[xxxlaw]

XBIZ sent me a request for a comment today on Romney's porn pronouncements. This is what I sent them:

The Romney message is disguised. What he really means is miles away from enforcement of the existing obscenity laws and he knows it.

The values and standards of the community are at the heart of the Miller Test that defines how far the government can go, under the constitution, in punishing porn. Those values and standards do not descend to the community from the pronouncements of government leaders or fringe moralizing groups, nor can they be imposed on the people, the community of internet users from above.

The community values and standards that are woven into two of the three elements of the Miller test come from the people themselves and reflect what passes without objection in our culture when people obtain and view erotic materials, something that's almost always done privately. It's about the point at which the community's attitude is that people should not be permitted to buy, sell, or obtain material for use, which, as a matter of fact is almost always a private use.

We live in a highly tolerant nation, one so dedicated to personal freedom, that we stamp the word Liberty on every coin and a statue representing Liberty is one of our most chreished national icons, along with a bell in Philadelphia that once proclaimed Liberty so conspicuously in our history that we call it the Liberty Bell.

The censors, to prevail, must overcome all of that tolerance, all of that acceptance that is ingrained into our culture.

Under the existing obscenity laws, twelve jurors could not agree to convict Ira Isaacs in LA two weeks ago for material all wrapped up in the theme of human feces as a food item. Under the exiting obscenity laws, not only did a jury in rural Arkansas acquit material featuring double penetration, multiple pop facials, and themes that played around with force and compulsion, not only did that jury do so in four hours, but several jurors broke into applause when the prosecutor finished playing the material in open court. Under the existing obscenity laws, the Task Force That Couldn't Shoot Straight over at DOJ couldn't manage to get the case against John Stagliano into the hands of the jury because the case was so bungled up. After that fiasco, it was no surprise that DOJ pulled the plug. The existing obscenity laws and the cases which keep them on a leash because of constitutional protections are quite protective of Liberty because they are tied to the values of a free people highly tolerant of the quirks and eccentricities of their neighbors; that acceptance is the price of our own Liberty, and we all know it.

No, at root, Romney and Santorum and the others want to ram a concept of morality down the throats of a very tolerant people, and our obscenity laws are simply not engineered on a top-down, preachy application of law, but the opposite; obscenity law here reflects what people really accept. 40 milllion Americans went to porn sites last year, a huge number of them paid money for the privilege. The popular use and acceptance of porn is so deeply ingrained in our national consciousness now that jokes about its use and prevalence in every part of society are cultural icons heard on talk shows every night; we now live in a culture where sex toys are widely and openly advertised in TV commercials from coast to coast and hardcore porn keeps one huge hotel chain after another afloat. Hard Core Porn is now as American as cherry pie. For real.

The moralizers know that. They hate it. They are not really about the existing obscenity laws; they don't like them and would like to change them if the could (which they can't do because of the First Amendment). They'd prefer a system in which morality is taught by a government they control and forced downward on the citizens.

And what they really mean is that they want to impose their narrow views on all of us. Americans are smart enough to recognize that for what it is. They are jealous of their freedoms. And they will not vote in any primary or in the general election to give up their freedoms. The more any candidate preaches about "enforcing" obscenity laws in this election, the more that this candidate will alienate normal Americans and the more likely it becomes that the candidate will lose.

JD