Xtreme measures: Washington's new crackdown on pornography

Reason, May, 2004 by G. Beato

To a certain extent, the federal government agrees with him. In the 1968 Supreme Court case Stanley v. Georgia, Justice Thurgood Marshall concluded that "the mere private possession of obscene matter cannot constitutionally be made a crime." In other words, it's OK to own obscene materials--you just can't buy them.

Now, thanks to the way technology has changed how pornography is distributed, Zicari and his attorney, First Amendment specialist Louis Sirkin, plan to argue that this state of affairs no longer makes sense. "In 1973, the Miller test had merits," says Zicari. "It gave people a way to control these seedy fucking porno stores in their community. Now, a private citizen buys my shit from the privacy of his own home, and that's where he watches it. Why is the community involved? If you happen to live in an Amish town, does that mean you're not allowed to watch porno or horror tapes? Anything the Amish would object to, you can't watch in your own home?"

The Internet further complicates matters, because anything that's available online is essentially available to all communities. In the analog world, pornographers have often avoided shipping their wares to places known to have very strict community standards. But if a pornographer wants to make his content available to potential customers in New York or San Francisco, people who live in other regions will have access to it too. If the Zicaris and Extreme Associates are convicted on the charge of using an interactive computer service to distribute obscene material, they'll have to shut down their Web site and forfeit their domain name to the federal government. Effectively, the community standards of Pittsburgh will serve as the community standards for the world.

As of yet, no trial date has been set, but Robert Zicari thinks the government's case may already be crumbling. "When they raided our office, they seized five movies," he says. "But then they only indicted us on three. So either the grand jury said those two other movies weren't obscene, or the government didn't present those movies to the grand jury. And one of those movies was Ass Clowns #3, where Jesus comes off the cross after being crucified and rapes an angel. So now my question is, why is the rape in Ass Clowns all right, but the rape in Forced Entry isn't?"

Zicari has a lot of similar questions, if it comes to that. For example, why is pornography held to a higher standard of decorum than other genres of pop culture? Are the two amateurishly simulated murders in Forced Entry somehow more offensive than the dozens of expertly simulated murders in Jason vs. Freddy or Gangs of New York? Is the difference between eating semen-spattered dog food in a porn movie and eating raw pig rectums on Fear Factor really so pronounced that the former deserves a jail sentence while the latter becomes a prime-time major network staple?

"What's the difference between us and Hollywood?" asks Zicari. "We show explicit sex, and they don't. And they make hundreds of millions of dollars, and we're going to have to spend $300,000 [in legal fees] to keep from going to jail. And it's a shame, because it makes me bitter about the United States, and I'm like the biggest fucking patriot motherfucker in the world."