LEGAL BEAT

By: Lawrence G. Walters

www.firstamendment.com

Another Internet censorship law bites the dust this month. This time, the State of Virginia passed a law making it illegal to use the Internet to sell, rent or lend sexually explicit pictures or written narratives to juveniles. The suit was filed by the People for the American Way, along with other Internet businesses, claiming that the law violated the First Amendment. The Court agreed, and enjoined enforcement. Eliot Mineberg, Legal Director for People for the American Way said: “The effort by Virginia to restrict the Internet-making it so that it can have only materials fit for children-is presumptively illegal.” Of particular concern to the Plaintiffs were material such as sex education materials and art materials that might be proper for adults, but not for children. However the law could potentially apply to ban such items. The Virginia Attorney General’s Office recognized the changes in the law that the Internet has brought about by saying: “Laws that apply to the bricks-and-mortar world are having to be tailored to cyberspace, and with that comes various legal challenges.” This decision comes immediately after last month’s ruling by the Third Circuit Court of Appeals invalidating the federal Child Online Protection Act. We are seeing significant victories for the First Amendment with these Internet cases. While other forms of adult entertainment are successfully being censored by local and state governments, those censorship attempts have been unsuccessful when Internet content is involved. Accordingly, we may see a significant shift in the medium through which the public obtains its sexually oriented entertainment from traditional retail stores and bars, to the World Wide Web.

This concept is readily illustrated by the recent conviction of John Haltom, the owner of Dr. John’s Adult Video and Novelty Shop in Omaha, NE who was sentenced to nine months in jail and fined one thousand dollars upon being convicted of distributing obscene materials. Mr. Haltom was convicted even though his store sold 800 tapes a week. Even the prosecutor’s older brother was a customer, and testified for the defense. However, now that there has been a conviction, the City prosecutor is attempting to close the store under the State’s nuisance statute.

Topless dance bars have suffered similar setbacks in their attempts to challenge the new onslaught of local government laws designed to drive the adult entertainment industry out of business. For example, the Eleventh Circuit Court of Appeals recently affirmed a dismissal of a lawsuit upholding the constitutionality of an ordinance prohibiting exotic dancers from performing nude, but allowing nudity as part of a “bona fide life ‘communication.’” The Plaintiff in that case argued that the government cannot pick and choose what type of nude dancing and entertainment it will prohibit. Orange County allowed nudity at the play “Six Appalling People” but not in nude dancing establishments. Unfortunately for the First Amendment, the law was upheld.

We are likely to see a renewed effort to prosecute obscenity on all fronts in the near future, however. Our firm has learned that a bill has recently been passed in the House of Representatives which seeks appropriations in the amount of five million dollars for the prosecution of obscenity cases. The money would be used by the Department of Justice, Criminal Division, Child Exploitation and Obscenity Section, for the hiring and training of staff, travel and other necessary expenses to prosecute obscenity cases at the federal level. The bill is entitled the “Illegal Pornography Prosecution Act of 2000,” H.R. 4710. The Bill overwhelmingly passed in the House and is on its way to the Senate. Indeed, politicians will find it difficult in this election year to vote against prosecuting obscenity, however, the adult entertainment industry has not seen any serious obscenity prosecution during the eight years of the Clinton administration. During that time, video content has pushed the limits and has ventured into subjects previously considered taboo for commercial pornography. Many video stores, and mainstream adult video distributors could be sitting ducks for obscenity prosecutions in conservative communities if this bill passes the Senate.

The elections will also certainly have a profound effect on the continued viability of the adult entertainment industry in America. No matter what the outcome of the elections, however, the industry should brace itself for a potential crackdown on obscenity. The last time this happened under the Regan/Bush administration, the Justice Department intentionally filed numerous obscenity charges across the country at the same time in an effort to overwhelm the few skilled First Amendment attorneys representing the industry at that time. Currently, First Amendment attorneys nationwide are bracing for a repeat of history and preparing for battle.

On a lighter note, a “Planet of the Apes” movie is currently under way, making executives at 20th Century Fox squirm in their seats over an inter-species sex scene planned by director Tim Burton. Celebrity Actress Helena Bonham Carter will play a humanitarian ape princess who brings out the animal lover in former Calvin Klein poster boy Mark Wahlberg. Lets hope this one is released before the obscenity bill passes.

Lawrence G. Walters, Esquire, is a partner in the law firm of Wasserman & Walters in Winter Park, Florida. His practice concentrates in First Amendment and Internet law. He represents clients involved in all aspects of adult media. All statements made in the above article are expressions of opinion only, and should not be considered specific legal advice. You should always consult your own lawyer regarding any legal issue. You can access the firm’s web site at: www.firstamendment.com