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see below

Edited by - TonyC on 11/2/2003 5:42:50 PM

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Dear Senator,

I am writing to you today because I am concerned about the threat both to our civil rights and to my own freedom posed by current government policies. In particular, I am deeply worried by the stance both the White House and the Department of Justice have taken with regard to explicit photographic and videographic depictions of human sexual behavior.

As you are no doubt aware, President Bush has recently proclaimed the week of October 26 - November 1, 2003, as "Protection from Pornography Week". It is unclear just what threat is pornography poses to me or my family, but even if we assume there is one, I am quite certain I do not require government protection from it.

Even more troubling than this presidential proclamation is the renewed zeal with which the Department of Justice has begun to pursue obscenity prosecutions. Of particular concern is that the Department of Justice seems to be selecting situations where the accused is of limited financial resources, apparently in the hope of achieving victory without the protracted legal battle or potential negative publicity that would accompany charging more established, better-financed defendants. In a recent case, the accused settled before they had their day in court because they simply could not match the virtually unlimited resources of the federal prosecutors. Since obscenity can only be determined by trial (as established in Miller v. California), this prosecutorial tactic strikes me as grossly unjust. In addition, this tactic does nothing to clarify what exactly constitutes obscenity. When the state would seek to use its awesome power to deprive a citizen of liberty or property, there is no more pressing issue than clearly articulating the nature of the crime, which in the case of obscenity can only be known at the conclusion of a trial. I also believe the vagaries of where and when authorities, be they local or federal, choose to pursue obscenity prosecutions points to the inherent Constitutional flaws in the Miller decision, particularly with respect to the prohibition on ex post facto laws (Article I, Section 8, Clause 3), the guarantee of due process (Amendment V) and guarantee of equal protection under the law (Amendment XIV, Section 1).

Given the explicitly regional and subjective nature of the boundaries set by Miller, even an artist or writer who very much wishes avoid criminal prosecution by staying within the boundaries set forth by Miller has no guarantee that his work has stayed within those boundaries until after he has survived prosecution. I am not a lawyer, let alone a legal scholar, but it seems clear to me that the standards set by Miller v. California are entirely too vague to provide anything even resembling "fair warning" to those who wish to explore the human sexual experience in art or literature as to where, when, and by whom their work may be found to be obscene, thus subjecting the artist and his work to criminal sanctions. This flaw in Miller has been exploited by a vocal minority who seek to impose their narrow vision of a "moral and decent society" on our diverse nation, and ultimately stifles the free exchange of ideas, both popular and unpopular, that the First Amendment to the Constitution was specifically intended to foster and protect.

My concern is not hypothetical.  In the summer of 2001, I produced and directed the short documentary film "Marie and Jack: A Hardcore Love Story". This film is an exploration of how a married couple working within the adult film industry is able to preserve their own personal physical relationship, and, in so doing, underscores the importance of sexual love between husbands and wives, and celebrates the institution of marriage.

Recently I have begun self-distribution this film. I produce DVD and VHS copies in my home and mail them to customers throughout the country. The film is extremely explicit, containing graphic depictions and descriptions of oral sex and intercourse. It is also intelligently conceived and beautifully produced. It has been recognized by mental health professionals as an outstanding piece of sexual education as well as an outstanding achievement in erotica. By my best guess, the film would fail all three parts of the Miller test, would not be considered obscenity, and would be guaranteed protection under the First Amendment. However, as long as Miller is the law of the land, I can only guess. I cannot be sure.

With every copy I send out my anxiety grows. Under Miller, obscenity has no definition until after the fact. I have no way of knowing when and if agents of law enforcement will descend on our home, seize our assets, and expose myself and my family to the humiliation of being labeled as "purveyors of hardcore obscenity." I believe in the value of my work to the intellectual discourse of this great nation, but given the inherent vagueness of the Miller standard, and the priorities of the current administration, I feel that I put my family and myself in jeopardy by continuing to distribute the film.

As a citizen, a voter, and your constituent, I would respectfully ask for your response to the following questions on the legal concept of obscenity in general, and on the standards set forth in Roth v. United States and Miller v. California in particular:

Do you believe there is such a thing as legal obscenity?

If you believe there is such a thing as legal obscenity, do you believe that the court was correct in Roth v. United States in finding that obscenity is a form of speech not protected by the First Amendment?

If you believe that the First Amendment does not protect obscenity, do you believe that Miller provides sufficient guidance to artists like myself who wish to explore sexual themes and distribute their work nationally without risk of prosecution?

If you believe Miller provides sufficient guidance, can you help me in determining whether or not my film "Marie and Jack: A Hardcore Love Story" is or is not obscenity, short of my being prosecuted by state or federal authorities?

If you believe that either the Roth or Miller decisions are constitutionally unsound and set forth a flawed legal standard, what steps have you taken, legislative or otherwise, to end obscenity prosecutions under these flawed standards?

Writing for the majority in 1973, Justice Burger stated, "We do not see the harsh hand of censorship of ideas -- good or bad, sound or unsound -- and repression of political liberty behind every state regulation of commercial exploitation of human interest in sex." Unfortunately, thirty years later, in spite of Justice Burger's optimistic pronouncement, that "harsh hand" is very much with us.  As I undertook the production of "Marie and Jack" the terrifying power of the state to deprive me of my liberty and property was never far from my mind. I carefully choose non-controversial, mainstream sexual themes against the possibility that I might one day be forced to defend myself in a court of law. As I consider future, potentially more controversial subject matter, the state is my de facto and unwelcome co-author, whispering vague and intimidating warnings about "community standards" and "serious artistic value". This is censorship of the most pernicious kind. It debases the values upon which this nation was founded, and erodes the freedoms that have made the United States a beacon of justice and hope throughout the world.

I look forward to your response in this matter. Thank you for your time and attention.

Very sincerely,

Tony Comstock

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Thank you for your letter. Senator X wants to know the views of members of his/her constituents and will look into this issue. Senator X has done many good works for the community including A, B, and C. He/She is currently working on project Z.

Senator X is raising money to defend himself/herself from the unethical opposition and will welcome any campaign contributions. Your political campaign contributions are tax deductible up to $1000 and are very welcome. Campaign contributions allow the senator to look out for your interests in the best possible way. Please feel free to donate to the reelection campaign of Senator X so he/she can run for the 10th consecutive term. Remember, seniority counts in the senate. Tax deductible contributions are what makes America the greatest nation on Earth, God Bless America.

Once again thank you for your letter, and we look forward to hearing more from you.

Sincerely and God Bless,

Lowly Flunky

Assistant secretary to the deputy assistant secretary of the assistant deputy secretary of Senator X.

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The letter is excellent, though; your logical argument is sound, your language is evocative without being provocative and you've fixed the minor grammatical issues from the first drafts.

It may net you a reply, but I, too, doubt it will be of any substance. By no means, though, do I think you should not send it. Send it! If enough of us tilt at the same windmills, maybe we'll knock some down.

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I've been reading your posts with interest. May I posit an observation? I think your letter as revised is exceptionally well-targeted and succinct. And I think you should send it; although, I also suspect that you are extremely unlikely to get more than an acknowledgement in response.

The problem is that a pro-porn campaign is not likely to get anywhere, regardless of ones personal beliefs and regardless of the personal beliefs of those legislators one might target. In the Victorian sexual clime of mainstream American political mores (or lack thereof - and, especially, of those currently in power), porn is too easy a target. It is too universally considered to be something "nice" people just don't get involved with - never mind what they might do behind closed doors - at least until it rears its ugly head to the point of needing a Don Quixote (e.g., Ashcroft) aimed its way. There will be no winners in such a campaign and there will very likely be a loser: you.

The only way to win this battle is by engaging in a political war - a realistic assessment of those likely not to be against your views and a concerted campaign to enable them to gain power in the system. This means voting realistically based on probabilities of winning, not voting ones political convictions.

And, sadly for all you non-Republican, non-Democrat types out there, it means that you must vote a Democrat, regardless of how much you may dislike him, into the office of the Presidency. The executive branch of our government controls both judicial appointments and the direction of the country's prosecutorial force. The only effective weapon at your disposal is your vote and a vote for a third-party candidate is a vote against pornography. You decide the sharpness of Don Quixote's sword.

It's that simple.

~ GaySatyr

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Are you saying that people who enjoy watching pornography should stop buying porn, and then re-direct the monies they've been spending on porn into a "pornophiles only" tax that would be used to pay down Dubya's deficit?

Is your real name Kafka?

-T.C.

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PS - still a couple of minor grammatical errors in Rev III.

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It is important to remember that around the time (1972) when this verdict was first argued, pornographic theaters and bookstores were cropping up all over the US. There were literally lines around the block in places as diverse as Erie, Honolulu, and Austin to see Deep Throat . The moral landlords of middle America were outraged, and demanded their towns and communities be protected from all this "smut." Hollywood even talked about the possiblity of trying hardcore sex; the New York Times (or was it Time?) produced the famous porno chic article. Local law enforcement had been ineffective at stifling porn; case after case went against them on 1st Amendment grounds, mostly because pornographers had become experts on Roth (1957), and knew how to circumvent it. And where prosecutions were successful, they had little impact on the guilty parties. Fines and probations were considered part of the cost of doing business to producers, directors, and talent. Miller put an end to all that, and slowly drove pornography back into the confines of the red light districts in the major metropolitan areas where most of it was produced (SF, LA, and NYC, mainly). While pornographers were unafraid of the locals, they could risk years in prison if convicted by the Feds, for something as simple a transporting a print into a community for public exhibition. So they stayed close to home. At least until video and cable came along.

It is my view that the adult industry has failed to watch its back on both Roth and Miller for a long time. Where most of the old timers knew the rules and how to skirt around them without danger, the contemporary porn producer is taking great risks. I think prosecution is possible for most gonzo made today; the only reason it hasn't happened is cost to the government and historic disinterest on the part of federal law enforcement. Ultimately, content is only part of the issue. The framing of content and the means of production are what might sink most porn today if Ashcroft comes calling on the mainstream end of the industry. Or the internet producers.

I also think that there is little that any congressman could do on this issue, other than quite sensibly objecting to the use of taxpayer dollars for such projects. Miller (and Roth) was created through judicial process, and would probably have to be changed by the same means. But be careful what you wish for--rolling the dice on this issue might result in more repressive measures than what we have now (let's call this, shall we, playing porno craps with Bob Black).

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If the Committee votes approval for the nominee, then the entire Senate votes yes or no to approve them for their judicial appointment. This is the process used whether it is a lower Federal court nominee or an appointment to the Supreme court.

Which party has the majority in the Senate, will have one more member on the Committee than the other party. Right now, the Republicans control the Senate (by a majority of only 1-2 members), so they get to have one more person on the committee than the Democrats.

So, you see why it is also important to vote in Senate elections; these Senate Committee's have a great deal of power, nearly as much as the President's.

And just because the Republicans are in charge, doesn't mean that they get their way all the time. The current Alabama State Attorney General, Bill Pryor, has been nominated by the President for a Federal Judgeship. Well, this man is an ultra-conservative, and the Senate Committee has not been pleased with his rigid viewpoints and decisions. He had to testify for over 4 hours in front of the committee, and did he ever get grilled, even by some Republicans, as well as most Democrats. Senator Spector (republican from Penna.) was incensed that Pryor had once said publicly that the octogenarians on the Supreme Court should not be allowed to make any decisions, let alone important ones. Spector excoriated Pryor for making such a disrespectful public statement, about judges that the very same committee has to approve.

Needless to say, the Pryor nomination is still being held up in the Senate.

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~ GaySatyr

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You may be on to something. I think they're susceptible to fire (a burning bush reference, but I had to work for it and then fucked it up even worse by pointing it out).

Hey, I'm no Dennis Miller. I just play one on ADT.

copyright 2003 cobalt60™. All rights reserved.

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My ADT signature is supposed to be a Lazarus Long quote, but it never shows up for some reason. If I had to guess, though, it's because it has double quote marks in it and I know from long experience what a pain it is to escape quotes in string vars. Of course, all my experiences are "long", heh, but not necessarily Lazarus. Whoa. I'm on fire today. But I'm no Bush!

Put the cork back in, cobalt. Yes, cobalt.

copyright 2003 cobalt60™. All rights reserved.

<testing sig, nope, still doesn't work, getting tired of pasting in the copyright notice. oh, well, the joke'll get old soon, anyway>

Edited by - cobalt60 on 11/8/2003 1:30:38 PM

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You are correct, Bush and his puppet masters must be replaced; any Democrat would be better than the current administratin.

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I had some wonderful DVD's packaged up to send to the Oval Office.

Actually, just finished watching a speech of Bush's on MSNBC... right after he finished talking, Vince Voyeur started talking down to him and making fun of him as the MSNBC logo and credits began to roll...

Then again, I may have been drunk....

Cheers,

Dancin' Dan
[dc}

Aw, heck... what can I say? I'm a nice guy....

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