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Porn Jitters

In one of the salient moments during testimony to the Meese Commission, porn sage William Margold remarked wryly to the commissioners that they need not worry about, or waste taxpayer dollars investigating, the adult-entertainment industry.

”Just leave us alone,“ Margold noted ruefully, ”and we‘ll destroy ourselves.“

Well, not quite.

In the 16 years since Margold faced what many considered to be a McCarthy-like inquisition designed by the Religious Right to degrade the First Amendment, porn hasn’t exactly committed suicide.

In spite of Margold‘s sarcastic prediction, the L.A.-based industry survived the ReaganBush years and has grown into a thriving enterprise, an octopus with multibillion-dollar tentacles that reach deep into traditional media such as video, cable and print as well as new tech formats including DVD and the Web.

A common cry among the groups opposed to the adult industry has been that ”porn is as readily available in this country as fast food.“

That’s not too much of an exaggeration. Consider that an estimated 25,000 video outlets across the nation stock adult material, with more than 10,000 new porn-video titles released each year. The Internet seems to have multiplied all of that exponentially.

Yet the blue skies and bulging bank accounts that came with the Clinton era are now over, and major porn companies are sounding general quarters for what they are sure will be their first major firefight in a decade. Obscenity busts and trials are looming large on the horizon, they worry, with the only questions being when, where and how.

If the previous two Republican administrations are any indication, veteran First Amendment attorney Jeffrey J. Douglas says, the industry can expect at least 30 or more companies to be targeted by the Justice Department. That was the approximate number of companies that were put in the cross hairs under both Reagan and Bush.

”Some people are predicting that as many as 80 or more companies will be targeted, but I don‘t think they have the staff to handle that,“ Douglas says, adding that the real question confronting the adult industry is how the expected prosecutions will take shape.

If they seek a pure political appeasement of the Religious Right, Douglas says, prosecutors will be less likely to bargain and will push hard for prison sentences. This was the tack they took against adult mail-order companies during the Reagan years, Douglas notes. Yet they could also seek to cripple financially a slew of companies instead, angling to force additional changes upon the industry without seeking to lock up its producers. According to Douglas, that was the approach taken by the previous Bush administration against porn manufacturers more than a decade ago.

Douglas says a new era of Justice Department prosecutions could hammer some companies into oblivion, noting that in 1990 the department’s Child Exploitation and Obscenity Unit milked more than $23 million out of more than two dozen companies. Essentially it is the porn equivalent of a drug raid that nets a baggie full of weed in a mansion and -- presto! -- the mansion becomes a trophy in the Drug War. The porn seizures were euphemistically titled ”liquidated forfeiture.“ On average, companies were forced to pay $1.2 million each.

Yet the fact is, the porn industry didn‘t just survive those dark days, but thrived in the aftermath and even pushed the sexual envelope further.

So it is surprising -- given the depth, breadth and financial clout of the industry -- that top production and distribution companies are scrambling as if the very industry itself may not survive Hurricane Dubya.

The scope of their angst, which has been slowly building ever since George W. Bush fought off Senator John McCain in last year’s primaries, has reached something of a zenith in recent weeks with the inauguration of Bush and the confirmation of John Ashcroft as attorney general.

The highlight -- or nadir -- of this collective hand wringing emerged in mid-January in a 24-point list of guidelines that producers and directors are expected to follow when making a porn flick.

Dubbed the ”Cambria List“ after the lawyer who crafted it, First Amendment attorney Paul J. Cambria, the guidelines effectively put to an end a host of sexual acts that range from the bizarre to the basic.

Suddenly verboten are scenes in which the models seem to be experiencing ”unhappiness or pain,“ as are scenes that put female models on the receiving end of some of the vitriolic tirades that have become a trademark of such porn trailblazers as Max Hardcore.

Carrots, cucumbers and other phallic-shaped produce have been spared degradation as well, as food is no longer fair game as sex toys.

Under the ”Cambria List,“ directors are also now to discard blindfolds and wax dripping (so no 9 12 Weeks) as well as scenes between black men and white women, lest David Duke find his way into the jury box at an obscenity trial. (One might assume that Ashcroft‘s Justice Department would not seek to dismiss him.)

Both Douglas and Margold were candidly dismissive of ”Cambria’s List,“ with Douglas characterizing it as ”complete horseshit.“ Yet others found the guidelines useful as a reference point.

”The guidelines just touch on areas that people have been prosecuted for in the past,“ says Russ Hampshire, president and CEO of VCA Pictures, another major industry player. ”With a Republican administration, you can expect less rules, less regulations, less control -- except on things you do in the bedroom.“

Hampshire, who has been in the adult business since 1978 and now heads one of the biggest companies in the industry, says that he will take a cautious ”wait and see“ approach. The company may tone down its video and DVD box covers, and Hampshire says he may kill a more explicit line of videos the company produces altogether.

While Cambria‘s client roster includes industry giants such as Larry Flynt’s Hustler Video (for whom this writer occasionally works) and Vivid Video, it is far from certain that smaller firms will follow their lead.

In fact, some producers and directors seem ready to take the risk of holding fast to the more liberal standards the industry applied during the Clinton era. With the bigger companies becoming even more vanilla in their approach to depicting sex, smaller maverick producers may reap a windfall by breaking all the rules.

Of course, as Douglas notes, they‘d better make a lot of money fast if they want to successfully fight the federal government.

”These guys better start building a war chest,“ he says. ”Because if you don’t have a quarter-million dollars to defend an out-of-state obscenity bust, you‘re dust. And the government will know whether you have that money or not. They’ll know if you can seriously fight.“

If that turns out to be the case, if the Justice Department indeed will cherry-pick companies for prosecution based on their ability to pursue a case up the judicial chain, then the larger companies may be shaking in their boots prematurely.

One veteran producer who has worked with many of the major porn companies and has observed the industry from its formative years in the late 1960s sees a lot of dark clouds framed with only a smattering of silver linings. Citing his current business dealings with major porn companies, the producer spoke on the condition that his name not be used.

”You can bet that there will be some weird resolution to this contest that no one has imagined just yet,“ he says. ”Porn will prevail in the long run, as it has human nature on its side. In the short term, though, there will be serious problems for porn producers.“

The producer, who was witness to some of the earliest porn busts of street vendors in New York City under the reign of legendary Mayor John V. Lindsay, noted that even by today‘s jaded standards, the industry may have a tough time selling a jury on some of the more extreme tapes now being produced.

”Back then [during the Lindsay busts], porn was new, remarkable and unheard-of,“ he recalls. ”And on the face of it, it was sleazy, and I was sure they couldn’t defend it on the same grounds as they could a work like Tropic of Cancer.“

Fast-forward three decades, and porn still has the same hill to climb.

”I think it is more vile and sleazy now than ever,“ the producer says. ”But people clearly have a legal right to sexual freedom. Sex is political, and political speech is the most protected in our society. But that doesn‘t mean these lawyers are going to have an easy time explaining to a jury that a video featuring 150 men ejaculating on a woman should be protected speech.“

One lawyer who has faced those questions with juries before thinks it is a sell the industry can make, if it has the guts to do it.

Roger Jon Diamond, a Santa Monica--based lawyer who has been defending adult material since the late 1960s, a role that has put his work in front of the U.S. Supreme Court, feels some of the worry may be overblown.

”I don’t think Bush or Ashcroft can successfully bring us ‘Meese II’“ he says. ”Too much material is already out there in too many places. How are they going to prove community standards (a central requirement of the Miller Standard the Supreme Court set in determining obscenity) now? You can‘t unring the bell.“

Diamond notes that the industry’s will to draw a line in the sand and fight prosecutions may well determine how much damage the government inflicts on it.

”The industry could withstand a full-court press by the Justice Department,“ Diamond says. ”The question is, do they have the courage to do it? It‘s like soldiers landing on the beaches. You know you are going to take the beach, but some guys up front are going to have to take some bullets for everyone else. So the question becomes, who is willing to take some bullets?“