ADULT INDUSTRY UPDATE
By: Lawrence G. Walters
First Amendment attorneys may be watching a bunch of adult films in the upcoming months. Several of the larger adult video companies are hoping to make sure that their products are defensible against obscenity prosecutions by having their lawyers review all movies before distribution. “We do our own editing. Then we send them to our First Amendment attorneys,” says the president of Vivid Entertainment Group, according to AVN Online. “The legal time alone is expensive as you can imagine” he added. This may be money well spent, however, given the dramatic change in the political climate surrounding the adult entertainment industry. Attorney General John Ashcroft is certainly no friend of adult media, and already has blamed recent school shootings on violence in the media.
Gone are the days when adult videos were sold out of the back of a van, wrapped in brown paper packages. Now even Yahoo! has gotten into the act. Yahoo! is the first Internet giant to jump into the online erotica market. This decision illustrates the desperation facing many mainstream Internet companies seeking new sources of advertising dollars in the slowing economy. While many online ventures have gone bust, including recently Kazoo.com, adult Websites have continued to flourish. Some analysts believe that entering into this market will hurt Yahoo’s business reputation; long term. But there is no denying the old adage: Sex sells.
At the same time, the FCC recently issued new “indecency guidelines” attempting to tighten up the rules on what will be tolerated over the airwaves by the new Administration. “Understandably, the public is outraged by the increasingly coarse content aired on radio and television at all hours of the day, including times when children are most likely to be listening or watching,” said FCC Commissioner Suzan Ness, who further referred to today’s media as “an onslaught of on-air smut.” The new factors that the FCC will consider when processing indecency complaints is the explicitness and graphic nature of the broadcast, the extent to which sexual innuendo is repeated and the extent to which the broadcast panders, titillates or possesses intentional shock value. Whether these new guidelines are constitutional, or not, is another matter.
One thing is clear: the government does not want the execution of Tim McVeigh broadcast over the World Wide Web. The Feds will broadcast the death over closed circuit television to a select audience of victims. Recently however, Entertainment Network, Inc., which operates VoyeurDorm.com and DudeDorm.com, filed suit in the U.S. District Court, for the Southern District of Indiana, trying to obtain permission to show the execution live over the Internet. The company argued that it had a constitutional right to place a Web cam in the execution chamber in the federal pen, which is located in Indiana. Perhaps Justice officials believe that the execution would be “indecent.”
Elsewhere, government officials empanelled by Congress, will be taking a tour of the country to receive open testimony regarding Internet porn. The National Research Counsel will be holding public hearings in Austin, Kansas City, Salt Lake City, Miami and San Diego to discuss approaches to protecting children from pornography and other “inappropriate” Internet content. The Committee will make recommendations to Congress regarding anti-porn legislation. This is your chance to be heard.
In the latest ruling on the “linking” issue, a court in India ordered a number of business leaders from www.Rediff.com to stand trial for “giving access to pornographic material.” This is the latest in a growing number of cases worldwide where Websites are being held responsible for content found on linked sites. Rediff.com is a portal that allows users to conduct essentially free-form searches. Although this portal does not create directory listings of adult materials, users can locate such content using its search engine. Rulings such as this- and others in both the United States and elsewhere- are resulting in increasing concern amongst Adult Webmasters. It’s one thing to be held responsible for content on a Website; but it’s quite another to be prosecuted for content found on only one of many links.
Local governments cannot turn a blind eye to the fact that adult entertainment does not cause increases in crime and decreases in property values. At least that’s what a federal court of appeals held in the recent case, Flanigan’s Enterprises, Inc. of Georgia v. Fulton County, Georgia, 2001 WL 166375 (11th Cir. 2001). For many years, First Amendment lawyers have battled the so-called “Secondary Effects Doctrine,” by virtue of which cities and counties regulate topless bars and adult bookstores They presume that such establishments cause sufficient problems to justify their intense regulation, pretending that adult entertainment is essentially the root of all evil in the community, but without any real empirical proof. Many courts even allowed local governments to ignore contrary evidence showing that property values increased in areas surrounding adult entertainment, or that patrons were better behaved in topless bars than in the local corner pub. This problem came to an end with the Flanigan’s decision, where the court ruled that Fulton County must consider the results of its own study of adult entertainment when enacting such restrictive laws.
Looming over all of this is another case, Alameda Books v. City of Los Angeles, that stands to decide just how much proof is needed to support adoption of regulations affecting expressive adult businesses. In that case, which will be argued by our firm’s senior partner, John Weston, the United States Supreme Court will address the fate of the Secondary Effects Doctrine. The Justices may clarify this issue, once and for all, for First Amendment practitioners. Arguments before the High Court are expected to occur in October or November, 2001.
On a lighter note, Las Vegas police recently told lawmakers that they could not prosecute a stagehand who secretly videotaped showgirls in various states of undress in a casino dressing room. In Las Vegas, there is no law against secretly photographing people for sexual gratification. Apparently, the stagehand had videotaped showgirls through a camera he had placed in a box in their dressing room. States and locales across America have been busily enacting anti-voyeurism laws which, for the first time, criminalize acts of videotaping individuals against their will. Could it be that Las Vegas is behind the times?
Local government has set its sights on another “Voyeur House.” The City of Tarpon Springs, near St. Petersburg, Florida, has scheduled a hearing to determine whether the voyeur house depicted at www.ucanwatch.com violates the City’s prohibitions on adult use businesses. Adult Webmasters are closely watching this case, as it may strongly impact the fate of thousands of such voyeur houses across the country that typically do not obtain adult use permits prior to going live on the World Wide Web. If my instincts are right, the site may soon be called: ucan’twatch.com.
Lawrence G. Walters, Esquire, formerly of Wasserman & Walters, is a partner with the law firm of 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