The way a federal commission has investigated pornography is creating almost as much debate as pornography itself. Now a federal district court here is deciding if the commission threatened to blacklist stores that sell magazines like Penthouse and Playboy as ``purveyors of pornography.''
The controversy stems from a Feb. 11 letter, on commission stationery and signed by the commission's executive director, sent to 23 large corporations, many of which sell magazines like Penthouse and Playboy.
The letter said that during one of the six hearings on pornography, ``the commission received testimony alleging that your company is involved in the sale or distribution of pornography. The commission has determined that it would be appropriate to allow your company an opportunity to respond to the allegations prior to drafting its final report section on identified distributors.''
The anonymous testimony, which was later identified as given by the Rev. Donald Wildmon, head of the National Federation for Decency, was attached to the letter.
Within the next few weeks, major convenience and drugstore chains -- including Revco, Rite Aid, Peoples Drug, and the company-owned stores of 7-Eleven -- pulled the men's magazines off the shelf. Even some companies that did not receive the letter, like Gray Drug Fair and Chevron Corporation (which has convenience stores at some gas stations) stopped carrying them.
Lawyers for Playboy say that 12,000 stores have ``caved in''; Penthouse lawyers say the figure for them is closer to 20,000.
Lawyers and legal scholars say more is at stake here than just the men's magazine business. If the government prevails, they say, it could use the same tactics to curb other areas. And that, says Barry Lynn, a lawyer at the American Civil Liberties Union, could set a worrisome precedent for wider government intervention.
``If in fact pornography gives you bad ideas and therefore is regulable,'' he says, ``then why not have another [commission] to determine the impact of advertising and find ways to restrict that?''
A ``violence commission,'' Mr. Lynn goes on, could try to regulate violent material on television, in books and magazines -- and beyond that to violence in sporting events or to toys allegedly connected to violence. ``All kinds of industries are affected,'' Lynn says.
Adds John Kramer, dean of Georgetown University Law School, ``The government should not be in the business of boycotting'' American businesses.
In separate suits Playboy and Penthouse sued the government, saying the government had blacklisted their distributors. In a hearing last week before US District Judge John Garrett Penn, the government argued that in the letter it had urged the 23 companies to respond to the allegations, supplied a name and number to call, and had received little response. It added, however, that the commission's report, scheduled for release July 3, will not contain a list of stores that carry the magazines.
Playboy and Penthouse also want the government to send a letter of retraction that would say that the Rev. Mr. Wildmon's views were not those of the commission. They hope that a retraction letter would persuade stores to put their magazines back on the shelf.
But the damage done will be hard to reverse, says law school dean Kramer. ``The genie's already out of the bottle,'' he says. ``You can't force someone to sell your magazine.''
Most of the convenience stores deny that the commission's letter made them drop the magazines. And Allen Wildmon, a spokesman for the National Federation for Decency and the Rev. Mr. Wildmon's brother, says that boycotts had persuaded some 6,000 outlets to discontinue such magazine sales, even before the Feb. 11 letter.
But Penthouse publisher Bob Guccione scoffs at such assertions. ``The fundamentalists have been picketing and boycotting those convenience stores totally ineffectively for years,'' he says. ``It wasn't until the letter from the attorney general's office was sent out'' that they dropped his magazine.
The commission's action, while not a fatal blow, will hurt the beleaguered men's magazine industry, says one analyst who asked not to be identified. ``Most of them [men's magazines] have been on the ragged edge for years,'' he says. ``This adds one more problem.''
Videocassettes, which make magazines look tame by comparison, have cut into sales. Furthermore, the potential readership is shrinking.
The analyst notes that Playboy should weather the latest storm better than some of its competitors. Sixty-five percent of the 4.1 million copies of Playboy sold each month are by subcription. By contrast, 96 percent of the 3.2 million Penthouse copies sold each month are through newsstands.
[On Tuesday voters in a Maine referendum rejected a proposed antipornography law by a more than 2 to 1. The proposal, introduced by the Christian Civic League of Maine, would have carried a maximum five-year prison term for anyone convicted of selling or promoting material found to be obscene. Opponents of the law, including teachers, librarians, and civil libertarians, warned it could lead to censorship of legitimate literature.]