ADULT INDUSTRY UPDATE
By: Lawrence G. Walters
Happy “Victims of Pornography” Month! Each May, a coalition of anti-pornography groups celebrates its efforts to draw attention to the “horrors” of erotic materials. This year, they’re hoping that their efforts will result in more obscenity prosecutions against the adult industry.
For the last eight years or so, Washington officials would barely acknowledge the effort with a nod and a wink, and just usher these groups out the door with promises of more child pornography prosecutions. This year is different, however: The festivities began May 2, with an event attended by several groups and a couple of elected officials. Representative Steve Largent (R-OK) took the opportunity to blast former President Bill Clinton for not enforcing obscenity laws. “It’s a disease that has to be stopped,” Largent said, “and we have the cure.” Bruce Taylor, President of the National Law Center for Children and Families stated, “the Attorney General has made both public and private statements that he intends to enforce all the laws, including the obscenity laws.” Typical, because of his Religious-Right affiliation, our Attorney General recently stated that he: “might be willing to trade First Amendment rights to improve the culture.” Thomas Jefferson must be twirling in his grave!
The week of May 7 brought more fun and games. Representatives of nearly a dozen anti-pornography organizations were set to meet with General Ashcroft this week, in the hopes to persuade the government to start prosecuting obscenity cases. In testimony to the House Appropriations Committee on May 4, 2001, Ashcroft called pornography “a matter of great concern to me and to this Administration.” Numerous anti-pornography groups have meetings scheduled with Ashcroft including the Concerned Women for America, the Family Research Council, Morality in Media, Citizens for Community Values, the American Center for Law and Justice, Focus on the Family and the Center for Reclaiming America. Conspicuously absent from the meeting agenda are any groups advocating civil liberties or Free Speech.
Patrick Truman, the American Family Association’s Government Affairs Director, believes that even some Cable TV programs can be prosecuted under obscenity statutes.5 It was Truman who ran the Justice Department’s Child Exploitation and Obscenity Section during the Ronald Regan and George Bush administrations. Truman also believes that there is ample material available for prosecution on the Internet, which allows for the same kind of interstate sting operations he used during his Justice Department days.
Although many in the adult industry are concerned about what Attorney General Ashcroft will do, another nominee to watch is Robert Flores, recently nominated to be the Administrator of the Office of Juvenile Justice and Delinquency Prevention. Mr. Flores is currently the Vice President and Senior Counsel for the Nation Law Center for Children and Families. The goal of that organization is the “protection of children and families from the harmful effects of illegal pornography by assisting in law enforcement and law improvement.” He is one of the leading proponents of launching prosecutions against Adult Websites; he previously worked for the Justice Department as an obscenity prosecutor from 1989-1997.
All of this law enforcement rumbling is enough to make some adult entrepreneurs get out of the business altogether. In fact, that may have played a part in Yahoo!’s decision to abandon its brief foray into the adult merchandise distribution business. However, some adventuresome company will always be there to pick up the slack. While the censors might be in power now, there will always be a freedom fighter willing to take the heat to test the limits of Free Speech. In the past, it has been Hugh Hefner, Bob Guccione, Larry Flynt and many others. The next four years will surely have more pioneers of compatible stamina.
Even some mainstream Websites are turning to sex to make up for lost advertising revenue. Salon.com, for example, has added new content including what it calls “erotic art and photography” for a $30.00 annual fee. As mainstream Internet and Cable TV companies turn to sex to spice up their bottom line in these slow economic times, these companies will certainly gain the attention of the morality groups impose their sense of morality on everyone else. Big companies generate big headlines. Dave McClure, President of the United States Internet Industry Association believes that people like Truman, and his American Family Association, are interested in going after big names like Yahoo! or AOL.
While many adult industry insiders believed that erotic entertainment would be the first victim of censorship legislation during the new Administration, as it turns out the video game industry may be targeted first. On April 25, 2001, Senator Joseph Lieberman, (D-Conn.), joined by Hillary Clinton of New York, and Herb Kohl of Wisconsin, filed proposed legislation to punish media companies who market products to children that are intended for adults. The legislation will primarily affect the interactive game industry and the music industry. The bill has been labeled an attack on Free Speech by the Motion Picture Association of America. Senator Lieberman responds by claiming, “that’s not censorship, that’s common sense.”
While Washington is looking to crack down on graphic video games, a federal appeals court recently found that these games are entitled to full First Amendment protection. The Seventh Circuit Court of Appeals struck down, on Free Speech grounds, a City of Indianapolis, Indiana Ordinance limiting access of minors to video games that depict violence or sex. The Ordinance prohibits any operator of five or more video game machines in one place to allow an unaccompanied minor to use an amusement machine that is harmful to minors. The term “harmful to minors” has been used in legislation protecting minors from sexually oriented material for decades, but had not been extended to violent content until this bizarre law. The Ordinance was challenged by several Free Speech organizations before it even went into effect. The trial court temporarily upheld the Ordinance by refusing to enter preliminary injunction, but the Seventh Circuit Court of Appeals later reversed and enjoined the Ordinance. It concluded that the graphic video games at issued were not obscene, but were fully protected by the First Amendment. It rejected the notion that two allegedly empirical studies claiming a link between violence and video games established a compelling interest to justify the restriction on First Amendment rights. The court compared the actions of the City in prohibiting access to violent video games to forbidding children from reading The Divine Comedy, War and Peace or Dracula. “Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low,” the court noted. This ruling sets the stage for a big battle between the censors, who are up in arms regarding recent school shootings, and the $20 billion dollar a year video game industry, dead set on protecting First Amendment rights.
Recently, even the Wall Street Journal stepped up to defend the adult Internet industry. I guess politics makes for strange bedfellows. Even though the Journal has a reputation in some quarters for staunch conservativism, it defended the adult Web industry as a significant part of online commerce. It further decried the pressure placed on companies not to do business with adult Internet providers as a threat to Web industry freedom. The Journal editorial noted that the online adult industry has been essentially unaffected by the pressure from mainstream advertisers, since adult sites seem to be one of the more hardy online business.
Despite that perception, the economic downturn has even affected adult Internet sites. Operators of both large and small adult Websites report that the days of easy customer acquisition and steady revenue growth are over. The revenue slow down is blamed on a massive saturation of free adult content, and stricter rules on credit card processing. Many users are canceling their memberships because they have lost their jobs or are being crushed by credit card debt. Adult industry insiders observe that there are now too many adult sites, and that average users have become overwhelmed by the never-ending banners and pop up windows typically associated with erotic Websites. “This may be the year Webmasters will make the decision whether they’ll stay in the business or not,” said Lee Noga, an executive with Cybererotica.
As predicted in last month’s Update, City Officials in Tarpon Springs ordered a nude voyeur Website operating within the City limits to close, or face $800.00 a day in fines. The City’s Code Enforcement Board told www.youcanwatch.com to shut down on April 12, 2001. The Website’s attorney argued that his client’s business is located in Cyberspace, not in Tarpon Springs. The Board members voted 7-0 against the company. Big surprise! Their attorney says that they will appeal. Can we watch?
Lawrence G. Walters, Esquire recently became 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