Xtreme measures: Washington's new crackdown on pornography

Reason, May, 2004 by G. Beato

Then came 9/11. Momentarily, at least, the terrors of the Code Orange Age were deemed a greater threat to the nation's well-being than pornography. The vice hunters were sympathetic at first, but they've grown increasingly restless as the promised prosecutions have failed to materialize in sufficient numbers. The announcement of the Extreme Associates indictment in August pleased them to a certain degree, because while Extreme isn't a major player in the porn industry, it is the highest-profile producer that the Department of Justice has gone after in more than 10 years. Still, they yearn for a bigger, more ambitious crackdown, one that will put the fear of prosecution into the hearts of every hard-core pornographer, including the most mainstream ones. "I've almost done handstands with joy about what's happening with digital downloading," says Robert Peters, referring to the music industry's decision to file lawsuits against individuals who engage in unauthorized file sharing. "There's no way they're going to stop downloading through law enforcement alone, but it really has sent a phenomenal message. Supposedly, file sharing has been cut by 50 percent. So a relatively little law enforcement could go a long way."

"Aggressive [obscenity] prosecution had a major impact in the '80s," says Phil Burress. "They took homes, they took boats, they took cars, they took property. They took millions and millions of dollars in assets, and they basically drove the pornographers back underground and made the industry smaller."

In certain respects, this is true. Campaigns like Project Postporn, a Department of Justice initiative which targeted pornographers who marketed their products through mail-order catalogs, did put many companies out of business. Still, the government's efforts had little impact on the demand for adult videos. According to AVN, U.S. viewers rented 75 million adult videos in 1985, 490 million in 1992, and 686 million in 1998. In other words, the increase in annual rentals was actually highest during the time that the Department of Justice was most aggressively prosecuting obscenity cases.

Phil Harvey, a First Amendment activist and the founder of the mail-order catalog Adam & Eve, was the target of two obscenity indictments in the '80s. (Full disclosure: He has also donated to the Reason Foundation, the nonprofit that publishes this magazine.) It took him eight years, $3 million, and one lawsuit to successfully defend his company against the charges the federal government brought against it, but there was an unexpected upside to this effort to put him out of business: Adam & Eve grew substantially during those years, as the government improved its market opportunities by shutting down other mail-order companies. "For about four years, there were fewer outlets and less competition for us," he says. "Other competitors stayed away because it was a high-risk environment."

Vice hunters sometimes talk as if law enforcement, or the lack thereof, is the only factor in the proliferation of porn. Press them, and they'll acknowledge that technology has played a major role too. In the '80s, VCRs brought porn into the nation's living rooms; in the '90s, premium cable and pay-per-view eliminated the need for furtive trips to the video store, and the Internet brought porn into the workplace. Still, none of these developments would matter much if there were no demand for the product: Porn proliferates mostly because millions of people enjoy porn.