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Business Sense_01.13 12/24/12 2:50 PM Page 55
was not nearly as harmful as in the picture painted by its detrac-
tors. The report’s detailed appendix quickly rendered it the best-
selling publication in the history of the Government Printing
Office; the administration was somewhat embarrassed when
Meese released his report in the Great Hall of the Robert F.
Kennedy Department of Justice Building in Washington, D.C.—
directly in front of the bare-breasted Lady Justice statue. The
media had a field day with that!
However, the report included dozens of legislative and enforce-
ment recommendations, all of which were spoon-fed to the com-
mission by religious-right organizations and Meese’s Department
of Justice. Those recommendations included an obscenity strike
force, 2257, enacting a forfeiture provision to federal obscenity
laws and adding obscenity to state RICO statutes, all of which
were largely adopted, along with many more.
Operations PostPorn and Woodworm (1987-89)
Springing from one of the report’s recommendations, Meese
promptly organized the National Obscenity Enforcement Unit,
soon redenominated the Child Protection and Obscenity
Enforcement Unit because obscenity enforcement didn’t sit too
well with much of the public. However, the unit aggressively
orchestrated two, spectacular “operations”: PostPorn, designed to
extinguish every adult mail-order company, and Woodworm,
intended to annihilate the San Fernando Valley’s exploding adult
video industry. Quite a few folks went to prison and several
companies went out of business, but the industry survived and
continued to grow.
Anthony Kennedy’s Appointment/Confirmation
(1988)
A recurring theme in presidential politics: “It’s the Supreme
Court, Stupid!” Anthony Kennedy has been the swing vote on
First Amendment issues at least since the retirement of Sandra
Day O’Connor; most forget how it was that he found his way to
the highest court.
President Reagan first nominated Robert Bork to take the seat
vacated by Lewis Powell’s retirement. Bork was an off-the-chart
conservative, whose published works on his legal thinking were
criticized by liberals and conservatives alike. His nomination was
met with a rare 58-42 rejection by the full Senate, including six
Republicans voting against him. Reagan’s replacement nominee
for Bork, Robert Ginsburg, was short-lived, derailed by the reve-
lation that he had been known to inhale. Anthony Kennedy was
the third try, presumably selected because of a belief that, while
clearly palatable to the slightly Democratic Senate, his
Catholicism would impel him to vote to overturn Roe v. Wade.
Wrong! Justice Kennedy would go on to reject the Republicans’
views by casting the deciding votes in the flag-burning and
homosexual activity cases, while reading from the bench a blister-
ing dissent in the Alexander case, explained below.
People v. Freeman (1988)
Adult movie-making is not prostitution, the California Supreme
Court held in Hal Freeman’s 1988 case, the holding of which has
never been rejected by any court. The decision created a sea
change in production habits, bringing all of it above ground.
18 U.S.C. § 2257 (1988; 1990)
Enacted first in 1988, promptly held unconstitutional, recast in 1990 and finally for the most part judicially
approved in 1995, the misery brought about by the labeling and record-keeping requirements embodied in this
statute needs no elaboration here.
FW/PBS v. City of Dallas (1990)
A 6-3 win in the Supreme Court, this case had a potential downside that few ever realized. Holding that licenses
for adult businesses are subject to the constitutional restrictions (1) against allowing licensor discretion and (2)
requiring reasonable time limits for responses to license applications, the decision saved every adult business,
from production to retail, from being totally thwarted by regulatory red tape.
Alexander v. United States (1993)
The Supreme Court here surprisingly gave 6-3 approval for forfeiture of entire enterprises as a consequence of a
handful of obscenity findings. Ferris Alexander lost his estimated $20 million Minnesota empire of real estate,
businesses and inventory as a result of a jury finding of six obscenity convictions.
The Digital Millennium Copyright Act (1998)
Little need be said about this. It begat “tube” sites and is to this day subject to a great deal of litigation.
The Election of Clinton (1992, 1996) & Obama (2008, 2012)
Clinton and Obama together have appointed the only four Democratic justices on the Court (Justices Ginsburg,
Breyer, Sotomayor and Kagan) who, with Kennedy, spin out the few pro-First Amendment rulings from the
court. Had Bush 41 been re-elected in 1992 and McCain defeated Obama in 2008, we would have an all-
Republican Supreme Court that could have rejected Roe v. Wade 8-1 and wreaked havoc on the First
Amendment. Obama’s second term could prove equally important, given the ages that some of the justices will
reach before January 20, 2016 (Ginsburg, 83; Scalia and Kennedy, each 80). President Obama stands to be in a
position to block a Republican effort to kill Roe v. Wade and most of the rest of the Bill of Rights.
No New Categories of Unprotected Speech (2002-12)
During the past decade, on at each of least four occasions the Supreme Court has refused a governmental invita-
tion to add to the short list of categories of unprotected speech, such as child pornography, defamation, fraud,
fighting words, etc.: Ashcroft v. Free Speech Coalition (2002, virtual child pornography), United States v. Stevens
(2010, “crush” videos); Brown v. Entertainment Merchants Ass’n (2011, violent video games); and United States v.
Alvarez (2012, lying about having received medals). Indeed, the last time the court added to the list was the
1982 decision in New York v. Ferber, adding child pornography.
It has been an interesting run.
In 1987-89, Meese’ s National Obscenity
Enforcement Unit orchestrated
two spectacular operations:
PostPorn, to extinguish every adult
mail-order company, and Woodworm,
to annihilate the San Fernando Valley’s
exploding adult video industry.
”
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