October 2001 Update


By: Lawrence G. Walters, Esq.


Now is the time to rally around the Flag, but beware of collateral damage that may result from the war on terrorism. Most red-blooded Americans support President Bush’s decision to unleash “infinite justice” on the suspected terrorists. Our country has even gone so far as to place a $25 million dollar bounty on the head of Osama bin Laden. Our leaders have also taken some steps to protect national security by enhancing the ability of the government to detain foreigners for increasing amounts of time, and possibly deport aliens without a stated reason, which seems appropriate in the heat of the moment. However, Attorney General John Ashcroft has also asked for secret court authorization for wire taps, longer jail terms for terrorists, access to users’ Internet information without a court order and authority to review telephone voice messages with only a search warrant.1 The Administration also wants wiretap evidence obtained from other countries in violation of the Fourth Amendment to be admissible in court.2 These measures have caused Democrats and other civil liberties advocates to become “deeply troubled” by the constitutional implications. “Past experience has taught us that today’s weapon against terrorism may be tomorrow’s law against law-abiding Americans, says Representative John Conyers, D-MI.3

The President rejected the Taliban’s demands that we produce evidence linking bin Laden to the terrorist attacks, and yet intends to use military force to punish him and his associates for his crimes. Some experts on U.S. policy in the Middle East have opined that such military retribution will very likely only exacerbate the problem and elevate Osama bin Laden to the status of a martyr.4

The course the government has embarked on is a potentially dangerous road to travel from a constitutional perspective, and establishes a disconcerting precedent. While the terrorist attacks in September may seem to justify an exception to every rule, our willingness to approve summary execution of suspects without the presentation of evidence or any form of trial should, at the very minimum, raise our collective eyebrows. Such actions are usually reserved for totalitarian regimes, and fly in the face of our time-valued constitutional concepts, especially Due Process. While a quick, violent response may well be appropriate in this circumstance, one is forced to question whether any other circumstances justify the imposition of a summary execution without trial.

Years ago, we declared a war on drugs, accompanied by rhetoric not much different than that heard regarding the “war on terrorism” today. Assume a Columbian drug dealer mowed down fifty innocent people in Central Park during a drug deal gone bad using a submachine gun; would his actions also justify punishment without evidence or trial? What if nobody died, but ten were wounded? The treacherousness of this slippery slope becomes obvious when illustrated correctly. Those in the adult industry must remain ever vigilant and on guard against the erosion of civil rights regardless of the purported justification. If the rights to Due Process and a fair trial end up as “collateral damage” in the war on terrorism, we will end up with problems that pale in comparison to our current preoccupation with terrorists. Our government sets an example for the citizens of our country and, indeed, for the rest of the world. Our criminal justice system is seen as among the fairest on the planet. Making exceptions to the way we dispense justice, regardless of the level of the crime, is dangerous business. We must remain vigilant in the attempt to minimize any damage the First Amendment may suffer in the “war on terrorism,” in order to prevent the kind of erosion the Fourth Amendment suffered during in the war on drugs. Government officials have already tried to censor communications on the “Voice of America” because they are allegedly coming directly from bin Laden. Only in the defense of unpopular, even despicable speech, are the rights of all to Free Expression established and maintained.

The terrorist attacks on U.S. soil has, for the first time since the inception of the Internet, resulted in the term “sex” being knocked off the top ten most popular search engine terms.5 During times of war, people typically think less about sex and more about violence than during peacetime. We also tend to place a lower value on our civil liberties and a higher value on personal security, which gets us back to the concerns raised earlier: The Bill of Rights is likely to take a significant hit in the name of “fighting terrorism.”

This month did produce some good news; the Eleventh Circuit Court of Appeal reversed the decision of the trial court which had originally ordered the Voyeur Dorm to shut down.6 The Eleventh Circuit determined that Tampa improperly applied its Adult Entertainment Ordinance to the Voyeur Dorm, an online business. The Court pointed out that adult entertainment regulations are only justified if directed at adverse secondary effects of adult entertainment; not if they are directed at the entertainment itself. Voyeur Dorm did not cause the typical adverse secondary effects generally associated with adult businesses, such as increased crime and decreased property values, because the public did not set foot inside the Voyeur Dorm residence and no business was transacted at the physical location. All business occurred in “virtual space.”7 The court dodged the significant constitutional issues raised in the case, i.e., whether adult entertainment ordinances can constitutionally be applied to adult Internet businesses. Nevertheless, the adult Webmaster community has celebrated the victory.

For the first time in our history, a major American newspaper has created a “pornography beat.” The Los Angeles Times has finally accepted the existence of the erotica industry as a legitimate source of ongoing news.8 “We couldn’t ignore it anymore,” said Ralph Frammolino, a Times reporter. The adult industry is one of the bigger businesses in the San Fernando Valley area, claiming revenues of $10 billion dollars a year.9 The Times will not be attempting to bury this topic on the back page either. The stories will be given considerable space, often running more than 1,500 words, and will sometimes be prominently placed.10 Kat Sunlove, the Adult Industry’s Legislative Affairs Director noted: “Politically, we’re no longer a pariah.”11 Even the legislators California stand up and take notice when the adult industry speaks, according to Sunlove.

Our government’s gearing up to fight common enemies abroad has likely resulted in the settlement of a couple of cases against the Adult Internet Industry. Recently, the Federal Trade Commission (“FTC”) announced it settled charges against several adult Web site operators who used “dialer” programs to connect users to their erotica.12 Dialer programs became commonplace in the Adult Internet Industry as an alternative to credit card billing after it became increasingly difficult for webmasters to obtain merchant accounts with major credit card companies. These dialer programs disconnect customers from their regular Internet Service Provider and reroute the Internet connection to a provider in Madagascar, costing unwitting subscribers thousands of dollars in long distance fees. After many months of legal wrangling, the FTC settled the charges with Charlo Barbosa B.C., Ltd., Virtuallinks, Hillary Shaeinkin, Witch’s Web, Inc., Honey Bun, Inc. and Free Sugar, Inc. The FTC also settled fraud charges against RJB Telecom, Inc., of Scottsdale, Arizona, who were accused of illegally billing customers’ credit cards. According to Reuters, the company agreed to post a $250,000 bond and to undergo scrutiny to ensure that it does not continue the practice. Perhaps this is a time for putting aside our differences and focusing on the common enemies.

As the ACLU prepares to take on Attorney General John Ashcroft in the United States Supreme Court on the COPA case, sex education and Free Speech groups have filed Amici Curae (“Friend of the Court”) briefs with the High Court, arguing against the legislation. 13 As is widely known by now, the case involves a constitutional challenge to the Child Online Protection Act (COPA) passed by Congress in 1998. The law was struck down by the lower courts on the grounds that the concept of “local community standards” cannot be constitutionally applied to a global medium such as the Internet. Recently, the National Coalition Against Censorship and five other organizations filed briefs asking the Court to uphold the lower court rulings and invalidate the legislation, once and for all. In their briefs, groups such as the Society for Scientific Study of Sexuality, the Institute for The Study of Human Sexuality and the Sexual Health Network argued that there is no body of scientific evidence which establishes that reading or viewing sexual material harms minors. The groups also take issue with the government’s assertion that pornography does not promote a “normal sexual perspective.” The case will be argued on November 28, 2001.

Many webmasters aptly note the federal Government is currently distracted by the war on terrorism and therefore is unlikely to launch a major offensive against the Adult Internet Industry. It may very well be that recent events have caused the Justice Department to reevaluate its priorities. However, webmasters should remain cognizant of the fact that the last Bush administration sent many individuals to jail for their participation in the Adult Industry. With approval ratings hovering around 90%, the current administration can easily conclude that it can do no wrong. It is during just such a time that participants in this unpopular industry must remain on guard.

God bless America.

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