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Pittsburgh the Latest Battleground

Pittsburgh- Pittsburgh and other socially conservative cites are becoming the latest battlegrounds between federal prosecutors and the pornography industry.

Besieged with complaints about explicit images easily accessible to children via the Internet, the U.S. Justice Department is cracking down on the producers of obscene Web sites, videos and other materials.

Instead of taking the traditional path of bringing criminal charges where the materials are made, prosecutors are now trying cases where the items are distributed — often before juries like those in Pittsburgh, which are more likely to find the materials obscene.

Federal prosecutors scored obscenity convictions in New York and Los Angeles in 2003, but they also racked up wins in western Missouri and southern Texas and West Virginia. Moreover, prosecutions are being filed across the country — one in Pittsburgh, three in Kentucky, five in southern West Virginia, six in Utah and eight in eastern Virginia last year.

Census data show that the U.S. District Court’s Western District of Pennsylvania, which includes Pittsburgh, Erie, Johnstown and 25 counties around them, has an abundance of older, well-educated, middle-income families.

Those factors, along with lower divorce rates and high church attendance, make the Western District a prime spot for trying obscenity cases, said Mickey Pohl, head of litigation with the Downtown office of the law firm Jones Day.

“There’s no question that Pittsburgh is viewed as a jurisdiction with more traditional family values,” said Pohl, who has tried civil cases across the nation.

Lawrence G. Walters, a Florida lawyer who has practiced First Amendment law since the late 1980s, said trying federal obscenity cases in areas perceived as conservative has become routine because jurors define obscenity in terms of community standards.

Obscenity enjoys no First Amendment protection. A 1973 Supreme Court ruling found that something is obscene if, taken as a whole, it appeals to the prurient interests of the average person, depicts patently offensive sexual conduct and lacks any serious literary, political, artistic or scientific value.

Justice Potter Stewart explained the subjective nature of obscenity most succinctly in a 1963 Supreme Court ruling: “I know it when I see it.”

“Obscenity is the only crime you can commit and not know it’s a crime until a jury speaks,” Walters said. “It’s purely subjective. … There’s no definition of obscenity by statute.”

The majority of defendants indicted for obscenity over the last year have taken plea agreements, Walters said.

“It’s very expensive to defend an obscenity case and the personal turmoil is often devastating, whether there is a conviction or not,” Walters said.

Prosecutors often search out potentially obscene material created in Los Angeles or other big cities and order it through the mail in states such as Utah, Florida and Pennsylvania.

“You take the material to a jury that has never seen anything like that, and of course they are going to say it violates the community standards,” Walters said.

U.S. Attorney Mary Beth Buchanan, Pittsburgh’s top federal prosecutor, said investigators have received numerous complaints and are focusing on the most egregious and widely available materials.

Last year, Buchanan worked with the U.S. Postal Service and the Los Angeles police department to obtain a 10-count indictment against Extreme Associates and Rob Zicari, a Hollywood porn producer. Attorneys in the case are still filing pretrial motions.

Zicari and his wife, Janet Romano, are accused of selling five obscene videotapes and Internet movie clips depicting simulated rapes and murder.

The charges — including conspiracy to distribute obscene matters, mailing obscene or crime-inciting matter and transportation of obscene matter for sale or distribution — carry a maximum penalty of 50 years in prison and a $2.5 million fine for Zicari and Romano, and probation and a $5 million fine for the company.

Instead of bringing charges in Hollywood, where Zicari had defeated local obscenity ordinances, officials ordered his tapes in Pittsburgh.

“We believe the crimes were committed in other jurisdictions as well,” Buchanan said. “But we investigated it here and decided to prosecute it here.”

Buchanan said she is confident that anyone anywhere in the nation would find the tapes offensive and obscene.

“I personally viewed this material and found it disgusting,” she said. “But it doesn’t matter what I believe. It’s what the average person in the Western District believes.”

Jennifer Kinsley, a Cincinnati defense attorney who is representing Zicari, said perceptions that certain areas are more conservative than others doesn’t always translate into convictions.

“Cincinnati is a pro-family values town, but we’ve successfully defended obscenity cases here,” she said, citing the case of Hustler magazine publisher Larry Flynt.

While Pittsburgh is probably a better venue to prosecute the Zicari case than California, Buchanan said, it might not be better than Alabama.

“In Pittsburgh, I think we have a good cross-section of society,” she said.

Previous court cases have opened the door for enforcement in selected districts, said Benjamin Vernia and David Szuchman, trial attorneys with the Justice Department’s Child Exploitation and Obscenity Section.

“The courts have found that it is logical to try a defendant in a jurisdiction to which obscene materials have been mailed,” Vernia and Szuchman wrote in the March issue of the United States Attorneys’ Bulletin, a newsletter for federal prosecutors.

“Furthermore,” they wrote, “a defendant’s choice to do business throughout the nation limited his right to be tried in the locality where he lives and bases his operations.”

Bryan Sierra, a spokesman for the Justice Department, said more obscenity prosecutions are being filed where material was distributed than where it was created.

“Whenever a company chooses to distribute obscene material through the mail or Internet, they run the risk of being prosecuted wherever they do that,” Sierra said. “The ultimate goal is equal enforcement of the law.”

After more than a decade of lax enforcement, Buchanan said, it’s the Justice Department’s responsibility to put companies on notice.

“More material has become available and more people are pushing the envelope, offering more offensive, degrading and violent material,” she said.

Federal grand juries nationwide are weighing indictments in 17 cases and prosecutors are contemplating charges in 50 others, Buchanan said. In 2003, there were 83 obscenity convictions nationwide, compared with 3,294 for child pornography and 1,795 for terrorism.



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