In November 1987, President Ronald Reagan pledged in a speech to anti-pornography activists to put the "purveyors" of obscene magazines and films out of business. "Your industry's days are numbered," he warned.

The war that Reagan promised was already well underway in the Justice Department, where nearly a year earlier Attorney General Edwin Meese III had assembled some of the most aggressive anti-pornography lawyers in the country to work for a prosecutorial task force called the National Obscenity Enforcement Unit.

Its principal tactic against distributors of sexually explicit films, books and magazines was the use of simultaneous or successive indictments in conservative jurisdictions around the country. The tactic's promoters anticipated that distributors would simply give up and agree to whatever terms of future conduct the prosecutors dictated, when faced with the expense and logistics of defending against a number of federal charges in different places, all at the same time.

Many did. One mail-order distributor faced simultaneous obscenity indictments in the Eastern District of North Carolina, the Western District of North Carolina, the Middle and Southern districts of Alabama and the Eastern District of Virginia, with four trials scheduled during a two-month period. In 1990, the distributor opted for a plea bargain in which he agreed to cease "involvement with sexually explicit materials" -- all without any court finding that the material he sold was legally obscene and thus not protected by the First Amendment.

Until Meese rewrote them in 1987, Justice Department guidelines for prosecutors specifically discouraged the use of multiple-district prosecutions, saying this extreme measure should be considered only in the most serious cases.

But although the U.S. Attorneys Manual now says the tactic is "encouraged" in obscenity cases, three federal courts have condemned it as abusive and unconstitutional, a violation either of the right to due process, or of the First Amendment -- which protects some sexually explicit material as free speech. The line between constitutionally protected material and criminal obscenity, as defined by the Supreme Court, is to be drawn only by a jury determining the standards of the community in which the material is found.

"The prospect of simultaneous prosecutions encounters so many . . . absolute constitutional obstacles that it is hardly possible {the government} actually contemplates such a debacle," District Judge Thomas Penfield Jackson of the District of Columbia wrote in a June 1988 opinion. Jackson called the tactic "annihilation by attrition."

In a separate 1990 case, U.S. District Judge Joyce Hens Green of the District wrote, "The enormous disparity between plaintiffs' resources and the resources of the government means, as a practical matter, that plaintiffs could be swiftly driven out of business before they ever set foot inside a courtroom." She said the evidence showed "a concerted effort by the {Justice Department}, through harassment and threats of multiple prosecutions to suppress . . . constitutionally protected activities."

In May, the 10th U.S. Circuit Court of Appeals denounced the government's conduct as "a persistent and widespread campaign to coerce" individuals "into surrendering their First Amendment rights."

These opinions stem from litigation filed in recent years involving targets of the campaign. Government testimony and documents made public in one of them -- a suit against the government filed by a North Carolina company called P.H.E. Inc. -- have provided a detailed account of how the campaign developed, also indicating that officials in the FBI and the Justice Department expressed misgivings about the effort.

"I wouldn't call it extreme, I'd call it aggressive," one of its leaders, former Utah U.S. attorney Brent Ward, said of the multi-prosecution tactic that was at the campaign's core. "It was a measured and moderate response to a nationwide problem." Ward pointed out that obscenity prosecutions are uniquely difficult because "nobody knows ahead of time for sure if a crime has been committed." In order to indict, prosecutors must "make a judgment" about material a jury may later decide is not obscene by community standards.

"The fact of the matter is that it was successful," Ward said of the project. "It has been one of the most successful prosecution strategies in the history of the Department of Justice."

Patrick A. Trueman, current chief of the obscenity task force -- now named the Child Exploitation and Obscenity Section -- defended multiple prosecutions as justified by the multiple jurisdictions in which the films and magazines are circulated. "It is the same situation of a man who robs a bank in three states and complains that he should be prosecuted only one time for his three crimes," Trueman said in an interview.

While acknowledging the federal court rulings calling the tactic unconstitutional in cases where he said the government disputed the evidence, Trueman noted other courts, in other circumstances, have permitted the cases to proceed.

While the Justice Department still utilizes multiple indictments in obscenity cases, Trueman said, "we don't do it . . . to prejudice their due process rights in any way." More than half of the unit's activities these days are focused on child sexual abuse, which he said includes child pornography, sexual abuse on federal Indian reservations and illegal transportation of children across state lines.

A Special Enthusiasm

Meese set the tone for the Justice Department's anti-pornography crusade with his selection of prosecutors for the task force who had a special enthusiasm for obscenity cases.

The first director of the force was a prosecutor who had lobbied for anti-pornography legislation in North Carolina, and occasionally signed official correspondence "Yours Truly in Christ." Two lawyers hired had formerly worked for a militant anti-pornography group, the Arizona-based Citizens for Decency Through Law (CDL), founded by conservative Arizona financier Charles H. Keating Jr., who contributed part of his considerable fortune to fighting pornography. Keating since has been convicted of multiple counts of fraud in the unrelated savings and loan scandal.

Although there was no formal relationship between the government and the now-defunct CDL, the organization from the early 1980s played a major role in conceptualizing the anti-pornography campaign, and some of its lawyers later helped carry it out as Justice Department officials. The group's causes and targets became virtually indistinguishable from those of the Justice Department.

In 1983, CDL general counsel Bruce A. Taylor wrote to Reagan describing his vision of a nationwide prosecution campaign against pornography, in which specific government attorneys in specially chosen locales around the country would be assigned the task of indicting pornographers.

With the department's cooperation, Taylor -- recently described by current task force head Trueman as one of the country's most effective experts in obscenity law -- gave lectures to federal prosecutors in which he described them as "crusaders for morality," and coached them on trial tactics. He offered help with legal briefs and drew prosecutors' attention to potential witnesses willing to complain about pornography.

"Please let us know what specific assignments you would like us to carry out," Taylor wrote to Utah Assistant U.S. Attorney Richard Lambert in January 1985.

Lambert and Utah U.S. Attorney Ward became the chief advocates inside the Justice Department of CDL's ideas. Their state, one of the most conservative in the nation, was one in which the prevailing community standards on obscenity were most likely to coincide with those of CDL.

When the Justice Department in 1986 circulated among government attorneys recommendations of Meese's newly created Attorney General's Commission on Pornography, soliciting strategies to combat what the report labeled a major national problem, Ward replied with what amounted to a way to implement CDL's original 1983 concept.

His idea was to attack "the major purveyors" of pornography with "theoretically thirty-five different criminal prosecutions." The fact that "the major producers distribute their material in hundreds of locations nationwide, including a large number of communities with a standard of obscenity favorable to successful prosecutions," would make the big distributors "most vulnerable to a nationwide prosecution strategy."

The strategy, Ward wrote, would "test the limits of pornographers' endurance" against repeated federal prosecutions. "Multiple, simultaneous prosecutions at both federal and local levels . . . carry the potential to undermine profitability to the point that survival of obscenity enterprises will be threatened."

At first, existing Justice Department policies were an obstacle. Not only did the U.S. Attorneys Manual say that multiple-district prosecutions were "not favored," all such indictments had to be approved by the Department's General Litigation and Legal Advice Section. This approval was necessary, the manual said, "to protect persons charged with criminal conduct from the unfairness associated with multiple prosecutions and multiple punishment for substantially the same act or acts."

Meese's revision of the guidelines, circulated in September 1987 by then-Assistant Attorney General William F. Weld (now the Republican governor of Massachusetts), said that "multiple prosecutions will be encouraged" in obscenity cases. It also shifted authority to approve such indictments to the National Obscenity Enforcement Unit (NOEU), officially established in early 1987.

This unit was staffed with ex-CDL activists (including CDL lawyer Paul C. McCommon III, and later CDL counsel Taylor) and prosecutors who were selected for their special "commitment" to obscenity cases, according to a department memorandum at the time.

To head the unit, Meese picked H. Robert Showers. Showers had built a reputation in North Carolina prosecuting adult book stores and had helped the North Carolina legislature write an anti-obscenity law. In a recent interview, Showers, who since has left the department, said he was told: " 'Here are the laws. Here's the problem. Try to solve it in the best way you possibly can.' "

Firms Cease Operations

By 1990, according to a Justice Department press release at the time, seven nationwide wholesale distributors of sexually explicit materials had gone "out of business" following plea bargains largely negotiated by Lambert in Utah, Assistant U.S. Attorney William C. Delahoyde in North Carolina, and Showers or other lawyers in the department's obscenity unit.

Among them was Consumers Marketing Group Ltd., a Connecticut-based distributor run by Avram C. Freedberg, who faced an obscenity indictment in Utah and grand jury investigations in Mississippi and Delaware -- all being coordinated by the obscenity unit -- and had agreed in 1988 to go out of business and never again distribute "predominantly sexual" material.

In February 1989, Mail Mart Inc. and its owners faced indictment in the Northern District of Texas, but were aware that prosecutors in Virginia and Illinois were conducting similar investigations. They pleaded guilty and ceased operations, as part of an agreement that said the Justice Department obscenity unit was "coordinating the nationwide investigations."

But the most celebrated target of the campaign, and the most tenacious in trying to combat it, was a North Carolina mail-order distributor known as Adam and Eve, founded by Phillip D. Harvey and his company, called P.H.E. Inc. Its Carrboro, N.C., plant employs more than 100 people. Harvey's ongoing civil suit against the Justice Department has resulted in thousands of pages of documents and testimony about the department's anti-pornography operations being put on the record.

Federal interest in Adam and Eve -- which does not produce sexually oriented or explicit materials but distributes the products of others -- predated establishment of the anti-pornography task force, due in part to the efforts of Coy C. Privette, executive director of the Christian Action League of North Carolina Inc. In 1984, Privette wrote to his supporters asking for their help in creating the legal basis for a federal prosecution of the firm.

He instructed his members to write to Adam and Eve asking for a current catalogue. Upon receiving the catalogue, he said, they should then register a formal complaint with their local U.S. attorney's office that such material was being sent through the mail.

FBI agents obtained Adam and Eve catalogues but decided not to proceed with an investigation because they did not believe the materials were legally obscene. U.S. Postal Service authorities also kept a close eye on the distributor, but concluded it was one of the few national firms that scrupulously complied with postal regulations regarding sexually explicit mailings.

But a number of North Carolina prosecutors remained concerned. Raleigh U.S. Attorney Sam Currin shared the concerns of his colleagues -- Ward and Lambert in Utah, Delahoyde and Showers in North Carolina -- about pornography, and was considered an ally by Privette. "We thank the Lord every day that you are in this strategic position," Privette wrote Currin in a letter eventually released as part of Harvey's civil action.

CDL also had taken an active interest in Adam and Eve, and during the same period CDL lawyer Paul McCommon sent Showers a catalogue that he said offered "a very wide range of pornographic magazines, books and tapes. If you are interested in building a case against them," McCommon wrote Showers, "it would appear that the evidence is now available. If I can do anything further to assist you, please let me know."

By 1986, prosecutors in North Carolina, who had learned that Utah also was investigating Adam and Eve, decided that despite the FBI determination two years earlier that the firm distributed nothing actionable, there was sufficient cause to move against the firm. On the morning of May 29, a team of state and federal agents arrived at the Carrboro headquarters and began a search that lasted most of the day.

In later court filings in his civil suit against the Justice Department, Harvey's lawyers asserted that armed guards were posted at the exits. Employees were herded into a single room and told they had to submit to interviews, and purses and pocketbooks were searched. Virtually everyone in the building, 118 people, was given a grand jury subpoena. A federal judge later described the search as "harassing."

Following the search, according to later testimony by Harvey's lawyer, John Mintz, in the civil case, North Carolina prosecutors made clear to him that multiple prosecutions were in the offing, including in Utah. In the fall of 1986, Utah assistant prosecutor Lambert traveled to North Carolina to review the seized material. In a meeting with him and the North Carolina officials, Mintz said Harvey would agree to cease distribution of some specified materials, and plead guilty to a charge against his company in order to stay in business.

Mintz, a former senior FBI administrator, kept detailed memos of this and later meetings he requested with the Utah prosecutors. The records have become the basis of Harvey's claim that Ward tried to coerce Harvey into surrendering his First Amendment rights and demanded that Harvey plead guilty to a personal felony charge.

Mintz's memos show, and he since has testified, that Lambert and Ward told him the only way to avoid multi-district prosecutions in Utah and North Carolina was to cease nationwide distribution of all sexually oriented magazines, books and films. The two prosecutors were willing to let Harvey sell "R-rated" films, Mintz said, but not films that showed "mere nudity," or publications such as Playboy magazine or the book "The Joy of Sex."

In a September 1986 letter to Stephen S. Trott, then assistant attorney general for the Criminal Division, Mintz wrote, "Ward and Lambert stated that as a condition for non-prosecution," Adam and Eve "would have to discontinue entirely their participation in the business of sexually oriented visual material, without regard to whether the material was protected by the First Amendment."

In depositions, Lambert and Ward denied ever specifying explicitly what could not be circulated, noting that Harvey's lawyers had requested all meetings that had been held. But Ward conceded that if asked to set limits in a plea bargain, he would favor the broadest possible ban. "I would want to err not on the side of the most extreme material," he said, "but on the side of the least extreme material in order not to be second-guessed about my judgment as a prosecutor."

In an interview, Ward said, "We never would and we never did talk about anyone surrendering their First Amendment rights." To claim otherwise, he said, goes "into the realm of absolute falsehood."

At the time, after his conversations with Ward, Mintz complained to the Justice Department about what he considered Ward's disregard of the First Amendment. Assistant Attorney General Weld, who had replaced Trott, wrote back that he thought Ward had "acted properly" in the plea negotiations.

Material Found Not Obscene

While prosecutors still were considering federal indictments of Harvey and Adam and Eve, a state prosecutor in Alamance County filed an obscenity case against them. The state prosecutors were assisted in compiling their case by Assistant U.S. Attorney Delahoyde, who also attended the trial as an observer.

Harvey did not offer a defense in the March 1987 proceedings. But based on the government's evidence, the jury found him not guilty, thereby establishing that, by the prevailing community standards of Alamance County, N.C., at least, the seized material was not legally obscene.

"It just seems like the government is trying too hard to regulate what we look at," jury foreman Robert West told a reporter, according to the Greensboro News and Record. "We just felt like the whole deal was politically motivated."

The quick acquittal seemed to vindicate the FBI's original judgment, in 1984, that Harvey's magazines and movies were not legally obscene. But Currin, the U.S. attorney in Raleigh, saw Adam and Eve's victory as a challenge. "We must regain momentum . . . and come with as many indictments as possible," he wrote Delahoyde.

But Delahoyde had decided not to proceed with a federal case against Harvey. "I began to wonder whether or not I was pushing the boulder uphill," he later testified. A second U.S. attorney's office in North Carolina reviewed the most explicit Adam and Eve magazines -- "Lesbian Dildo Bondage, Volumes 1 and 2," "Gangbang Birthday" and "Ursala's Anal Friends" -- and also decided not to prosecute.

At the same time in Washington, the National Obscenity Enforcement Unit had been officially constituted, and its operations were well underway. At its head was Showers, who originally had handled the Adam and Eve case and later turned it over to Delahoyde. Years earlier, in 1984, Showers had been sent the Adam and Eve catalogue by CDL lawyer Paul McCommon as evidence for a possible indictment.

McCommon was now a Justice Department official, and following the North Carolina decisions was assigned to review the evidence against Adam and Eve. In a February 1988 memorandum, McCommon agreed with his original CDL assessment that "the case against Adam and Eve is quite compelling. . . . The Postal Inspection Service has boxes of complaints from citizens."

Yet even McCommon acknowledged weaknesses in any new federal case against the firm. Some of the material already had been found not obscene in the state case in North Carolina. At the same time, Harvey had made "documented" efforts to "comply with the law," and Adam and Eve voluntarily had withdrawn videos deemed potentially obscene.

In an industry known for sleazy operators, Harvey was considered an establishment figure. A Harvard University graduate, he held a master's degree in public health administration and had built his company -- which distributed condoms, lingerie and sports attire, in addition to sexually explicit material -- into a $17 million-a-year enterprise. He also said he donated half his profits to nonprofit corporations that distributed condoms and supported AIDS research in Africa.

Meanwhile, Lambert, in Utah, still did not move against Adam and Eve.

Then, in July 1989, the trade publication Adult Video News published an interview in which Harvey said Lambert was still threatening multiple prosecutions unless Harvey agreed to stop distribution under Lambert's terms. "We've talked to Lambert," Harvey said. "He wants us to take a plea and he may think we will. We won't, and you can quote me on that. Under no circumstances will I ever take a plea on an obscenity charge in the United States."

A postal inspector sent a clipping of the article to Lambert. Soon after, Adam and Eve materials were subpoenaed by a grand jury in Kentucky. Fearing impending indictments in Kentucky and Utah, Harvey in July 1990, obtained a restraining order from U.S. District Judge Green, in Washington, prohibiting charges in more than one district at a time. Later that year, Harvey and P.H.E. Inc. were indicted in Utah.

In a recent deposition, Lambert discussed the factors that figured into his decision to proceed. Harvey, he said, was a "major distributor of obscene matter" in whom "we invested considerable time and effort."

Lambert said he was personally offended by Harvey's comments in the magazine interview. "He had made comments about the federal government which I believe to be false, about our activities, expressed ultimate vindication," Lambert testified. "And I thought the obscenity industry was looking at Harvey.

"Under all of those circumstances, although I was not personally anxious to do it," Lambert said, "I felt that my duties as a prosecutor, as a representative of the United States, for the good of the community, as part of my responsibility to enforce federal obscenity law, to bring an indictment. That's why we did it . . . the materials I have are clearly prosecutable."

Harvey asked the district court in Utah to dismiss the prosecution on grounds it was tainted by the vindictive bad faith of the prosecutors. When that court found for the prosecution, Harvey appealed to the 10th U.S. Circuit Court of Appeals, in Denver. The appeals court found for Harvey, ordering the lower court to reconsider Harvey's motion for dismissal.

What the district court had to redetermine -- with the burden on the government to disprove it -- the appeals ruling said, was "whether, 'as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for {emphasis by the court} the hostility or punitive animus towards the defendant because he exercised his specific legal rights.' "

In December, Adam and Eve's North Carolina plant was searched again by federal agents as part of an investigation by the U.S. attorney's office in the Middle District of Alabama.

Researcher Margot Williams contributed to this report.

NEXT: Using the grand jury