February 2001 Update


By: Lawrence G. Walters


The first anti-pornography crusaders are crawling out of their caves, now that it’s become safe for censorship under the Bush Administration. General Ashcroft sailed through his confirmation hearings without a single question about the adult entertainment industry, or his position on pornography and obscenity prosecutions. Inside sources say that the Justice Department is “cleaning its guns” in preparation for an attack on the industry.

Utah has appointed its first full time anti-porn warrior; Paula Houston. Her official title is the “Obscenity and Pornography Complaints Ombudsman.” During her introduction, Utah Attorney General Mark Shurtlerff said: “There’s absolutely no redeeming value to pornography…and I, for one, will not allow pornographers to hide behind the First Amendment.” Her first task will be to draft a comprehensive state “Moral Nuisance Law” designed to discourage obscenity and pornography.

In fact, it looks like the first round of arrests has already occurred. On March 3, 2001, the owner of a Salt Lake City magazine shop was charged with 51 felonies for selling pornographic videos to an undercover officer. Undercover officers went into the store, Bob’s Magazine and Video, and purchased over a hundred videos that were seized when the police executed a search warrant at the store on February 18. Prosecutors are looking for over two million dollars in fines against the owner.

For the first time, an Internet Service Provider has been found guilty of a child pornography offense. A Buffalo area ISP, named BuffNet, plead guilty, before the State Supreme Court in New York, of providing access to child pornography. It faces a five thousand ($5000.00) dollar fine at sentencing. An investigation determined that BuffNet failed to take any action after it was notified that one of its newsgroups was distributing child pornography. This case sets an interesting precedent when it comes to ISP liability for content found on its servers. Under the Communications Decency Act of 1996, ISPs have immunity from prosecution for many types of communications, but not for child pornography or obscenity. If ISPs are to be charged with the responsibility of making sure no illegal images exist on their servers, many ISPs will simply get out of the business. Given the sheer volume of communications that pass through a typical ISP, it would be nearly impossible to police content on a daily basis. So far, we have received no reports of an ISP being held liable for obscene materials, but time will tell.

Sex” still remains the number one Internet search term despite the government’s attempt to impose a new morality. In a study involving some 9.1 million users, “sex” was the most popular search word, it being submitted one out of every three hundred terms. “Porn” along with “pornography” was the fourth most popular term, with “nude” “xxx” and “playboy,” also in the top ten.

Recently, the Federal Trade Commission stepped up their crusade against “dialers;” adult Internet sites providing access to their content using telephone bills instead of credit cards. Since the initiation of their campaign in October, 2000, most dialers have been chased off the Internet. For now: no credit card; no porn.

Yet another Internet censorship law has drawn the attention of the ACLU, who recently sued Vermont over its Internet child porn restrictions. The ACLU joined with the American Booksellers Association, and others, in filing suit in the United States District Court on February 7, 2001. According to the ACLU, the challenged legislation is a “broad censorship law that imposes severe content-based restrictions based on the availability, display and dissemination of constitutionally-protected speech.” Essentially, the law gives the State of Vermont jurisdiction in fifty states to prosecute people anywhere that material has been accessed which is offensive to minors. The Senate Judiciary Committee originally removed the child pornography ban because of concerns over constitutional free speech, however the House lawmakers ultimately reinstated the ban in the version of the law that passed. We will keep you posted on developments in this litigation.

In another Internet porn case, The First District Court of Appeal in California recently held that libraries can not be held liable for minors who get access to obscene images posted on the Net by third parties. The case of Kathleen R. v. City of Livermore, stemmed from a 12 year old boy’s use of his local library’s computer to download hardcore pornography to a disk. When his relatives later discovered the material, his family sued the library. Ultimately the Court concluded that simply providing minors access to the Internet does not affirmatively place them in danger, and therefore dismissed the suit.

Another large-scale obscenity prosecution has come down; this time in South Bend, Indiana. Several retail video stores were hit with incitements from the Grand Jury in early February, 2001. One of the stores, Pleasureland, faces four felony counts of racketeering, money laundering, conspiracy, and fifteen misdemeanor counts of pandering obscenity. Similar charges were brought against Little Denmark, and its owner Robert Henderson. All charges stem from sale or rental of adult videotapes. The Grand Jury returned indictments, but of course only heard the prosecutor’s version of the arguments. Recently, at least one First Amendment lawyer has sprung into action and is representing one of the video stores charged. This case promises to turn into a Free Speech versus morality debate that may set the tone for obscenity prosecutions in the new millennium. In the words of one of the Defendants, Ed Ballanow: “You’re not guilty until you go to court.”

One final note; it looks like the U.S. Supreme Court is about to tackle the issue of adult entertainment once again. On March 5, 2001, the Court announced that it would review the Ninth Circuit Court of Appeals’ decision in Alameda Books, Inc. v. City of Los Angeles, which invalidated an adult use ordinance which prohibited business that both sold adult products and contained facilities for viewing of adult movies or videos. Randy Garrou, Esq., of our firm represented the Plaintiffs in that case, and is now preparing to brief these issues in the United States Supreme Court. John Weston, Esq., will argue the case before the Justices, his Seventh argument before the U.S. Supreme Court on issues of censorship of erotica. We will keep you posted on the status of this important litigation.

Lawrence G. Walters, Esquire, formerly of Wasserman & Walters, is now a partner with Weston, Garrou & DeWitt, based in Los Angeles. Mr. Walters continues to practice in Central Florida, and represents clients involved in all aspects of adult media. Weston, Garrou & DeWitt handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com or www.FreeSpeechLaw.com