November 2000 Update


By: Lawrence G. Walters

By this time, I would have predicted that the adult entertainment industry would either be rejoicing in a Gore victory, or cringing in fear in anticipation of a Bush administration. Instead, the industry, along with the rest of the country, is on pins and needles awaiting the outcome of several recounts and lawsuits challenging the electoral process. Time will tell whether the new millennium will be ushered in under a reign of censorship or freedom.

In the meantime, there is big news out of the State of Florida: The renowned Voyeur Dorm has been ordered to shut down by a federal Judge in Tampa. The Voyeur Dorm Website offered 24 hour viewing of five unrelated women “in the most intimate acts of youthful indiscretion.” The Judge determined that the house in which the women lived was an “adult use” within the meaning of Tampa’s Adult Entertainment Code. The Court also found that this Code was constitutional as applied to the Internet. The Court rejected arguments made by Voyeur Dorm that these local Adult Entertainment Codes should be looked at differently when applied to businesses that are available only on the World Wide Web. The Voyeur Dorm house created no parking problems, traffic problems, prostitution, drugs, or other so-called “adverse secondary effects” typically associated with adult businesses. The Court rejected all of Voyeur Dorm’s arguments in their totality, and upheld Tampa’s adult entertainment ordinance as applied to Voyeur Dorm. Voyeur Dorm was also ordered to shut down its adult entertainment operations. This case will likely have significant impact on other “voyeur houses” scattered throughout the United States and elsewhere. If these houses can be required to become licensed and zoned as adult businesses, simply by virtue of the fact that Websites provide 24-hour observation of the residents, very few of these houses will continue to exist. By definition, most houses are located in a residential zone. Adult entertainment licenses are not issued for businesses within residential zones. Local governments will now probably attempt to model their legislation after the City of Tampa’s which has now been upheld. It is likely that this case will be appealed to the 11th Circuit Court of Appeals in Atlanta, where the Voyeur Dorm will ask for a reversal of the judgment based on the constitutional issues raised. I will continue to keep you posted on this groundbreaking case.

The 4th Circuit Court of Appeal recently upheld the Child Pornography Prevention Act of 1996, which had been declared unconstitutional by the 9th Circuit Court of Appeal, but which had been upheld by other Circuits. This law punishes, as child pornography, computer images that do not involve the use of real children in their production or dissemination. It also punishes images of individuals who “appear to be” under the age of 18, even if the model is an adult. It is likely that these cases will be appealed to the United States Supreme Court to resolve a conflict in the various circuits.

On the obscenity front, we can strike up one win and one loss for the First Amendment. In Nebraska, John Halton, owner of Dr. John’s Novelty and Boutique was found guilty of selling obscene videos. He was sentenced to nine months in jail and required to pay a $1,000.00 fine. The prosecutor also petitioned to close down his adult video store on the basis that it constituted a nuisance. However, in St. Charles County, the owner of Family Video was prosecuted for selling obscene videotapes, but was acquitted. His defense counsel argued that removing the videotapes from the shelves would limit the choice and freedom of normal people wanting to “add spice” to their relationship. The defense expert said that the movies help people who may feel intimidated in the bedroom. The prosecutor argued that residents were entitled to decide what they want in their neighborhood, and that this material attracts the “wrong” kind of people. Apparently, the jury disagreed.

In a disappointing decision, the Louisiana Supreme Court upheld its ancient sodomy law prohibiting the “solicitation by a human being of another with the intent to engage in any unnatural carnal copulation…” The Louisiana Court found that the constitution does not prohibit states from enacting laws that prohibit private acts of consensual sodomy between adults. Only in Louisiana!

On the Internet front, the 3rd Circuit Court of Appeals denied rehearing in the Child Online Protection Act (COPA). In that case, the Appeals Court affirmed a Preliminary Injunction against the enforcement of the Act which prohibited the transmission of material which is considered to be harmful to minors over the Internet. The Court recognized that the concept of local community standards as applied to the Internet is unworkable since Internet sites cannot be blocked from specific geographic locations. The government can now file a petition for review in the Supreme Court or prepare for trial on the merits in the District Court. In a stray decision, the 1st Appellate District Court of California affirmed convictions for attempting to distribute lewd material to a minor over the Internet. This decision goes against every other reported case holding such laws to be unconstitutional either in violation of the First Amendment, or the Commerce Clause, or both. Finally, the 4th Circuit Court of Appeals recently upheld Virginia’s prohibition against state employees’ access to sexually explicit material on government computers. The Appeals Court held that the statute only limited the speech of employees in their capacity as State employees, which the Court believed was acceptable.

These cases demonstrate the continued erosion of First Amendment rights whenever the free expression involves the issue of sex. For some time, the courts were hesitant to allow any censorship of speech over the Internet. However, we are starting to see the first wave of decisions upholding laws applicable to the Internet. This may be a dangerous trend, and stifle the greatest marketplace of ideas ever created. These issues will be dealt with by one of two administrations in the next four years. Which administration remains the crucial question.