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Are the Feds being overzealous in fighting porn?
Some of Phil Harvey's most popular titles include "Toy-Loving Lesbians," "Bimbo Bowlers From Buffalo" and "Husband's Anal Revenge." Harvey likes to say that the actors and actresses in these and other films that he distributes are merely engaged in "sex between cheerfully consenting adults. " But government prosecutors aren't smiling. In 1986 they raided Harvey's offices in Carrboro, N.C., searching each of his 118 employees. Charged and acquitted of violating obscenity laws in North Carolina, he was indicted again last year in Utah federal court. Harvey, who describes himself as "a bit of a rebel," vows to fight the government. "This is my business," he says. "And it is legal."
Harvey's business is one of the nation's biggest mail-order pornography companies--PHE, Inc., known to its "two million satisfied customers" as Adam & Eve. With $30 million in annual sales, Adam & Eve has become a top target in the most aggressive federal attack on pornography in decades. Under Project PostPorn, as it is called, 33 Justice Department lawyers have brought 24 cases against 56 defendants--and have shut down seven companies in the past two years. Critics of the operation say it's the work of right-wing moralists using bully tactics to interfere with free speech. "They prosecute things they personally find offensive," says Frederick Schauer, an expert on obscenity law at Harvard.
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The government crackdown began when Edwin Meese III, who was then attorney general, created the National Obscenity Enforcement Unit in 1986. Meese wanted a division devoted largely to drafting speeches and state antiporn laws, but his successor, Richard Thornburgh, added prosecutors and turned the unit into pornbusters. Patrick Trueman, chief of what is now called the Child Exploitation and Obscenity Section, denies he is on a moral crusade. "People in communities around America do not want the kind of trash that is portrayed in hardcore pornography," he says.
Obscenity has always been a tricky area of the law. Not all sexually explicit material is illegal, and reasonable people can disagree about what crosses the line. Child pornography qualifies, in most people's opinion, and there are federal and state laws barring its production or possession. Strict defenders of the First Amendment believe that all other sexually explicit material should be permitted. Others would bar depictions that glorify rape or bondage, and some feminists maintain that even softcore pornography degrades women and should be outlawed. The uncertainty surrounding the issue is reflected in Associate Justice Potter Stewart's famous 1964 definition of obscenity: "I know it when I see it."
Members of the Justice Department's antiporn squad think they see it at Adam & Eve's warehouse, where 6,000 packages are shipped out every day. The sexual depictions are graphic; some go far beyond the Airport Motel's midnight movie. But Harvey's lawyers contend they are clearly covered by the First Amendment. Harvey--a Harvard graduate with a master's degree in family planning--buys his tapes and magazines from porn manufacturers in California and hires sex therapists to screen his products carefully for underage models or depictions of coercion.
Until recently his safeguards kept him out of serious trouble. After the 1986 raid the local district attorney reviewed the evidence and refused to bring charges. The case "was a total waste of time and law-enforcement resources," says Orange County, N.C., prosecutor Carl Fox, who says that federal agents were motivated by far-right religious zeal. But Justice Department officials persuaded prosecutors in neighboring Alamance County to charge Harvey with distribution of obscene materials. Jurors at the trial watched several hours of videos from Harvey's inventory and then acquitted Harvey after less than an hour of deliberation.
Undeterred by the acquittal, the Justice Department took over the case. Relying on laws that bar distributing obscenity through the mail, the Feds threatened Adam & Eve with a rapid series of criminal trials in different states unless Harvey agreed to stop selling any sexually explicit material. The prospect of so-called multiple prosecutions has persuaded other pornographers to plead guilty rather than face endless litigation. Critics say the strategy exposes criminal defendants to unconstitutional double jeopardy, but Trueman defends the practice. "If someone violates the law in 94 jurisdictions," he says, "they can be prosecuted in any one or more of those 94 jurisdictions."
Last spring Adam & Eve sued the government to prohibit use of this strong-arm tactic. Harvey's lawyers testified that federal prosecutors had offered settlement deals that would bar Harvey from distributing not only graphic videos but also books and magazines no more offensive than Playboy or "The Joy of Sex." U.S. district judge Joyce Hens Green agreed that the government's conduct "constitutes bad faith calculated to suppress [Adam & Eve's] constitutional rights." The Feds responded by charging Harvey with violating federal obscenity charges--in Utah. He says it isn't a coincidence that the case was brought in one of the most conservative jurisdictions in the country--even though Adam & Eve hasn't sold anything there since 1986.
Harvey's lawyers, contending their client is the victim of a "moral crusade," cite the political inclinations of the prosecutors. Trueman was founder and executive director of Americans United for Life Legal Defense Fund. Sam Currin, the former U.S. attorney in North Carolina who spearheaded the Adam & Eve investigation, is a Jesse Helms protege and former aide. Trueman shrugs off the charges. "They attack us because they can't defend their material," he says.
Harvey says he'll portray himself at trial as a legitimate businessman. "He's not a sleazy guy," says his lawyer, Bruce Ennis. If the Utah jury agrees, Adam & Eve can stay in business--at least until the next indictment.
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