February 2002 Update


By: Lawrence G. Walters, Esq.


If the first decision by the United States Supreme Court on First Amendment issues this term is any indication of what the other three will look like, the Commerce Clause my be the best defense against Internet content regulations. The High Court voted unanimously to uphold a Chicago Park District regulation providing virtually unlimited discretion to the government in granting or denying applications to use park district facilities for protests and other gatherings. The Justices rejected the First Amendment claims and essentially allowed the government to pick and choose which groups would be entitled to use federal property to engage in free speech. Fortunately, the Court did not address the issues of most concern to the brick and mortar adult industry, that of “procedural safeguards” in adult use licensing schemes. The Court rendered a mercifully narrow opinion which is basically limited to specific circumstances. More fortunately, the Court left open the possibility of demonstrating First Amendment violations by showing that the licensing scheme was unconstitutional as applied. Of the four First Amendment cases being considered this term, the Thomas case is of least relevance to the adult Internet industry, but the unanimity and tenor of this decision is somewhat disturbing for any individual or business that depends on the First Amendment for protection. Should the First Amendment receive the same short-shrift analysis in the remaining cases, creative lawyers may need to turn to other legal doctrines as an alternative for preserving free speech online. The Commerce Clause has been recognized in several recent decisions as a constitutional protection against inconsistent state regulation of the Internet. Let’s hope the Supreme Court doesn’t take any Commerce Clause cases next term!

Attorney General John Ashcroft revealed his true colors recently by ordering that massive draperies be used to conceal semi-nude statutes in the Great Hall of the Justice Department Building. At the end of the hall in this room, on either side of the stage, are two enormous aluminum statutes; one female figure represents the Spirit of Justice, and a male figure to the right is the Majesty of Justice. One breast of the female figure is entirely exposed.  In the past, photographers have writhed on the floor, flat on their backs, in order to shoot a picture of former Attorney General Edwin Meese, on the day he proudly released his Final Report of the Commission on Pornography, with the breast of the statute peeking over his shoulder. When Ashcroft took office, many wondered how he would feel about the figures. He didn’t seem to mind until he was photographed giving a speech about fighting terrorism with the breast of the statute visible over his shoulder. That was the final straw for the strongly religious and conservative man, who insisted that the artwork be appropriately attired with draperies at the cost of just over $8,000.00.

It appears that the FBI will use some of its over $900 million in new funding to bring on over 900 new agents by September 30, 2002.7 The focus of the new FBI agent hiring will be on those with computer, science and information technology skills, along with counter-terrorism and foreign language abilities. Between hundreds of millions of dollars in new funding, hundreds of new agents and many excuses to investigate adult websites, the adult Internet industry is bracing for a law enforcement onslaught. Religious groups couldn’t be happier about the new focus on law enforcement against the adult industry. As broadcast on PBS on February 7, 2002, it appears that the new administration intends to make prosecuting pornography a priority. But why stop at erotica? A long list of Christian and conservative organizations is calling on federal regulators to investigate the FOX Network, claiming that it systematically violates the FCC’s indecency rules. The groups include Focus on the Family, Morality in Media, the Christian Coalition, the Citizens for Community Values, the American Family Association, the American Decency Association, and American Values. The groups cited “Boston Public” as one of the primary targets of their disdain. The joint letter from the groups claimed that no child should ever see shows like “Boston Public.” FCC Commissions Rules state that no radio or television station shall broadcast obscene material at any time, or broadcast “indecent” material from 6 a.m. to 10 p.m.

In lighter news, an appeals court has upheld the right of a former Playboy Playmate to use the terms “Playboy” in the metatags of her own Website. The dispute centered around the attempt by Terri Welles to include the terms “Playboy” and “Playmate” in the biographical references in her Website, and in the search engine-friendly metagags at TerriWelles.com. Playboy, which aggressively enforces its trademark rights, sued her in February of 1998, in a California federal District Court. The trial court ruled in her favor, and that ruling was affirmed by the Ninth Circuit Court of Appeals which decided that the references to her former title, as a Playboy Playmate, represented “fair use” of the Playboy name. Attempting to describe her association with the adult entertainment giant without using its name would require her to venture into absurd descriptive phrases, according to the initial trial court ruling. Because the metatags did not repeat themselves extensively, her site would not be at the top of the list of search results for surfers seeking “Playboy” on search engines. The practical lesson learned from this case is that webmasters may be legally entitled to use certain trademarked terms in their metatags without violating trademark rights, in the appropriate circumstance. As always, it is important to consult with competent legal counsel prior to including any trademarked words on your Website.

The odd story this month comes from Yankton, South Dakota. A recent Senate Bill introduced by Democratic State Senator Moore would ban the sale of “Porn Cards” to anyone under the age of 18. The prepaid cards allowing access to adult entertainment sites on the Internet have boomed in popularity throughout the United States and abroad. According to Moore, “I don’t think we can stop people from distributing these things, but we can stop the sale in South Dakota.” Huh? The ACLU counters that Moore’s statement sounds like censorship. Given the number of free adult Websites that proliferate on the Internet, these legislative actions appear to be an exercise in futility. It could be worse: Seoul, South Korea’s answer to the availability of adult images online is to indict 19 Internet adult broadcasting companies, and issue warrants for 13 others. Seoul has also proposed legislation to criminally charge those who send Spam emails. Too bad the First Amendment does not apply in Seoul; change that to the Commerce Clause.

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