American lawbreaking

By Tim Wu
Introduction

At the federal prosecutor's office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say, Mother Theresa or John Lennon.

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you'd see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like "false statements" (a felony, up to five years), "obstructing the mails" (five years), or "false pretenses on the high seas" (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: "prison time."

As this story suggests, American law is underenforced—and we like it that way. Full enforcement of every last law on the books would put all of us in prison for crimes such as "injuring a mail bag." No enforcement of our laws, on the other hand, would mean anarchy. Somehow, officials must choose what laws really matter.

This series explores the black spots in American law: areas in which our laws are routinely and regularly broken and where the law enforcement response is … nothing. These are the areas where, for one reason or another, we've decided to tolerate lawbreaking and let a law—duly enacted and still on the books—lay fallow or near dead.

Why are there dead zones in U.S. law? The answer goes beyond the simple expense of enforcement but betrays a deeper, underlying logic. Tolerated lawbreaking is almost always a response to a political failure—the inability of our political institutions to adapt to social change or reach a rational compromise that reflects the interests of the nation and all concerned parties. That's why the American statutes are full of laws that no one wants to see fully enforced—or even enforced at all.

This political failure can happen for many reasons. Sometimes a law was passed by another generation with different ideas of right and wrong, but the political will necessary to repeal the law does not exist. Sometimes, as we'll see with polygamy or obscenity, the issue is too sensitive to discuss in rational terms. And sometimes the law as written is a symbol of some behavior to which we may aspire, which nevertheless remains wholly out of touch with reality. Whatever the reason, when politics fails, institutional tolerance of lawbreaking takes over.

There will, of course, always be some lawbreaking that goes unpunished simply because law enforcement is expensive—not every shoplifter is caught, and it's not worth expending the resources to catch every kleptomaniac. But the areas we will look at here are different: What's going on here is that the parties all know the law is being broken, accept it, and—while almost never overtly saying so—both the "criminals" and law enforcement concede that everyone likes it better that way. The law in question thus continues to have a formal existence, and, as we shall see, it may become a kind of zoning ordinance, enforced only against very public or flagrant behavior. But few, except sometimes a vocal minority, actually think we'd be better off if the law were fully enforced.

The importance of understanding why and when we will tolerate lawbreaking cannot be overstated. Lawyers and journalists spend most of their time watching the president, Congress, and the courts as they make law. But tolerance of lawbreaking constitutes one of the nation's other major—yet most poorly understood—ways of creating social and legal policy. Almost as much as the laws that we enact, the lawbreaking to which we shut our eyes reflects how tolerant U.S. society really is to individual or group difference. It forms a major part of our understanding of how the nation deals with what was once called "vice." While messy, strange, hypocritical, and in a sense dishonest, widespread tolerance of lawbreaking forms a critical part of the U.S. legal system as it functions.

That Other Drug Legalization Movement

The motto of the Web site Erowid Experience Vaults is "You Cannot Deny the Experiences of Others." Erowid is the Web's best known site for recording drug experiences. Thousands of contributors describe in vivid detail their experiences with this or that pharmaceutical, creating something like a Zagat Guide for the discriminating drug user.

Erowid makes for an engaging read, if you've ever wondered what taking PCP is like ("began to feel weird. … my head detached and wriggled itself backward through some plants"). There are some surprises, such as the commonly noted observation that heroin is "overrated." But what's particularly interesting about the Experience Vaults is how many of the drugs reviewed there aren't actually classic "illegal drugs," like heroin or cocaine, but rather pharmaceuticals, like Clonazepam.

That's because over the last two decades, the pharmaceutical industry has developed a full set of substitutes for just about every illegal narcotic we have. Avoiding the highly charged politics of "illegal" drugs, the pharmaceutical industry, doctors, and citizens have thus quietly created the means for Americans to get at substitutes for almost all the drugs banned in the 20th century. Through the magic of tolerated use, it's actually the other drug legalization movement, and it has been much more successful than the one you read about in the papers.

Since 1970 and the beginning of Nixon's war on drugs, the Justice Department has regulated drugs likely to be abused under the Controlled Substances Act, which categorizes such drugs into five "Schedules." Those in Schedule I—the most tightly controlled—are supposed to have a "high potential for abuse," and "no currently accepted medical use in treatment." These drugs cannot be prescribed by a doctor. Those in Schedules II through V can be prescribed, and that is what makes all the difference.

Since the beginning of the war on drugs, the "formal" drug decriminalization movement has focused on trying to change the status of marijuana, often through state referendums. While in the late 1970s and late 1990s advocates were quite hopeful, the extent of real legal change they've achieved must be described as relatively minor. Certainly, several states have passed medical marijuana laws, which provide doctors and patients with an immunity when the drug is used for medical purposes. And some cities, like Seattle, do not arrest people for possessing small amounts. But there's been no significant change in federal drug laws, or in the political conversation surrounding them, in decades. A leading presidential candidate from either party endorsing a "free weed" movement seems unimaginable. And beyond marijuana, the drug legalization movement barely even makes an effort.

That's why drug legalization is happening in a wholly different way. Over the last two decades, the FDA has become increasingly open to drugs designed for the treatment of depression, pain, and anxiety—drugs that are, by their nature, likely to mimic the banned Schedule I narcotics. Part of this is the product of a well-documented relaxation of FDA practice that began under Clinton and has increased under Bush. But another part is the widespread public acceptance of the idea that the effects drug users have always been seeking in their illicit drugs—calmness, lack of pain, and bliss—are now "treatments" as opposed to recreation. We have reached a point at which it's commonly understood that when people snort cocaine because they're depressed or want to function better at work, that's drug trafficking; but taking antidepressants for similar purposes is practicing medicine.

This other drug legalization movement is an example of what theorists call legal avoision. As described by theorist Leon Katz, the idea is to reach "a forbidden outcome … as a by-product of a permitted act." In a classic tax shelter, for instance, you do something perfectly legal (like investing in a business guaranteed to lose money) in order to reach a result that would otherwise be illegal (evading taxes). In the drug context, asking Congress to legalize cocaine or repeal the Controlled Substances Act of 1970 is a fool's errand. But it's far easier to invent a new drug, X, with similar effects to cocaine, and ask the FDA to approve it as a new antidepressant or anxiety treatment. That's avoision in practice.

Are the new pharmaceuticals really substitutes for narcotics? The question, of course, is what counts as a substitute, which can depend not just on chemistry but on how the drug in question is being used. But as a chemical matter the question seems simple: In general, pharmaceuticals do the same things to the brain that the illegal drugs do, though sometimes they do so more gently.

As many have pointed out, drugs like Ritalin and cocaine act in nearly the exact same manner: Both are dopamine enhancers that block the ability of neurons to reabsorb dopamine. As a 2001 paper in the Journal of the American Medical Association concluded, Ritalin "acts much like cocaine." It may go further than that: Another drug with similar effects is nicotine, leading Malcolm Gladwell to speculate in The New Yorker that both Ritalin and cocaine use are our substitutes for smoking cigarettes. "Among adults," wrote Gladwell, "Ritalin is a drug that may fill the void left by nicotine." Anecdotally, when used recreationally, users report that Ritalin makes users alert, focused, and happy with themselves. Or as one satisfied user reports on Erowid, "this is the closest pharmaceutical *high* to street cocaine that I have experienced." In the words of another, "I felt very happy, and very energetic, and I had this feeling like everything was right with the world."

The Ritalin/cocaine intersection is but one example. Other substitutes are opoid-based drugs available in somewhat legalized versions, with names like Vicodin and OxyContin.* Clonazepam and valium may not be exact substitutes for marijuana, but they all seem to attract users seeking the same mellowing effects and loss of some forms of anxiety. In short, the differences between pharmaceuticals and illegal drugs may ultimately be much more social than chemical.

So, as the FDA has licensed chemical substitutes for what were once thought to be dangerous drugs, does that mean roughly the same thing as the legalization of cocaine, marijuana, and heroin? Not exactly. Drugs prescribed are usually taken differently than recreational drugs, of course, even if at some level the chemical hit is the same. More broadly, the current program of drug legalization in the United States is closely and explicitly tied to the strange economics of the U.S. health-care industry. The consequence is that how people get their dopamine or other brain chemicals is ever more explicitly, like the rest of medicine, tied to questions of class.

Antidepressants and anxiety treatments aren't cheap: A fancy drug like Wellbutrin can cost anywhere from $1,000 to $2,400 a year. These drugs also require access to a sympathetic doctor who will issue a prescription. That's why, generally speaking, the new legalization program is for better-off Americans. As the National Center on Addiction and Substance Abuse at Columbia University reports, rich people tend to abuse prescription drugs, while poorer Americans tend to self-medicate with old-fashioned illegal drugs or just get drunk.

The big picture reveals a nation that, let's face it, likes drugs: Expert Joseph Califano estimates that the United States, representing just 4 percent of the world's population, consumes nearly two-thirds of the world's recreational drugs. In pursuit of that habit, the country has, in slow motion, found ways for the better-off parts of society to use drugs without getting near the scary drug laws it promulgated in the 20th century. Our parents and grandparents banned drugs, but the current generation is re-legalizing them. That's why Rush Limbaugh, as a drug user, is in a sense a symbol of our times. He, like many celebrities, is a recovering addict. But with Limbaugh being somewhat outside of the 1960s drug culture, the medical marijuana movement was not for him. Instead, Limbaugh, the addicted culture warrior, has become the true poster child of the new drug legalization program.

How laws die

In the Unites States, using a computer to download obscenity is a crime, punishable by up to five years in prison. Federal law makes it a crime to use "a computer service" to transport over state lines "any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character."

Under the plain reading of the statute, most men in the United States may be felons. Statistics on the downloading of "lewd pictures" are notoriously unreliable, but according to some surveys, 70 percent of men have admitted to visiting pornographic sites at some point. Many such sites are probably obscene under the Supreme Court's definition of obscenity—that is, they, according to community standards, "appeal to the prurient interest," depict "sexual conduct" in an patently offensive way, and lack "serious literary, artistic, political, and scientific value."

Today, despite these laws, there are very few prosecutions centered on mainstream adult pornography. Over the last decade, and without the repeal of a single law, the United States has quietly and effectively put its adult obscenity laws into a deep coma, tolerating their widespread violation with little notice or fanfare. Today's obscenity enforcement has a new face: It is targeted against "harmful" porn (that is, child pornography and highly violent or abusive materials) and "public" porn, or indecency in the public media. This enormous transformation has occurred without any formal political action. And it illuminates just how America changes law in sensitive areas like obscenity: not so much through action as through neglect.

In 1968, the American pornography industry was new and shocking, and a "deeply concerned" Congress set up a $2 million commission to look into the growing problem. In a way that seems unimaginable today, the commission came back with findings that were exactly opposite to what Congress wanted to hear. To what Newsweek then called "the subcommittee's unconcealed horror," the commission concluded that society, not pornography, was the issue. "Much of the 'problem,' " wrote the commission, "stems from the inability or reluctance of people in our society to be open and direct in dealing with sexual matters." The commission recommended two legal reforms: repealing all obscenity laws at the state, local, and federal levels; and replacing them with new laws to protect children and to control public display. In short, the commission thought pornography, kept at home, was fine—it just had to be kept from minors and out of the public media.

In 1970, when the report came out, President Nixon and other politicians outdid one another condemning it. Nixon called it "morally bankrupt" and thundered, "So long as I am in the White House, there will be no relaxation of the national effort to control and eliminate smut from our national life." The Senate voted overwhelmingly to reject the recommendations. As a legal matter, the commission's ideas were dead on arrival.

But today, and to a remarkable degree, our pornography laws resemble precisely what the 1970 commission recommended. Prosecution of mainstream pornography is nearly nonexistent, and instead, everything is directed toward the protection of children and the zoning of the public media. Yet the laws haven't changed at all. So what happened?

Through the 1970s and '80s, prosecution of the producers of pornography remained vigorous, especially in certain regions. The Supreme Court had in the 1960s begun to create a formal legal divide between "indecency" on the one hand, and "obscenity" on the other—with indecency meaning "constitutionally protected speech." But in the 1973 case Miller v. California, Nixon appointee Warren Burger made clear that "obscene material is unprotected by the First Amendment." There would never be a Supreme Court-led legalization of all porn, in the same sense that Roe v. Wade legalized abortion. Prosecutions continued through the Reagan and Bush administrations, cheered on by the 1986 Meese Commission, which repudiated most of the conclusions of the 1970 commission.

But in the 1990s, mainstream pornography prosecutions slowed considerably and came to a near-halt, and statistically 1994 is the tipping point. That might be expected—President Clinton's speeches on the evils of sex and smut were infrequent. And, as Bruce Taylor, one of the nation's most prominent obscenity prosecutors, once told PBS, "Janet Reno just did not like doing obscenity cases."

During the Clinton years, says Taylor, porn producers were "flying high … [thinking] we're invincible, nobody's prosecuting us. The Justice Department doesn't care what we do. We can rape, pillage, and plunder, and use everybody up." Consequently, when the second Bush administration came to power, many expected a return to the old days. Early on you'd hear comments like this one, from Attorney General John Ashcroft, who said in 2002, "The Department of Justice is committed unequivocally to the task of prosecuting obscenity." Obscenity was made a "priority," and Ashcroft promised Congress a new crackdown on obscenity of 1950s proportions.

But nothing happened. Instead, adult obscenity prosecutions declined further during the first Bush term. George W. Bush is perhaps the most religiously conservative U.S. president in history. Yet his administration, despite its rhetoric, is looser on mainstream porn than Jimmy Carter or John F. Kennedy was. How did that come to be?

Ask prosecutors or former prosecutors to explain and the conversation is often strained. Some begin by shrugging and adopting a pained expression. "Those aren't easy cases to bring," says one former prosecutor from the Los Angeles office. "Juries don't like them." But didn't Ashcroft declare fighting pornography to be a national priority? "That's true," he admits.

Many prosecutors mention 9/11 and also say that given the enormous influx of all forms of pornography that came with the Internet in the 1990s, regular pornography simply became the lesser of several evils. "You deal with the white hot stuff first," says Joe DeMarco, formerly a prosecutor in the Southern District of New York. Or as Andrew DeVore, who also worked the SDNY, explains, "Child pornography was an obvious and vicious problem, and in part that's what you react to."

DeMarco also suggests that at some level it doesn't matter who is president or attorney general; the prosecutors themselves need to see harm before they'll enforce the law. "No one wants to be chasing around Playboy or Lady Chatterly's Lover," says DeMarco. As another former prosecutor told me, "Would you rather be chasing terrorists, or some guy who reads Hustler?"

DeMarco's and others' views concede a change: While they'll fight stuff that's violent or involves children, mainstream pornography—"normal" sex—just doesn't strike prosecutors as all that harmful and is unlikely to be the subject of any kind of crackdown. Or as one former prosecutor put it, "When there are porn films in Holiday Inn or the Hilton, what do you expect?"

The Bush administration has made one last effort to resurrect the obscenity laws in the mid-2000s. In 2005, newly appointed Attorney General Alberto Gonzalez—under pressure from religious conservatives—created an Obscenity Prosecution Task Force within Main Justice, with the goal of pressuring local prosecutors to crack down. The result has been an uptick in cases brought against producers of "extreme" content involving violence or degradation. But there have been no actual prosecutions of the mainstream, multibillion-dollar industry, despite its obvious tension with the law. Hotels still have porn channels.

The task force faces an uphill battle. In 2005, Alex Acosta, a loyal Bush Republican, was appointed the new U.S. attorney for the Southern District of Florida, which includes Miami. He promptly informed local FBI officials that obscenity would be his "top priority." The reaction was as close to insubordination as you'll ever see in the U.S. government. Joining libertarian groups in complaining to the press were Acosta's own prosecutors and FBI agents. "Compared to terrorism, public corruption, and narcotics, [pornography] is no worse than dropping gum on the sidewalk," said Stephen Bronis, a Miami defense attorney. The insurrection seems to have worked: The records for Acosta's district do not reveal many porn prosecutions.

So, if there's almost no prosecution of regular porn, what is actually illegal?

First and foremost, the prosecution of child pornography retains its bitter intensity. Investigators and prosecutors of child pornography have no doubt about the rightness of their work, nor, apparently, does the nation. And there are few stories of juries nullifying child-pornography convictions.

The second area is the public media, which is more zoned than ever. The famous Janet Jackson "wardrobe malfunction" led to a record $550,000 fine for CBS. But that was the figurative tit of the iceberg. Afterward, Congress passed the Broadcast Decency Enforcement Act of 2005, which raised the "per-incident" fine for indecency from $27,000 to $325,000. Broadcasters call today's FCC enforcement the "star chamber," and networks like Fox privately admit that they face dozens of indecency prosecutions for material much less racy than what you can find on a Google image search. Howard Stern's radio show is light fare by contemporary standards—but it is Stern who was fined so heavily that he left conventional radio.

What all of these changes reflect are several major shifts in how the U.S. legal system views depictions of sex. The first reveal an acceptance of the libertarian idea that private consumption of nearly any material is not a public harm. That view excepts children and animals as victims, but not consenting women and men who have sex before cameras. In that view, the U.S. legal system has effectively and informally reached the same conclusion as the 1970 commission: Whether you like it or not, private consumption of pornography is just not harmful enough to merit public enforcement.

Yet at the same time, the United States has concluded that it will not be a place, like Europe, where bared breasts grace bus-stop billboards or soft-porn films can be found on regular late-night television. Americans love zoning—compartmentalizing behavior to designated times or places. It's how a diverse nation manages to live together. And so our obscenity system—much of which takes the legal form of an outright ban—is often in practice being used to move erotic content away from public places.

But who, exactly, reached all of these conclusions and made them our de facto law? Not Congress, the courts, or any individual president. Instead it was a combined product, over decades, of the decisions of hundreds of prosecutors, FCC officials, FBI agents, and police officers—all of whom decided they had better things to do than chase around pornographers the way they chase murderers. Their consensus—that normal pornography just isn't harmful in the sense that, say, drugs are—has driven the current law more so than any official enactment.

There are, by the way, strange consequences to the tolerated illegality of obscenity. Porn, considered as a regular product, is strong stuff. Yet it is free of most consumer safety regulation—the warnings, age limits, or worker safety rules that the American legal system insists upon for even fairly innocuous products. The United States is a country where fishing lures can warn, "Caution: Harmful if swallowed." Yet porn, banned but nonetheless tolerated, has ironically managed to avoid virtually all regulation.

The birth of a new law is something the media, lawyers, and academics pay great attention to. But the decay and death of old laws can be just as important, even when they're unobserved. The story of our obscenity laws highlights where, exactly, American laws go to die.

http://www.slate.com/id/2175730/entry/2175733/