True North and Magnetic Declination
True North and the Magnetic Declination in Alberto Gonzales’s Moral Compass.
By J. D. Obenberger, Attorney at Law
This article was written for and
appeared in AVN Online Magazine in 2005.
This article was written for and appeared in AVN Online Magazine in 2005.
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. . . Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.
The mama pajama rolled out of bed, and she ran to the police station
When the papa found out, he began to shout, and he started the investigation
It's against the law, it was against the law
What the mama saw, it was against the law.
before the start, the tenure of Alberto Gonzales as Attorney General of
United States was - and continues to be - rapidly propelled into the
thicket of obscenity in a way never seen before.
course of Alberto Gonzales’s nomination hearing before the United
Judiciary Committee on January 6, 2005, Senator Michael DeWine of Ohio
Gonzales what he’d like to be remembered for at the end of his
captaincy of the
Justice Department. Mr. Gonzales mentioned six particular goals without
hesitation or prompting questions. Number six was “Obscenity”; The
explained, “I think obscenity is something else that very much concerns
me. I've got two
young sons, and it
really bothers me about how easy it is to have access to pornography”. Was the future Attorney
that the nature of what adults should be able to see in our society
judged by what may be harmful to young children?
Will he, as Attorney General, draw a line in
the sand when exercising discretion over criminal obscenity
-at the point of inappropriateness for his two sons?
Though the statement is ambiguous, I trust
that he did not intend to express such a Mullah-like sentiment in the
Supreme Court handled that
issue forty-eight years ago when it struck down a Michigan law that
criminalized the sale to adults of materials that
had a tendency to
corrupt youth. In Butler
352 U.S. 380, 383 (1957), Justice Felix Frankfurter wrote: “The State
that, by thus quarantining the general reading public against books not
rugged for grown men and women in order to shield juvenile innocence,
exercising its power to promote the general welfare.
Surely, this is to burn the house to roast
the pig”. In
charity to Mr. Gonzales, it
is possible that the excitement of the moment may have blurred in his
important constitutional difference between criminal obscenity and the
dissemination to minors of explicit materials that may harm them; As Attorney General, he
will need to
understand the distinction and recognize it in charging decisions; It is possible that he
wasn’t talking about
the criminal offense of Obscenity at all in these remarks, but of a
find a practical and legal scheme to shield children and unwilling
exposure to explicit materials while respecting the First Amendment
willing adults. Maybe.
days later, on January 20 at Pittsburgh, US District Judge Gary
declared the federal obscenity statutes, Title 18 United States Code
1461. 1462, and 1465 to be unconstitutional — at least as applied to
activities of Extreme
Associates, Inc., Robert Zicari, and Janet Romano in shipping obscene
by mail-order and in selling access in a pay website. (The defendants
dispute that the content was obscene for the purposes of their motion
“federal obscenity statutes
place a burden on the exercise of the fundamental rights of liberty,
Lancaster applied the most demanding
test to assess the constitutionality of the obscenity statutes - the
“strict scrutiny test” which assumes that the law is invalid
government establishes its ample justification by 1) identifying a
governmental interest served by the law and 2)
demonstrating that the statute’s reach is narrowly limited
that compelling interest to avoid intrusion into unnecessary or
analysis, two cases formed the foundation of Judge Lancaster’s decision. He read the US Supreme
Court, in overturning
the Texas sodomy statute in Lawrence v. Texas, 539 U.S. 558 (2003) to say that “public morality is not a
interest sufficient to justify infringing on adult, private,
conduct even if that conduct is deemed offensive to the general
of morality”. Judge Lancaster also based his
conclusion on Stanley v. Georgia,
394 U.S. 557, 564-6 (1969), citing a passage in Stanley
the very essence of the First Amendment rejects the idea that
the power to control what we read and watch: “To permit the government
to do so
would support the ‘... assertion that the State has the right to
moral content of a person's thoughts.
some, this may be a noble purpose, but it is wholly inconsistent with
philosophy of the First Amendment’”.
Judge Lancaster held that the commendable goal of
“protecting the kids”
did not act to justify any and all legislation
which might serve that
end, without regard to the burden it would place on the fundamental
privacy, and speech rights of willing grown-ups.
In that respect, in dismissing the
Indictment, he sounds pretty much like Justice Frankfurter, nearly
earlier, in Butler v. Michigan, reversing Mr.
Butler’s conviction for
selling a book - that might have hurt kids - to a grown up.
And so, when, twenty-five days later, on February 14, 2005, Alberto Gonzales was sworn in as the eightieth Attorney General of the United States, he faced an immediate and urgent decision as to whether the government should appeal from the decision in Extreme Associates and risk losing the obscenity statutes nationwide or sit this one out. Two days later, on February 16, the Justice Department filed its notice of appeal from Judge Lancaster’s dismissal of the Indictment. "The Department of Justice places a premium on the First Amendment right to free speech, but certain activities do not fall within those protections, such as selling or distributing obscene materials," Attorney General Alberto Gonzales proclaimed in a written statement. "The Department of Justice remains strongly committed to the investigation and prosecution of adult obscenity cases." His Justice Department places merely a “premium” on liberty of expression? I remain of the impression -as a former officer of the United States myself - that each of the officers of the Justice Department, including its chief, are sworn to uphold the Constitution at all times in public office. Including its First Amendment and its Right to Privacy. That makes the defense of free expression and privacy a duty of an officer rather than a “premium” of a Department. Perhaps that is what the Attorney General meant to say as he filed an appeal from a decision that broadly asserted a constitutional zone of privacy that protects our private lives from government intrusion. Maybe.
Fourteen days later, on February
28, 2005, the Attorney General spoke at the Hoover Institute and laid
vision of his term: “Another
where I will continue to advance the cause of justice and human dignity
the aggressive prosecution of purveyors of obscene materials. I am strongly committed to
ensuring the right
of free speech; the right of ordinary citizens and of the press to
and to express their views and ideas is one of the greatest strengths
of our form
of government, but obscene materials are not protected by the First
and I am committed to prosecuting these crimes aggressively.”
quietly, a short time later, a publication named “DOJ Obscenity
News” made its appearance on the US DOJ Criminal Division web page,
describing itself as “Spring 2005, Volume I, Issue 1” of a new
edited by Bruce Taylor and apparently dedicated to chronicling a new
adult obscenity prosecution. It
found where it is discretely hosted, at
Lancaster was widely denounced by the so-called Moral Right as a
activist; He was
accused of inventing
new rights and of advancing his personal philosophies under camouflage
March 16 Senator
Brownback’s Subcommittee on the Constitution, Civil
Rights and Property
Rights of the U.S. Senate Committee on Judiciary held a hearing in
the decision in Extreme Associates. Senator Brownback first ridiculed
reasoning of Judge Lancaster’s decision by observing: “Judge Lancaster
together hand-picked strands of 14th Amendment substantive due process,
decisions from Roe, Lawrence
and others and ruled that the
statutes at issue violated an unwritten constitutional right to sexual
notable concern because data shows that now than 50% of hotel room pay
video rentals are now pornographic.
then noted that the Justice Department had taken its appeal, he quoted
Attorney General’s remarks before the Hoover Institute, and then put on
of hand-picked “experts” on obscenity while refusing the request of the
Speech Coalition to provide testimony.
On May 3, 2005, Attorney General Gonzales spoke to a group of prosecutors and law enforcement officers at a conference in Gaitlinburg, Tennessee and he significantly addressed adult obscenity, listing the prosecution of obscenity second among his goals as Attorney General:
From street corners to websites, obscenity and child pornography rip at the heart of our moral values and too easily corrupt our communities. I’ve made it clear that I intend to aggressively combat the purveyors of obscene materials. . . Enforcement is absolutely necessary if we are going to protect citizens and children from exposure to obscene materials. . . I have directed Department officials to carefully review federal laws to determine how we can further strengthen our hand in prosecuting obscenity. Our goal is to assess all the law enforcement methods we use—and identify the tools we may still need—to more effectively investigate and prosecute these crimes.
Attorney General Gonzales addressed
moral values and
corruption of communities as though Stanley and Lawrence
exist within his universe, as though their understanding of the right
privacy was not part of the Constitution he is sworn to uphold - as
rights of individuals to read and watch what they chose was simply not
of his calculus.
Two days later, on May 5, the Chief of the DOJ Criminal Division announced the formation of an obscenity prosecution task force composed of CEOS trial attorneys and dedicated exclusively to the prosecution of adult obscenity. Counsel to the task force is Bruce Taylor; The task force will obtain assistance from the Organized Crime, Computer Crime, and the Assets Forfeiture units. The Chief explained that the global traffic in obscenity required a specialized response in the computer age. He pledged to enforce “the laws on the books”.
In Gaitlinburg, the Attorney General
observed that obscene
materials rip at the heart of “our” moral values.
There are those of us who think that
individual liberty is a moral value, too.
In fact, our ancestors chose to put the word “Liberty” on
coins. They might
have chosen “Decency”
or “Moral Order” or “Law and Order” or even “United We Stand”, but they
Liberty. And so,
half a century after
the defeat of Nazism and Fascism, a decade after the collapse of Soviet
Communism, the eternal battle between collectivism and individual
again, this time on our own shores, with a Republican administration as
surprising champion of collectivist values.
As this article is written, the Red Chinese prosecutors
their prosecution China's first Internet sex crime trial,
authorities call the 99BBS case, is scheduled to begin May 11. The case involves 12
suspects arrested around
the country in 2004, after authorities pursued them for over a month
finally forced them to close down their websites, according to the
It is easy for me to remember when, as a young child in Catholic grade schools, I would look forward to the monthly “Treasure Chest” comic book that serially dramatized the life and persecution of Maryknoll Missionary Bishop James Walsh in Red China, whose crime it was to corrupt the Chinese youth by seducing them into Christianity, and whose punishment was cruel imprisonment by the authorities and presumably the forfeiture of all of his corrupting Catholic materials. Yes, I can remember the Public Service spots for Radio Free Europe that distinguished our freedom to listen to whatever we wished from the Russians who jammed our broadcasts to keep the truth from their people. I really do suppose that the jailers of Father Walsh and the jamming technicians in Russia justified themselves, too, by a belief that they were preventing the corruption of the moral values of the community.
that he has written his
biography, it may be obvious that the only thing that Bob Dylan and I
common is that Barry Goldwater, U.S. Senator from Arizona, a Republican
champion of individual liberty, was our mutual hero.
Bob Dylan had the sense to keep quiet about
it and was far more popular with the girls.
In time, I raised my right hand in 1972 while battle raged
Republic of Vietnam, and I began an association with the United States
that began with an Army ROTC Scholarship and ended eleven years later
four years as a decorated JAG Captain, including three years’ service
we used to call Freedom’s Frontier, the Federal Republic of Germany. It was a service I entered
into because I
thought I heard the call of principle:
The future of human liberty was at stake in the Cold War,
survival individual rights against the collectivist threat demanded
of us make sacrifices so that the candle of freedom might not be
attended the US Army Judge
Advocate General’s School on the campus of the University of Virginia
learned enough there about the law of war and the Geneva Conventions to
teach the subject in NCO academies and training for combat soldiers. That’s why it was that,
during Alberto Gonzales’s
nomination proceedings, I was especially interested in a certain
signed on January 25, 2002 as Counsel to the President, for the
purpose of advising President Bush about his “options” regarding
reconsider his decision denying members of the Taliban and el Qaeda
as prisoners of war under the Geneva Convention III on the Treatment of
Prisoners of War. Collin
Department had asked for reconsideration of the President’s decision to
POW status to captured Taliban and El Qaeda soldiers.
fair and dispassionate reading
of the Memorandum leads to the probable conclusion that it was a “hack
designed to buttress a previous decision and to protect the President
than an objective and careful analysis of the legal issues for his
not one textual reference to the language of the Treaty. (You will
that our constitution includes treaties made by our government as the
the land.). While
Gonzales writes at
great length about the relationship of the insurgent groups to
nations and anticipates that the troops of “failed states” should not
protected under the treaty, he wholly ignored the plain text of Article
which extends protection to members of “organized resistance movements”
the circumstances there described.
importantly, the fundamental point of the President’s decision was the
whether any hearings or case-by-case assessment was necessary before a
was made to grant or deny POW status to captured individuals. The desired result was to
assert that the
treaty did not apply in bulk to the Taliban and el Qaeda and deny
case by case review of their status under the Treaty;
The President was simply not advised by Mr.
Gonzales of the plain text of the Treaty, at Article V., which directly
addresses how such issues should be addressed:
doubt arise as to
whether persons, having committed a belligerent act and having fallen
hands of the enemy, belong to any of the categories enumerated in
such persons shall enjoy the protection of the present Convention until
time as their status has been determined by a competent
I think that it is plain enough that
the Treaty, Law of the
Land in the U.S. under Article VI. of the Constitution, calls for a
decide the issue rather than a commander in chief, and insists that POW
be afforded the captured until such a tribunal is held. Alberto
failed to tell that to the President.
accounts, Mr. Gonzales is a very smart man and a lawyer of some
served several years on
the Texas Supreme court. It
reasonable to believe that Mr. Gonzales did not know what the Treaty
said nor that it was the Law of the Land under the Constitution. It is for that reason that
I am compelled to
the conclusion that the omission was intended by him to serve a
reading of Mr. Gonzales’s numerous accomplishments suggests that he is
and smart in a very practical and pragmatic sense that has led to his
ascent to the high corridors of power and influence.
His relationship with the President and his
easiness in the political arena seem to be at the core.
A careful reading of his recent history as
White House Counsel suggests that in important issues clearly within
sphere, he has pragmatically acceded to the erosion of those
American moral values against torture and mistreatment of those subject
control that have distinguished this nation among all others and which
offered hope to numerous millions of suffering people.
In some significant measure, he is one of
those who have participated in extinguishing the beacon of hope and the
diminishment of American integrity in human rights.
The America which has accepted transparent
shopping bags and torture is, in some important moral sense, a
America than that which put the word “Liberty” on coins, and it can be
plausibly that the America we knew and served has lost its soul under
This is not
to suggest that Mr. Gonzales is not a principled and sometimes
lawyer. His early
gives witness to his dedication to the principle that the poor and
disadvantaged should have decent access to effective legal services,
and he has
received substantial recognition for these contributions and others. In a time when many young
Republicans were dodging military service, Gonzales served two years as
enlisted man in the Air Force and then applied for admission and was
to the Air Force Academy, which he attended for two years. This is not the kind of
made by the unprincipled and avaricious.
is rather whether his moral compass is askew and needs correction. There is a difference
(most of the time)
between True North and Magnetic North.
Mr. Gonzales is no longer just George Bush’s lawyer, no
President’s lawyer, but the office he holds suggests that he is now the
for the American people. A
inevitably points to Magnetic North, a point irregularly fluctuating
between Canada and Greenland, while True North is a point about which
planet rotates once in a day, which changes by precession only over
of years. In some
places in the 48
contiguous states, the difference is as much as 21º.
Because of that difference, maps and charts
for navigation provide a correction factor called a Magnetic
sense is that the Attorney General’s moral
compass is pointing roughly ninety degrees from True North, directly to
right most of the time, but it has a habit of directly pointing to the
whenever he is in the vicinity.
direction of True North in
the tradition of our Constitution - and in the articulations of the
Party - and under the shared morality of a free and diverse people -
toward the increase of individual, personal liberty to the maximum
possible consistent with a reasonable degree of social function. I would remind the
Attorney General that the
immigrants arriving by ship in New York harbor did not look up to the
Decency; They saw
the Statue of Liberty,
and if co-existing with some indecency was the price of breathing free
was a choice they were generally delighted to elect.
our nation and our communities
can be said to have moral values, it is because they exist in the
arise from them. A
morality which is
forced upon neighbor by neighbor or imposed from above is no morality
the application of pressure to conform does not result in virtue.
of morality change over
time like Magnetic North’s relationship to True North, and it is
sexual morality has markedly changed over the past fifty years. In listening to Senator
Brownback - and
indeed to Attorney General Gonzales’s recent pronouncements, it is easy
visualize a conservative cadre trying desperately to hold the pendulum
from its natural swing. Especially
those of us involved in one way or another with the online adult
is obvious that broad and diverse segments of the American people -
through all races, religions, ages, and economic and educational levels
- seek and obtain
sexual fantasy entertainment
through explicit pornography. To
two of Senator Brownback’s witnesses tell the story, to hear Bruce
the tale, one would imagine the customers of the adult internet to be a
number of thrill seekers and a larger number of pitifully addicted
perverts. Such an
assessment of the
situation belies the Senator’s own numbers: More than fifty percent of
view in American hotels is hardcore.
reality they refuse to accept is that mainstream American moral values
candor in the depiction of sex have changed beyond their power to
of millions of Americans
regularly and routinely consume erotic online materials. Because so much material
is available free, it would be
impossible to learn
exactly how much is downloaded every day.
Stanley made it clear
government had no power to criminally punish the private possession of
pornography made exclusively with adult performers– even obscene
in the home for personal consumption.
Accordingly, unlike drugs, unlike child pornography,
materials are not per se contraband, even if they are obscene.
government has attempted for
some decades, with mixed results, to end the drug trade with a two
attack that seeks both the distributor and the consumer, believing that
on demand may help reduce the traffic in drugs.
A demand-side approach is unlikely to work regarding
because of Stanley.
Moreover, unlike drugs, the market demand for
the product - to the extent that it is part of ascertaining
community standards - is a mitigating factor in determining whether
material is illegal to distribute under existing law. Should significant
prosecutions start, in the
period of time before the inevitable, significant defense victories in
courts, much of American online porn is likely to become effectively
to supply the demand of the American market.
It is unimaginable that our government would or could
exert the kind of
chokepoint stranglehold over the Internet in the U.S. that Red China
over foreign websites, and that suggests the likelihood of transborder
permeability of content for the foreseeable future.
The concentration of adult webmasters and
content producers on foreign shores will simply make it more difficult
Justice Department to enforce Section 2257 and to effectively prosecute
most extreme genres. There
is much for
the DOJ task force to consider before any wave of prosecution
A close reading of the Attorney General’s remarks in Gaitlinburg would suggest that, at the present time, he has directed study and consultation about the issue of obscenity, and not the kind of precipitous action that, surely, some around him are requesting or demanding. That’s a smart move. He also now needs to hear the same guidance now that I received at the start of Navigation and Orienteering training at Fort Riley and which he, too, surely heard in the Air Force: “First, orient your compass”.
Copyright 2005-2011 J. D. Obenberger. All rights reserved.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is firstname.lastname@example.org.
J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.