How to get the porn out of video stores

Mainstream video stores that offer hardcore pornographic movies (videos and DVDs) usually keep the pornography 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. 

In Miller v. California, 413 U.S. 15 (1973), however, the Supreme Court held that obscenity laws could constitutionally be enforced against “hardcore” pornography.  Typical “hardcore” pornographic videos consist of little if anything more than one graphic depiction of hardcore sex after another.  It’s wall-to-wall hardcore sex acts.

Here is a blueprint for action against the sale and rental of hardcore pornography in your community’s “mainstream” video store(s).

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.  You could also form a committee or subcommittee within an existing organization (like a church).

Get acquainted with the federal and state obscenity laws (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 the state courts have gutted). You can find an overview of obscenity laws at www.obscenitycrimes.org  (Porn Problems & Solutions page, in the subsection entitled, “The Law”). The Morality in Media website has links to the federal obscenity laws and each state’s obscenity laws at www.moralityinmedia.org/nolc.

Determining whether videos/DVDs are hardcore.  If a member of your group is able (without succumbing to temptation) to do so, he or she can visit the "adult" section to see if one or more movies may be obscene.  Be aware that some obscene movies do not depict hardcore sexual conduct on the covers, in which case someone (ideally, a law enforcement agent) must view the movie(s) to determine if hardcore sexual conduct is depicted.

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 may be violating the state obscenity law by the sale or keeping-for-sale of obscene videos/DVDs.  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 movie(s) available and purchase it (them), after establishing that the proprietor or clerk of the store knows the movie(s) is (are) sexually explicit. Renting a movie 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 movie's contents, if the prosecutor is satisfied that there is probable cause that the movie is obscene. The affidavit and movie 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/DVD is purchased. After the arrest, the case will be scheduled for trial or for presentation to a grand jury.

The National Obscenity Law Center [write to 475 Riverside Drive, Ste. 1264, New York, NY 10115 or call (212) 870-3222] offers a book for $15, 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 was used successfully in Ft. Lauderdale, Florida.

Police officers visited video outlets in the county and left with them a copy of the Florida obscenity statute, advising the outlets that they would soon be enforcing the statute and causing arrests to be made if obscene movies were not removed from the shelves.  The officers did not threaten the outlets, attempt to explain or interpret the obscenity law for them, or provide the outlets with a list of movies allegedly in violation of the law.  To use this approach, a prosecutor must be willing to enforce the law if movies deemed obscene are not removed.  See, Bantam Books v. Sullivan, 372 U.S. 58 (1963) and Council for Periodical Distributors Association v. Evans, 642 F. Supp. 552 (M.D. Ala. 1986).

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 [18 USC 1465]; and Wholesale & retail sale of obscene matter transported in interstate commerce (must be engaged in business of selling or transferring obscenity) [18 USC 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 pornographic movies are shipped to a store in another state for sale there.

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 Obscenity Prosecution Task Force.

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.

Morality in Media, Inc. 
475 Riverside Drive, Ste. 1264, New York, NY 10115
(212) 870-3222   870-2765 (fax) email: mim@moralityinmedia.org