The free speech community lost a great champion on December 2, 2021, with the passing of Phil Harvey. In addition to his leadership on NCAC’s board of directors, Phil spent a lifetime defending free speech at serious risk to his freedom and at great financial cost. He stood up to the government to assert his First Amendment rights in defense of 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 free speech 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. When he returned to the United States, he started a mail order condom business, intending to use the profits 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 grew PHE, Inc., which does business as Adam & Eve, into a major seller of adult movies and magazines and sex toys. The profits from the business were funneled into Phil’s philanthropic endeavors, 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 across the globe. In 2015, DKT International provided 663 million condoms, 74 million packs of oral contraceptives, 25 million injectable contraceptives, and 1.9 million IUDs.
Phil also founded the DKT Liberty Project to protect against government intrusions on personal liberty, focusing on fighting for free speech, criminal justice reform and drug law reform.
Phil was at the center of three important court battles for free speech. In 1986, Phil began an eight year fight to force the Justice Department to end the practice of using multi-jurisdictional prosecutions under the Racketeering-Influence and Corrupt Organizations statute (RICO). In the 1980s, the Meese Justice Department initiated a program called Project Postporn to stop the distribution of any sexual material. The government was not only after obscene material; in Phil’s case, it conceded that it was targeting mere nudity. The National Obscenity Enforcement Unit of the Meese Justice Department developed a two prong strategy: bring prosecutions in multiple jurisdictions to drain a company’s finances, then threaten them with draconian prison terms and the forfeiture of business and personal assets using RICO statutes. The government used this tactic to intimidate defendants into “voluntarily” going out of business or into bankruptcy. At least a dozen companies closed rather than risk losing and suffering these consequences.
In 1986, Phil began to fight back. PHE, Inc. was charged by federal prosecutors with distribution of obscenity. After a trial, PHE, Inc. was quickly acquitted, which did not sit well with the local U.S. Attorney. Four days after the hearing, he sent a memo to his staff saying they must find other venues to bring obscenity charges against the company. For two years, the U.S. Attorneys in North Carolina and Utah threatened to bring indictments against Phil, his workers and his company. They offered him a plea deal if he was willing to stop selling any sexual material and pay a large fine, but there would be no prison sentence for him or his employees.
Rather than take 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 coerce Phil and PHE to give up its First Amendment rights. US v. PHE, Inc., 965 F. 2d 848 (10th Cir. 1992). Ultimately, the Department of Justice changed its official handbook to discourage the use of multi-venue prosecutions in obscenity cases. This ruling ended the zealous pursuit of sexual material by the Justice Department.
Phil won another important victory in Population Services International v. Carey. 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). PSI was threatened with prosecution under a New York law that barred any advertising or display for sale of condoms. The statute was one of the last vestiges of the Comstock laws that dated back to the 1870s. Phil brought a challenge to the law arguing that it violated the First Amendment (they also barred distribution of condoms to minors). The Supreme Court affirmed the lower court ruling that the bar on advertising was unconstitutional.
Phil also led the fight to limit what ideological strings 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 viewpoint as a condition for receiving a grant. Phil and DKT lost their challenge in the D.C. Circuit Court but a second challenge caused a split in the circuit courts, which prompted the Supreme Court to take the case.
In 2003, Congress passed a law authorizing USAID to give grants to organizations to reduce HIV/AIDS. All grantees and sub-grantees 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 deny help to people at the greatest risk of contracting HIV/AIDS. Their grant was subsequently denied.
DKT International filed the first challenge to the government’s requirement that it have an anti-prostitution and sex trafficking policy. DKT Intern. v. US Agency for Intern. Development, 477 F. 3d 758 (D.C. Cir. 2007). It lost the case in the D.C. Circuit Court but the Supreme Court struck down the law in a second challenge brought by Open Society International. In AID v. Alliance for Open Society International, the Court held, “The Policy Requirement compels as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program. In so doing, it violates the First Amendment and cannot be sustained.” 133 S.Ct. 2321, 2332 (2013).
More recently, Phil personally financed the legal defense of two movie theaters in Idaho and one in Utah that were cited for showing movies with nudity or sexual activity in a place that has a liquor license, laws intended to regulate strip clubs. In Idaho, the state police attempted to revoke one theater’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 so that it only applied to live entertainment. In Utah, Brewvies was cited for showing Deadpool. It had been cited earlier for showing Hangover II. It faced a fine of $25,000 and the loss of its liquor license when Phil stepped into fund their lawsuit.
Phil was a true champion of free speech. His fellow NCAC board members recall him as a wise voice of passion and reason. He will be sorely missed and very fondly remembered.