This post starts what I hope will be the first of numerous book reviews on this blog. I intend to focus on books about law, public policy, and Alaska subjects. Of course, since this is my blog, I reserve the right to go beyond this if events warrant, but this is what I would like to focus on.
With that in mind, I cannot think of a better book for a libertarian defense attorney to start with than The Government vs. Erotica, by Phil Harvey. Mr. Harvey started the Adam and Eve company, a company selling sexually-oriented videos and products. He started his company in North Carolina. Even then (1986), North Carolina was demonstrating red state tendencies, so Mr. Harvey found himself the subject of an obscenity prosecution in state court. This obscenity prosecution started a few months after NC made its obscenity laws more strict. Mr. Harvey and his corporate counsel met with the DA in the county where the company was located. The DA recommended a few items be removed from their catalog and those items were removed.
That was not good enough for the DA in neighboring Almance County. Acting in conjunction with federal authorities, they got a search warrant and raided the company. When the feds did not act fast enough, the Almance County DA initiated a prosecution dealing with state obscenity laws. Mr. Harvey and his company were acquitted in no small part due to an excellent legal team.
But Mr. Harvey's problems were just beginning. The federal investigation was just picking up steam. Mr. Harvey and his company wound up being prosecuted in a number of federal district courts. For those who do not know, federal district court is the trial court level of federal courts. This successive prosecution does not constitute double jeopardy for a couple of different reasons. First, courts have repeatedly held that prosecutions by 'separate sovereigns' do not violate the double jeopardy provisions. So, a prosecution by the feds after a prosecution in state court are for two separate crimes, according to legal theory, and do not violate double jeopardy. Second, because the company distributed items throughout different districts of federal jurisdiction, each distribution could be viewed as a violation of the obscenity laws. Thus, mailing a video to Alabama is 1 crime and mailing to Utah is another.
It turns out that the US Department of Justice had decide to stamp out pornography by bankrupting the publishers. The method used to bankrupt pornography publishers was to prosecute them, successively, in a variety of federal jurisdictions. Thus, Mr. Harvey and his company might proceed to trial one week in North Carolina, the next in Utah, the next in Missouri, the next in Alabama, etc. Each of these prosecutions would be brought in conservative jurisdictions where the odds of conviction would be higher.
When the federal prosecutions began in earnest, the company hired Bruce Ennis, one of the best First Amendment attorneys in the country at the time (Mr. Ennis has since passed away). Mr. Harvey and his company were facing prosecution in several jurisdictions, including Utah and Alabama. For a variety of reasons, the case in Utah looked to proceed first. Rather than just defend the criminal trial, the defendants filed suit against the government to argue that the prosecution was in bad faith and violated the First Amendment. The trial court denied the motion. Incredibly, the 10th Circuit granted an interlocutory appeal. For those who are unaware, this is an appeal that occurs before the trial court proceedings are finished. The 10th Circuit ultimately ruled that the prosecution was in such bad faith and targeted what was clearly non-obscene material and that it was a violation of the defendant's First Amendment rights to even be prosecuted. A stunning victory indeed.
This book works on several levels. The first and most obvious is the tale of the legal battle. As an attorney, I found it invaluable to read about the brainstorming sessions between the various lawyers. It is also interesting to watch the different attitudes of the criminal defense lawyers and the civil First Amendment attorneys. The book also works as a good primer on obscenity law. Any attorney who has a case in this area would be well served to purchase, not just read but purchase, this book. Lastly, this book works as a depiction of a fight for freedom. It is very clear that the government's objective was to do an end-around around the First Amendment. Fortunately, Mr. Harvey and his attorneys stood and fought.
Anybody interested in freedom of speech and expression should be concerned at the government's behavior in this book. Whether you believe that Mr. Harvey is an upstanding citizen or a smut peddler, this book is a reminder that the price of freedom is eternal vigilance. When government gains power, it does so at the expense of its citizens and it is not likely to give such power back, at least without a pretty good struggle. Granting government over out freedom of speech will lead to disastrous and unintended consequences. Consider that the Soviet Union used to ban the Bible, not for religious reasons, but because the State deemed it 'pornographic' based upon Song of Solomon and other passages. Arguing that the State has misinterpreted the Bible will not really work when the government comes to kick you out of your state-owned house, to throw you in prison, or to torture you.
The government was able to get away with this for a couple of reasons. First, few people stood up to them. Fortunately for all of us, Phil Harvey did. Second, the obscenity laws in this country would be unconstitutionally vague if not promulgated by the Supreme Court. The approved obscenity definition uses a community-based definition. In other words, what is obscene in Des Moines might not be considered obscene in New York. It is hard to see how this definition will succeed in the Internet Age. But an even bigger problem is how we wound up with laws against obscenity when the First Amendment declares that Congress shall make 'No Law' abridging the freedom of speech. Try as I might, I don't see an obscenity exception in the First Amendment. Of course, I also don't see exceptions for speech that poses a 'clear and present danger', or speech that advocates the violent overthrow of the US government. I mean, what part of 'NO' do you not understand? (Child porn is excluded from this analysis because children are deemed too young to knowingly and voluntarily give their consent to participate in the production of pornography. I believe that very, very few people would argue for the right to produce child pornography, and certainly not on a constitutional basis. I am not certain about mere possession, but that's a whole separate issue).
I welcome any other book suggestions. I cannot promise that I will be able to read and/or review them, but I absolutely devour books, reading several a week. Many people, upon hearing this, wonder when I have time. I think that's the wrong question. Without reading, I would go insane, so I think the question is how I can manage to live my life while reading so little.