for him. She helped him. He owes her. That’s the way the game is played in the part of the country and political class from which both hale.

Though MacKinnon’s brand of anti-porn zealotry was largely marginalized during this industry’s great expansion over the past ten years, it’s recently seen a spurt of new activism, particularly on college campuses. Every day, it would seem, a new anti-porn feminist blog or anti-porn feminist documentary like the Reefer-Madness-style “documentary” The Price of Pleasure appears on the scene. Looking more closely at the recent election, we see some seemingly contrary currents at work in a way that shouldn’t be ignored. Obama won by a few points against the most unpopular president since Hoover, defeating a campaign that will be studied in the history books as a negative example, but other victories that day suggest he received no mandate for sexual liberation. Three states, including this one, had constitutional amendments on their ballots banning same-sex marriage. All three won. In San Francisco, arguably America’s most tolerant city, an initiative to decriminalize prostitution was soundly defeated.

Clearly, a nation waking up with a very bad economic hangover from years of overindulgent consumerism, of public piety and private vice, was in no mood to party. While the success of Proposition 8, which producer Christian Mann compares to Dred Scott, here in California may have been in part the work of outside money from religious pressure groups, the lack of local counter pressure was more disheartening. Why indeed would so many people vote to strip others of a right so basic to personal happiness? That they did suggests more a longing for the past than a hope for the future.

All of which brings us to the prospects of not only diminished discretionary income with which to buy what we make, but potential regulations that could add to our troubles when it comes to making what we make.

I would never previously have expected this state to embrace some of the preposterous schemes to legally enforce some kind of safe-sex regimen in the creation of sexually explicit media, such as have been suggested by a few public health officials in these parts since 2004, but after Prop. 8, I’m not so sure. I used to consider myself lucky to live in a pretty tolerant part of the country, but I don’t feel quite so lucky at this point.

Add to these newly exposed veins of public narrow-mindedness a generalized enthusiasm for greater regulation of commerce brought on by an orgy of madly destructive laissez faire capitalism, throw in some resurgent identity politics, and you’ve got a recipe for official meddling made worse by the lack of any serious attempt to oppose it.

Those opposed to Prop. 8 did not have their shit together. Neither do we. After years of identifying the religious right as our principle opponents and the particular politicians they supported as our greatest threats, we’re dug in with all our guns facing the wrong direction.

We’re a fairly successful but even more visible vice business in a socio-political climate that’s both anti vice and anti business.
How badly can this really affect us? Look to Europe for some dark hints. Left-of-center Social-Democratic governments on much of The Continent have recently sought to re-define what we think of when we use the word “European.”

The U.K.’s new ban on “extreme pornography,” championed by anti-porn feminists like Catherine Itzkin, makes possession of materials depicting a variety of simulated acts criminal for the first time. In Holland, banks taken over as part of a government bailout are cutting off the merchant accounts of X-rated Web sites while Amsterdam city officials shutter the windows of the city’s fabled red-light district. In Sweden, patronizing prostitutes is now illegal and Norway seems prepared to enact a similar law. Germany, once the major source of the kind of porn banned under the U.K. statute now imposes some of the strictest regulations on lawful pornography in the industrialized world. While much of this had been done under the rubric of halting human trafficking and preventing violence against women, evidence suggests that these laws have only brought back old abuses from earlier attempts of prohibition, but that hasn’t stopped the steady march of such measures across the E.C.

What form might similar infringements take here? That’s exactly what we don’t know yet. We can probably assume they won’t be content based. That’s a third rail for liberal politicians the way gun control is for their conservative counterparts. But it’s a safe assumption that efforts to control access to adult Internet content, which has become a central rallying point among anti-porn activists right and left, will intensify and efforts aimed at “reducing demand” by treating pornography possession as an enhancement to the severity of other offenses and assorted restrictions only lawyers can devise are not unlikely. And then there's the option of inflicting stiff taxes on both porn manufacturers and porn consumers just at a time when neither can afford them.


Our best bet for now is to strengthen our ties to our traditional political allies, First Amendment supporters and mainstream media producers who might be the next targets of “regulation for the public good,” by mounting a strenuous effort to make our own case to the public before those who despise us seize control of the high ground amid a generalized anhedonic funk gripping the nation.


And this just in from our friends at AVN:

Obama's AG Pick Has Anti-Porn Past

By Mark Kernes
WASHINGTON, D.C. - According to Reuters, President-Elect Barack Obama has conditionally offered the post of Attorney General of the United States to Eric Holder, a 57-year-old former Deputy U.S. Attorney who served during the Clinton-era reign of Attorney General Janet Reno.

While Holder will have to undergo an extensive vetting process before officially being offered the job, he has already generated concern in the adult industry over a decade-old memo he wrote on the topic of obscenity prosecutions.

Addressed to all 94 United States Attorneys on June 10, 1998, the memo was titled "Prosecutions Under the Federal Obscenity Statutes". Adult industry attorneys have since referred to it as "The Holder Memo."

"As you are aware," Holder wrote, "within the past few years there has been increasing concern about the distribution of obscenity and child pornography both by traditional purveyors of "adult material" and in particular by those who distribute such material over the Internet. As a result of this unprecedented growth, I wish to remind you of the Department's policies and priorities in the prosecution of federal obscenity cases... Thus, priority should be given to cases involving large-scale distributors who realize substantial income from multistate operations and cases in which there is evidence of organized crime involvement. However, prosecution of cases involving relatively small distributors can have a deterrent effect and would dispel any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations... In particular, priority also should be given to large-scale distributors of obscenity over the Internet. Because of the nature of the Internet and the availability of agents trained in conducting criminal investigations in cyberspace, investigation and prosecution of Internet obscenity is particularly suitable for federal resources." [Citation removed]


Perhaps even more troubling is a letter Holder wrote to Morality In Media founder Paul McGeady on July 2, 1998, which references a meeting apparently attended by Holder, McGeady and representatives of various religio-conservative pro-censorship groups:


"I appreciated having the opportunity to meet with you recently to discuss the prosecution of obscenity cases," Holder wrote. "Your commitment to this important issue is commendable, and I fully share your concerns about the distribution of obscenity and child pornography, whether it is over the Internet or by more traditional purveyors of such material. I encourage you, and the other organizations with whom I met, to continue working closely with the Child Exploitation and Obscenity Section of the Department of Justice as we work aggressively to address this troubling problem. Based on the many insightful comments and observations made by representatives of the various groups who attended our recent meeting, I determined that it was appropriate for me to send a memorandum to all United States Attorneys reminding them of the Department's policies."


Holder's stance on obscenity drew comments from First Amendment attorney and AVN columnist Clyde DeWitt, who dealt with the "Holder Memo" in his column for AVN's September, 1998 issue ("Federal Obscenity Prosecutions in General, and the Internet in Particular".) DeWitt referenced Holder's stance that U.S. Attorneys should follow the United States Attorneys' Manual, which at that time still suggested that adult companies could be targeted using a "multiple-prosecution strategy," where a single company could be indicted in multiple jurisdictions, forcing that company to expend vast resources defending itself, which might bankrupt the company - exactly as the Justice Department intended the tactic to accomplish.


"Perhaps most shocked by the article was Adam & Eve owner Phil Harvey, who had undertaken tireless efforts to have the multiple-prosecution policies of the Department of Justice ruled unconstitutional," DeWitt later wrote. "Indeed, during the course of the wind-up of the very successful PHE, Inc. v. United States Department of Justice case, Phil's company received a promise from the Department of Justice at a November, 1993 hearing that, according to Assistant United States Attorney Thomas Millet, it was anticipated that 'within the near future,' the Department policy would be changed so as to 'no longer encourage multiple prosecutions in obscenity cases.' Accordingly, Phil was to say the least alarmed to find the old policies still in effect."

"I wrote the first article — this was '97, '98 — just generally to inform the newly-emerging Internet community, who didn't remember obscenity prosecutions, of what they were and that it's out there and it's serious," DeWitt recalled. "I mentioned the multiple prosecution strategy, and Phil Harvey called me up or faxed me or something and said, 'What the hell is this? They changed that because of my lawsuit.' I said, 'No, they didn't. here's what it says presently,' and he said, 'Well, that's exactly what it said before!'"


Indeed, the U.S. Attorneys' Manual was not changed until June of '98, just after Holder wrote his memorandum - and that change came at the insistence of Harvey, who contacted the Justice Department to demand that it fulfill its promise.


Since his service under Reno, Holder has worked as an attorney at Covington & Burling, a very politically-oriented law firm in D.C. where, in 2004, according to Wikipedia, Holder "helped negotiate an agreement with the Justice Department for Chiquita Brands International in a case that involved Chiquita's payment of 'protection money' to the United Self-Defense Forces of Colombia, a paramilitary group that has been designated a terrorist group by the United States government. In the agreement, Chiquita's officials pleaded guilty and paid a fine of $25 million."


Various conservative websites have also pointed out that as President Bill Clinton was leaving office, and had asked the Justice Department to assess the merits of giving presidential pardons to various applicants, Holder gave a "neutral, leaning towards favorable" opinion of the pardon of fugitive financier Marc Rich - a pardon that has dogged Clinton (and now Holder) since the Republicans took over both Congress and the presidency with the 2000 election.


Holder has not spoken publicly about his current feelings regarding obscenity prosecution since his days at Justice, so hopefully that topic will be broached during Holder's Senate confirmation hearings, and/or by the major news media who may conduct their own "vetting" process.


I'll grant that it's early to make sweeping predictions regarding the incoming administration's stance toward porn and sex work in general, but I suspect we'll turn out to have been more than a little prescient in devoting as much attention as we have on this blog to combatting the propaganda offensive mounted by anti-porn feminists and their supporters over the past couple of years. I'd rather be wrong about this, but I'll be surprised indeed if I turn out to be.

Meantime, best to remember that old saying so popular in France: The more things change, the more they stay the same.