By: Lawrence G. Walters
The big news this month is the unanimous decision issued by the Third Circuit Court of Appeals in Philadelphia invalidating the Child Online Protection Act (COPA). This law required that an Age Verification System (AVS) or credit card be provided before a consumer could access sexually explicit material on the Internet. The Third Circuit Court of Appeals identified a First Amendment concern with this type of Internet legislation that the parties to the suit, and even the trial court, had ignored. That is; the Internet has no geographical boundaries, and the physical location of either the website or the consumer cannot be geographically verified. Since the content regulated by the law was defined in terms of “local community standards,” the Court determined that it was impossible to establish a cyber community standard by which Internet speech could be governed. “Because of the peculiar geography-free nature of cyberspace, a community standards’ test would essentially require every Web communication to abide by the most restrictive community’s standards,” the Court said. Accordingly, the Appeals Court concluded that the law was likely unconstitutional.
Our firm has been arguing this cyber community standards issue in the Polk County, Florida case involving the now widely-known BeckaLynn a/k/a Tammy Robinson. In that case, the small community of Polk County, Florida, attempted to impose its community standards on the Internet by prosecuting Tammy Robinson for violation of Florida’s obscenity laws. The case has recently been the subject of a 48 Hours piece and a Barbara Walters interview. Certainly, the COPA decision will provide valuable ammunition in our fight to defeat the first obscenity prosecution on the Internet.
In a related ruling, the Supreme Court of the State of Wisconsin held that a law prohibiting persons from sending pornography to children does not apply to the Internet. The Court unanimously ruled that the State law is unconstitutional since it applies to the Internet and other situations which do not involve face-to-face contact between the child and the accused. These cases show how the expansion of the Internet has challenged existing laws. Fortunately, the court decisions seem to be coming down squarely in favor of First Amendment rights to free expression.
At the other end of the spectrum is the Louisiana Supreme Court which recently upheld the
State’s 195 year old sodomy law, under which consenting adults could receive up to five years in prison for engaging in oral or anal sex. The dissenting opinion argued that “two married persons should be able to chose how they conduct their non-public, voluntary sexual relations in the security of their own home; a law that takes that choice away from them is an intrusion by the legislative branch that is constitutionally intolerable.” However, the majority of Justices ruled that an immoral act, even if consensual and private, is an injury against society itself and upheld the ban on oral or anal sex.
In another case out of Louisiana, a State Trooper has been accused of sending nude photos of himself to sixteen year old girls on the Internet. He was charged with contributing to the delinquently of juveniles. Lt. Kelly Jarrison, 39, a sixteen year veteran supervisor in the Gambling Enforcement Division surrendered to the Internal Affairs Division earlier this month. He was freed on $20,000.00 bond. Too bad he didn’t live in Wisconsin.
Since it looks like the government has lost its most recent attempts to censor the Internet in the name of protecting children, it is back at the drawing board in Washington, D.C., where meetings are occurring of the Commission on Child Online Protection. There, a suggestion was debated that an Internet “Porn District” be created with a .xxx or .sex domain suffix. This proposal was blasted by civil libertarians and constitutional scholars claiming that such a move would ghettoize constitutionally protected speech. However, many adult webmasters have encouraged a red light domain to avoid the onslaught of censorship attempts. Time will tell.
All eyes are once again on the AVN Adult Entertainment Expo in Las Vegas, Nevada, July 8-10, 2000. Our firm will be represented by my partner, David Wasserman, Esquire, who will bring us a full report by the next issue of ASM.
As always, we will continue keep our ears to the ground and bring you the latest legal news affecting the adult entertainment industry.
Lawrence G. Walters, Esquire, is a partner in the law firm of Wasserman & Walters in Winter Park, Florida. His practice is limited to First Amendment and constitutional law. He represents clients involved in all aspects of adult media. You can access the firm’s web site at: www.firstamendment.com