January 2002 Update


By: Lawrence G. Walters, Esq.


The first year of the new Millennium ended without any stunning fanfare or any further shocking terrorist attacks. As we sat on the edge of our collective seats during the last quarter of 2001, waiting to see what will happen next, our government began methodical preparations for the long political and military battles ahead. Potentially caught in the crossfire will be the adult industry, which is on the losing end of the confluence of numerous events destined to change the legal climate in which adult webmasters operate.

The U.S. Supreme Court has now heard arguments in four First Amendment cases, all of which could be decided against the Industry. At the same time, the FBI just received an influx of $379 million to be used to beef up its investigative technology.1 We will now see an army of gumshoes armed with not only the latest laptops and broadband access, but also a host of new investigative powers thanks to the Patriot Act, signed into law recently – not that the feds needed a reason to investigate the adult webmaster community. Moreover, the fact that terrorists were said to have communicated through the posting of sexually explicit images on the Internet did not help things.2 To add to this pressure cooker, Red Herring magazine recently revealed the extent to which child pornographers have invaded both adult and mainstream Internet services such as domain registrars, hosting companies and community publication sites such as Geocities.3 Apparently, these services have been used without the knowledge of their owners, to proliferate the despicable child porn industry, and that has drawn the attention of two sworn enemies of the adult industry, Bruce Taylor and Robert Flores.

For anyone who does not know, Bruce Taylor is the President and General Counsel for the National Law Center for Children and Families, and a long-time advocate of censorship. While he is not in a position to initiate any investigations or prosecutions, Robert Flores is. Mr. Flores was recently appointed to the Department of Justice’s Office of Juvenile Justice Delinquency Prevention. That is a high-level position that includes broad investigative authority. That dynamic duo made it clear that blind ignorance to illegal content on the Internet will not serve as a defense, and that it’s just a matter of sitting back and waiting to see who will take the hit first.4 Taylor has previously called for obscenity prosecutions against media giants such as AOL and Yahoo! Now he says: “Nobody is immune.”5

Even if you steer far clear of child pornography on your servers and links, it may be that a significant amount of teen or youth content will be declared illegal child pornography if the Free Speech Coalition looses its appeal to the United States Supreme Court in the Child Pornography Prevention Act case.6 Should the relatively conservative High Court uphold the law, any images that “appear to be” of a minor engaged in sexual activities can be treated the same as child pornography. The federal sentencing guidelines for such offenses are staggering. A recent calculation performed by our firm for a very typical webmaster prosecuted for commercial distribution of child pornography resulted in a recommended sentence of between 180-210 months in a federal prison.

The Justice Department finally got around to appointing a United States Attorney to spearhead its forthcoming obscenity prosecutions. The appointee, Andrew Oosterbaan, has served as Deputy Chief of the Child Exploitation and Obscenity Section (a/k/a the “God Squad”) since January, 2000.7 Attorney General John Ashcroft says that Oosterbaan “…will diligently investigate and prosecute child exploitation and obscenity crimes. Andrew’s many years of experience in complex criminal matters should put on notice those who seek to exploit children or violate our nation’s obscenity laws will be punished to the fullest extent of the law.”8 Despite these ominous words, Ashcroft’s selection could have been much worse; the Religious Right wanted Bruce Taylor, Robert Flores (both discussed above) or Patrick Trueman, Director of Affairs for the American Family Association.9 On the other hand, given the conservative bent of our current Attorney General, it makes little difference who actually directs the prosecution of obscenity cases for they will be brought just the same. The censorship groups are already demanding that Oosterbaan make obscenity prosecutions a priority, “Obscenity has exploded through videos, through satellite, through cable and especially the Internet, so it is extremely important that this be make a high priority by the new chief,” says Jerry Kirk, another censor and co-chairman of the “Religious Alliance Against Pornography.”10

One interesting case to watch on the obscenity issue is the new challenge to the Communications Decency Act (“CDA”), which was filed on December 11, 2001, by the National Coalition for Sexual Freedom, along with a fetish photographer. The case was filed in the Southern District of New York, and names the federal government and John Ashcroft as defendants.11 In 1997, a unanimous Supreme Court struck down the “indecency” provisions of the CDA on First Amendment grounds, but the obscenity prohibitions were not challenged. Currently the CDA makes it a federal felony to transmit any obscene images over the Internet. Obscenity is based, in part, on community standards. One Appeals Court has held that the concept of community standards cannot be constitutionally applied to a global medium like the Internet. If community standards remain an element of the obscenity test, all online communications would have to be acceptable in every community since it is impossible, under current technology, to block particular communities from accessing any given images. Depending on the outcome of this case and the COPA case before the High Court, the federal government may be left without a law to regulate sexually oriented communications over the Internet. On the other hand, the government could try to replace the CDA with something worse. This is certainly an issue to watch.

The adult industry launched a sneak attack on domain names, as many previously registered domain names expired in December, 2001. Numerous adult websites took over the expired URL’s to the dismay of the previous owners who overlooked re-registration. “We were shocked,” said Carole Martin, Webmaster for the Diocese of Brooklyn, New York whose parish’s domain name was obtained by an adult website.12 This appears to be a growing trend in the adult industry, and one that probably did not do anything to endear the Religious Right.13

It appears that movie-style ratings may soon be coming to Internet Web sites. The Internet Content Rating Association (ICRA) recently announced a voluntary content rating system that would allow users to screen out Web sites that contain violent, sexual or other possibly objectionable content.14 The addition of such voluntary ratings to adult websites couldn’t hurt the Industry’s image and provide additional ammunition demonstrating that adult webmasters are trying to keep their content away from minors.

This month’s odd story comes from the Federal Communications Commission. After millions tuned in for the Victoria’s Secret racy fashion show in November, FCC Commissioner Michael Copps called for an investigation.15 The reason for his investigation? His 27 year old daughter thought it would be inappropriate for children to watch.16 I wonder what his kids watch; Law & Order? Hey Commissioner, have you seen MTV lately?

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

1 J. McHugh, “Rewiring the FBI,” Wired (January, 2002).

2 L.Walters, “Legal Update,” (November, 2001).

3 R.Grove & B. Zerega, “The Lolita Problem,” Red Herring (January 29, 2002).

4 Id. at 53.

5 Id. at 49.

6 Ashcroft v. ACLU, 121 S.Ct. 1997 (2001).

7 “New Federal Obscenity Chief Chosen,” AVN News, (November 11, 2001).

8 Id.

9 Id.

10 Id.

11 J. Scheeres, “New Suit Targets Obscenity Law,” Wired News (December 12, 2001).

12 M. Markovich, “Taken Over by Porn,” ABC News.com (December 17, 2001).

13 Id.

14 “Movie-style ratings coming to Web,” Reuters (Oct. 22, 2001)

15 D. McCullagh, “FCC Poses as Fashion Model Police,” Wired News (November 24, 2001).

16 Id.