ADULT INDUSTRY UPDATE
By: Lawrence G. Walters, Esq.
Swearing in the Enemy
Insiders recently revealed that President George W. Bush has tapped some of the adult industry’s sworn enemies for potential appointment as the nation’s “Porn Czar.” The prime suspect is Bruce A. Taylor, an infamous censor and President of the National Law Center for Children and Families, (“NLC”).1 Others under consideration are Patrick Truman of the American Family Association and J. Robert Flores, also with the NLC.2 These potential appointments should come as no surprise, as Bush took an aggressive stance against erotica during his campaign, saying, “Porn has no place in a decent society.”3 One source predicts that thirty or more companies will be targeted by the Justice Department in the short term.4 There is also widespread speculation that the content depicted in modern adult films will change, in reaction to the potential appointments. On the list of endangered scenes are food used as sex objects, urination, coffins, blindfolds, interracial and, of course, “the money shot.”5 Not all industry participants are ducking for cover, however. Rob Black of Extreme Associates was recently quoted as saying, “I’m not going to hide in the closed. I’m not going to stop anything.”6
As the war drums continue to beat at home, one adult Website has begun offering free erotica for the troops abroad. DirectLink Media Group has created a Website offering 500 free videos and DVD products to military personnel “to make their time away from home a bit easier.”7 Directlink is one of the largest mail order and Internet companies in the world, and hopes to rally the troops out there fighting for our freedoms. “They deserve any kind of support we can give,” said Aaron Gordon, President of FreePornForOurTroops.com.8 That should help make it hard on our enemies. It should be interesting to see if this stuff makes it past Iraqi customs.
Perhaps our beloved Attorney General, John Ashcroft, accidentally got on the list for some free adult materials: A package was found addressed to General Ashcroft at a federal courthouse last month. The package was originally thought to be dangerous, but was later cleared by the bomb squad, who determined that the only material in the box was a collection of erotica. Rumor has it that Ashcroft still thought it was dangerous. Charges will be filed, according to law enforcement officials.9 The box was destroyed.
One down . . . none to go! The country’s only “Porn Czar” got the axe recently in light of Utah’s budget crisis. Paula Houston was appointed to the post two years ago, however the State Attorney General decided that Utah no longer had the “luxury” of affording the nation’s only Porn Czar.10 For her part, Houston said: “I certainly hope I never have to look at pornography again.”11 Thankfully, she wont. The State’s Attorney General, concerned about the public perception of the termination cautioned, “We hope pornographers will not see this as a sign we’re giving up.”12 Riiiiight!!
In another setback for the censors, a Clermont County, Ohio grand jury has declined to indict Red Roof Inn hotel owners for providing X-Rated movies to guests.13 The Citizens for Community Values, (“CCV”), a pro-censorship group, pressured Clermont County prosecutors to take the obscenity case involving the movie Lots of Filthy Sex to the grand jury in the hopes of obtaining an indictment. However, the film, depicting multiple sex acts by various individuals, was not found obscene by the grand jury.14 This was the first Ohio County to show one of the in-room hotel movies to a grand jury. While law enforcement officials vow to continue seeking indictments, the Red Roof Inn continues to offer adult fare to its patrons.15
While most of the obscenity law news was positive this month, one case did result in a conviction. A thirty year old former parochial school teacher plead guilty to downloading two pictures of adult women posing nude on the Internet, resulting in a conviction under the federal obscenity law, Title 18, U.S.C. Section 1462.16 The conviction will result in the government looking over the Defendant’s shoulder any time he surfs the Internet, to make sure his activity is appropriate.17 The government will also be allowed to attach software to monitor his online activity, and the Defendant must provide passwords to any member areas.18 According to Morality in Media, which has followed the case, only seven other prosecutions under any United States obscenity law occurred in year 2001.19 Seven too many!
The federal government may soon become much more active in its fight against online erotica if a bill introduced by Rep. Nick Lampson (D-Tx) is passed. The measure would authorize twenty million dollars over the next four years for the “Customs Cyber Smuggling Center,” which conducts undercover operations to catch individuals distributing contraband over the Internet.20 This year, Congress earmarked $2.5 million for the program. The Clinton administration had not specifically funded the Center in previous years.21
The State of Pennsylvania’s plan to require ISPs to block certain erotic Websites sparked controversy and outrage by prominent civil liberties activists last month. At least 423 Websites have been blocked so far under a highly unusual law passed last year requiring ISPs to block subscribers’ access to the sites.22 The law imposes a $5000 fine on companies providing Internet access to Websites with illegal content, but imposes no penalty on the pornographic Websites themselves.23 The Pennsylvania Attorney General, Mike Fisher, allowed citizens to file an online complaint using a form on his Website. The law requires the ISPs to block subscribers from visiting thousands of Websites with completely unrelated content and ownership, that may be located on the same server as sites with illegal images.24 The Center for Democracy in Technology has launched an investigation into the Attorney General’s actions, and is attempting to force him to disclose details about the unusual blocking efforts.25 Only one ISP, WorldCom, Inc., disputed a request to block – resulting in a court order to comply. Under a common technique called “virtual hosting,” a number of Websites can share a single numeric Internet address. In one case, a single Website was reported to have shared its numerical address with 970,411 other sites.26 The Pennsylvania law makes no allowance for such address sharing, and requires complete blocking of all sites residing on the same address or servers. Talk about overkill!
More Trouble for ISPs
In another action involving Internet Service Providers, a federal judge recently ordered Verizon Communications to disclose the identity of an alleged peer-to-peer user in a case brought by the music industry. The Recording Industry Association of America brought suit against Verizon under the Digital Millennium Copyright Act, (“DMCA”), forcing the ISP to reveal the name of a Kazaa subscriber who has allegedly shared hundreds of music recordings. United States District Judge John Bates ordered the release of the name in this case which is widely viewed as a “test case” for online privacy.27 Various civil liberties groups have complained that the DMCA procedure allowing a turbocharged subpoena process to obtain copyright infringers’ names violates consumer privacy.28 Verizon plans to mount an appeal, citing a concern that the decision could open the floodgates to copyright holders sending numerous subpoenas to ISPs seeking the identities of subscribers.29 This case pits important civil liberties concerns against the rights of music and video producers. Numerous advocacy groups including the Electronic Frontier Foundation, Consumer Alert, the Electronic Privacy Information Center and the National Consumers League, filed briefs in the case as amici curiae. ISPs could be flooded with thousands of subpoena requests for user information if Verizon looses the appeal.
Disappearing Civil Liberties Act
You thought the Patriot Act was bad – get ready for Patriot Act II. The Bush administration is allegedly preparing a sweeping, comprehensive sequel to the United States Patriot Act which will ramp up the government’s intelligence-gathering powers, and allow increased surveillance and law enforcement prerogatives, while at the same time decreasing judicial review and the public’s right of access to information about the activities.30 The bill has apparently been drafted by Attorney General John Ashcroft, and is entitled the “Domestic Security Enhancement Act of 2003.” Although it has not been officially released to the public, rumors have been circulating about the existence of the proposed bill for months. One university law professor who has reviewed the draft legislation claims that it “raises a lot of serious concerns.”31 Apparently, the law drastically expands law enforcement powers and authorizes secret arrests, new death penalties, the creation of a DNA database based on “suspicion,” and the ability to eliminate American citizenship from people who belong to or support disfavored political groups.32 Speculation has been circulating that Ashcroft has been waiting for the right time to introduce the legislation, such as when the war with Iraq has begun, or a another terrorist strike hits.
In a last-ditch effort to save what’s left of our civil liberties, the ACLU has mounted an unprecedented appeal to the United States Supreme Court from a decision of the super-secret Foreign Intelligence Surveillance Act (“FISA”) Appeals Court. (That last line sounds like something straight out of Orwell’s 1984.) This court’s recent ruling reversed a trial court decision which had initially invalidated some of the Justice Department’s new surveillance procedures allowed by the USA Patriot Act.33 The appeals court had never met before, largely because the trial court almost always grants the surveillance request, and there is no opposing party in these proceedings.34 The appeals court reversed the strongly worded trial court decision, originally condemning the FBI for misleading the FISA court in 75 separate instances.35 The appellate court decision granted the Justice Department wide leverage to expand the use of secret surveillance for domestic law enforcement purposes. While there is no established procedure for allowing the ACLU to intervene in these proceedings, it is hoping that the United States Supreme Court will hear the appeal. Here’s hoping for the long shot to come in.
The Russian equivalent to Larry Flynt has insisted that his country’s adult Internet industry needs to be cleaned up. Sergei Pryanishnikov has demanded that the Russian Parliament establish a clear definition of pornography to determine what is and what is not legal, so that he can conduct his business without having to pay bribes.36 The lack of clarity in Russia’s pornography definitions invites the intervention of law enforcement, who frequently take a cut, according to the story. Article 242 of the Russian Penal Code outlaws “illegal” creation of pornography, but implicitly allows it when it is “legal.”37 Pryanishnikov wants a clarification “so as to put an end to police corruption.” We could use the same thing here in the States.
Yahoo! is Kosher
Former Yahoo! President, Timothy Koogle, must have been on pins and needles awaiting the outcome of his criminal trial in a French court last month. Koogle faced up to five years in jail and a fine of almost $50,000 if convicted on charges brought by French authorities as a result of the sale of various Nazi memorabilia on Yahoo.com. Ultimately, however, the French court acquitted the former executive, finding that Yahoo! did not condone or praise Nazism, nor did it shed favorable light on the policies of Adolph Hitler by selling collectible items from the Third Reich.38 The ruling was hailed as a victory for campaigners for Free Speech on the Internet. In November 2002, a French court ordered Yahoo! to block French access to certain Websites offering the material for sale, however a United States judge later ruled that Yahoo! was not bound to tailor its Websites to French laws given the importance of First Amendment rights in the United States. Although Yahoo! prevailed in both the United States and French court proceedings, it still banned the sale of most Nazi memorabilia.39 The “chilling effect” works even from abroad.
Talk My Picture
The new breed of cell phones with built-in digital cameras are the new tool used by voyeurs to take unauthorized photos of people for adult Websites, according to recent reports.40 These readily disguisable cameras have been taken inside gyms, health clubs and bathrooms to capture individuals in compromising positions across Central Florida.41 Images can then be quickly emailed and posted on adult Websites. Several individuals have already been prosecuted under Florida’s anti-voyeurism law. For their part, cell phone manufacturers claim that phones are not meant for illegal use. Attractive females are being warned to look around before picking up the soap in the shower at the local gym.
Woman Must Give Up Her Toys
A Haynesville, Texas woman charged with promotion of “obscene devices” as a result of her possession of a trunk load of sex toys has agreed to surrender the erotic items in exchange for dismissal of the obscenity charges.42 Such devices are illegal only in Texas and a handful of the southern states. Cathy Grubbs was pulled over for drunk driving last month and law enforcement discovered a box containing seventeen items described by law enforcement as “obscene devices.” Such devices are illegal only in Texas and a handful of the southern states. As part of the plea agreement, Grubbs will also admit to a drunk driving charge. The allegation that sexually explicit devices are illegal came as a surprise to the company distributing the items, Slumber Party, Inc.43 That news may come as a surprise to a good percentage of the United States population, given recent statistics showing that the sex toy industry is a multi billion dollar business.
New Virtual Child Porn Law
The feds are at it again, trying to fix the broken “virtual child porn” law declared unconstitutional by the United States Supreme Court last year. The new bill is called the “Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003” (PROTECT Act). It has passed the Senate, and was referred to the House Committee on the Judiciary on February 25, 2003. The bill raises a whole host of issues potentially affecting the adult Internet industry, including enhanced penalties for Records Keeping violations, which will be addressed in future Updates if and when the bill passes.
Update Finally Has A Home
One final note, this Adult Industry Update is now available on its own Website: www.AdultIndustryUpdate.com. On the site, users will be able to access the current issue, along with all back issues, dating back to October 1998. Users can also sign up to receive the Update along with breaking news stories affecting the adult industry by email. Check it out now at: www.AdultIndustryUpdate.com.
Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. 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, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”
1 D. Frick, “Pornography in Retreat,” The Position (February 24, 2003).
4 Id., citing: Mark Kromer of The Nation.
6 Id., quoting Inside.com.
7 D. Miller, “Internet Company Offers Free Porn for U.S. Troops,” AVN.com (January 28, 2003).
9 “Suspicious Package Sent to Ashcroft Ends Up Being Porn,” TheMilwaukeeChannel com (February 10, 2003).
10 K. Stewart, “‘Porn Czar’ Job Gets the Ax,” The Salt Lake Tribune (January 15, 2003).
13 M. McCain, “Grand Jury Declines to Indict Motel Owner on Porn Charges,” The Cincinnati Enquirer (February 6, 2003).
16 R. Sylvester, “Local Man’s Obscenity Plea Almost Unheard Of,” The Wichita Eagle (February 17, 2003).
20 E. Varon, “Bill Would Double Budget to Fight Internet Child Pornography,” CNN.com (February 2003).
22 “Plan to Block Porn Sites Sparks Outrage,” CNN.com (February 21, 2003).
26 T. Bridis, “Pennsylvania Forces ISPs to Block Access to Porn Websites,” Salon.com (February 19, 2003).
27 D. McCullagh, “ISP Ordered to Identify Kazaa User,” MSNBCNews.com (January 21, 2003).
30 C. Lewis & A. Mayle, “Son of the Patriot Act,” The Public i (February 7, 2003).
32 Id., quoting: Dr. David Cole, Georgetown University Law Professor and Author of “Terrorism and the Constitution.”
33 R. Singel, “ACLU Challenges Wire Tap Decision,” Wired News (February 2003).
36 M. Viatteau, “Russia’s Porn King Makes Legal Demands,” iAfrica.com (February 11, 2003).
38 “Ex Yahoo! Chief Acquitted Over Nazi Sites,” CNN.com (February 2003).
40 “Report: Voyeurs Using Phone Cameras to Snap Photos,” MYCFNNow.com (February 19, 2003).
42 J. Lynch, “Sex Toy Dealer Ordered to Give up Toys, Cox News Service (January 16, 2003).