Last week, the U.S. Justice Department announced that it has indicted Paul F. Little, a producer of adult entertainment, on obscenity charges. The charge against Little and Max World Entertainment stems from his having made and distributed movies graphically depicting “severe violence” against women.

Little (also known by the stage name Max Hardcore) contends his movies don’t qualify as obscene. As he puts it, “They’re fictional movies involving consenting adults.”

According to the Los Angeles Times, the number of obscenity cases launched by the Justice Department under the Bush administration has increased to between 1,300 and 1,400 annually. By contrast, obscenity cases were a rarity during the eight years when Janet Reno headed the Justice Department under Bill Clinton, from 1993 to 2001. Only 500 to 700 cases were prosecuted annually between 1999 and 2001.

That’s largely because Reno focused exclusively on child pornography makers and distributors, a group that we all agree is despicable. Bush, however, has focused not just on child pornography, but on pornography involving consenting adults.

Many lawyers argue that obscenity law, at least insofar as it applies to depictions of consenting adults, should be unconstitutional. The First Amendment should protect depictions of matter involving consenting adults. However, until the day it does, federal courts will continue to use a standard developed 40-plus years ago – a standard that is unrealistic today, given the accessibility and variety of porn on the Internet.

The standard, in short, is that federal prosecutors have to convince a judge that a particular work caters to a “sordid” interest in sex, and that a jury applying contemporary community standards could find that the work, as a whole, lacks any merit.

It’s not an easy test to meet, and judges have historically thrown out such cases because they concluded they could not prove these subjectives. But conservative federal judges, largely those appointed by President Bush, have let these cases go to a jury. Prosecutors in the Bush administration also strategically file charges in locales where conservative folks dominate the jury pools. And they file multiple cases in different locales, so a producer defending one film in Alabama is also on trial for another in Virginia.

With the exception of child pornography, prosecuting “obscenity” cases should be a thing of the past.

One federal judge agrees. He ruled that pornography made with and possessed by consenting adults is protected under the Constitution. He argues that, under Lawrence v. Texas, the right to privacy protects the actors, producers, distributors and consumers.

Unfortunately, neither of the obscenity cases the Supreme Court will decide next year will induce the court to state that the First Amendment completely protects adult pornography.

The court should do this and make obscenity prosecutions involving adult depictions a thing of the past, as it did with sodomy prosecutions for private consensual conduct.