April 2002 Update


By: Lawrence G. Walters, Esq.


The big news this month was the U.S. Supreme Court’s ruling which struck down the Virtual Child Pornography law (“CPPA”) as unconstitutionally overbroad. This is a victory for the Free Speech Coalition and for the First Amendment. The Court ruled that the law is inconsistent with the requirements of Miller v. California, which requires that materials involving adults must appeal to the prurient interest before they can be criminalized. Moreover, the CPPA provided for severe punishment if just a single scene of a movie contained a graphic depiction of prohibited sexual activity. This is inconsistent with the First Amendment, which requires that a work’s artistic merit be evaluated as a whole, and not dependent on the presence of a single scene. The Court noted that CPPA is not supported by the traditional reasons for outlawing child pornography. The CPPA prohibits speech that records no crime and creates no victim by its production. The alleged harm, future criminal acts by pedophiles, does not necessarily flow from the speech. Thus, the court held that where speech is neither obscene nor the product of sexual abuse, it has First Amendment protection. The impact of this decision will be debated for many years to come, but it clearly represents a resounding victory for First Amendment principles.

The adult Internet community was reeling as details were made available regarding the arrest of James Steven Grady on child pornography charges. Investigators claim that Grady lured underage girls to pose for sexually exploitive photo shoots, and posted the images on the Internet.1 Grady was well-known in the adult Webmaster community, and distributed content for numerous Websites. Webmasters across the nation frantically scoured their servers for potentially illegal images as law enforcement announced that the investigation expanded from Colorado into Texas, Florida and Nevada, where Grady also allegedly maintained operations. Law enforcement claimed that the case likely involved the largest child pornography operation in state history. Investigations even popped up in this author’s hometown of Seminole County, where a female model was interviewed regarding her contacts with Grady. Some of the models stepped up and defended Grady, claiming that they were not pressured to strike sexually suggestive poses, and that all modeling was consensual.2

This law enforcement action serves as a stark reminder to the adult Internet community: “Know your content producer.” Many adult Webmasters purchase content from less than reputable producers, and simply rely on the representations of the producer that all models are over the age of 18, and that sufficient §2257 records have been compiled for all photo shoots. While lawyers commonly advise “secondary producers,” such as Webmasters, that they need not act as records custodians or physically maintain copies of executed Model Releases, failing to do so can come with a price. Without the records, Website operators can never be sure that the models depicted on their site are over legal age, and have produced valid identification. If the content producer is alleged to have created illegal images, the Webmaster has no defense other than ignorance. You may not get very far in court with the defense of: “but I thought she was 18.” Sexy photos of minors are contraband, just like illegal drugs. And, depending upon what the Supreme Court says, the same may be true for anything that appears to be child pornography, even if it is not!

The proliferation of Lolita sites and “youth erotica” on the Internet may have serious consequences for the adult Webmaster community. Child pornography has gone from a dirty, underground secret to a booming commercial business in recent times. Cases such as Grady’s do not help the adult Webmaster community’s efforts draw a distinction between constitutionally protected adult erotica, and illegal child pornography. The adult Webmaster community simply cannot afford to associate itself with youth erotica in any way, shape or form. To the extent that this industry is viewed as linked with, or participating with underage content, it will be providing fodder for the censors who attempt to equate adult entertainment with child pornography at every turn.

Signs of a waning economy can be found all over the Web these days. A recent study showed that half as many Internet surfers were looking for sexually oriented Websites in May, 2001, as compared with a similar study done four years earlier.3 Some researchers associate the decline with a changing demographic of the average Web surfer.4 In 1997, surfers were made up primarily of academics and young guys who knew something about computers, but now you have more average people who may not be as interested in sex and erotica.5 Other researchers disagree, and believe that the change may be more attributable to the fact that people looking for sexually explicit material today are more likely to go to newsgroups where material can be obtained for free, rather than use a search engine.6 Another possibility is that the new has simply become an integral part of mainstream commerce. One thing is for sure, online erotica has put a hurtin’ on the traditional, softcore magazine such as Penthouse and Playboy. This fact has resulted in Penthouse’s circulation falling from a peak of five million copies a month to a new low of just about 650,000. Penthouse’s publisher, General Media, is 36 million dollars in debt and may not be able to meet interest repayments of nearly 9 million dollars this year.7 The decline in traditional adult print sales thrills the anti-porn activists: “I’m delighted that Mr. Guccione may be going out of business,” says censorship crusader Andrea Dworkin.8 Activists like Dworkin should be careful what they ask for since: “The problem is that he is being replaced, quite possibly, by something that is much worse,” Dworkin added.9

Online financial woes have caused many Websites to litter their online presence with annoying “Pop up” ads, hawking everything from “psychic phone readings” to tiny digital cameras. Although virtually unheard of a year ago, they now appear on one third of the largest Websites.10 Adult sites have included these, along with other annoying (and possibly deceptive) advertising gimmicks for years, however. The end result of all of this is to make the World Wide Web appear something closer to a carnival midway, with barkers shouting out from behind every circus tent. Most states and the federal government have enacted deceptive and unfair trade practices legislation, that may well make many of these promotional schemes illegal. Webmasters who pay close attention to their content issues, often gloss over or ignore the legality of their advertising. In these times where more Webmasters are competing for fewer and fewer consumer dollars, legal issues relating to questionable promotional tactics should not be overlooked.

Last month we reported a stunning 5 million dollar judgment rendered against Arco Media Group, Inc. in connection with a lawsuit brought by a Southwest Texas State University student for invasion of privacy and emotional distress after her image was used to promote the “Wild Party Girls” video without her permission.11 However, what the courts giveth, the courts can taketh away. This month, Judge Charles Ramsay set aside the default judgment since the Plaintiff failed to properly name the Defendant in the case, which actually goes by the name “The AccroMedia Group, Inc.”12 As they say, easy come, easy go.

The Federal Communications Commission recently dismissed complaints registered against the Victoria’s Secret lingerie show, which aired in November, 2001.13 The show featured scantily-clad models wearing Victoria’s Secret lingerie during primetime, and generated complaints to the FCC. However, the Commission stated, in dismissing the complaints: “Based on the information you and other complainants have provided to us, you have not demonstrated that the sexual aspects of the material was, in context, so graphic or explicit as to be patently offensive.”14 Game Recap: Victoria’s Secret models: 1; Prudes: 0.

An important First Amendment case is winding itself through the court system in Philadelphia. It involves the United States government’s third attempt to control online erotica, which is labeled “The Children’s Internet Protection Act,” (“CIPA”). With this legislation, the government attempted to limit the public’s access to online erotica by denying funding to any public library that refused to install sufficient filtering devices designed to block access to online erotica. “Our perspective is that for all of us to govern ourselves effectively, we need access to information and it’s not up to the government to say what that information is,” said Judith Krug, Director of the Office for Intellectual Freedom at the American Library Association.15 Opponents of the law argue that enormous amounts of innocuous information is blocked by existing filtering software, and that explicit photographs can still be accessed unless accompanied by suggestive or objectionable text.16 The case is currently being considered by the Third Circuit Court of Appeals, and that decision may be handed to the United States Supreme Court.

One final case worth mentioning is a decision from the Colorado Supreme Court which recognized the right to anonymously purchase reading material, free from governmental interference.17 In this case, a search warrant was served on the Tattered Cover Bookstore demanding records of all individuals who purchased two books on drug manufacturing from the store. The trial court ordered the store to turn over the records, but the Colorado Supreme Court reversed, holding that the First Amendment and the Colorado Constitution protects the fundamental right to purchase books anonymously.18 These arguments may have significant implications for adult Webmasters who face governmental requests or court orders for subscriber or membership information.

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 K. Rouse, “Centennial man held in child-porn operation,” The Denver Post, (April 7, 2002).

2 Id; “Alleged child porn investigation reaches Seminole,” Associated Press, (April 10, 2002).

3 “Study: Web surfers prefer business over porn,” CNN.com, (April 1, 2002).

4 Id.

5 Id.

6 Id.

7 “Internet Hits Porn Sales,” Sky News, (April 8, 2002).

8 Id.

9 Id.

10 B. Patten, “Online advertising’s bubble is ‘popping,’” East Bay Business Times, (April 5, 2002).

11 L. Walters, “March, 2002 Adult Industry Update.”

12 C. Coughlin, “Topless suit is groundless, judge says,” (March 30, 2002)

13 “ABC off the hook with feds for TV lingerie parade,” Reuters, (March 25, 2002)

14 Id.

15 D. Morgan, “U.S. Library Porn Law Battle Heads for Court,” Reuters,(March 24, 2002).

16 D.Morgan, “Porn trial expert says blocking software limited,” Reuters,(March 26, 2002).

17 S. Paulson, “Supreme Court Refuses to Order Bookstore to Turn Over Records,” DenverPost.com, (April 8, 2002).

18 Id.