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Eric Holder Frightens Civil Libertarians

Attorney General designate, Eric Holder, sends a cold chill up the spines of many civil libertarians and those that value separation of church and state with a history of disturbing statements and pandering to religious right organizations such as Morality In Media. Indeed, civil libertarians are very disappointed in this choice to be next Attorney General of the United States.

While 57 year old attorney, Eric Holder, is expected to strongly enforce civil rights laws and to be tough on white collar crime, especially among Wall Street firms that helped to drive their up own companies financial problems while they pulled down salaries that reached into the heavens with multimillion dollar salaries, Holder's past statements and actions in regards to civil liberties only frighten civil libertarians.

The subject of freedom of speech on the Internet is an important issue to civil libertarians, yet in 1998 Holder issued a statement know as the "Holder Memo" which supported more government intervention into policing free speech on the Internet. Holder wrote,"Because of the nature of the Internet and availability of agents trained in conducting criminal investigations in cyberspace, investigation and prosecution of Intenet obscenity is particularly suitable to federal resources". This presents a chilling image of a Washington bureaucrat who doesn't view the Internet as a worldwide entity where a number of U.S. states as well as nations do not even recognize obscenity as crime, let alone a high priority to devote for federal resources.

eric holder.jpg

Holder has also pandered to outrageous religious right organization, Morality In Media, in a disturbing 1998 letter in which Holder wrote, "I appreciated having the opportunity to meet with you recently to discuss the prosecution of obscenity cases". Led by religious right extremist, Robert Peters, this wacky religious right organization has even attacked store displays of popular magazines such as COSMOPOLITAN and has badgered major supermarkets such as Kroger to stop selling or else cover up popular women's magazines or supermarket tabloids. And this same small group of religious screwballs regularly attacks shock jock radio and other shows with letter writing campaigns or endless exaggerated FCC complaints. The group even sent a screwball letter to President-Elect Obama claiming that vigorous prosecution of obscenity is needed because of things such as "sex with excrement", although the organization failed to prove that even one American website even features this sort of bizarre content. Like much of the propaganda from Morality In Media, it is likely another outright outrageous lie meant to pressure politicians in supporting the organization's screwball political agenda. The Bush Administration even blurred the line between separation of church and state by putting a retired police detective from Morality In Media on the government payroll to surf the Internet looking for offensive websites to possibly target for an obscenity prosecution.

The real problem with any obscenity prosecution is that the strict wording the 1st Amendment doesn't seem to support any role of government in regulation of speech for political, religious or even offensiveness reasons. And even after the controversial 1973 Supreme Court case that allowed for "local communities" to have power to regulate free speech, which a minority on the Supreme Court still believes is an unconstitutional standard, the federal government and some states as well have set up some obscenity laws, often even going as far to absurdly make offensive speech a felony or even a racketeering offense in some cases.

The real problem with federal prosecutions of obscene speech on the Internet is that since the Internet is a worldwide commodity, it becomes an example of one branch of government attempting to regulate what the rest of the world community may view even if the material is completely legal in most of those communities. Further, since a number of states don't even have any obscenity laws or don't enforce the laws on the books, the federal government must find a conservative community, often in the South, and attempt to build a federal obscenity case by claiming that some local ordinance was violated in some conservative Southern jurisdiction. This is an absurd legal standard, as all material available on the Internet is considered to be constitutionally protected free speech until some local community has a trial with a judge and jury to claim the content exceeded local community standards, then the individual, corporation or website is somehow guilty of a federal obscenity offense.

But what is so disturbing about Holder was that he supported multijurisdiction prosecutions of Internet websites and businesses on federal obscenity charges where material that may be completely legal has to be defended in courtroom after courtroom, community after community, just to drain a company's assets with legal bills and bankrupt completely legal businesses with up to millions of dollars in lawyer's fees by using endless amounts of taxpayer dollars for endless prosecutions. It is an outrageous form of dirty prosecution tactics to bankrupt controversial free speech even if they win every case in every courtroom and prove their material to not violate the community standard in every courtroom. And Holder not only supports the prosecution of major sellers but also smaller businesses as well, which will often unfortunately plead guilty to obscenity charges that they might not be guilty of simply because they lack the assets to defend themselves.

In Florida, a few years ago a small African-American owned record store had to spend vast amounts of money to successfully defend itself from obscenity charges for offering for sale a copy of a Two Live Crew rap album. Small businesses like this might win their case against obscenity charges, but are bankrupted by the legal costs. And if the business loses, then they face government seizure of the business, possible loss of their home and other property, bank accounts and huge fines and prison time and sometimes being branded for life as a convicted "racketeer. Racist Senator Jesse Helms added obscenity to the list of racketeering offenses in his late days in the Senate and elderly racist Strom Thurmond helped to write many of the federal obscenity laws. These two socially backward Southern racists are most responsible for some of the worst of federal obscenity laws that have often spurred racially motivated obscenity cases in Southern courtrooms. It is nothing short of laws being far worse than any tasteless or offensive form of free expression by far.

Jewish American comic Lenny Bruce was once targeted several times in court in New York with obscenity prosecutions, and these legal problems led to his suicide. Today, his same sort of comedy is common place on cable TV and in nightclubs. The City of New York made a posthumous apology to Lenny Bruce a few years ago for their zeal in driving him to his death. The problem is that standards for what constitutes obscenity changes over time. What might be considered a crime at one time, isn't a little later. And other "crimes" are not built on a matter of personal taste or opinion like obscenity prosecutions are. Murder is always murder, theft is always theft, but obscenity is not always a crime in every community or over time as public taste changes. Obscenity prosecution is an outrageous standard to base law on. There is no clear cut set of laws written anywhere what may or may not be considered obscenity and in every community. A Gay adult film might be considered legally acceptable in San Francisco or most big city communities, but in a conservative Bible Belt courtroom in Mississippi, be considered a crime there. There is also no indication that George Washington and the other founding fathers intended that each individual local community should be allowed to establish laws to regulate speech locally. The Supreme Court in 1973 recognized that the strict wording of the 1st Amendment doesn't leave any room for federal government to regulate speech, so let local communities do that instead, which is absurd, but then even allowed the federal government to act as well. It is clearly an unconstitutional standard for regulation of free speech.

Holder is a very disappointing choice for Attorney General. He just doesn't seem to share any modern sense that the worldwide nature of the Internet should not be subject to local community laws. And the notion of judge shopping, courtroom shopping, to find the most conservative possible community in some Southern jurisdiction in a Bible Belt community to decide what persons in New York, Los Angeles or San Francisco may view is outrageous. Holder just doesn't seem to value the separation of church and state any higher than the current religious right wackos who are plentiful in the Bush Justice Department is appalling. The religious right has used the Bush Justice Department to advance it's radical social and cultural agenda, and Eric Holder holds little promise of reversing this abuse of government power and spending of taxpayer money to advance a religious agenda.

Civil liberties supporters have every right to be very disappointed in this awful choice for Attorney General. Government has no legitimate role in using taxpayer dollars to promote a religious agenda. And most existing obscenity laws that involve the distribution of sometimes outrageous or tasteless material between consenting adults is clearly unconstitutional and often just an attempt by religion to enforce their views of culture on the society at large. Government has no legitimate role legislating good taste in entertainment. And ironically, Blacks, Gays, Jews and other groups have often been disportionately made the subject of obscenity cases when comics, rap albums, or others have been hauled into court to defend themselves from serious obscenity charges that may be construed as a "crime" in one conservative community, but not even considered a crime almost everywhere else. It is a shame that Eric Holder doesn't seem to see this historic racist application of law here. Eric Holder just doesn't get it. Unless Eric Holder has proven substantial change since his backward thinking views about Internet freedom from 1998, then he should not become the U.S. Attorney General.


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Comments (4)

steve:

I'm glad to see there are limits to your faith in the absolute moral purity and common sense of all democrats. Curious to see how you can criticize one of Obama's choices without ever mentioning Obama by name - except as a recipient of a "screwball letter" from Morality in Media! Is it difficult to admit he isn't perfect?

John and Steve, there really wasn't any reason to address Obama in this piece since there is little evidence in Obama's history to indicate his philosophy of law enforcement used to regulate free speech, the Internet, or unfair prosecution practices such as multiple prosecutions in several communities of a legal business to bankrupt the business with massive legal costs. And there is the important issue of separation of church and state. Eric Holder has such a record on these serious issues. Obama does not so far. But if Mr. Obama is on the wrong side of these issues, I'll certainly speak out. But in my view,Eric Holder really is too similar to Alberto Gonzales in his legal philosophy in these areas. Holder doesn't seem to even follow the minority reasoning of the Supreme Court or many federal judges that government has no legitimate role in regulation of speech, even commercial speech, between consenting adults.

Obscenity standards vary over time and community by community, so it is absurd standard to base prosecutions on. It is also an absurd standard that if a local community's standards for acceptable free speech are exceeded, then a federal crime is committed, which is absurd legal standard that the Bush Administration has been using. Some states don't even have obscenity laws or many communities do not enforce old laws on the books, so it usually becomes a federal government effort to shop for a conservative community, often in the South to base a federal case against California or other Northern based businesses that use the Internet. And obscenity arrests send a chilling effect on independent filmmakers who may fear using edgy content, even if the bulk of their work is not even considered to be pornographic. For example, the critically acclaimed independent film, THE BROWN BUNNY, features one scene at the end of the film that might subject the film to prosecution in some conservative community even though the entire rest of the film is nonsexual in nature. Some independent and foreign filmmakers use some sparring sexually explicit scenes in their movies, which are mostly nonpornographic in nature, and distribution or exhibition of their films is hampered by local or federal obscenity laws. These smaller independent filmmmakers lack the funds to defend themselves from prosecutions over obscenity charges and small mom and pop video stores that may rent some arthouse films or smaller venue theatres also lack funds to defend themselves in court if charges are brought.

Former prosecutors like Holder like to point to the "deterrent effect" of obscenity prosecutions. That is exactly the problem. Government is seeking to create a climate of fear over free expression by sending some to prison, seizing their homes and businesses, and dishing out fines that can run millions of dollars for selling a small number of items such as dvds, cds, record albums, books, etc. to satisfy religious objections to some free speech content.

In my view, government has no legitimate role in promotion of the religious agenda of small fringe organizations such as Morality In Media which clearly describes itself as an "interfaith" organization. Further there was a Catholic priest who was a founder of Morality In Media, and this organization has failed to even once address the very serious issue of priest sexual abuse of children, but instead attacks supermarket tabloids, etc. Morality In Media uses undocumented smear tactics to claim that free speech may breed sex crimes to justify their outrageous actions, yet will not address sex crimes by priests or other clergy members.

Anon:

This article seems short on data points and long on verbiage. Sending a polite letter to an interest group is utterly meaningless. The Holder Memo sounds like more of a concern, but you don't give it much explanation or context.

Lawyers write about legal strategies that they may or may not agree with all the time; that's what they're paid to do. What was the context of the Holder Memo? Does it actually suggest that Holder himself would advocate for cracking down on "obscenity" on the internet? Or was it a straightforward analysis of a legal issue, commissioned by someone further up the hierarchy?

Anon, compared to Attorney General Janet Reno who almost exclusively only targeted those evil bastards who sexually exploit children, who should by all means be prosecuted, Holder's memos and other information proves a willingness to attack commercial adult entertainment and other controversial speech that uses the Internet. These other types of speech may not always be attractive or even desirable, however using the vast resources of the taxpayer to mow down ugly free speech or to employ legal strategies of multijurisdiction prosecutions so that some crazy website operator who lacks good sense or taste has to spend endless amounts of money on lawyers to avoid years in prison or forfeiture of his business, home and bank accounts to the government plus huge fines is outrageous.

Interestingly, while most persons convicted of some serious crime such as murder face only prison time, anyone convicted of an obscenity offense stands to lose their business, home and bank accounts to the government, plus fines that could run into the millions of dollars as well as the prison time. In a Virginia case a few years ago, a married couple who ran a chain of video stores, had to give the government 9 businesses, their home, bank accounts plus faced $1 million in fines and the husband 90 years in prison for offering for sale just adult films. One of the films was prosecuted because it involved a transsexual or Gay content, and that didn't go over too well in a conservative Virginia community. The wife lost her mind and had a mental breakdown from the case, while her husband was sent to prison for just three video rentals which had a maximum retail value only around $100. I personally wouldn't walk across the street to view a transsexual film myself, but if someone chooses to, then they should have that right in a free society without government walking all over them and putting people in prison. This isn't Communist Cuba or North Korea here. But I'm wary of Holder, so I think that the concerns of those concerned with civil liberties need to be raised to see where he stands here. Is he on the side of the religious extremists who want to use government to regulate culture and the Internet, or does he support civil liberties and freedom of choice for the public to best decide for themselves what they wish to view online.

Part of the reason that I voted for Mr. Obama was that I wanted to see a return to civil liberties in this nation after the Bush Administration had spent so many years walking all over the rights of American citizens. But Mr. Holder concerns me. Since 1998 has his heart changed where he now respects the Internet as a worldwide entity, that should not be subject to local community standards, where some tiny town in Bible Belt Mississippi can decide what sort of content is acceptable for the entire world to be posted online?


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Publisher: Kevin Aylward

Editors: Lee Ward, Larkin, Paul S Hooson, and Steve Crickmore

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