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CNN AMERICAN MORNING WITH PAULA ZAHN

Interview with Jacob Sullum, Phil Buress

Aired September 25, 2002 - 07:39   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

BILL HEMMER, CNN ANCHOR: And the question this morning, who's business is it if people watch adult movies in the privacy of their hotel room? Is it -- according to several groups making it their business right now, one of the groups is Citizens for Community Values. They're out of Cincinnati. It managed to get the plug pulled on X-rated fare at three hotels in that city. And now the group is trying to go nationwide with its campaign.
But would that be an invasion of privacy? Is it stepping on matters of free speech? All these issues, we'll iron them out throughout the next five minutes.

From Washington, Jacob Sullum, senior editor of "Reason" magazine. He's against what happened in Cincinnati. And back in the queen city, Phil Buress of the Citizens for Community Values.

Thank you, men. Good to see you and good morning.

JACOB SULLUM, SENIOR EDITOR, "REASON" MAGAZINE: Good morning.

PHIL BURESS, CITIZENS FOR COMMUNITY VALUES: Thank you.

HEMMER: Before we proceed, Phil, you have a very interesting personal story as to why you have carried on this crusade, I think it's been the better part of 15 years now. Tell us quickly what happened in your case.

BURESS: Well, when I was 14 years old, Bill, I was exposed to pornography on the way to school one morning and for me it led into an addiction that lasted more than 25 years. So I know about the harms of pornography and what it can do to a young child and their perception toward women.

And in 1983 an organization was formed in the greater Cincinnati area to combat this plague because we had adult bookstores and strip bars. This was the home of Larry Flint. And the community went to work and basically cleaned it up. We have no strip bars now in greater Cincinnati and we enforced the obscenity laws.

HEMMER: All right, Phil, take me to the present day then. You lobby three hotels. You don't even go to court, for that matter. They agree with you. They take what's considered adult entertainment off the television screen. What's wrong with a private citizen, he or she, who wants to watch this, if, indeed, it's in the privacy of their own room?

BURESS: Bill, that's a great question and that's the first question we get and it's easily explained. In 1969, the U.S. Supreme Court in "Stanley vote. Georgia" said that the private possession of obscene material is protected by the first amendment. So this is not a privacy issue because in 1973, four years later, that same U.S. Supreme Court said in "Miller vote. California" that you cannot pander, you cannot sell, you cannot distribute obscene, hard core pornography...

HEMMER: So your argument, then, is distribution? That's it. That's the crux of your argument, essentially, then, correct?

BURESS: Oh, precisely. I mean if CNN was to put on a XXX rated movie tonight, I mean they're not going to go after the viewer, they're going to go after CNN. So...

HEMMER: OK. Got it. I understand your argument.

Jacob, what do you make of that, distribution an issue? Should Phil and does his group have a point?

SULLUM: Well, I think it's sort of absurd to say that people have a right to watch this stuff, it's just that no one has the right to provide it to them. The kinds of laws that they're using to try to get rid of porn in hotel rooms are inherently arbitrary and tyrannically. They're arbitrary because people's judgments about what's obscene are going to vary, not just from place to place, but within any given community. Even in Cincinnati, I'm sure, there's a range of opinion about what should be allowed and what shouldn't.

So basically what you're doing is you're taking one group's opinion about what should be permitted and they're saying we don't like this stuff, therefore no one should be able to watch it.

HEMMER: Got it. Listen, there's another argument out there that says in the interest of children, don't do it. You came down on what angle on that?

SULLUM: Well, I'm not sure. If the argument is that children shouldn't have access to this stuff, I agree with that. And if there's a problem in hotel rooms with children getting access to it, then I think that that's something that groups like this can call attention to. But I think that hotels, generally speaking, allow you to block access to pornography, prevent your children from seeing it. Maybe your group ought to be informing adults that this is an option and that they should be exercising it if they don't want their kids to accidentally come across this stuff.

But in terms...

HEMMER: Gentlemen, listen. Hang on one second here. Both of you men raised very good points. We want to get some legal perspective now.

Jeffrey Toobin is here this morning.

Part of this goes to distribution, according to Phil, part of it goes to definition, according to Jacob. How does a community set a standard, from a legal perspective?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, I think Phil put his finger on the right Supreme Court case. In 1973 the Supreme Court said we're not going to have one standard for defining pornography. We're going to let each community define their own.

It's no coincidence that this is taking place in your hometown of Cincinnati, that Cincinnati has been extremely aggressive in regulating obscenity. Many communities haven't. They have a right to apply their own community standards. That's, you know, it's troubling to some people in Cincinnati. Jacob makes a good point that perhaps, you know, not everybody in Cincinnati agrees. But Cincinnati does have a more conservative view towards obscenity so they are going to regulate more than Las Vegas or New York.

HEMMER: But you deal in law and this case has never gone to court.

TOOBIN: That...

HEMMER: It's a bit surprising, you would think, but if the city were to prosecute would they have a case or not?

TOOBIN: Hard to say. But, I mean, what I think Phil is doing is very clever. They're using the power of politics, the power of public relations. These are hotel companies. They are not in the business of protecting the first amendment. They're in the business of making money. They don't want expensive court fights. They don't want bad publicity. They have decided to back off and get rid of the videos.

The question is, you know, will they do it nationwide? You know, they are having some pretty good success, Phil Buress's organization.

HEMMER: Yes, Phil, I want to go back to you quickly here. I want to put up a statement from the cable industry essentially showing and saying, and quoting now, "Individuals should have the same rights in a hotel room as he or she does in his or her own home to decide what entertainment subject matter he or she wants or not without being subject to external forces. We continue to service the major cable operators throughout the country."

Is that position wrong, Phil, in your estimation, number one? And number two, how much further are you willing to take this fight?

BURESS: Well, no, it's not wrong, because they are correct in what they're saying about the privacy issue. And we agree with the privacy issue. That's not our, that's not the point, though. I mean the pornography industry is very clever about their propaganda and they keep making this a privacy issue. It's not a privacy issue with us. People have the right to possess this stuff and view it if they want to.

How they get it is another question. The Supreme Court has ruled that each community has the right to determine their own community standards, as your expert said. There's a federal law that prohibits the interstate transportation of obscene material over the airwaves and over the, by use of a common carrier.

And that's what we're really concerned about because On Command is the largest company that provides this material to the Marriott Hotels, is the one that pulled the plug on this material, and they know when a prosecutor, two different prosecutors, not just one, one in Ohio and one in Kentucky, viewed this material and said this is clearly prosecutable and if you continue to pander it, then you're going to have to go before a jury.

We don't determine the community standards. Citizens for Community Values doesn't. I don't. It's the jury that determines what the community standards are.

HEMMER: We kind of, understand, I'm up against the clock here, Phil. I apologize...

SULLUM: Yes, but the problem...

HEMMER: Jacob, we want to get your final word in here. We want to let our viewers know we contacted On Command. They have yet to return our phone calls. So they do distribute throughout the 50 states. At least it's provided, anyway.

Jacob, a quick comment for you before we have to wrap it up.

SULLUM: The problem is that they're achieving by the threat of prosecution what they might not be able to achieve if they actually went to trial. It remains to be seen what a jury would actually say about this. But just by threatening to prosecute, they're using the force of law to remove these options from hotel rooms and prevent people from viewing this material that they don't approve of.

And logically this can be extended not just to material in hotel rooms, but also to movies that are provided by cable, by satellite TV, material that comes through the Internet. That's also distribution. All these things are distribution.

BURESS: That's right.

HEMMER: Listen, gentlemen, thanks.

BURESS: That's why we've asked the federal government to take a look at this. We've asked the Justice Department...

SULLUM: So you're in a situation where people have a right to see it, it's just that no one has the right to provide it.

BURESS: That's correct. And based on community standards. And that we've asked the Justice Department...

SULLUM: Which happen to be your standards.

BURESS: We, well, no. We've asked the Justice Department. We're going by law here. We've asked the Justice Department to look at this. I mean there's been many hard core pornographers that's been put in jail over the years. The cult in Reno... SULLUM: Well, but the problem is that the law is bad.

HEMMER: Ten seconds, fellows and we've got to go.

SULLUM: And the law ought to be appealed.

HEMMER: We've got some breaking news...

BURESS: Well, then change the law because the law is applicable today.

HEMMER: I don't want to get in between this. Maybe we'll come on back and pick it up again where we left off.

Jacob Sullum, thanks to you in D.C.

SULLUM: Thank you, Bill.

HEMMER: Phil Buress in Cincinnati and Jeffrey Toobin here in New York.

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