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"What one can easily miss in looking at this is the dramatic increase in the forfeiture provisions of 18 U.S.C. §1467," DeWitt noted. "After a hard fight in Congress in 1988, they added a requirement that the forfeiture of property used in an obscenity offense ? unlike RICO, which automatically forfeits the whole enterprise ? is limited to a forfeiture of that property only 'if the court in its discretion so determines, taking into consideration the nature, scope, and proportionality of the use of the property in the offense.' That caveat is removed under this bill, so it becomes a mandatory forfeiture of all instrumentalities of an obscenity offense even if just one item is found obscene: The building, bank accounts, the delivery truck and everything else. On top of that, the bill changes the law so that a 2257 conviction triggers mandatory forfeitures of everything involved in the offense. Somebody convicted of one indexing screw-up will have his whole company forfeited!"

Shades of FW/PBS, the Fifth Circuit case where the Justice Department tried to forfeit three entire adult companies based on two "obscene" tapes having been sent to Dallas, Texas!

"The reason why Justice wants this," DeWitt continued, "is that RICO, which does have mandatory forfeiture provisions, can be used only sparingly, and only with the approval of the top brass at the DOJ. And, to boot, they have incorporated the draconian drug-forfeiture provisions, which seem to include RICO-type mandatory forfeitures of the entire enterprise."

Considering the mindset of the current administration, prosecutors should have no trouble getting their superiors' approval for RICO obscenity forfeitures.

"I think the way this went down," Obenberger opined, "the Justice Department calls the House Judiciary Committee; Judiciary recommends this guy [Pence]; it gets introduced, and I think what's been going on is, the people involved in the litigation have been talking to the people at CEOS and they said, 'We'll fix them. We don't want them to have anything to stand on; we'll take it all away from them, and furthermore, we're going to rap their knuckles good and proper for trying.'"

But the real clincher is Sec. 7, "PROHIBITING THE PRODUCTION OF OBSCENITY AS WELL AS TRANSPORTATION, DISTRIBUTION, AND SALE." Forget the fact that there's no way to know whether a particular work is "obscene" before a jury reaches its verdict on the material; this section of the bill attempts to make the mere production of the material a crime above and beyond the interstate transportation of it.

See, used to be that the feds only had power over adult sexually explicit material if that material found its way into interstate commerce. If a producer of an adult movie sold that movie only in the state in which it was made, the feds wouldn't have been able to touch it.In California, specifically, production of sexually explicit videos is protected by a 1987 state supreme court decision, People v. Freeman, and a 2005 New York lower court decision, People v. Paulino, which is currently unchallenged, protects adult video production in that state. However, in a typical pro-censorship sleight-of-hand, H.R. 3726 details extensive congressional "findings" that although the production of child pornography is almost always an intrastate activity, with the entire production process occurring entirely within one state, the increased accessibility of the Internet, coupled with individuals' easy, cheap access to high-tech video cameras and computer equipment, "taken together ... have had the unfortunate result of greatly increasing the interstate market in child pornography." [Emphasis added]

Anyone who's been following recent U.S. Supreme Court decisions is probably aware of two significant end-of-term rulings: Gonzales v. Raich and Kelo v. City of New London. In both instances, the high court found that although the issues were entirely intrastate ? in Raich, the question of whether the U.S. Justice Department could bust "medical marijuana clubs", which legally supply marijuana to California residents who are prescribed the substance by their physicians, and in Kelo, whether a state could use its eminent domain power to take properties from unwilling owners and give it to local real estate developers ? the fact that those actions could affect interstate commerce gave the federal court system the power, under the Constitution's commerce clause, to consider the issues.

The religio-conservative censorship machine long ago learned to use seemingly unrelated Supreme Court decisions against the adult industry, and here, Rep. Pence has attempted to use the intrastate/interstate convergence in Raich and Kelo to allow the federal government ostensibly to take actions targeting child porn production within a single state.

But the federal government already has the power to bust child porn producers wherever it finds them, and in fact, despite this bill's long preamble, it's clear that the objective of bringing in the intrastate/interstate controversy is not to target child porn production, but to set the stage for the feds to target intrastate adult porn production under the commerce clause.

Hence, H.R. 3726 would amend the title of 18 U.S.C. §1465 ? the "Obscenity" crimes section ? to read, now, "Production andtransportation of obscene matters for sale or distribution," and its operative text to read, "Whoever knowingly produces with the intent to transport, distribute, or transmit in interstate or foreign commerce, or whoever knowingly transports or travels in, or uses a facility or means of, interstate or foreign commerce or an interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934) in or affecting such commerce, for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both." [Changes emphasized]

Sec. 1466, "Engaging in the business of selling or transferring obscene matter," is similarly amended to read, "Engaging in the business of producing with intent to distribute or sell, or selling or transferring obscene matter," and its text amended to add production as a crime.

Exactly what adding "production" to the crimes under §1465 and 1466 will allow the Justice Department to do to adult video producers is unclear, but it is likely that at the very least, it will permit the federal government to make production companies, performers, technicians and even video/DVD duplicators into defendants on federal obscenity indictments, where before, the feds might only have been able to indict a feature's distributors.

DeWitt, however, doesn't feel that the addition of "production" is as important as it might seem at first glance.

"The addition of 'production' to the two most significant federal obscenity offenses in reality doesn't change much," he said. "In the past, they have gone after producers on a conspiracy theory, but this lists production as a substantive offense; however, it requires the same interstate intent as conspiracy. Like the administrative subpoena, it likely would have little practical effect."

"The interesting thing about it is if, for example, they prosecuted someone in Los Angeles for producing with intent to put it into interstate commerce, they'd have to try that person based on Los Angeles community standards," he added. "Historically, they have had a propensity to want to use the community standards of places that are more conservative than the places where the movies are usually produced. But this change may be completely unnecessary. After all, they prosecuted Harry Reems on a conspiracy theory in Memphis, Tennessee in the '70s for simply appearing in Deep Throat, and they certainly wouldn't have wanted to bring that case in Los Angeles, whose community standards presumably were more enlightened than those of Memphis."

"This is just another unconstitutional attempt to regulate the adult industry when they don't need that regulation, " summarized attorney Paul Cambria. "It seems to me that these right-wing politicians do this so that they can appease their constituency of right-wingers. I think they do this as window-dressing for their right-wingers; 'Look what I've done for you in sponsoring this legislation.'"

"This will be an absolute disaster for a variety of reasons," DeWitt said grimly