November 1999 Update


You can almost smell election season in the air. Sexual expression is a popular scapegoat for all of society’s ills as the political races heat up. Adult businesses which have operated quietly for years are being targeted for eradication by politicians to lock in the conservative voting block. I represent a business in Flagler Beach, Florida which has presented bikini dancing for over a year without a problem and which is not in violation of any ordinance. Recently, uniformed law enforcement officials and code inspectors burst into the business and threatened to take all of the dancers, and customers to jail if the dancing continued. When my client went before the City Commission meeting to deal with the issue, they told him they didn’t like the kind of dancing that went on and granted a license for entertainment, but included the word on the license certificate “no dancing”. This reminds me of the old movie Footloose. This is the only city in the United States where you must seek permission before dancing. Can you say political witch hunt?

A bookstore in the City of DeBary, Florida by the name of Cupid’s Corner is another casualty of election season. This clean, brightly-lit store which sells clothing, novelties, and some sexually-oriented video tapes, which has operated for years without a single complaint, is being asked to move to an industrial zone as elections near. It seems as though there should be more important issues addressed by political candidates than human sexuality. There appears to be a universal denial by politicians of the fact that the censorship attempts violate the First Amendment to the United States Constitution. Politicians are sworn to uphold the Constitution, but what kind of example do they set when they run on a platform of suppressing free speech. It seems as though real crime would be more deserving of their attention.

Speaking of real crime, it strikes me as unreal that Laura Barron, one of the firm’s clients, was criminally charged with displaying an “obscene bumper sticker” and faces 60 days in jail or a $500.00 fine. The obscene bumper sticker law, and it truly is an obscene law, was passed amid a cloud of controversy several years ago in response to the appearance of the “S–t Happens” stickers. My client’s sticker reads “F**k You, You F***ing F**k”. It is a small sticker measuring approximately 2×2, and can be only read by tailgators, for whom it is intended. This is the first prosecution under this ridiculous law, and so it will be a test case. The Supreme Court has said that the F word is not, itself, obscene, and the Florida obscenity definition requires that the article at issue by sexually-oriented. I may be wrong, but I don’t think my client intended anything sexual by the sticker.

Strangely enough, I find myself appearing on talk shows more than in court in recent weeks. Several of the firm’s cases have garnered national attention including the Arizona nurses fired for having an adult web site, the first obscenity prosecution against Internet materials, and a newspaper man being fired for downloading a clip of an Interracial love scene from the new movie, Black & White. So far the clients and I have appeared on Court TV numerous times, the Oprah Winfrey Show and the Leeza Show. Sexual expression on the Internet has been the focus of national attention recently and has prompted litigation on various fronts. The State of Michigan attempted to pass an Internet content law, which was quickly enjoined. The same fate is likely to befall Virginia’s Internet censorship law which was challenged on October 6. The Senate has passed an anti-cyber squadding bill which would prevent people from registering domain names “bad faith” hoping to profit from association with a trademark owned by someone else. Even Barbie has found her way into Internet litigation. Mattel, the maker of the Barbie doll, has sued to shut down, a web site owned by Internet Dimensions featuring x-rated photos of women.

There is some indication that the war on porn has even reached its way to the highest levels of government. Republican Congressman Joe Pitts (R-Pa) has criticized the Clinton administration for being soft on porn. He cited current statistics that show that obscenity prosecutions have fallen from 42 under the Reagan/Bush administration to 6 under Clinton. Administration officials responded that they are concentrating on child pornography which, in this writer’s opinion, is where the effort should go. Meanwhile, a House of Representatives subcommittee approved legislation that would increase its war against obscenity and pornography. 10 million dollars is ear-marked for the child pornography / child exploitation program, which has increased from 2.4 million in the current year. The bill passed 410-2 on May 25, 1999. Of course, the justification for the increased funds is to protect children. “As more kids go online everyday, we need to ensure their safety, and it is time to let online pedophiles know that they can no longer hide behind their computer screens,” said the bill’s sponsor Rep. Nancy Johnson (R.-Conn.) Important to note, this program is also charged with the responsibility of pursuing obscenity violations.

Even traditional, non-sexual art isn’t safe from the censors wrath during election season. The headlines are full of quotes from Mayor Rudolph Julienne who claims to take the moral high ground at the expense of First Amendment rights by pulling art funding for the Brooklyn Museum of Art in New York City. The art exhibit has been called “offensive” and “shocking,” and so Julienne saw fit to punish the museum by freezing government funds. The museum has filed suit and is represented by competent First Amendment attorney Floyd Abrahams. We look forward to a quick victory, and to giving Mayor Julienne a civics lesson in the process.

Maybe the politicians have their finger on the pulse of the voters, or at least their pollsters are accurate. A recent study conducted by the Freedom Forum’s First Amendment Center, in Nashville, conducted a survey yielding the following surprising results:

– More than half of the respondents believe the press has too much freedom;

– Half believe the Constitution should be amended to override the First Amendment’s protection of flag burning as political protests; and

– Nearly one third believed the First Amendment goes too far in the rights it guarantees. Maybe more of us who disagree should vote.

October 1999 Update


The legal climate for the adult entertainment industry is heating up, particularly in relation to adult web sites. There have been at least two more individuals who have lost their jobs simply because they were involved with adult Internet sites. Wendy Gesellschap and Herbert Robinson have both retained our firm to challenge their terminations in direct retaliation for their exercise of First Amendment rights. George and Tracy Miller, as reported in last month’s ASM article are still fighting with the Scottsdale, Arizona hospital who terminated them and destroyed their nursing careers. A final administrative decision upholding the termination was issued by the hospital this month clearing the way to the courthouse. Meanwhile, the City of Tampa, Florida voted to close down the infamous Voyer Dorm web site under the municipal zoning ordinance. Not surprisingly, Voyer Dorm is headed to court.

Does tarnish the image of applesauce? That is the bizarre question posed to a federal court in New York by the attorneys for, a sizeable porn site. The site drew complaints from, amongst obvious others, the National Fruit Product Co. who distributes White House brand applesauce. The fruit company claimed that the sex site “dilutes and tarnishes the distinctive quality of our client’s famous mark in violation of the Federal Trademark Acts.” In short, it wants the domain name.

Australia’s pathetic attempt at censoring the Internet drew criticism from Nadine Strossen, President of the ACLU who claims that the new laws are making Australia the world’s Internet “village idiot”. Australian communications minister Richard Alston counters: “Australians believe promotion of ‘individual freedoms’ must be bound by the wider social good.” Something is going down, down under: or is it? The newest Internet censorship act on the federal level is the “Neighborhood Children’s Internet Protection Act.” This bill, introduced by Senator Rick Santorum, R-Pa, would require public schools and libraries to either install blocking software on Internet – accessing computers “dedicated to student use”, or adopt an Internet use policy that would protect minors from “inappropriate material.” Who decides what is inappropriate? According to the bill, it is the “school board, library or other authority responsible for making the determination.” Of course, the bill does not define “inappropriate”.

At some point, this County, and the world for that matter, is going to have to come to grips with the fact that sexually explicit material is available on the Internet, and there is nothing they can do to stop it. Governments can pass all the knee jerk censorship legislation they want, but it is not going to prohibit the Red Light District in Amsterdam from doing live video feeds on the Internet. Punishing employees for viewing or participating in adult web sites on their off time will only further disenfranchise a large portion of the sexually-active segment of society resulting in, inevitably, more poverty and crime. Wake up Senator Santorum and Minister Alston! You can’t cram morality down peoples’ throat through censorship. Again, why is it always sex that you try to censor? Have you seen the violence and hate disseminated world wide on the Internet? Why is that speech okay, but it is the erotic speech that has got to go? Perhaps your efforts should be refocused.

I guess we should feel lucky that we have a First Amendment, at all. In Vancouver, BC, the Vancouver police and Canadian Mounties raided the offices of Starnet Communications, a publicly traded netporn and casino company searching for evidence of illicit porn trafficking and illegal betting. “The raid followed an 18 month investigation,” said police spokeswoman, Ann Drennan. No arrests have yet been made. Relatedly, in Salt Lake City, Utah, a magazine shop was fined $2,500.00 for distribution of pornographic material, a class A misdemeanor. The police report states that undercover police officers purchased videos that contained “sexually graphic material” from the magazine store on at least 14 different occasions. Now that is efficient use of tax dollars! Needless to say, attorneys for the magazine shop filed suit in the United States District Court against the police and prosecutors for violating its constitutional rights. The lawsuit seeks 1.1 million dollars in damages.

All this government action hasn’t stopped the adult Internet industry from its expansive growth. The Interactive 2000 adult webmaster convention, scheduled for October 1, 1999 in Miami, Florida, promises to be the biggest ever. We keep watching, because we know the government does too.

September 1999 Update


I guess adult entertainment can be hazardous to your job. You may have heard about George and Tracy Miller, the Arizona couple who were fired from their jobs as nurses with a Scottsdale, Arizona hospital, because they ran an adult web site. The Millers have become clients of our firm and we intend to get them their job back or, at least teach the Hospital a lesson by hitting them in their bank account. To see what all the fuss is about, access their site at Or consider the case of the teachers who attended a sex club in South Florida and were later fired from their teaching positions because of their extra-curricular activities. Are we getting to the point where our choice of entertainment activities on our off time has a direct impact on our job security? Will employers begin requiring us to reveal which movies we have watched or magazines we have read? Historically, the First Amendment has protected free expression of a sexual nature, and the right to privacy has protected adult, consensual, sexual activity, but these protections are continually ignored in the employment context. An individual’s choice of what to view or broadcast on the Internet in his or her off time represents fertile new battle ground in the censorship war. Like most other Internet issues, the law is either minimal or nonexistent. The Miller case will likely set a precedent to be followed by employers across the nation when dealing with private Internet usage by employees.

Even though the U.S. Government’s attempt to censor the Internet under the guise of protecting children has so far failed in the courts, the Michigan Legislature, in its infinite wisdom decided to pass a similar law targeting people who distribute sexually explicit materials to minors over the Internet. U.S. District Court Judge Arthur Tarnow ruled that the law, set to take effect August 1, would have violated the right to free speech because of the anonimity of the Internet and the difficulty of checking the age of users. “Even under the guise of protecting minors, the government may not justify the complete suppression of constitutionally protected speech”, the Judge wrote. The Michigan law would likely have penalized even a doctor who posted sex information on the web or who answered a sexually explicit question in a chat room.

The City of Tampa, Florida has decided that the “Voyeur Dorm” which broadcasts images of female college students 24 hours a day living in their home, is an adult business. The City’s variance review board ruled recently that the house is not a home, but a business just the same as an adult bookstore or strip club. Web surfers pay $34.00 a month to view the site which provides images from more than 30 cameras. One can only guess how many other Internet businesses exist in the same neighborhood as the Voyeur Dorm. But, as usual, the City has singled out the sexually- oriented business for a hyper-technical enforcement of its codes. Voyeur Dorm’s attorney plans to appeal.

The ground-breaking World Pornography Conference sponsored by Cal State’s Center for Sex Research last summer, is now being investigated by California’s Joint Legislative Audit Committee. The conference, which I attended, focused on various legal, sociological and economic issues relating to pornography. The seminars were extremely academic in nature and the conference was lauded by those who attended. Yet Senator Ray Haynes, R-Riverside, had the audacity to say: “State tax dollars were used to promote child pornography.” I didn’t see Senator Haynes at the conference.

The courts have dealt adult entertainment businesses several setbacks in the last month. In Wisconsin, the Seventh Circuit Court of Appeals upheld a law which required an adult bookstore to close at certain hours because of harmful secondary effects that adult businesses allegedly caused. In upholding the law, the court acknowledged that the ordinance singled out adult-oriented establishments for different treatment based on the content of the materials they sell or display. But, since the content was sexually-explicit, the law was okay. The bookstore’s attorney said that the decision was dangerous for First Amendment jurisprudence. That’s putting it mildly! In another case, the Supreme Court of New Jersey decided that an adult entertainment club owner violated a local sign ordinance by erecting 20 displays of scantily clad women inside the windows of his clubs. The owner contended that the displays were not signs. The New Jersey Supreme Court found that the displays were devices used for visual communication, display, identification and publicity and thus upheld the fines imposed against the club owner. Does Sak’s Fifth Avenue have sign permits for its mannequins in the window?

One final item: The ultraconservative Morality in Media group has launched a nationwide campaign to urge supermarket chains to stop displaying magazines with sexually blatant cover headlines at checkout counters. Among the objectionable headlines to be censored from Cosmopolitan is: “Sex – Clusives! 1000 Men Confess the Squeezes, Licks & Teases They Long for and the Most Important Inch on a Man’s Body.” Morality in Media President, Robert W. Peters stated: “We believe strongly that such material should not be in your stores at checkout counters where innocent children and vulnerable adolescents see it…I hope you agree.” I guess Mr. Peters wasn’t among the 1000 men polled.

What a month!

August 1999 Update


The recent Adult Entertainment Expo put on by AVN in Los Angeles last month gave me a chance to reflect on just how vast the adult entertainment industry has become. Instead of some stepchild of the “mainstream” video show, the industry can now support its own Expo. The “Night of the Stars” awards show was well-attended and as outrageous as ever. Congratulations to Christi Lake, Lenny Friedlander and all the other winners for their tireless efforts to protect free expression in the face of organized censorship.

The legal news from around the country presents a mixed bag of decisions. First, the House wisely rejected the pathetic attempt by Rep. Henry Hyde to censor violent video games. But now, the President is asking the media to “evaluate” violent content in movies and TV. The V Chip is available in half of the televisions sold today. Are we going to see an X Chip next to censor sexual expression? Itsoundslikeelectionseasonisjustaroundthecornerandthecensorshipbandwagon is filling up.

Although the government continues to explore new ways to stifle free expression in the adult dancing industry, our firm scored a victory against Seminole County, Florida last month. In their relentless attacks against several nude clubs in the City of Casselberry, Florida, located within Seminole County, the County passed a law banning nudity in any public place (including back yards!). The pre-existing city law, however, expressly allowed nudity in adult entertainment establishments, and even sold licenses for this behavior. The County’s Charter treated city laws as superior to county laws. When the law was passed, we sued Seminole County asking the court for an injunction against the county law since the city law trumped the county law. Of course, the elected trial court judge denied the injunction and gave no reasons for her decision. The real reason was that an injunction would have allowed nude dancing, which would have been a political catastrophe.

We immediately appealed the decision and won in the appellate court. The higher court said that the injunction should issue if, in fact, the City allowed nudity. This case is a lesson in never giving up hope. You may have to keep fighting, but sometimes justice prevails.

On the Internet front, the attempt to censor adult materials from public libraries continues. Now, the federal government is getting into the act by trying to impose restrictions on any library that receives federal funding. The State of Michigan is trying to pass a law restricting adult materials on the Internet. All these efforts reflect a frustration by the moral conservatives in trying to deal with this new medium. The first attempt to charge anyone with obscenity on the Internet is at a standstill in Polk County, Florida, while the Defendant continues to raise money for her defense. See:

In a landmark ruling, a British court held that U.S. adult web sites could be prosecuted in the U.K. This is an important ruling for the future of the web. This ruling comes hot on the heals of Australia’s decision to censor the web. What if all web sites were required to be acceptable to the unique moral standards of each country?

On the humorous side, the term “oral copulation” was recently upheld by the courts even though it did not appear in the dictionary. I guess, the judges thought that we could figure it out. Speaking of such things, it has been reported that oral sex has now become a fad in our Junior High and High Schools. Teens have used this method as a way to combat the spread of AIDS and prevent pregnancy. PTA meetings have even been called. Is this what Nancy Reagan meant when she said “Just say no.”?

July 1999 Update


Plenty of news on the First Amendment front. In a blatant disregard for his sworn oath to uphold the Constitution to the United States of America, Representative Henry Hyde is pushing legislation designed to censor violent content from movies and video games. The proponents of this legislation have expressed concerns that current obscenity laws do not provide a vehicle to prosecute violent content. Duh! A long time ago we decided that the only exception that we are willing to make to free speech is sex, not violence. After all, if violence is to be censored, we will have to stop selling the local newspaper and maybe replace the evening news with Disney cartoons. Yet there is actually some chance that this idiotic law will make it through to a House vote. Speaking of violence, the publisher of the book “Hitman”, Paladin Press, has agreed to a multimillion dollar settlement of the lawsuit brought against it by the relatives of an individual murdered whose killer allegedly followed the instructions contained in Hitman. This was a big loss for the First Amendment and sends the message to other crime victims that you can successfully sue the media for the mere dissemination of ideas. The same techniques described in Hitman can be seen in any Sylvester Stallone or Clint Eastwood thriller. Perhaps Universal Studios will be the next defendant and the issue will be taken more seriously.

In the battle against adult entertainment, the news is equally disturbing. The New York adult bars and bookstores hit the end of the road in their legal battle when the United States Supreme Court refused to grant review of the decision forcing closure of most of the adult businesses. This was the most significant adult entertainment zoning battle in recent history and represents and unfortunate loss for the industry. The South Carolina Supreme Court upheld a similar restrictive zoning ordinance which was challenged by the Thee Dollhouse, unsuccessfully.

In my area of Central Florida, the Brevard County Commission has recently voted to hire the American Center for Law and Justice to rewrite its adult entertainment laws. The ACLJ is a fundamentalist Christian group founded by televangelist Pat Robertson. I am sure they will be objective and unbiased when they write the rules for the topless bar industry, though. Whatever happened to the separation between church and state? As observed by the local paper, it’s like having the NRA write gun legislation. Interesting, their lawyer, David Cortman, Esquire, who proposed to write the new laws and defend them for free in the Florida courts, is not even admitted to practice law in the State of Florida.

In the first Internet obscenity case to be filed in the United States, the Defendant, Tammy Robinson, whom we represent, has turned this new medium against the prosecution. She has set up a legal defense fund whereby fans can join with a credit card to see her naked, with all proceeds going to her legal defense. Her site can be found at

One piece of good news on the legal front, the City of Jacksonville, Florida was recently dealt a significant loss when the United States Court of Appeals for the Eleventh Circuit in Atlanta declared Jacksonville’s Adult Entertainment Ordinance unconstitutional for failure to provide a sufficient opportunity for adult businesses to open and operate. The Appeals court also threw out other parts of the law; for instance the ability to jail owners of adult establishments simply for being owners without showing any participation in wrongful conduct. Back to the drawing board for Jacksonville.

The adult film and Internet industry has continued to flourish despite intense opposition, however. According to Forbes Magazine, 8,948 hard core videos were released in the United States, in 1998, up from 1,275 in 1990. Americans rented 686 million adult tapes in 1998. The profits generated from the x-rated video industry have doubled over the last five years, generating some 5 billion dollars in sales last year. The adult Internet industry generates nearly a billion dollars and is forecasted to reach 3.21 billion in 2003 according to Reuters. With numbers like these, the industry should be able to put together a sizable legal defense fund to fight the modern censorship efforts. Such preparations are necessary to win the looming censorship battle.

June 1999 Update


During a recent layover at Miami International Airport on the way to Cancun, Mexico for an adult video industry retreat sponsored by Adult Video News, I read that the Miami International Airport had banned the sale of Cigar Officianado Magazine because the cover story was flattering to Cuba. I searched far and wide for a copy of the magazine at the airport, only to be told that it was not for sale and it had been censored. Ironically, Cuba, itself, had banned previous issues of the magazine for their own reasons. This is, of course, allowed in a communist society. What surprised me is that there was no mention in the newspaper article of any First Amendment implications to the airport’s action, and the word censorship never appeared in the article. Several days later, after the civil rights violation became obvious, the Airport Administrator reversed her ban. She was quoted as saying that she did not consider such “lofty concerns” as the First Amendment and Free Expression when she decided to ban the magazine from the airport.

This knee jerk censorship reaction when it comes to communist sympathizers is similar to the way sexually-oriented materials are treated. The government often does not consider such “lofty concerns” as the First Amendment when censoring sexually-oriented speech. Even officials in the City of Miami, while recognizing its First Amendment violation at the airport, have continued their efforts at stifling sexually-oriented speech by passing a new ordinance seeking to restrict zoning for adult businesses, even after their last ordinance was struck down as unconstitutional. There is a move a foot to try to make pornography the exception to the First Amendment, just as drugs were made the exception to the Fourth Amendment in the late 80’s and early 90’s. Courts have been more and more willing to say that sexually-oriented speech is “low grade” speech entitled to less protection and other types of “important” speech. Once we start assigning values to types of speech, we have lost all sight of our founding fathers’ intent in writing the First Amendment which states that Congress shall make no law abridging the freedom of speech. The Fourth Amendment’s protections against unreasonable search and seizure have become virtually a faded memory with all of the terrible decisions in the recent past eroding the Fourth Amendment’s protections whenever suspected drugs are involved. Miranda warnings, under the Fifth and Sixth Amendment, have been nullified by a recent Circuit Court of Appeals decision stating that the warnings are no longer required. A decision carving out an exception from First Amendment protections for pornography would be devastating, but entirely possible given the current political climate.

A Republican administration is virtually guaranteed in the year 2000, with George W. Bush leading in the polls over Al Gore, and at least fourteen million dollars ahead in financing. Gore is already feeling the political heat generated by his administration’s laziee faire stand on pornography, prompting him recently to blame teen pregnancy rates on sex in the media. Whether caused by Gore trying to get ahead in the polls, or the new Republican administration’s stance on moral issues, a censorship crackdown is coming. With the vast majority of the federal judges appointed during the Reagan/Bush administration, all strict conservatives, the courts will likely be unavailing when this new legislation is challenged. Clinton’s attempt to appoint federal judges have largely been blocked by the Republican-controlled congress. While the U.S. Supreme Court has demonstrated that it is friendly to First Amendment principles by striking down the Communications Decency Act of 1996, a lot of damage can be done to Free Speech before the Supremes ever hear a case.

All is not doom and gloom, however. As my last article pointed out, several major First Amendment victory’s have been scored in the last year or two. There will always be some intellectually honest judges willing to uphold fundamental constitutional rights, even in the face of intense political pressure. Those on the front lines in the adult entertainment industry, must remain strong in the face of the inevitable government censorship actions. Morever, those who enjoy adult entertainment need make their views known in the political process, and express their opinions at the ballot box.

May 1999 Update


In this era of governmental hostility toward the adult entertainment industry, the censors are suffering some high profile setbacks in the courts. First, it was the United States Supreme Court that unanimously rejected the Government’s first Internet censorship attempt called the Communications Decency Act, which sought to prohibit all “indecent” material from the Internet. The Feds responded with the Child Online Protection Act, which tried to prohibit minors from gaining access to adult material on the Web by requiring credit cards or age verification systems. This law was immediately challenged and enjoined based on the same free speech concerns expressed by the United States Supreme Court in the Decency Act case. We have recently learned that the Government has appealed this decision to the Circuit Court of Appeals. This case should be closely monitored by anyone wishing to continue unrestricted access to adult materials on the web.

The next victory came from Montgomery, Alabama where U.S. District Judge Lynwood Smith threw out an Alabama law which banned “sex toys” such as vibrators and dildos. Any person selling or distributing such devices faced up to a year in jail or a $10,000.00 fine. The law was challenged by six women who either wanted to sell the devices or claimed that vibrators are necessary for sexual gratification which they could not obtain otherwise. The Court found that the devices are not obscene under the traditional definition, and that the law would deny “therapy for, among other things, sexual dysfunction.” Great news for the women of Alabama!

In another Internet case, a U.S. Court of Appeals in Boston ruled that nudity itself is not sufficient to make a picture “pornographic”. In this case, a man downloaded a nude picture of a young girl standing on the beach from the Internet. The man was charged with trafficking in child pornography and received a five year prison sentence. The appeals court threw out the conviction and sentence, ruling that just because a person may find a nude picture erotic is insufficient to turn the photo into child pornography. “If [the defendant’s] subjective reaction were relevant, a sexual deviant’s quirks could turn a Sears catalog into pornography.” Be careful with those bathtub photos of your kids, folks.

Finally, an adult video store owner in Utah County, UT, breathed a sigh of relief with his acquittal on charges of distributing obscenity. Larry Peterman, the owner of the Movie Buffs video chain in Utah, embarrassed prosecutors by obtaining “not guilty” verdicts on all 15 charges. The process of vindicating his rights was not painless, however. During his 2 1⁄2 year ordeal, Peterman lost his business, his wife, and his reputation after police raided 2 Movie Buffs video stores in 1996 and seized nearly one thousand tapes from the adults-only rooms. Lets hope a civil rights suit will follow and really teach these guys a lesson.

While the courts have not been overwhelmingly friendly to adult entertainment issues during the past couple of years, it is refreshing to see that there are some boundaries to the Government’s censorship efforts. Unrestrained, groups like Morality in Media will pressure politicians and prosecutors to punish individuals who choose to exercise their right to free speech by disseminating sexually oriented materials to the point where supply dries up because no one is willing to take the risk. Numerous free speech heroes from the adult video industry have fallen on the sword for constitutional rights by enduring countless prosecutions and even jail terms for their involvement with sexually explicit materials. If it were not for free speech warriors such as Larry Flint, Al Goldstein and Bob Guccioni the puritanical censors would have had their way a long time ago and cleansed mainstream media for the rest of us.

Several free speech heroes are about to be made on the Internet, although some unintentionally. While the government has largely ignored the proliferation of sexual materials on the web, it cannot do so for long and some webmasters will have the guts to stand up and fight. Two of those heroes are Tammy and Herbert Robinson who have retained our services to fight the first Internet obscenity prosecutions in America, arising out of Polk County, Florida. We have asked the court to dismiss this case based on the Right of Privacy since all actions taken by the Robertsons occurred in the sanctity of their own private residence. We haven’t even started with the free speech issues, yet.

Perhaps these positive judicial decisions reflect a recognition by the courts that the censorship groups are testing the boundaries of the First Amendment with their efforts. That’s good news for the next round of soldiers preparing to go to battle to protect all of our rights.

April 1999 Update


Well, it finally happened – amateur adult stars have been arrested for allegedly promoting obscene material on the Internet. Right here in Central Florida, where I practice, on March 2, 1999, the Polk County Sheriff’s Office “Computer Crimes Unit” arrested two couples alleging that these individuals broke Florida’s obscenity laws by providing amateur adult content to various web sites from their homes. It looks like the web site owners will ultimately be charged as well. According to the Polk County Sheriff’s Office spokesperson: “these charges will become more common as computer growth continues and more people have access to the computer.” Thus begins what was the inevitable battle over what is and is not obscene on the Web. Polk County has drawn a battle line in the cultural war which will be of significant importance. Our firm is honored to represent two of the defendants in the Polk County obscenity cases and we are committed to providing an aggressive First Amendment based defense. These charges come as no surprise to us since we had first predicted at the IA 2000 show in February of this year that while the federal government does not appear to be actively prosecuting obscenity cases, it will probably be some zealous state prosecutor in a place like Polk County, Florida that would begin obscenity prosecutions against Internet material. While the specific accuracy of the prediction is somewhat alarming, the concept is not unusual. Prosecutors and law enforcement see this as an opportunity to do the will of the people in this small community, and make a few headlines for themselves along the way. If a jury acquits the defendants at trial, blame the jury for sanctioning the corruption of the community’s morals as the prosecutors did several years ago in connection with the acquittals of several video store operators in Tallahassee, Florida. If a Judge throws the case out on First Amendment grounds, blame the liberal Judges for not upholding our community values. It is a no lose deal for the prosecution. In the meantime, numerous web site owners, operators and performers are anxious and downright frightened. With good reason – maybe: Should a prosecutor be able to prove that an individual was involved in any organization profiting from at least two obscene photographs or videos, he could charge that person with Racketeering as has been the case in numerous other Polk County, Florida prosecutions. A conviction for Racketeering can mean thirty years in jail, a six figure fine and forfeiture of all your assets. And, by the way, you never need to have set foot in Polk County, Florida – your materials just need to be available there. Obviously, all sites on the Internet are accessible from Polk County, Florida.

Of course, obscenity is the lynchpin for any punishment. What will Polk County jurors think of the kind of adult material that can typically be found on the Web? What kind of material should be tolerated in cyberspace? How does anyone know whether their material is obscene? These inevitable questions will only likely be answered by a judge or jury in Polk County, Florida. In the meantime, it would not be surprising if other zealous prosecutors get the idea that they too want some headlines and begin instituting additional Internet obscenity charges. While it is regrettable that any charges were filed at all, these cases were probably long over due. The adult movie industry and the adult video industry were both hit with obscenity charges rather quickly after each industry begin to flourish. For the last several years, web masters have taken pretty much an “anything goes” approach to their content so long as it did not involve children, animals or actual violence. Any obscenity prosecutions will likely result in a certain amount of self censorship now by webmasters to avoid becoming the next target. The consuming public will become the victims having less choice and there being less competition. On the other hand, a few obscenity prosecutions are not going to shut down a multi-billion dollar industry nor curb the public’s demand for consumption of these materials. These prosecutions will remind us all that the censors are watching and that if you close your eyes for just a second, they may just take away some of your freedoms.

March 1999 Update


As largely predicted by legal scholars and the adult industry, U.S. District Judge J. Lowell Reed, Jr. blocked the latest anti-cyber porn law called the Child Online Protection Act (COPA), by issuing a preliminary injunction on February 1, 1999. The law attempted to require any web site presenting sexually oriented materials to verify the age of any person accessing the site by way of a credit card or age verification service (AVS). While the ruling may be bad news for businesses such as Adult Check ®, who would have profited from the verification requirement, the decision is hailed by the ACLU and web site operators as a victory for the First Amendment and for the free flow of information on the web. In his decision, Judge Reed wrote “Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.” If the law had not been blocked, it would likely have required a credit card to access information regarding breast cancer and even abortion. Certainly Adult Stars Magazine might no longer be legally accessible without a credit card or AVS. The Court’s injunction is effective until the case is tried. Alternatively, the Government may choose to appeal the Order directly to the United States Supreme Court as is allowed in this type of constitutional case.

Perhaps anticipating this ruling against the COPA, Senator John McCain and Senator Ernest Hollings have already introduced the Children’s Internet Protection Act, S. 97 (CIPA) which would require that blocking and filtering software be used by any school or library receiving E-rate discounts. The bill requires that libraries use a filtering system on one or more of their computers so that at least one computer would be “appropriate for minors’ use”. This new proposal goes to show that the Government will not stop its censorship efforts until it comes up with a constitutional law. After all, it took Congress seven attempts to finally come up with a valid FCC decency law regulating broadcast radio and television.

At the other end of the spectrum is a federal appeals court ruling which upholds the Child Pornography Protection Act of 1996. This law drastically changes the definition of what constitutes “child pornography” and severely punishes the distribution of any images of persons who “appear to be” a minor, even if the performer is over the age of 18. Similarly, the law punishes as child pornography any depiction which tends to appeal to an interest in sexual activities of minors. In other words, films or web pages which contain actresses who are all of legal age, but who appear to be minors are now considered to be child pornography. More disturbingly, works which have titles such as “Highschool Girls” will now ostensibly fall under this new definition of child pornography. The lower court ruled that the law was unconstitutionally vague and discriminated against young-looking adults. The First Circuit Court of Appeals in Portland, Maine overturned the lower court’ ruling and declared the law to be constitutional. This manifestly unfair law is also being challenged by the Free Speech Coalition in the Ninth Circuit Court of Appeals located in California, however no decision has been rendered by that Court. If ultimately upheld by the U.S. Supreme Court, this law could radically change the look of many films and web sites, and put young-looking adult performers out of work.

These diametrically opposed court decisions, along with the high approval rate and recent acquittal of President Clinton, are further evidence of the vicious cultural war being waged across America. The puritanical censors will keep devising ways to control the country’s information intake. At the same time, mainstream America appears to insist upon their right to private sexual activities and entertainment.

Interestingly, while the Government is trying to design new and better tools for the Thought Police, pornography is becoming more mainstream. For instance, two adult industry documentaries appeared at this year’s Sun Dance Film Festival: “American Pimp” and “Sex: The Anabel Chong Story.” As acceptance of sexually oriented materials continues to pervade mainstream society, the government, allied with pro-censorship groups, will be forced into a position of attack on this industry. Fortunately, at least in some courts, the First Amendment still protects the free flow of information in the market place of ideas.

February 1999 Update


With the end of the century being counted in months, the adult industry appears to have a bright economic future, but one frought with constant battle. 1998 was another record year for adult video tapes, with the number approaching almost 10,000 new releases. I was fortunate enough to witness first hand the growing popularity of the adult video section at the Consumer Electronics Show (CES) in Las Vegas, Nevada, last month. Also notable was the nearly doubling in size of Interactive 2000, a trade show devoted to adult Internet sites, immediately following the CES show. Adult stars such as Ron Jeremy were also in attendance at the Internet convention for the first time. This phenomena confirms that although the video tape medium is growing to meet consumption, the heir apparent is clearly the World Wide Web. The rapid development of the online adult culture presents many challenges to those entrusted with creating laws applicable to this new medium, as well as those charged with interpreting and implementing new laws: the judges.

Legislating and judging controversial issues such as adult entertainment on the Internet will require the abandonment of old ideas of isolationism, and the acceptance of a global culture. The development of this new medium is too important to be stifled by the puritan notions of those who would censor an adult’s right to choose his or her own form of entertainment.

Unfortunately, with the conspicuous exception of the unanimous Supreme Court’s ruling on the Communications Decency Act (CDA), striking down that pitiful attempt at censorship, the track record of the courts nationwide when confronted with adult entertainment issues is abysmal. Virtually every decision published by the courts in the last two years has been against the parties seeking to present any form of adult entertainment. In New York, the Supreme Court has rubber stamped Mayor Giuliani’s anti-smut campaign and held that the City was justified in eliminating virtually all of the preexisting adult businesses near Times Square. Numerous other courts have upheld similar eradication through zoning laws, severely restricted the hours of operation upon simple retail stores selling adult videos, imposed distance requirements between exotic dancers and patrons, upheld burdensome licensing processes, and approved of bad faith law enforcement actions against those who dare to exercise their First Amendment right to provide erotic entertainment.

Using these traditional laws to regulate adult Internet sites out of existence will pose a significant problem for the censors, however. Hours of operation restrictions will become irrelevant in a global environment where it is always two o’clock in the afternoon somewhere. Geographic zoning laws are likewise useless since web sites are not located in a geographic “zone”, but exist only in the world wide cyber-zone. Distance restrictions are of no value to the censors since the government cannot legislate how close a private individual can get to his computer screen. The traditional type of harassment by law enforcement against adult entertainment establishments such as raids and intimidation, will be likewise ineffective against a computer server sitting alone in a dark office.

The immediate temptation will be to use such existing concepts as obscenity and child pornography laws to censor the Internet. And while we know that such prosecutions are being put together as we speak, these efforts will likewise be unsuccessful in altering the content available on the Internet given the ability to disseminate this information from global locations unregulated by vintage sex laws. Outdated concepts such as “obscenity” must give way to the free flow of information and right to free expression cherished in our country. Such lofty goals may, however, be too much for our sitting judges who are, more often than not, out of step with changing social mores and the advent of new technology. As one federal judge recently noted in a sexual harassment case, federal judges are ill-suited to make decisions as to what is or is not appropriate sexual interaction between the genders. So we turn to our legislators in the (hopefully not vain) attempt to protect free speech, including erotic speech. Currently, the legislative branch of government is largely in the control of right wing conservatives who stand ready to react to complaints by fundamentalist groups about immorality in modern media. These knee jerk reactions have produced such legal gems as the doomed CDA, and the current hotbed of litigation, the Child Online Protection Act. As one lawmaker put it: “Sure it might be unconstitutional, but we have to do something about children’s access to pornography on the web.” With such blatant disregard for the oath of office,…it is no wonder then that groups such as Free Speech, EFF, the ACLU and others have their hands full in fighting censorship attempts across the country. It is only a matter of time until adult Internet providers form their own trade association to protect the interests unique to that industry. ASM readers should be acutely aware of the activities of such watchdog groups, and support them whenever possible. The continued viability of the industry depends on it.