January 2001 Update


By: Lawrence G. Walters


There’s no denying it; an undercurrent of fear has gripped the adult entertainment industry. The nomination of John Ashcroft for Attorney General is a good indicator of the type of law enforcement climate we are likely to see under the Bush administration. Conventional wisdom dictates that the Justice Department, with someone like Ashcroft at the helm, will dust off the antiquated obscenity laws and begin an attack on the adult industry, the likes of which have not been seen since the Regan years.

The good news is that the emergence of new media, such as the Internet, has created unique legal arguments that may potentially render these outdated laws unconstitutional.

According to AVN.com, a number of major production companies have been meeting to formulate strategies to counter a feared Bush administration crackdown on the industry. The Clinton administration has prosecuted few obscenity cases over the last eight years, choosing instead to concentrate its law enforcement resources on child pornography offenses. By all indications, that is about to change.

Putting aside the risk involved, the adult Internet industry has consistently been profitable. According to www.ihollywoodforum.com, “It’s the only segment of the entertainment industry that consistently makes money.”However, many of the owners of adult Internet companies are members of Generation X, and have not lived through the law enforcement crackdown during the Regan/Bush years. There also exists a pervasive attitude amongst Webmasters that virtually any sexually explicit content is legal so long as it does not involve children or animals. This is a dangerous conclusion, and one not well-supported by the history of obscenity prosecutions in this country. For instance, this writer has defended obscenity prosecutions brought against relatively tame works such as Deepthroat and Behind the Green Door. The bottom line is that obscenity can be anything that a jury believes it is, so long as the content is sexually explicit. Many of the larger companies are having their content reviewed by their attorneys in order to reduce the risk of obscenity prosecutions under the new administration. We have also suggested that our clients engage the services of psychologists and sex therapists to review all content before distribution. The next four years promise to be an interesting time for the adult industry, and a busy time for First Amendment lawyers.

The profits and success of the adult industry are, of course, driven by consumer desire. According to a new poll by Harlequin Enterprises, 75% of the population has erotic fantasies, although less than half act them out. Argentineans and Chileans are the most likely to have erotic fantasies, with 95% of the individuals polled admitting to having such fantasies. Japan was at the bottom of the list. Regardless of how the new administration approaches the issues of pornography and obscenity, it can’t outlaw the desire for intimate human contact.

Potential criminal prosecution is not the only problem facing the adult Internet industry. Recently, America Online (“AOL”) filed a lawsuit against Cyber Entertainment Network (“CEN”), a company that owns and operates adult Websites. The suit accuses CEN, and others, of sending junk email to AOL members, typically known as “Spam.” In addition to naming CEN, and its owners, the lawsuit names eight employees and twenty-five Webmasters under contract to promote the adult Websites. The Complaint seeks an injunction against further Spamming and damages, which could include ten ($10.00) dollars for each unsolicited email or $25,000.00 per day that each message was transmitted. The suit accuses CEN of violating its own “no Spam”policy by encouraging Webmasters to send unsolicited emails promoting its network of sites, according to Yahoo! News. This lawsuit is the latest attempt by AOL to deal with one of its biggest recurring problems: SPAM. On some days, customer complaints have reached 25,000, accordingtotheCompany. “Whatwe’reactingonisanobligationtoourmembersto hold spammers accountable,”said AOL’s Nicholas Graham. “we are pursuing the owners of a program who give out incentives for porn spamming-and those that then go out and harvest email addresses and screen names to expressly send Spam”he said. Ebay has announced a similar crackdown on members who send unsolicited email to other members, in response to mounting complaints.

By way of update from last month’s report on the City News & Novelties, Inc. v. City of Waukesha case pending in the U.S. Supreme Court; the Court recently decided to dismiss the case as moot. This decision appears to be a small victory for the adult industry since it was feared that the Court could use this case to take away significant First Amendment protections called procedural safeguards. Under the procedural safeguards doctrine, applicants for adult entertainment licenses are entitled to a decision on the application within a specified, brief time period, and a prompt judicial review of any licensing decision. For now, the law of procedural safeguards will remain the same. It could have been much worse.

The City News case was dismissed as moot after the adult business involved had closed its doors and indicated its intent to remain closed. Precisely the same scenario occurred in the Supreme Court case decided last year in the case of the City of Erie, Pennsylvania v Paps A.M.. According to the U.S. Supreme Court, the distinction was that the adult business had prevailed in the lower court in the Erie case, whereas the adult business had lost in the lower court in the City News case. Accordingly, if the Court had dismissed the Erie case as moot, the City would have been injured by the continuation of a decision in favor of the adult business. In contrast, the City of Waukesha would not be injured by dismissal of the City News case since the City had prevailed below. The lesson here is that the Court will do everything in its power to prevent a decision favorable to adult businesses.

In other news, the U.S. Supreme Court recently allowed an Appeals Court decision to stand which limited “sexually explicit communication”on the Internet. This decision was rendered from the Fourth Circuit Court of Appeals, which is seen as one of the most conservative courts in the country. The decision upheld a 1996 Virginia law that barred state employees from engaging in sexually explicit communication on the Internet.

The ACLU challenged the law on behalf of six University professors, claiming that it amounted to an attack on academic freedom. In a surprising holding, the Fourth Circuit Court of Appeals determined that job-related speech does not involve matters of public concern, and therefore is not protected by the First Amendment. The decision is seen as a serious threat to academic freedom in this country.

Webmasters who are seeking to avoid prosecution in the U.S. by moving overseas take heed: Singapore recently announced its intent to prosecute porn sites, no matter where they’re located. In a report from a Singapore-based online news service on January 05, 2001, the Singapore government announced its intention to prosecute its citizens who operate pornographic Websites, even if those sites are located on servers outside the country. The Computer Crimes Division of Singapore’s Criminal Investigation Department said: “The police will trace the location of the site and ask the overseas hosting company to help with investigations.” The CCD also confirmed that they were on the lookout for potential violators, according to the report. Under Singaporean law, operators of pornographic Websites can be prosecuted under the “Undesirable Publications Act”and face $10,000.00 in fines and up to three years in jail. The warnings appear to be working, since most Singaporean based adult Websites have shut down. We call that kind of self-censorship the “chilling effect.” Although… it seems like it’s getting pretty cold around these parts too.

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