Remembering Phil Harvey: Defender of Freedom of Expression

The free speech community lost a great champion on December 2, 2021, with the passing of Phil Harvey. In addition to his leadership on the NCAC Board of Directors, Phil has spent a life defending freedom of expression at the risk of its freedom and at a high financial cost. He stood up to the government to assert its First Amendment rights to defend his belief that people should have access to information about birth control and HIV / AIDS prevention and was a generous donor committed to defending the freedom of expression of others.

After college, Phil worked in India for CARE, where he came to believe that the best way to prevent poverty was to increase access to family planning tools. Upon his return to the United States, he started a mail-order condom business, with the intention of using the proceeds to provide family planning support around the world. At the time, it was still illegal to send condoms in the mail, but he decided to take the risk. Eventually, he made PHE, Inc., which operates as Adam & Eve, a leading seller of adult movies and magazines and sex toys. The company’s profits were funneled into the philanthropic efforts of Phil, first Population Services International and later DKT International. He founded DKT International in 1989 to continue his efforts to provide affordable birth control to underserved areas around the world. In 2015, DKT International provided 663 million condoms, 74 million oral contraceptive packs, 25 million injectable contraceptives and 1.9 million IUDs.

Phil also founded the DKT Liberty Project to protect against government intrusions into personal freedom, focusing on the fight for free speech, criminal justice reform, and drug law reform.

Phil was at the center of three important legal battles for free speech. In 1986, Phil began an eight-year struggle to force the Justice Department to end the practice of multi-jurisdictional prosecutions under the Racketeering-Influence and Corrupt Organizations (RICO) Act. In the 1980s, Meese’s Justice Department started a program called Project Postporn to stop the distribution of all sexual material. The government was not just looking for obscene material; in Phil’s case, he admitted he was aiming for simple nudity. Meese’s Justice Ministry’s National Anti-Obscenity Unit has devised a two-pronged strategy: sue in multiple jurisdictions to drain a company’s finances, then threaten them with draconian prison sentences and forfeiture of business and personal assets using RICO laws. The government used this tactic to intimidate the defendants into “voluntarily” going out of business or going bankrupt. At least a dozen businesses have closed rather than risk losing and suffer the consequences.

In 1986, Phil began to fight. PHE, Inc. has been charged by federal prosecutors with distributing obscenity. After a trial, PHE, Inc. was promptly acquitted, which did not please the local United States attorney. Four days after the hearing, he sent a note to his staff saying they needed to find other locations to bring obscenity charges against the company. For two years, U.S. prosecutors in North Carolina and Utah threatened to indict Phil, his workers, and his company. They offered him a plea deal if he was willing to stop selling sex material and pay a hefty fine, but there would be no jail time for him or his employees.

Rather than close the deal, he sued them for abusing their prosecutorial powers to deprive him, his employees / co-defendants and the company of their First Amendment rights. Phil was the only person targeted by Operation Postporn who fought the government. Finally, in 1992, the Tenth Circuit Court of Appeals ruled that the government could not use these tactics to force Phil and PHE to relinquish their First Amendment rights. United States v PHE, Inc., 965 F. 2d 848 (10th Cir. 1992). Ultimately, the Justice Department changed its official handbook to discourage the use of multiple prosecutions in obscenity cases. This decision ended the zealous pursuit of sexual material by the Justice Department.

Phil won another important victory in Population Services International v. Carey. 431 US 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). PSI has been threatened with legal action under a New York law that banned all advertising or display for the sale of condoms. The statute was one of the last remnants of Comstock laws that dated back to the 1870s. Phil challenged the law arguing that it violated the First Amendment (they also banned the distribution of condoms to minors). The Supreme Court upheld the lower court’s ruling that the advertising ban was unconstitutional.

Phil has also led the fight to limit the ideological conditions the government can attach to public health grants. The effort culminated with the Supreme Court ruling that an organization cannot be forced to adopt the government’s point of view as a condition for receiving a grant. Phil and DKT lost their challenge in DC Circuit Court, but a second challenge sparked a split in the circuit courts, prompting the Supreme Court to take the case.

In 2003, Congress passed a law authorizing USAID to provide grants to organizations to reduce HIV / AIDS. All beneficiaries and sub-beneficiaries were required to have an organizational policy opposing prostitution and sex trafficking. DKT International refused to adopt such a policy because it would have forced them to refuse help to those most at risk of contracting HIV / AIDS. Their grant was subsequently refused.

DKT International filed the first challenge to the government’s requirement to have a policy against prostitution and sex trafficking. DKT intern. v. United States Agency for Interns. Development, 477 F. 3d 758 (DC Cir. 2007). He lost the case in the DC Circuit Court, but the Supreme Court overturned the law in a second challenge brought by Open Society International. In AID c. Alliance for Open Society International, the court held that “the policy requirement imposes as a condition of federal funding the affirmation of a belief which by its nature cannot be confined within the framework of the government program. In doing so, it violates the First Amendment and cannot be sustained. ” 133 S.Ct. 2321, 2332 (2013).

Most recently, Phil has personally funded the legal defense of two theaters in Idaho and one in Utah that have been cited for showing films featuring nudity or sexual activity in a licensed location. alcohol, laws to regulate strip clubs. In Idaho, state police attempted to revoke a theatre’s liquor license because it showed Fifty shades of Grey. The other theater decided not to show Blue is the warmest color to avoid trouble. The Idaho legislature subsequently amended the law to apply only to live performances. In Utah, Brewvies was cited for showing dead Pool. He had been quoted earlier to show Hangover II. He faced a $ 25,000 fine and the loss of his liquor license when Phil stepped in to fund their lawsuit.

Phil was a true champion of free speech. He is remembered by his fellow NCAC board members as a wise voice of passion and reason. He will be sorely missed and will be fondly remembered.

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


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