How to get the porn out of video stores

Here is a blueprint for action against hardcore pornography in your neighborhood video stores.

Mainstream video stores that offer hardcore pornographic movies may keep the porn in an "adults only" section or under the counter, away from children, which leads to the idea that everything they sell or rent is legal. It is not. Obscene movies are as illegal there as in an "adult bookstore." Here's what to do:

Organize. Get at least a few like-minded citizens together. If you decide to form a new organization, you should consider incorporating under the laws of your state.

Get acquainted with the Federal and state obscenity laws and their meaning (Alaska, Hawaii, Maine, Montana, New Mexico, Oregon, South Dakota, Vermont and West Virginia either do not have a statewide obscenity law or have a state law that is useless). The www.obscenitycrimes.org Web site has an overview of the laws on its Porn Problems & Solutions page. The Morality in Media Web site has links to each state's obscenity laws.

If a member of your group is willing and able to do so, he or she can visit the "adult" section to determine if videos may be obscene. Be aware that to be obscene, a video must depict hardcore sexual conduct and that not all "adult" videos depict hardcore sexual conduct on the covers. To determine if a video depicts hardcore sexual conduct, someone may have to view the tape.

Send a letter to your state prosecutor (i.e., district attorney, state's attorney, etc.) and ask for an appointment. If possible, include in your delegation community leaders (business people, professionals, clergy, elected officials, etc.).

Visit the prosecutor and ask that he or she send an undercover investigator to determine if the video store is violating the state obscenity law by the sale or keeping-for-sale of obscene videos. Do not accuse or charge anyone with a crime. Ask for an "investigation."

Your state prosecutor will, or should:

Assign an undercover officer to locate the hardest-core video(s) available and purchase it (them), after establishing that the proprietor or clerk of the store knows the video(s) is (are) sexually explicit. Renting a video can cause problems if it is kept too long since the rental may be looked upon as an unlawful seizure.

Direct the investigator to complete a detailed affidavit describing the video's contents, if the D.A. is satisfied that there is probable cause that the video is obscene. The affidavit and video will be presented to a judge. The judge issues a warrant of arrest, if satisfied as to the existence of probable cause. No search warrant is needed if the video is purchased. After the arrest, the case will be scheduled for trial or for presentation to a grand jury.

The National Obscenity Law Center (212-870-3232) offers a book for $10, The Handbook on the Prosecution of Obscenity Cases, which includes chapters on the obscenity definition, Pre-Trial Matters (Investigations and Search, Seizure & Arrest), Jury Selection, Opening Statement, Evidence, Defenses, Summation, Jury Instructions, and Verdict, Sentence & Appeal. If your prosecutor or police department haven't done an obscenity case before, this book can help.

The Fort Lauderdale alternative

This following procedure has been used successfully in Ft. Lauderdale, FL and other cities.

The D.A. sends a letter to all video stores in the county, including major chain outlets and Mom and Pop video stores, informing them simply that an obscenity law exists and that beginning on a specific date this law will be enforced. The D.A. should resist any temptation to direct the stores to clean all porn off the shelves and should refuse requests to identify videos that he or she considers obscene.

A variation is to have the letter delivered, together with a copy of the obscenity law, to every video shop by an investigator for the D.A. or a police officer with strict instructions not to converse with the clerks or the proprietors as to the meaning or effect of the letter. The officer simply delivers the letter—no threats, no opinions, no suggestions, all of which could be used against the D.A. and the police.

The Federal Role

Federal obscenity laws prohibit among other things the Mailing of obscene matter [18 USC 1461]; Importation or use of a common carrier to transport obscene matter [18 USC 1462]; Interstate transportation of obscene matter [1465]; and Wholesale & retail sale of obscene matter transported in interstate commerce (must be engaged in business of selling or transferring obscenity) [1466]. Dealing in obscene matter is also a predicate offense under the federal RICO statute [18 USC 1961-1968].

The U.S. Attorneys (each state has at least one) enforce federal obscenity laws. Obscenity complaints can be made to your U.S. Attorney or nearest FBI field office (the FBI is the primary investigative agency) or, in appropriate cases, to a Postal Inspector (mailing) or Customs Inspector (importation).

The procedures outlined above for enforcement of state obscenity laws can be adapted for federal obscenity laws. Since most pornographic videos are produced in California, there is a strong likelihood that federal obscenity laws will be violated when hardcore videos are shipped to a store in another state.

The advantages of federal enforcement are two-fold: first, penalties for violations of federal criminal obscenity laws are stronger than state penalties; second, U.S. Attorneys have the support of the Justice Department's Child Exploitation & Obscenity Section.

As a general rule, U.S. Attorneys focus on businesses that distribute obscene materials in interstate commerce and businesses that engage in LARGER-SCALE intrastate distribution of obscene materials.

A word about so-called "adult" book and video stores

The above procedures can be adapted to promote enforcement of federal or state obscenity laws against "adult" business that distribute hardcore pornography. In particular, federal and state Racketeer Influenced and Corrupt Organization (RICO) laws have been used effectively against these businesses.

Whenever possible, "adult use" zoning, hours of operation, open booth, and other ordinances should also be enacted before an "adult" video store considers moving into your area. Morality in Media's National Obscenity Law Center can suggest appropriate ordinances (212) 870-3232.

Prepared by:   Morality in Media, Inc., 475 Riverside Drive, New York, NY 10115
(Fall 2004)   (212) 870-3222 870-2765 (fax) email: mim@moralityinmedia.org