June 2001 Update


By: Lawrence G. Walters


In one month: (1) Attorney General John Ashcroft promises to prosecute Internet obscenity; (2) Morality in Media proposes an amendment to the United Nations Treaty to Combat Internet and Satellite Pornography; and (3) the United States Supreme Court threatens to reverse the strongest Circuit Court opinion protecting online adult materials. These can be difficult times to operate an adult Website given the downturn in the economy and the unfavorable legal climate, but this cloud may have a silver lining.

The first order of business is the United States Supreme Court: Initially, it agreed to review the Third Circuit Court of Appeals opinion Ashcroft v. ACLU, striking down the Child Online Protection Act (“COPA” or “CDA II”), finding that the concept of “community standards” could not be constitutionally applied to the Internet. Many legal experts felt that this opinion would render obscenity prosecutions difficult if not impossible to pursue against Internet content since essentially the same community standards test is used for obscenity laws. Although no one can predict the outcome of this case, which should be decided this spring, the result likely will impact First Amendment jurisprudence well beyond COPA.

Some in the adult industry have actually hoped that the Supreme Court reverses the Third Circuit’s decision based on the misguided belief that such a decision would eliminate free adult content on the Internet, and boost sales for subscription sites. While reversal might result in some incidental benefit to pay sites by decreasing the amount of free adult materials available on the Web, a substantial amount of free content will remain available from offshore, as well on the Usenet and newsgroups. The individuals who post images in these venues will be undeterred, and potentially unaffected, by the implementation of the COPA law because they have the capability of remaining anonymous and are not posting for profit or for any commercial purpose. Many of the free sites would be forced to either shut down, or begin requiring an AVS or credit card to continue offering access to images. This will of course benefit the age check services and the pay sites. However, the negative impacts resulting from a reversal of the COPA decision will not be worth any of the incidental benefits to the pay sites under a cost benefit analysis.

Depending on the precise language of the Supreme Court’s forthcoming opinion on COPA, prosecutors may well become emboldened, should the Court strongly reject the Third Circuit’s community-standards analysis, and begin instituting obscenity prosecutions across the country with reckless abandon. The pendency of the Ashcroft v. ACLU appeal has likely dissuaded many prosecutors from initiating obscenity charges, given the viable defense relating to community standards outlined by the Third Circuit’s decision. Should this defense be eliminated by the Supreme Court, those pay site operators who claimed that they would benefit by the shake out may live to regret the day they advocated for a reversal in this case.

The Supreme Court also announced that it would review a decision from the Seventh Circuit Court of Appeals regarding the procedural safeguards are required by the First Amendment when analyzing a permit scheme which imposes a prior restraint on Free Speech. What all that legal mumbo-jumbo means is that the Supreme Court could take away significant protections that many in the adult industry have relied upon in obtaining licenses or permits to operate adult bookstores, video stores, or gentlemen’s clubs across the country.

In 1990, the Supreme Court announced, in a case entitled FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596 (1990), that any local ordinance imposing licensing requirements on adult businesses must guarantee that the business receives a decision on its application for a license within a specified, brief time period, and that the ordinance provide a means to have a court “review” its decision in a “prompt” manner. These protections were provided to prevent cities and counties from “dragging their heels” by simply not acting on a permit application, and thereby keeping the adult business from opening indefinitely, and keeping the courts from reviewing their decision, lack of it. Scores of ordinances across the country have been invalidated in lawsuits brought by adult businesses for failing to contain these procedural safeguards, most of which were allowed to open after pointing out the deficiency. Now that the Supreme Court has announced its intention to review this issue, First Amendment lawyers have become concerned that the current makeup of the Supreme Court could change the rules of the game on this issue.

Now that the morality groups have had their say in Washington during last month’s round of meetings, Attorney General John Ashcroft has announced that his Justice Department would help state law enforcement officials imprison adult site operators who feature obscene images. “I am concerned about obscenity and I’m concerned about obscenity as it relates to our children,” Ashcroft said in his first appearance before the House Judiciary Committee.

These statements come after Ashcroft’s meeting with Republican Congressman Steve Largent (R-OK) and numerous anti-pornography groups such as Morality in Media, Focus of the Family, the National Law Center, and the American Family Association, among others.

Apparently, Ashcroft’s Justice Department has not been deterred by the recent acquittal in Cincinnati, Ohio, involving Elyse Passion, an adult video store in Butler County, Ohio. The County has now hired Steve Tolbert, the loosing attorney in that case, to act as the “Anti-Obscenity Prosecutor” for Butler County. Of the recent acquittal on obscenity charges, Mr. Tolbert stated, “I’m not willing to concede that one case sets community standards for obscenity. It’s a fight that will be fought.” 

All of this bad news has galvanized the National Obscenity Law Center (a subgroup of Morality in Media, Inc.) to call for an amendment to the United Nations’ Treaty on obscenity to combat Internet and satellite porn. In its recent Obscenity Law Bulletin, the group claimed that entrepreneurs around the world have abused the Internet by making available depictions of “masturbation, copulation, pedophilia, sadomasochism, falatio, bestiality, necrophilia, oralism and cunnalingus, as well as advertisements for the same.” The group claims that current domestic laws of various nations are inadequate to control the trans-border, transnational transmission of obscenity because of extraterritorial origin.7 It is also noted that the same “evils” can be viewed via satellite transmission.

The mindset of this group can be summed up by its comment claiming, “trans-national obscenity is one of the most culture destroying phenomena of our time.” The National Obscenity Law Center uses all of its perennial arguments to justify international regulation of digital erotica such as harm to morality, harm to marriage, harm or violence toward and the degradation of women, harm to children, harm caused by rapists fueled by pornography and the harm of nude performances. Perhaps such an effort could succeed in a country without Free Speech protections, however it is appalling that a group based in the United States would even endorse a document called the “Agreement for the Suppression of the Circulation of Obscene Publication.”

there may be a silver lining associated with all of this, at least for the companies willing to fight. The current posturing by the Justice Department, and local authorities, along with fears generated by potential adverse Supreme Court decisions, have convinced many to flee the adult industry. Demand for erotica, however will not decline-it never does. Forbes Magazine claims that the American adult industry now generates 11 billion dollars in sales annually! For those companies willing to stand and fight, the financial rewards may be significant. Money aside, we may even be able to preserve important First Amendment freedoms along the way.

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, based in Los Angeles. Mr. Walters runs the firm’s Florida office, 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