Phil Harvey in 2005 at a pharmacy in Hanoi, Vietnam, where condoms subsidized by one of his organizations, DKT International, were sold. Photograph: Richard Vogel/AP
Phil Harvey, who battled government over his sex-product business, dies at 83
In the early 1970s, Phil Harvey was a public health graduate student at the University of North Carolina when, as part of his thesis work on family planning administration, he started a mail-order condom business. He took out ads in college newspapers highlighting the risks of unprotected sex.
The business, which began as an experiment to test novel ways of distributing contraceptives, was later named Adam & Eve. Under Mr. Harvey and his Chapel Hill classmate Timothy Black, it became a multimillion-dollar company specializing in sexually oriented merchandise.
Headquartered in Hillsborough, N.C., Adam & Eve’s parent company, PHE Inc., generates more than $200 million in annual revenue and employs more than 350 workers. About 12 million customers receive its catalogue of products, which includes lingerie, massage oils, erotic books and magazines, X-rated movies and sex toys.
Mr. Harvey, who used his fortune to support sexual- and reproductive-health programs overseas as a philanthropist, died December 2, 2021 at his home in Cabin John, Md. The cause was a heart attack according to his wife Harriet Lesser. Philip Dow Harvey, the youngest of five siblings, was born in Evanston, Illinois on April 25, 1938. His father was a farm tool supplier, and his mother was a homemaker.
Phil graduated from Harvard University in 1961 (Harvard Class of 1960 and a member of Leverett House) with a degree in Slavic languages and literature, after preparing at Housatonic Valley Regional High School in Falls River, Connecticut and Phillips Exeter Academy in Exeter, New Hampshire.
Eloquent, and favoring Hush Puppies shoes, Mr. Harvey did not fit the stereotypical image of a sex merchant. He positioned himself as a defender of civil liberties after government prosecutors tried to jail him and close his adult novelty business in the 1980s.
There were legal risks from the early days of his enterprise. Shipping condoms through the mail violated a rarely invoked 19th-century regulation — often dubbed the Comstock Act — that prohibited the use of post offices to send obscene materials and articles of “immoral use.”
Eradicating the distribution of pornography became a top priority of the Moral Majority, a conservative organization led by televangelist Jerry Falwell Sr. that helped propel Ronald Reagan twice to the White House in the 1980s. Reagan’s attorney general, Edwin Meese III, led a commission that proposed the creation of a team of federal attorneys to pursue obscenity cases.
Using statutes designed to take down racketeers, the Justice Department’s National Obscenity Enforcement Unit helped secure almost 20 convictions of adult-themed mail-order companies around the country. As Mr. Harvey liked to point out, the government’s success helped boost Adam & Eve’s profits by forcing many of its competitors out of business.
Adam & Eve had been one of the unit’s first targets. In 1986, law enforcement agents raided the North Carolina offices and warehouse of PHE Inc. Mr. Harvey was charged in Alamance County, N.C., with nine state felony counts of disseminating obscene videos and sexual accoutrements, which carried a maximum of 40 years in prison. At the end of his trial, the jury deliberated for less than an hour before acquitting him on all charges.
“America prides itself on being a free society, and we do not want our government to so patronize us that we cannot engage in activities that are risky,” Mr. Harvey wrote in his 2001 book, “The Government vs. Erotica: The Siege of Adam & Eve”. “We do not wish to be protected from ourselves by laws threatening fines or imprisonment for actions that do not affect other people.”
Criminal investigations of Mr. Harvey’s business continued in conservative communities in Georgia, Kansas and Utah. At one point, with his legal bills mounting, Mr. Harvey considered a plea agreement that would have forced the closure of Adam & Eve and banned him from ever selling sexually oriented products.
But Mr. Harvey and his legal team ultimately opted to mount a vigorous defense and sued the Justice Department in 1990 for abuse of prosecutorial powers and infringing on First Amendment speech rights.
Mr. Harvey had some experience challenging the government. In 1977, he successfully sued the state of New York over the constitutionality of its laws regulating access to contraceptives. At the time, nonprescription contraceptives could be sold only in pharmacies and could not be purchased by minors.
During the discovery phase of the civil suit, Mr. Harvey’s legal team obtained government documents outlining a goal of the Justice Department: bankrupting pornography distributors by forcing them to defend themselves against identical charges in multiple jurisdictions.
Mr. Harvey received a court injunction preventing the government from targeting him with simultaneous indictments, but six months later he, his company and five employees were indicted on federal obscenity charges in Salt Lake City.
When Mr. Harvey lost a pretrial motion, his lawyers filed what is known as an interlocutory appeal with the 10th Circuit Court of Appeals in Denver. The panel of judges voted 2-1 in favor of Mr. Harvey, finding “substantial evidence of an extensive government campaign, of which this indictment is only a part, designed to use the burden of repeated criminal prosecutions to chill the exercise of First Amendment rights.”
The Utah case was dropped in 1993, but a criminal investigation by U.S. postal inspectors continued in Montgomery, Ala. At the end of that year, Mr. Harvey and government lawyers negotiated a deal that capped an eight-year legal saga at a cost of $3 million in legal fees. The agreement shielded his company from further indictments in exchange for ending his lawsuit against the Justice Department.
Lawrence Walters, an authority on First Amendment, Internet and intellectual property law who heads the Walters Law Group in Longwood, Fla., called Mr. Harvey “one of the best-known freedom fighters in the adult entertainment industry and wasn’t afraid to take on the government”.
“He paid a heavy price in terms of the litigation and criminal charges that he had to face,” said Walters, who had no role in Mr. Harvey’s legal saga. “The fights that he brought on behalf of, not only his company, but really on behalf of the First Amendment rights of everyone to view and consume adult entertainment.”
Federal obscenity laws remain on the books, but prosecutions became sporadic in the 1990s and 2000s as prosecutors — in the era of the Internet — have found it difficult to prevail in such cases. The last federal obscenity case, which ended in a not-guilty verdict, occurred in 2010.
“Pornography is pervasive and has become largely mainstream, and convincing a jury to put someone in prison for making a movie that adults want to make and adults want to watch is a pretty tall order in today’s society,” Walters said.
After a stint in the Army, Phil spent five years in India as a volunteer with the humanitarian agency Care International, overseeing lunch programs for poor children.
“His experience in India set him on a path as a public health guy,” said Christopher Purdy, executive president of DKT International, a Washington-based family-planning nonprofit that Mr. Harvey founded in 1989. “One time, when he was distributing food, an Indian woman began kissing his feet in gratitude. For Phil, it showed how poverty robs people of dignity.”
The experience highlighted what Mr. Harvey saw as the futility of food programs to keep pace with an ever-growing demand and the need for affordable and easily accessible family planning programs to combat world hunger, Purdy said.
Mr. Harvey named the nonprofit after his friend Dharmendra Kumar Tyagi, former assistant commissioner for the Indian family planning program. The organization has been active in sex education and HIV prevention globally, subsidizing the sale of more than 1 billion contraceptives.
In his 1999 book, “Let Every Child Be Wanted,” Mr. Harvey explained the tactics and strategies of merging public health goals and private sector mechanisms to advertise, distribute and sell affordable contraceptives around the world. He wrote other books as well, including a novel and a volume of short stories.
Mr. Harvey donated millions of his Adam & Eve profits to fund his health-related charity work. He also founded the DKT Liberty Project, a Washington-based civil liberties advocacy organization that has worked on free speech issues, civil forfeiture reform and expanding access to medical cannabis.
“It will be argued that people are sinful, that the government must make ‘bad’ people less bad by forbidding behavior that is held to be improper or immoral by a majority of citizens,” Mr. Harvey wrote in his book. “But when private peaceful behavior is interfered with coercively by the government, it is coercers who are behaving immorally.”
In 1990, Mr. Harvey married Harriet Lesser, a painter and art teacher. In addition to his wife, survivors include two stepchildren; two sisters; and three grandchildren.
Slightly modified as written by Louie Estrada and published in The Washington Post on February 4, 2022.
