Remembering Phil Harvey: Free Speech Defender

PHIL HARVEY

The free speech neighborhood misplaced a fantastic champion on December 2, 2021, with the passing of Phil Harvey. In addition to his management on NCAC’s board of administrators, Phil spent a lifetime defending free speech at severe danger to his freedom and at nice monetary price. He stood as much as the federal government to claim his First Amendment rights in protection of his perception that folks ought to have entry to details about contraception and HIV/AIDS prevention and was a beneficiant donor dedicated to defending the free speech of others.

After school, Phil labored in India for CARE the place he got here to consider that one of the best ways to stop poverty was to extend entry to household planning instruments. When he returned to the United States, he began a mail order condom enterprise, intending to make use of the earnings to supply household planning assist all over the world. At the time, it was nonetheless unlawful to ship condoms within the mail, however he determined to take the danger. Eventually, he grew PHE, Inc., which does enterprise as Adam & Eve, into a serious vendor of grownup motion pictures and magazines and intercourse toys. The earnings from the enterprise have been funneled into Phil’s philanthropic endeavors, first Population Services International and later DKT International. He based DKT International in 1989 to proceed his efforts to supply reasonably priced contraception to underserved areas throughout the globe. In 2015, DKT International supplied 663 million condoms, 74 million packs of oral contraceptives, 25 million injectable contraceptives, and 1.9 million IUDs.  

Phil additionally based the DKT Liberty Project to guard in opposition to authorities intrusions on private liberty, specializing in combating totally free speech, prison justice reform and drug regulation reform.

Phil was on the middle of three essential courtroom battles totally free speech.  In 1986, Phil started an eight yr combat to power the Justice Department to finish the follow of utilizing multi-jurisdictional prosecutions beneath the Racketeering-Influence and Corrupt Organizations statute (RICO).  In the Eighties, the Meese Justice Department initiated a program referred to as Project Postporn to cease the distribution of any sexual materials.  The authorities was not solely after obscene materials; in Phil’s case, it conceded that it was focusing on mere nudity.  The National Obscenity Enforcement Unit of the Meese Justice Department developed a two prong technique:  convey prosecutions in a number of jurisdictions to empty an organization’s funds, then threaten them with draconian jail phrases and the forfeiture of enterprise and private property utilizing RICO statutes. The authorities used this tactic to intimidate defendants into “voluntarily” going out of enterprise or out of business. At least a dozen corporations closed reasonably than danger dropping and struggling these penalties.    

In 1986, Phil started to combat again. PHE, Inc. was charged by federal prosecutors with distribution of obscenity. After a trial, PHE, Inc. was rapidly acquitted, which didn’t sit nicely with the native U.S. Attorney.  Four days after the listening to, he despatched a memo to his employees saying they have to discover different venues to convey obscenity prices in opposition to the corporate. For two years, the U.S. Attorneys in North Carolina and Utah threatened to convey indictments in opposition to Phil, his employees and his firm. They supplied him a plea deal if he was prepared to cease promoting any sexual materials and pay a big effective, however there can be no jail sentence for him or his workers. 

Rather than take the deal, he sued them for abusing their prosecutorial powers to deprive him, his workers/co-defendants and the corporate of their First Amendment rights. Phil was the one particular person focused by Operation Postporn who fought the federal government. Finally, in 1992, the Tenth Circuit Court of Appeals dominated that the federal government couldn’t use these ways to coerce Phil and PHE to surrender its First Amendment rights.  US v. PHE, Inc., 965 F. 2d 848 (10th Cir. 1992). Ultimately, the Department of Justice modified its official handbook to discourage the usage of multi-venue prosecutions in obscenity instances. This ruling ended the zealous pursuit of sexual materials by the Justice Department.    

Phil gained one other essential victory in Population Services International v. Carey431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).  PSI was threatened with prosecution beneath a New York regulation that barred any promoting or show on the market of condoms. The statute was one of many final vestiges of the Comstock legal guidelines that dated again to the 1870s. Phil introduced a problem to the regulation arguing that it violated the First Amendment (additionally they barred distribution of condoms to minors). The Supreme Court affirmed the decrease courtroom ruling that the bar on promoting was unconstitutional. 

Phil additionally led the combat to restrict what ideological strings the federal government can connect to public well being grants. The effort culminated with the Supreme Court ruling that a corporation can’t be pressured to undertake the federal government’s viewpoint as a situation for receiving a grant. Phil and DKT misplaced their problem within the D.C. Circuit Court however a second problem brought on a break up within the circuit courts, which prompted the Supreme Court to take the case.  

In 2003, Congress handed a regulation authorizing USAID to provide grants to organizations to scale back HIV/AIDS.  All grantees and sub-grantees have been required to have an organizational coverage opposing prostitution and intercourse trafficking. DKT International refused to undertake such a coverage as a result of it could have pressured them to disclaim assist to folks on the best danger of contracting HIV/AIDS. Their grant was subsequently denied.  

DKT International filed the primary problem to the federal government’s requirement that it have an anti-prostitution and intercourse trafficking coverage. DKT Intern. v. US Agency for Intern. Development, 477 F. 3d 758 (D.C. Cir. 2007).  It misplaced the case within the D.C. Circuit Court however the Supreme Court struck down the regulation in a second problem introduced by Open Society International. In AID v. Alliance for Open Society International, the Court held, “The Policy Requirement compels as a situation of federal funding the affirmation of a perception that by its nature can’t be confined throughout the scope of the Government program. In so doing, it violates the First Amendment and can’t be sustained.” 133 S.Ct. 2321, 2332 (2013).  

More lately, Phil personally financed the authorized protection of two film theaters in Idaho and one in Utah that have been cited for exhibiting motion pictures with nudity or sexual exercise in a spot that has a liquor license, legal guidelines meant to manage strip golf equipment. In Idaho, the state police tried to revoke one theater’s liquor license as a result of it confirmed Fifty Shades of Grey. The different theater determined to not present Blue is the Warmest Color to keep away from bother. The Idaho legislature subsequently amended the regulation in order that it solely utilized to dwell leisure. In Utah, Brewvies was cited for exhibiting Deadpool.  It had been cited earlier for exhibiting Hangover II. It confronted a effective of $25,000 and the lack of its liquor license when Phil stepped into fund their lawsuit.  

Phil was a real champion of free speech. His fellow NCAC board members recall him as a clever voice of ardour and purpose. He shall be sorely missed and really fondly remembered.

Image through Gopigopal on the English-language Wikipedia, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=26473364

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