The 2012 Presidential Campaign

Reading the Moralizers' Hidden Message

By J. D. Obenberger, Attorney at Law
© MMXII J. D. Obenberger, All Rights Reserved


Patrick Trueman just recently demanded that Mitt Romney pledge to commence a War Against Pornography, articulating that the "existing obscenity laws" be enforced with renewed vigor. But it's easy to figure out that the real 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 2010 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 former 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, those who 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.

A few days after his campaign seemed to buy into Trueman's demand, Candidate Santorum was called on to answer to the Chicago Media and started backpeddling all over the place about his campaign's promise to deliver that War on Porn.

Here's what Richard Roeper in the Chicago Sun-Times reported on March 21, 2012:

When my radio partner Roe Conn asked presidential contender Rick Santorum on Monday afternoon about recent reports of him going after the porn industry, the following exchange occurred:

Santorum: “Ha! Hold on one second, hold on one second. I wasn’t talking about the porn industry. We get questions on our web site ... and we post responses ...

“I didn’t even realize, candidly, that this was a posted response ... and to suggest I’m running on this issue is sort of bizarre.”

Conn: “I’m not suggesting you are, but it was a bit of a firestorm...”

Santorum: “The media likes to make firestorms out of nothing. All I said in that post was, I would enforce the law. Now if that becomes big news, that the president is going to enforce the law, and that causes a firestorm, that is pretty pathetic.”

The interesting thing is that he jumped back in his first reaction, distancing himself from a war against the porn industry. I think he's afraid of the affections/attractions of mainstream people. People want their porn and he knows it. I think he knows how fringe it makes him look to take on Porn Valley kinda porn, and he's afraid of the mainstream backlash.

Like the writer above said, the men want their porn. But it's broader. The females under 35 want their porn, too, and even the older women have grown much more tolerant about it because they are immersed in the same culture that accepts the vibrator ads on TV, whether they like it or not. Now, there's a whole generation of kids coming up who saw as much porn as they wanted courtesy of the tubemasters. Who make homemade porn. Who do the Original Amateur Hour stuff on computers with built in cameras. Male and females under 19 are watching porn as often and for as long as each other according to the National Academy of Science. The whole dynamic has shifted, and that entire generation under 25 is desensitized to porn and will never have the same visceral and often emotional reaction that earlier generations did, and to them, it's lost its stigma.

It's a whole tapestry woven of many fibres. Kim Kardashian and Paris Hilton are part of it, the tubes are part of it, and the jokes on late night TV are part of it too along with chat roulette. Too early to tell what the tapestry will look like in its entirety, but when a presidential candidate of the far right distances himself from a war on the porn industry and says that making this a central theme of his campaign would be "bizarre", something BIG has shifted in our culture. What once looked like the future, not so long ago, is our Now.


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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 xxxlaw@execpc.com