No, NCOSE: Porn Is Both A Constitutional Right And A Human Right

TRUMPINGTON, D.C.—On Tuesday, the National Center on Sexual Exploitation (NCOSE) held a seminar at its offices titled "Today's Pornography: Not a Constitutional Right, Not a Human Right," and the sole explainer of this was former Justice Department prosecutor and NCOSE CEO Patrick A. Trueman, who also headed NCOSE's predecessor, Morality in Media. With those credentials, is it any wonder that nearly everything he said was wrong? Briefly introduced by staffer Madison Darling, it took Trueman less than one minute to make his first boo-boo—and it involved AVN, no less! "In his Senate confirmation hearings this year, Senator Jeff Sessions was asked about federal obscenity laws, and it was Senator Orrin Hatch of Utah that raised the question," Trueman began." He pointed out that in the previous eight years, the last administration, these federal laws were not enforced, and he asked Senator Sessions this direct question: 'If you are confirmed as the next attorney general, will you vigorously enforce federal obscenity laws?' Senator Jeff Sessions said he would. Now, that promise by Mr. Sessions did not go unnoticed by the porn industry. They've written about it. In fact, the porn industry, in their trade journal, Adult Video News, has advised pornographers that producers who want to produce pornography, said in so many words, 'Tone it down because you'll get convicted if you don't.'" Can we just say: BULLSHIT!!! Perhaps Trueman missed this post on AVN.com, in which industry leader Larry Flynt takes issue with the idea that successful porn prosecutions are possible in this day and age, and stated, "Obscenity laws are antiquated. Sessions can talk all he wants, but it's very, very difficult to get 12 people on a jury to vote to convict someone on pornography. Pornography is the purest form of art there is." Flynt went on to distinguish mainstream porn from "defecation and urination and ... The fringe aspects, scatological behavior and stuff like that," but absolutely nothing was said about "toning down" mainstream porn. In fact, what Flynt did do was to warn Hollywood producers that Washington's "new conservatism" could cause them problems "because nobody wants to produce a film they can't get distributed because of the rating [NC-17]. It does have a chilling effect on filmmakers and the First Amendment in general." Not even AVN's legal columnist Clyde DeWitt suggested toning anything down, though in his column for our March issue, he did suggest that producers have an attorney on retainer, and warned that, "If you are a target of prosecution, unless you are a huge company, you will be bankrupted by a federal obscenity charge." Trueman then moved on to try to explain what porn is, what the porn industry is and what the current laws are—and again, he pretty much failed. Regarding the industry, he said, "It was once very easy to define the porn industry. It was a producer who would hire a camera crew—most of this took place in the Los Angeles area—so they would hire very cheaply these students at UCLA who were studying film and theater, and they could produce films by renting a home or renting a warehouse where they could set up a studio. Then there were also a group of bigger companies that might own their own building with several studio sets and act just like a Hollywood producer and they would produce and then distribute that material to 50 states." Of course, the majority of porn camera operators in L.A. have been "moonlighters" who came from mainstream Hollywood, not UCLA, as was the case with much of the tech crew including lighting techs and makeup artists, and Trueman for some reason ignores the then-thriving adult industry in New York City—Morality In Media's base of operations back then! And while some adult companies did have production studios in their office buildings, most didn't—but they did have the budgets to rent better houses to shoot in. Trueman then went on to note that several European companies have gotten into the American porn market, but his biggest example? MindGeek! "Today you might have an overseas producer or distributor, something like MindGeek, which is the biggest in the world. They're operating out of Luxembourg and Montreal, and they own most all the free so-called 'tube sites' on the internet, where individuals can produce their own sex films and upload them to YouTube and other similar companies owned by MindGeek." We're guessing that MindGeek will be surprised to learn that they own YouTube, though probably not the concept that they're "the biggest in the world." And no matter where the company's home offices may be, a lot of what MindGeek distributes is shot right here in the good ol' U.S. of A. Trueman went on to claim that it's only a "handful of companies" that own the porn tube sites, "and that's important because as we talk about prosecution, this is not an intractable problem. We can prosecute the industry and put them out of business." That's a strange statement to make, since he followed it up immediately with, "The porn industry is also the college cam girl who sets up a studio in her own dorm room and is on the internet and for a price, will perform sex acts for an individual internet audience. It's also the cam website that might have several cam girls independently employed, doing the same thing that the cam company will set them up in the industry with their own website connected to the main website and providing advertising so that they're guaranteed a good income." So, what? They're going to bust every cam girl and every cam aggregator in the country? That shouldn't tie up the courts for more than, say, 20 years or so! But then Trueman went full bore into cloud-cookooland: "The porn industry today is also the sex trafficker that forces women to perform sex acts on the internet and sells those acts, again, to an internet audience, and it's much more than that." No one doubts that there's one hell of a lot of XXX material on the internet, but to accuse what everyone today knows as "the porn industry" of putting videos of trafficked women (or anyone) on the internet is ludicrous. Are there some videos with trafficked women? Undoubtedly—but they're not being made by the real porn industry—the one that's the subject of laws like 2257. Trueman then launched into a discussion of whether porn is protected by the First Amendment, and of course, as far as he's concerned, it isn't. After reading the "freedom of speech" portion of the First Amendment, Trueman noted that courts have held that not all speech is protected, citing slander and libel as two prohibited types. "The United States Supreme Court as well as state courts have devoted over 200-and-something years to trying to decide what that language means, and they've said it means many, many things. ... But one thing the First Amendment has never been thought to protect, the court has never said it protects, is obscene material. You do not have a right to distribute obscene material." He then proceeded to quote from Miller v. California that, "To equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a misuse of the great guarantees fo free speech and press. Such obscene material simply is not protected." Talk about your judicial activism (which the Right routinely rails against)! In fact, one need only read Geoffrey Stone's seminal work, Sex and the Constitution, to learn how randy our Founders actually were, to the point that there's the distinct possibility that the word "Happiness" in the phrase "Life, Liberty and the pursuit of Happiness" may refer to the right to "pursue" sexual intercourse! In fact, up to 1820, only one state had a law targeting sexual material, which seems a bit strange if the Founders were so against it as to intend to exclude it from freedom of speech—and rest assured, tons and tons of written and drawn/painted porn was available in the colonies, much of it imported from Europe. "The Court has freely said in case after case that legislatures and Congress can find that obscene material is harmful; harmful to the public and harmful to individuals—and that is true even if the material is distributed to consenting adults," he continued. Trouble is, of course, that no peer-reviewed scientific study of porn has come to that conclusion—though of course, NCOSE's website is replete with pseudo-scientific "analyses" that do say that despite overwhelming evidence to the contrary. Trueman then quoted from Justice Warren Burger's opinion in Paris Adult Theatre v. Slaton that, "The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex... The States have the power to make a morally neutral judgment that public exhibition of obscene material [can] endanger the public safety, or ... jeopardize ... [a State's] 'right . . . to maintain a decent society.'" What's particularly interesting about that slightly misquoted quote is what he leaves out of it: After the words "crass commercial exploitation of sex," Burger's very next sentence was, "Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data." [Emphasis added] In other words, fuck the science; states should be allowed to criminalize porn based on their gut. And everyone who's tried to find that so-called "conclusive evidence or empirical data" has failed miserably. But that minor detail didn't stop Trueman from running with the concept. "Now that's a very important right: The right to maintain a decent society," he opined, both failing to define "decent" and adding, "You get people saying, 'Look, if I look at pornography in the privacy of my home, how does that hurt you?' It harms the overall community and the right to maintain a decent society." Again, despite the myriad modern cries of "porn is a public health crisis," there's absolutely no evidence to back that up. Trueman then displayed on the screen what he called the "porn triangle," which has as its base "hardcore pornography," and going upwards from there, such concepts as "promiscuity," "addiction," "adultery," "divorce" and "prostitution"—"It's common sense!" he claimed, that porn causes all those things. He elaborated on that concept, claiming that it's people who watch porn that patronize prostitutes—obviously some do and most don't—but then he dredges up the old saw that porn leads to watching kiddie porn because "people who are engaged in the consumption of pornography always move to harder and more deviant material, and many of them will actually move to child pornography. They go through many different genres before they get to the point where they can enjoy child pornography, but many of them will get there." Again, BULLSHIT! Most adults enjoy porn featuring adults and are repulsed by porn made with children; it's that simple. Unless one already has pedophilic tendencies, one doesn't "move" from adult porn to kiddie porn. "Child pornography was virtually wiped out in the United States 20 years ago," he lied, noting that it's (more) available now thanks to the internet and because "people are always looking for what the brain demands, and that is something new, and they end up here. ... All forms of sexual acts of exploitation are in one way or another connected." Trueman then gave his "own personal definition" of porn, which oddly enough leaves out such things as nudity in medical books, Michelangelo's statue of David and the like; apparently, porn isn't porn unless it "excites" you or makes you "lust." "That does not mean that every item of pornography is illegal," he stated, then promptly contradicted himself, continuing, "So what we have to determine is what is illegal and what is not illegal. ... The court uses the term 'hardcore pornography' synonymously with the term 'obscenity,' so we look to say, 'What is obscene? How do you determine whether something is obscene because only what is obscene can be determined to be illegal." So apparently the only material that isn't "obscene" is simple nudity. But in attempting to answer his own question, Trueman began citing the history of obscenity law since about 1957 (which saw the Roth decision) but quickly segued to Miller in 1973. "Miller v. California settled on this test: The material has to appeal to a prurient interest, it has to be patently offensive and it has to lack serious value," he stated, then went on to try to explain what each of those terms mean—and of course, he did a shitty job of it.  Obscenity, it turns out, is a thought-crime, according to Trueman. "We had cases when I was at the Justice Department where the pornographers would produce—I don't even want to describe the material but it was bodily function—they call them 'scat films'—in connection with sex, and the defense attorneys would argue to the jury, 'None of you are turned on by this. This doesn't appeal to your lustful interest.' No, it doesn't have to. The pornographer intended that it appeal to a lustful interest to somebody. Again, it's the intent of the material that's critical." Trueman has similar delusions about the meaning of the concept of "patently offensive." "The test is not whether the adult buyer of the pornography would find that the work is 'patently offensive,'" he claimed. Why is that? Because who's buying this? People who like hardcore pornography and they watch it in their home. So the defense attorney cannot argue to the jury, 'Well, if it wasn't patently offensive to the buyer—he's not offended by it; he enjoys it!' That's not the test. A better question for the test is not whether the buyer found it offensive. A better question is whether that pornogrpahy would be shown, for example, on a city bus. If you had your computer and you were sitting on a bus with people standing around you or sitting around you, would you watch this porn film? No, you wouldn't? Why? Because it would be patently offensive to people." Well, aside from the fact that most people would not try to watch hardcore porn on a city bus, and if they did, could properly be prosecuted for doing so ("disturbing the peace" or "creating a public nuisance"), especially if minors were present, the real question is what stake the government has in banning porn that nobody sees but the buyer? And if he/she doesn't like it for some reason, he/she can try to get his/her money back, not send the maker to prison for being "patently offensive"! Finally, Trueman tackled the "serious value" prong of the Miller decision. "The pornography defense attorneys always argue that that porn film is a work of art," he claimed. "But the prosecutor's job is to say, 'Well, what art museum, ladies and gentlemen, have you ever been in where they're playing movies like this? No, they don't play that, because it's not art. They play it in a porn theater." How about this: "Well, ladies and gentlemen, what art museum have you been in where they're playing movies like The Fast and the Furious? How about Guardians of the Galaxy? No, they don't play that, because it's not art. They play it in a movie theater." Who'd be stupid enough to make that argument, and who'd be stupid enough to believe it? But Trueman doubled down: "Some cases that we've been involved in, the defense attorneys have said, 'Well, as you saw, ladies and gentlemen, this film, we had a caricature of the president and other political figures. This is a political work.' Well, it wasn't intended to add to the political dialog; it was intended by the pornographer to be porn, and that's about all you have to say to the jury because they get it." Again, thought-crime. It's about what the producer thought. And that's been one of the problems with porn prosecution since its beginning: Self-styled art critics like Trueman think they get to decide what's good, constitutionally protected satire and what isn't. Anyone see any of those short politically oriented films that Woodrocket turns out? Does anyone think a jury that wasn't entirely made up of the Deeply Religious would say those aren't political satire? And then, of course, there's the "contemporary community standards" fallacy. "If we found a work to be obscene here in Washington, D.C., it doesn't mean that that same work would be found obscene in New York City," he correctly stated. "So a jury in New York City can decide what they think is obscene based on this three-part test. Now this protects the public, because what we don't want is the standards of Manhattan in New York City to be imposed on Manhattan, Kansas. In other words, the pronographer is distributing porn movies in Manhattan and they're distributing them all around the country including in Kansas, and they're prosecuted in Kansas. They can't come into court and say, 'Well, we were tried on this case, the same film, in Manhattan, New York, and we were found innocent, so you can't bring the case here.' No, the same film can be found obscene in one community and the next community over, non-obscene, and the next community over, obscene. So this protects the pornographer's First Amendment right because not all pornography is obscene—has to be the three-part test and community standards come into play—but it also protects the communities, so that you can't have—mostly, porn films are produced in Los Angeles area, California, and those pornographers always used to argue in court that we should be allowed to distribute our material anywhere in the country, and of course people on the jury in Harrisburg, Virginia, or Tampa, Florida, want to be able to say, 'No, you don't get to decide what the community standards are in our community; we'll decide that.' So that jury looks at the film, applies that three-part test—does it appeal to a lustful interest, is it patently offensive, without value—and they can make that determination for themselves." Think about that: In what other situations do we allow government or juries to decide, say, what TV shows will play on local TV channels, or what Hollywood movies can play in local theaters? Suppose someone gets the idea that The Real O'Neals, which deals with adolescent homosexuality, shouldn't be played on the local NBC channel in Salt Lake City? Or that BBC's cable show Versailles, which has plenty of nudity and "sexual situations," is too hot for Birmingham, Alabama? Or that Showtime's Masters of Sex, which features simulated hardcore sex, should be blocked from cable subscribers in, say, Manhattan, Kansas? Or that the movie Hysteria, all about the invention of the vibrator, isn't fit for movie houses in Waco, Texas? And then there's the question of how 12 people who (assuming the worst) weren't smart enough to get out of jury duty are somehow intelligent and outgoing enough to have discussed with their neighbors what their sexual preferences are when it comes to media? Can Juror #7 truly say that he or she has asked next door neighbor Bob, or Betty down the street, what type of porn they like to watch? (The possibility that Bob and Betty don't watch any porn is, after all, fairly small.) Of course not; thanks to their religious "moral" upbringing, which they don't even have to attend religious services to be affected by, it's not considered "proper" to ask such questions—so how the hell can they sit on a jury and decide what "community standards" are? In fact, in modern society, it should be clear that in any decently large city, even in the so-called "Bible Belt," "community standards" are a complete fiction. So then the question arises, how do those facts fit with Trueman's immediately following statement that, "One thing else that I would point out is that your personal opinion does not count, so when a case goes to the jury, the judge will instruct the jury, 'Don't put your personal opinion about what's patently offensive or what appeals to a prurient interest. This is by community standards, so you have to decide, does an average person in our community think that this work would be patently offensive in the way I talked about earlier; would the average person in our community think that this work appeals to a prurient and lustful interest. And this protects the pornographer, again, because the court does not want a sensitive juror, someone who is—I hate to use the term—a little old lady who finds that any mention of sex is obscene. She doesn't get to impose her values on the community. She like all the others has to decide, what does the average person in our community think is obscene?" The "little old lady" reference, of course, is a red herring: NO ONE is able to speak for "the average person in our community" when it comes to one's taste in pornography, because no one—and definitely not the jurors in the case—has ASKED a significant portion of other community members what their tastes in porn are. But as Trueman's talk drew to a close, he revealed is true feelings about porn: That it should all be illegal—and he bolstered that by again quoting from the 1973 Miller decision (so much for contemporary community standards!) "The Court said it's possible to give a few plain examples of what could be found obscene," he said, quoting, "'Patently offensive representations or descriptions of ultimate sexual acts,' like sexual intercourse, 'normal or perverted'—Now notice that; it's a direct quote. It could be normal sex acts. It could be a couple having sex on camera, because what we're not finding to be illegal—in other words, it isn't the portrayal of illegal sex acts, it's the illegal portrayal of sex acts. What the Court is concerned about, what legislatures are concerned about is sexual exploitation; that's at the root of all the pornography laws. Are we exploiting sex? Because if we are, it has a detrimental effect on the person and on the community. That's the sum and substance of what the courts have said is what obscenity laws are concerned with, so it could be normal acts or perverted acts; it could be actual sex acts or simulated. Yes, it's true that a couple having pretend sex under the covers of a film can be found to be obscene. Maybe that's not going to be found obscene in Manhattan, but it might be found obscene in a community in Ohio, in Minnesota, in Florida, in Pennsylvania. So it doesn't have to be actual sex, and it doesn't even have to be sex at all; it could be just simulated." Ain't that a kicker: This jackass wants the courts not only to go after the adult industry, he wants them to go after half of Hollywood! And anyone who can parse the meaning of the sentence, "it isn't the portrayal of illegal sex acts, it's the illegal portrayal of sex acts," is a better person than this author, or Trueman, or any judge on any American court. If a sex act itself isn't illegal, how can portraying it be illegal? And Trueman wasn't yet done quoting Miller. "'Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.' It doesn't have to be a sex act at all. It could be just lewd exhibition of the genitals or pubic area of an individual. That may be found to be obscene. It might not be found to be obscene in your community but it could be found to be obscene in other communities." Now, let's remember that we're not talking about someone walking down the street waving his dick around, or bouncing her tits in anyone's face; we're talking about something that's on a DVD or website that NO ONE other than the buyer has to look at! "So in a legal sense, obscenity may involve simulated sex or involve explicit actual sex and either type may be found to be obscene in any given community in any given year," he summarized, adding, "So what does federal law prohibit then? The current federal law, upheld by the United States Supreme Court, prohibits distribution of hardcore pornography on the internet. A lot of people don't know that because there's hardcore pornography all over the internet, but that's a violation of federal law, and most of the material, in my judgment, is likely to be found obscene in most communities in the country." Of course, the reason "a lot of people don't know that" is because it's BULLSHIT! What Trueman has done is take the Supreme Court's decision in Reno v. ACLU, et al (1997), where the court struck down the Communication Decency Act's prohibition on "transmission" of "indecent" material on the internet and decided that because the ACLU and its corespondents had challenged only the prohibition on "indecent transmission" and hadn't bothered to challenge the prohibition on "obscene" transmission (because the Supremes were not about to strike that down and the ACLU knew it), and decided that that meant that "hardcore pornography," the entirety of which Trueman equates with "obscenity," has therefore been ruled out on the internet by the Supreme Court. (Thanks to attorney Reed Lee for pointing out this "sleight of hand.") But Trueman wasn't done: "It's a violation of federal law to distribute hardcore pornography on cable or satellite TV. Comcast, Verizon, all those companies have their hardcore porn channels. They're all illegal. They'll tell you they're not but their general counsels for those companies know very well they are." Again, bullshit, for the exact same reason. And why isn't all of this stuff being prosecuted right now? Of course, Pat has the answer: "The only reason they have those [porn channels] is because of lack of enforcement by the federal government. If the Attorney General of the United States would stand up in a press conference and say, 'We're going to prosecute illegal pornography under our federal obscenity laws, and whether you're on the internet or a cable company or in a hotel or motel... we're going to prosecute you.' Do you think Comcast would stay in the porn business a minute longer? No, they would clean up that system immediately because they know that it's possible prosecution." And hey, retailers and distributors: You aren't safe either! "It's a violation of federal law to be in the retail business—just being in the business of the retail distribution, so that mom-and-pop video shop that's down the street from you that has the back room where they're selling porn videos or renting them, just being in that business is a violation of federal obscenity laws, and if you're in the wholesale business, the same." BULLSHIT!!! But he pressed on: "It's a violation of federal law to distribute hardcore pornography by mail or common carrier like UPS. Now, as a practical matter, the federal government doesn't prosecute individuals, so if you were to send a porn video to a friend of yours, it's not likely the federal govenrment would come after you. I say it's not likely; it's possible. They're not looking for you, but the reason it would be possible is that maybe you've committed some other crime. They can't convict you of the rape you've committed, but you took a film of it and you sent that. If the only evidence of the rape they have [is] your computer fingerprints on the distribution, they'll prosecute you for that. But the norm is, they prosecute the major producers and distributors of hardcore pornography." Equating porn producers with rapists; that's a good one! But after admitting that it's completely legal to possess "obscene material in the privacy of your own home," he noted that "you don't have a right to distribute it from your home, and you don't even have the right to receive it in your home. So what good is that right if you don't have a right to receive it? See, because if you're receiving it, someone used the mail or common carrier or the internet to get it to you. And what the federal law prohibits is the interstate distribution of the material, regardless of the means." Of course, Trueman thinks no one should be allowed to possess porn, but he slipped up by pointing out the logical fallacy of Stanley v. Georgia, which legalized possession of obscenity, by drawing attention to the fact that you may legally possess it but there's no legal way to get it to you. And let's face it: A right you can't exercise is no right at all! Trueman then noted that the last federal obscenity trial was in 2012, and the defendant was Ira Isaacs, "who's quite prominent in the porn industry." No offense to Ira, but the porn industry had barely heard of Isaacs when he was busted—but since he was convicted of movies featuring bestiality and defecation, it's no wonder Trueman wants to tie him in with regular porn producers. Or as Trueman put it, "I always say, if you can win a case in Los Angeles, you can win a case anywhere." Trueman then laid out three reasons why someone would want to prosecute porn because "This is very important to us because we have tried here very hard to get our federal laws enforced again. They were vigorously enforced just eight or nine years ago." "Number one, the law is a great teacher." And what does it teach? That revenge porn can be prosecuted! But guess what? No company is making revenge porn!!! Also, "it causes pornographers to self-regulate by changing the nature of the material. It gets softer." I know what you're thinking: He's kidding, right? Sadly, no; he's just completely out of the loop. Know how we know? Because he cites the so-called "Cambria list," even though pretty much every item on there nowadays can be found somewhere, if it's not already common, in commercially produced porn. But Trueman notes that, wonder of wonders, a lot of adult distributors won't send their material to states where obscenity cases have been brought. Finally, in a tribute to circular reasoning, Trueman's third reason for prosecuting porn is, "It helps to establish community standards. If you prosecute a case in your community, and let's say you have maybe ten videotapes in your prosecution, that you're prosecuting this pornographer for. Some tapes depict group sex, some tapes depict oral sex, some tapes depict some other kind of sex, and you get convictions on all of those, that establishes your community standards, because then the porn industry says, well, we can't send you anything that's got this kind of sex, that kind of sex, et cetera, because they've been convicted of it." [Emphasis added] So watch out, retailers, and get all those bad videotapes off your shelves! And what NCOSE lecture would be complete without a little bashing of the Obama administration, with Trueman claiming that because Attorney General Holder didn't mount any obscenity prosecutions, "anything goes—and the porn industry reads them; they know they're protected because there's not going to be a conviction and they can send anything. This is why the internet is what it is today: Because we haven't been prosecuting them." That's pretty much it, except for the commercials for NCOSE's pet projects. Anyone who's interested can watch the whole thing on NCOSE's Facebook page—and considering who the new attorney general is, and despite the fact that he stated in his confirmation hearing that he didn't know the Obscenity Prosecution Task Force had been disbanded, Trueman and his cronies once again have a friendly ear in the administration, and they're going to run with it as hard and as fast as they can. Pictured: Screen captures of the seminar from NCOSE's Facebook page—we're guessing some genius thought Trueman looked better on the left hand side of the screen.