When Attorney General Alberto Gonzalez took over John Ashcroft’s place at the helm of the Justice Department, many hoped the appointment of the comparatively mild-mannered Gonzales represented a shift in the Bush administration’s heavy-handed approach to federal law enforcement. Unfortunately, recent events have shown that the leadership change will not reflect actual policy change. One of Gonzales’s first acts in office was to continue Ashcroft’s legal assault on obscenity. Last Wednesday, the Department of Justice announced it was filing an appeal to the dismissal of charges against Extreme Associates Inc. for distributing graphic pornography to customers nationwide. The 10-count indictment was dismissed by Judge Gary Lancaster of the 3rd U.S. Circuit Court of Appeals on the day of Bush’s second inauguration. Despite being one of the administration’s major goals, Bush’s first term saw little progress in its fight against obscenity. Indeed, Ashcroft’s symbolic shrouding of a nude statue in the Department of Justice lobby was Ashcrofts’s only notable success in removing “smut” from America.
Gonzalez may in fact be attempting to reign in obscenity, but this particular case reveals a broader attempt to discredit an individual’s right to privacy — most recently upheld in the U.S. Supreme Court sodomy case Lawrence v. Texas. Justice Lancaster stated that in light of the Lawrence decision, current “obscenity law cannot stand.” Obscenity law today is vague at best, allowing juries to declare a work obscene if it lacks literary, artistic, political or scientific value. The legal merit of these 1973 standards have been called into question on numerous occasions. The Supreme Court wanted to allow each city or region to determine what is acceptable according to cultural norms, but recent decisions, such as Lawrence, have rejected the idea that common ideals of morality can determine private behavior. Supreme Court Justice Antonin Scalia was one of two dissenters in Lawrence and vehemently argued for a state’s right to use legislation to enforce a “moral code of conduct.” He has said he disagrees with the idea that several constitutional amendments can be combined to manufacture an unwritten right to privacy, and condemns many precedent-setting decisions which have been based on that right, including Roe v. Wade. The Bush administration has made clear its intention to overturn Roe v. Wade, and the slow stripping of the right to privacy is the first step in doing this.
The Department of Justice claims it is exclusively targeting the sales and distribution of obscene materials, a form of speech it argues is not shielded by the First Amendment. If this is true, why choose U.S v. Extreme Associates, which was not dismissed on obscenity grounds, but rather on individual privacy? The announcement of this appeal is only a preview of the administration’s greater legal agenda. With Scalia as Bush’s likely choice for chief justice if current U.S. Chief Justice William Rehnquist retires, it is clear that the administration does not agree with Lancaster’s statements that “public morality is not a legitimate state interest sufficient to justify infringing on adult, consensual, sexual conduct even if that conduct is deemed offensive to the general public’s sense of morality.” Although many people would support the limitation of pornography distribution, it is important to look at the principles that uphold a company’s ability to do so.