ADULT INDUSTRY UPDATE
By: Lawrence G. Walters, Esq.
It was back to business this month now that everyone, including the United States Supreme Court, has learned to live under the constant threat of terrorist attacks. The Anthrax infestation in the United States Supreme Court did not stop the Justices from hearing arguments in the Ashcroft v. Free Speech case at an off-site location. The case involved the constitutionality of the Child Pornography Prevention Act of 1996.1 As is widely known at this point, the law criminalizes images that appear to be minors engaged in sexual acts. During the argument, several of the Justices seemed to agree that the Act’s language could be overbroad. For example, Justice Stephen G. Breyer asked, “The movies ‘Traffic,’ ‘Lolita’ and ‘Titanic’ all have simulated sexual behavior by seventeen year olds, why wouldn’t people who rent these videos be guilty of possession of [child pornography under the Act?]”2 The attorney representing the Government claimed that the Act was passed because “the advent of computer technology allows the production of images that are virtually indistinguishable from actual photos.”3 Justice O’Connor, apparently concerned about criminalizing simple possession of simulated child pornography stated: “I don’t know what we’re supposed to do with a statute like this.”4 Justice John Paul Stevens pointed out that even “Romeo and Juliet” could be forbidden under the Act.5 A major concern with the constitutionality of this law was summed up by Justice Kennedy’s question: “What’s the government’s interest in preventing adults from playacting as children?”6 As written, the law criminalizes images of young looking adults involved in sexually explicit activity, and has kept operators of “teen” oriented adult Web sites on edge. A decision by the High Court is expected in early 2002.
As our nation becomes transfixed with the images of brutality from the hard line Taliban government in Afghanistan, we should pause and become thankful that we live in a free country. For example, our government cannot conduct secret court sessions to bring down government dissidents, detain criminal suspects without cause, conduct secret property searches without informing the property owner, allow investigators to review citizens’ Internet usage and email communications without probable cause, nor authorize secret search warrants to monitor communications of suspected anti-government operatives. Wait a minute! That’s exactly what the U.S. government can now do under the United and Strengthening America Act, signed into law on October 25, 2001. This legislation has been roundly criticized by the mainstream media as a needless evisceration of our civil liberties, and an overreaction to the terrorist strikes which threatens the American way of life. MSNBC calls the new law a “serious incursion into the set of civil liberties that makes this nation unique.”7 Many of the provisions contained in the anti-terrorism legislation can be used in regular criminal investigations that have nothing to do with terrorism. Of particular concern to the Adult Internet Industry is the new ease with which investigators would be able to obtain permission to review anyone’s email communications and Web site history. Once the terrorist threat subsides, adult webmasters may very well find themselves to be the unwitting victims of the current hysteria that allowed this unconstitutional legislation to sail through Congress. Of additional concern, from a free speech perspective, is the new expansive definition of “domestic terrorism” that could be used against protestors who might become too aggressive, but are clearly not terrorists.8 Congratulations must be given to the one courageous Senator Russell Feingold (D-Wisc.), who cast the sole vote against the legislation.9
For years now, adult webmasters have been struggling with the onerous penalties imposed by credit card companies for Internet chargebacks. Finally, one Web company has had enough and is doing something about it. On October 4, 2001, WebsiteBilling.com, Inc., a major online credit card processor, filed a multimillion lawsuit against Visa for unlawful and malicious conduct in connection with its chargeback penalties.10 The case was filed in the Southern District of Florida and seeks an excess of three million dollars in damages including an immediate reversal of the one million dollars in fines levied against the Plaintiff by Visa. The complaint also seeks an injunction preventing Visa from imposing additional unlawful fines and penalties. WebsiteBilling’s President, Richard Kwait, said, “Visa has an obligation to protect its e-commerce merchants with standards in the same way that retailers are protected. Countless U.S. businesses have been forced under because of Visa’s failure to protect them from consumer fraud, and all the while Visa lines its pockets with outrageous penalties assessed against merchants.11” The Adult Internet Industry anxiously awaits the outcome of this case, and hopes to benefit from any relief awarded by the federal court in Miami.
Another Web censorship law has been thrown out on free speech grounds. The State of Virginia passed a law attempting to protect children from “harmful” material on the Internet in April, 1999.12 The law was enjoined in August, 2000, pending a final ruling by the court. United States District Judge James H. Michael Jr. rendered that final ruling recently, holding that the attempt to restrict access of minors to indecent material on the Internet unconstitutionally burdens the rights of adults to receive protected speech.13 Virginia’s Attorney General announced plans to appeal the decision to the ultra-conservative Fourth Circuit Court of Appeals in Richmond, Virginia.14 Similar laws have been struck down on First Amendment grounds in New York, New Mexico and Michigan. Interestingly, the Judge recognized the possibility that advances in Internet technology may someday allow the government to restrict Internet content without violating Free Speech. “Technological advancements may, in the not too distant future, permit statutes similar to the one now before this Court to regulate constitutionally content on the Internet,” he said.15 That day may be coming soon given the upcoming argument before the United States Supreme Court in the Child Online Protection Act case on October 28, 2001. If the law is upheld, all American adult Internet content will be required to be placed behind a firewall, and secured from access by minors. If the High Court strikes the law down, all obscenity laws across the country may be consequently rendered unconstitutional.
Our firm is currently preparing for its own visit to the United States Supreme Court on December 4, 2001. The case involves the constitutionality of an adult entertainment regulation passed by the City of Los Angeles. John Weston, Esquire, is gearing up for his seventh United States Supreme Court argument on this case. The Court is expected to clarify the required predicate that the government must establish in order to support restrictive adult entertainment zoning regulations. This “secondary effects” analysis has been the subject of intensive litigation in the adult industry for decades. More on that case next month.
One final case worth mentioning: The Fourth District Court of Appeal in California recently determined that paying for a girl-girl sex show does not constitute “prostitution” under California law.16 The case arose from a performance at the “Flesh Club” where dancers performed sexual acts on each other in the VIP room for approximately nine minutes. The court determined that the crime of prostitution must involve sexual activity between the customer and the prostitute. Apparently, it is no longer a crime just to watch in California. This decision stands in sharp contrast to the way the Florida courts have ruled on the same issue. In State v. Conforti,17 a Florida Appellate Court upheld Florida’s prostitution law and called a similar girl-girl sex show, “somewhere on Mars,” referring to the “outer limits” of protection afforded to nude dancing under the First Amendment. As illustrated by these two diametrically opposed decisions; East is East, and West is West, and the twain shall never meet.
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