The Realities and Delimmas of Federal Sentencing Guidelines for Obscenity Prosecutions

Think you would never cop a plea?

Think you would rather fight for your rights in a jury trial?


The Realities and Delimmas of Federal Sentencing Guidelines for Obscenity Prosecutions


Weston, Garrou & DeWitt

This article deals with an unpleasant topic: sentencing exposure for obscenity- based prosecutions. No adult webmaster or adult entertainment producer or distributor likes to obsess about the possibility of going to federal prison.

However, with the Justice Department’s public confirmation of the upcoming obscenity crackdown on Internet content,[1] this unpleasant prospect has taken on a new importance. With 32 prosecutors, investigators and FBI agents spending millions of dollars to bring obscenity cases to courthouses across the country,[2] it is likely that one or more adult webmasters or content producers will face the risk of being sentenced to a substantial amount of time in a federal penitentiary. As discussed below, most of those who actually receive such sentences will be as a result of a voluntary agreement to accept a certain negotiated sentence as opposed to rolling the dice at trial; in other words, a plea bargain. The United States Sentencing Guidelines are so severe that they provide unfortunate but substantial motivation for indicted defendants to accept responsibility for their actions and plead guilty to certain offenses, as opposed to exercising their right to a fair trial before a jury of their peers. So how much time would a typical webmaster or adult entertainment producer have to serve on the inside if he or she were prosecuted for common obscenity-related offenses and either plead guilty or lost at trial? While each case is different, some common themes tend to run through obscenity cases.

As mentioned above, sentences in the federal system are calculated using the United States Sentencing Guidelines (USSG or the Guideline(s)). This system uses a number of factors to determine a Level, or numerical score. This number, or Level, then places the individual on a line in a matrix which, when factored to include prior criminal record, if any, results in a range of incarceration that sets a minimum and maximum period to be served.[3] The system of determining what the guidelines call the offense level is somewhat complicated, removing human characteristics and considerations and replacing them with analysis of behavior and income in a fashion the IRS would envy. The analysis of any conviction

begins with what is called a base offense level calculation that is dependent on the particular crime charged. For example, the base level offense for distribution of obscene materials is 10.[4]

This is only a beginning point in the calculations. Other factors are then applied. For many convictions, including obscenity, the money earned is used to increase the offense level. Under a concept of relevant conduct this will include not just what the person entering the plea made, but can be expanded to all income (not just profit) from all related sources by all persons involved. After the offense level is determined there are additional factors that can be applied, or that could result in reductions in some cases. For example; a person who not only pleads guilty, but accepts the allegations without minimizing or shifting blame, can receive up to three levels in reduction for acceptance of responsibility.On the other hand, a person who supervises others can receive up to four levels enhancement for being a supervisor or leader. To show how this might work, some potential scenarios are outlined below. Each scenario will result in a Guidelines Calculation that the government is likely to assert and which will usually be accepted by the probation department, resulting in a sentencing range expressed by certain a number of months; for example 37 to 46 months in prison. The judge makes the final determination, in every case, as to whether the defendant should be sentenced at the lower or higher end of the range or somewhere in between, with broad discretion as to the specific sentence, so long as it falls within the permitted range. Under certain very rare circumstances, the judge can choose to depart upwards from the permitted range, so long as legally sufficient reason is provided for such upward departure. In one recent federal obscenity case handled by our firm, the judge threatened to depart upwards by a full five levels given the egregiousnature of the criminal conduct involved in that case. For those readers that are curious about this egregious criminal activity, it involved the sale and distribution of a single adult videotape depicting adults involved in fetish activities. Ultimately, the judge was persuaded against any upwards departure.

While the court has the ability to depart upwards and impose a harsher sentence than contemplated by the Guidelines, under the Feeney Amendment to the PROTECT Act, passed in April, 2003, courts are no longer as free to depart downward and provide a more lenient sentence in obscenity cases.[5] It should be noted that the following scenarios are those we expect the government to assert. There are credible defenses that can and will be raised in most cases to the application of many if not all of the enhancements and nothing in the following should suggest that the authors, or our law firms, agree that such calculations are correct. None-the-less they represent what a probation department may find correct and what a sentencing judge may well feel he is forced to impose. As noted in the recent case of United States v. Weldon Angelos, judges under current law often find themselves forced to impose sentences that they find to be overly harsh, irrational and unfair. With that in mind, consider the following typical scenarios:


The company and chief operating individuals for an adult content Website are charged with multiple counts of distribution of obscene materials in Salt Lake, Utah. There is a second indictment in Lexington, Kentucky.

The site has been operating for two years. All revenues are derived from memberships and downloads. The average monthly gross income to the site is


The site contains movies that can be streamed or downloaded. There are also individual photo sets that can also be viewed or downloaded, as well as forums for discussion and links to other adult sites (several of which are also owned by the owners of this site).

The Company created a portion of its content.

The material is mainstream and does not intentionally contain bizarre content.

All depictions are of adults.

The Company principals do not have prior criminal records.


A plea is negotiated in either location to one count from each indictment with the government agreeing to maximum acceptance of responsibility.[6] The maximum statutory sentence is 10 years (5 years for each count). Based on the Guideline, the following offense level (numerical score) would be applied:

  1. Base offense level +10

  2. Value of distribution is set at $720,000, total gross

for the company over the two years. +14

  1. No enhancement for organizer or leadership 0

  2. Maximum acceptance of responsibility 3

  3. Total offense level. 21

With no criminal history 37-46 months in prison.

  1. If the individual is determined to be a leader, organizer or manager and/or directed the activity of at least one other person, add an enhancement

for organizer or leadership: +2

  1. New total offense level. 23

With no criminal history 46-57 months in prison.

  1. The government claims that ONE image out of about 10,000 depicted a person bound in ropes. Even though not the subject of a conviction, this image comes in under relevant conduct because

this Guideline groups behavior and would include

all adult material sold whether the subject of conviction

or not. Add an enhancement for sadomasochistic material: + 4

  1. New total offense level. +27

With no criminal history 70-87 months in prison.


No plea is taken. The case goes to trial in one location and there are convictions on at least one count that the jury finds particularly offensive. The jury does not convict on most of the counts, and the second indictment is dropped (Yeah, this happens a lot). There is testimony of the involvement of at least one other person who took direction on at least one occasion. The maximum statutory sentence would be 5 years for each obscenity conviction. In addition, if other charges were included the statutory terms for those sentences could be used to increase the sentence for the obscenity conviction even if completely unrelated.

  1. Base offense level +10

  2. Value of distribution is set at $720,000, total gross

for the company over the two years. +14

  1. Enhancement for organizer or leadership +2

  2. Total offense level 26

With no criminal history 63-78 months in prison unless this would exceed the statutory maximum.

  1. The government claims that ONE image out of about 10,000 depicted a person bound in ropes.

Note, the government used the same image as before, even though it was not the subject of conviction. It could even have been one of the acquitted counts,

but if the judge decides by a preponderance of the evidence [7] that it is obscene he can include it.

Enhancement for sadomasochistic material: + 4

  1. The government also claims that the organization involved five or more persons. Additional enhancement for organizer or leadership adds 2 more points in addition

to the two specified above: +2

  1. New total offense level: 32

With no criminal history 121-151 months in prison, unless this would exceed the statutory maximum.


The company goes to trial in both locations and loses both cases.

Same as above: with no criminal history 121-151 months in prison Each case would be exactly the same as above. There would be two separate sentences; however, the good news is that because of relevant conduct and the fact that BOTH cases were based on the same amount of money, the sentences would run concurrently. The danger, of course, is that if there were a disparity in the sentences, the greater sentence would then govern.The above examples illustrate some salient points:

1) The Sentencing Guidelines create an incentive for pleading guilty before trial. While all United States citizens have a right to go to trial when charged with a criminal offense, that decision is accompanied by some substantial costs in terms of prison time if the defendant is ultimately found guilty. Under the USSG, an individual who accepts responsibility for his or her actions and tenders a guilty plea to one or more of the offenses charged will normally receive a three-point reduction in sentence, which usually shaves off many months in prison.

Additionally, the prosecutors may take less aggressive positions on enhancement issues if the defendant agrees to >play ball= with the prosecutor. Thus, each adult webmaster charged with obscenity will at some point be faced with the critical decision of whether to accept responsibility and plead guilty, or roll the dice with a trial and hope for the best with the people who chose to show up for jury duty that day. Credit for acceptance of responsibility, second only to lack of resources, is the primary reasons why most indicted defendants in the federal system plead guilty instead of going to trial. (Although it should be noted that pleading guilty alone may not be sufficient for acceptance of responsibility. The government has been known to threaten to object to the reduction where the individual does not agree with the government’s view of the facts.) In addition, the government will likely provide significant motivation for the defendants to enter a

plea of guilty to some offense, by charging numerous additional offenses, or threatening to add additional charges, if the defendant refuses to plead guilty. [8] Potentially, an adult webmaster or producer may be facing charges relating to Section 2257 violations, credit card fraud, racketeering, money laundering, mail fraud or wire fraud, in addition to the standard obscenity charges. Our firm has been involved in cases where the government also threatened prosecution of unrelated offenses, such as tax evasion or illegal weapons possession, unless the defendant pled guilty to the obscenity offense.

Alternatively, or in addition, the defendant may be looking at defending charges in multiple jurisdictions throughout the United States based on the same Website material, if the government decides to bring charges in more than one jurisdiction. This has been a common tactic in the past, although it has been somewhat curtailed by federal court rulings.[9]

Sometimes, the government will be inclined to dismiss or drop one or more of

these additional charges in an effort to persuade the defendant to plead guilty to the offense that the government is most concerned about. This can sometimes be difficult when charges are brought in several different jurisdictions, with each jurisdiction desiring its own pound of flesh.

  1. Your cooperation is greatly appreciated. The government likes cooperative defendants. It makes the job much easier. U.S. Attorneys have a life too, and they appreciate anything that makes their prosecution easier, less time consuming, and more effective. This all raises the issue of ASubstantial Assistance.@ The U.S. Attorney is empowered with the ability to ask the court for a reduction in the sentence either before or after sentencing. As a result defendants often rack their brains in the attempt to come up with useful information for the government, information which may be utilized in future prosecutions or investigations. This information is proffered to the prosecutor in an effort to convince him or her that the cooperation and information is useful, and should provide the basis for a sentence reduction under the Sentencing Guidelines.

Most U.S. Attorneys offices have a limit of three levels decrease on such a motion, although once filed, the judge is not bound by their recommendation. Nonetheless, while there is no guarantee that such information or assistance will result in any sentence reduction, many defendants who are looking at many months in prison will be all too willing to provide whatever information they can, if that information will shave a few months off of their already unfathomable sentence. This is often a government motivation to include people in the indictment that they might not otherwise charge. They count on the pressure created by the charges to create witnesses who are anxious, even desperate, to please. Despite the tough talk in the industry about never cooperating with the feds or turning state’s evidence, this may be an all too common scenario once the prosecutions begin in earnest, and the reality of federal sentencing hits home.

  1. Money changes everything. Most adult webmasters and adult content producers are in this business to make a living. They seek to generate as much revenue as possible, under their current business plan. However, with the sentencing guidelines, the more revenue you gross, the more severe the sentence. While this is not a reason to intentionally decrease your revenue, it is important to note. It should also be mentioned that any revenue, or other assets associated with the business, will likely be forfeited to the government in connection with any sentence. All such assets will be frozen immediately upon arrest, until final disposition of the case. On a positive note, if you don=t have the money to hire the attorney you want, the government will be happy to provide you with one free of charge.

  1. It is better to follow than to lead. The USSG impose enhanced penalties upon those individuals who can be fairly categorized as the leaderor organizer of

other individuals who participate in conduct that violates United States law. This can be based on as little as some direction to a single person, but can lead to increased punishment if there are more people and larger leadership roles. The more that one is giving orders, making decisions, and holding oneself out as the head of a particular business venture, the greater the likelihood is that additional points will be added to the Guidelines Calculation.

  1. Hurt me, hurt me… hurts you. While most types of obscene adult materials are treated the same for purposes of the Guidelines Calculation, the one exception is any materials that depict sadomasochistic activities. Sadomasochistic material raises the Guidelines Calculation by a full four levels. [10] Thus, when evaluating whether to add that S&M fetish gallery, consider the risk created. Of course, the fact that all models depicted in the images consented to that activity is of no consequence from a sentencing perspective. Additionally, the view of the government respecting what is S&M material might vary greatly from what is commonly understood in the industry. Any depiction demonstrating force, pain or restraint can be so construed. Important to note here is that the authors do not recommend any sort of censorship of erotic materials. We have defended all manner of sexually explicit media, from tame to extreme, and will continue to do so for our clients. However, we encourage as much education as possible to allow intelligent decision-making when it comes to publication of adult materials.

  1. Where Did That Come From? Remember, the government will not select the best of the material provided on the web site. They will not even feel constrained to select material that is representative of the website as a whole. They will pry into every nook and cranny (we had that case too) to find the material they believe will most offend the jury and the judge. And if they can find anything that looks like under aged models, you know they will grab for that. Know what is on the site. You will be held responsible for it even if you didn=t know it was there. Of course, a good argument exists that the website should be taken >as a whole= in obscenity prosecutions, and all content posted thereon should be considered in determining whether the site is an obscene work. However, the federal government does not share this view, as evidenced by the current prosecution of Extreme Associates in the Western District of Pennsylvania, based on individual video clips posted on its site.


This look at the USSG is sobering and intimidating. This article is not designed to spread fear throughout the industry, but rather, to educate on the realities of federal prosecution, given the specific threats that have been launched of late.

The prosecutor ultimately controls the offense charged, and the industry needs to recognize and respect that. In certain cases, the offense charged can be negotiated; particularly where competent legal representation is brought in before a grand jury returns an indictment on specific charges. In other cases, certain counts may be dropped or never charged as part of plea negotiations. Of

course, all adult webmasters and adult entertainment producers hope that they are never charged with any federal offence. If they are charged, they hope that they will prevail in a trial. However, awareness of the realities of the sentencing issues in federal court is a realistic necessity given the current political climate.

Note: For you prosecutors reading this article, do not cite it for the proposition that any of this is correct and valid; the above reflects DOJ’s agenda and position, not that of the authors.


[1] L. Sullivan, Administration Wages War on Pornography, (April 6, 2004).

[2] Id.

[3] On October 4, 2004, the United States Supreme Court heard argument on a constitutional challenge to the Sentencing Guidelines. However, one likely outcome even if the Sentencing Guidelines are found to be unconstitutional is that they would still serve as a non-binding guide to sentencing judges.

[4] U.S.S.G 2G3.1.

[5] PROTECT Act at ‘ 513(a)(2). But see United States v. Detwiller, where Judge Panner found the PROTECT Act violates the separation of powers clause because it impinged to far on the discretion of the judge.

[6] Under the Rules of Criminal Procedure, in circumstances where a plea is being negotiated one jurisdiction can agree to the transfer of its case to another jurisdiction. This only works in situations were there is to be a plea. The advantage is the ability to dispose of more than one case in a single proceeding, in a single state, and before a single judge.

[7] One of the issues presently before the Supreme Court is whether the preponderance of the evidence standard is allowable for sentencing. There is support for this standard being increased to a reasonable doubt standard.

[8] An example receiving national press is the United States v. Weldon Angelos. Mr. Angelos professed his innocence and turned down a plea agreement to serve 16 years in prison. The government superceded the indictment adding charges that could send him to prison for over 100 years. Even though he was acquitted of some of the most serious charges, the judge was constrained by law to impose a sentence of 55 years on Mr. Angelos. The constitutionality of that sentence now starts it way through the courts.

[9] PHE, Inc. v. United States Department of Justice, 743 F.Supp. 15 (D.D.C. 1990).

[10] Id.

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, or AOL, Screen Name: Webattorney.

Jerry Mooney is of counsel to Weston, Garrou & DeWitt, and maintains offices in Salt Lake City and Los Angeles. Mr. Mooney has been an active criminal defense attorney for over 30 years, is a frequent speaker to attorney organizations on federal sentencing issues, has served on the American Bar Association Committee on the Federal Sentencing Guidelines, and is a member of the advisory counsel to Families Against Minimum Mandatory Sentences (FAMM).

Adult Industry Update – November 2004


November 2004

By: Lawrence G. Walters


The fundamentalist extremists did not waste any time in pushing their agenda after the re- election of George W. Bush to a second term as President of the United States. In less than 10 days (and with little notice to anyone), they started holding Senate hearings on how adult materials forever change the human brain’s biological composition, and are more addictive than heroin.1 The Hearing was stacked with anti-porn activists with questionable credentials, and nobody from the adult industry or the Free Speech community was invited to present a balanced view.2 Incredibly, the Committee members kept a straight face while they were dutifully informed how “science” shows that pornography is eroding family values, diminishes the marriage commitment, the desire to have children, and satisfy one’s sexual partner.3 All the traditional anti-porn arguments were trotted out, including the claim that erotica is a catalyst to domestic violence and rape, reduces respect for women, and promotes a distorted view of sexuality.4 However, a slew of new statistical and ‘scientific’ arguments were tried, including:

  • *70% of hits on adult websites occur between 9 & 5 on business computers.
  • *40% of viewers of adult materials will lose their spouse as a result of pornography.
  • *27 – 40% of pornography viewers will lose their jobs as a result.
  • *50% of pornography viewers will have financial difficulties as a result.
  • *Pornography viewers are more likely to commit crimes like prostitution, sexual violence, rape and incest.
  • *There is no known benefit to use of pornography (a personal favorite!).
  • *Porn addicts relapse more than other addicts, and there is no detox for porn addicts.
  • *Adult content producers tailor their products to consumers based on instantaneous feedback obtained, thereby creating the equivalent of a ‘designer drug’ in the form of custom made porn.

Of course, little if any real scientific proof is offered for any of these controversial conclusions. For example, there is no direct proof that consumption of adult materials was the sole factor affecting those who lost their jobs or spouses. Many outside influences could have contributed to such social circumstances. Additionally, is it possible that the difference in global time zones could have contributed to the spike in hits during “9am – 5pm” on business computers? It’s always the middle of the night somewhere, and it is doubtful that researchers considered that substantial traffic may be coming from locations where the users were in a different time zone. More importantly, experts have universally concluded that many factors cause individuals to commit sexually deviant behavior, such as rape, molestation, or incest.5 Those factors include poverty, the offender’s family relationships, and various community factors.6 The one factor that sexual offenders have in common is a skewed belief system in which they convince themselves that they are entitled to a certain form of sexual gratification, or that their actions do not really harm their victims.7 There is not one factor, such as consumption of pornography, which leads to sexual deviance, but rather, multiple developmental pathways that lead sexual offenders to perpetrate.8 Interestingly, however, alcohol has been found to play a much more significant role in crime, including sexual assault, than, for example, pornography.9 The Senate hearings involved no discussion of reinstating Prohibition, however.

More disturbing than the junk science being bantered about this hearing was the short shrift given to the First Amendment’s undisputed protection of sexually explicit materials. A clear effort was being made by the witnesses testifying at the hearing to devalue the protected status of adult materials. Suggestions were made that pornography was not ‘merely an expression’ but was actually a harmful, addictive product which should outweigh any protection it may have as expression.10 This is dangerous ground to travel, and seeks to uproot decades of First Amendment jurisprudence protecting erotic material from government censorship.

So what was the purpose of this dog and pony show? The stated purpose was to establish a basis for Congressional financing for the research of “porn addiction.”11 Apparently, the lengthy testimony of this anti-porn crowd was not enough, and the Senate intends to spend more of our tax dollars trying to come up with evidence that pornography is harmful; a conclusion that has eluded scientists ever since the Meese Commission. Parenthetically, one of the witnesses dug up for this hearing, Dr. Judith Reisman, actually testified before the Meese Commission on the issue of cartoons in adult magazines.12 But the real intent of this whole effort is much more insidious, in this author’s opinion. Most likely, the government is attempting to justify the regulation of human sexuality, through obscenity laws, or harmful materials regulations, through scientific evidence. Until now, most courts simply accepted, as a fundamental truth, the necessity of some regulation of adult media; primarily on moral grounds. As that justification has begun to fade, given society’s current preoccupation with forensic evidence due to Law & Order and other similar shows,13 the censors are desperately trying to maintain current sex laws with this kind of supposed scientific ‘proof.’ The continued validity of any legitimate governmental interest in regulating private sexual activity has come into serious question with the Lawrence v. Texas14 decision by the U.S. Supreme Court, striking down sodomy laws across the country, and other sex regulations may be next, including obscenity laws. In fact, Justice Scalia observed that under the reasoning of the court, laws regulating prostitution, bigamy and obscenity should likewise be invalidated.15 Therefore, the pressure is on for the thought police to come up with some ‘evidence’ to demonstrate the existence of a ‘compelling governmental interest’ in order to justify restrictions on protected speech, under the ‘strict scrutiny’ test used by the courts in such instances. To the extent they can portray erotic materials as causing the same kind of harm as drugs, they’ve won the war. Every effort must be made to beat back this tide of falsehoods that threatens to justify censorship of adult materials.

Ashcroft Out, Gonzales In

As Bush’s Cabinet departed in droves recently, the adult industry buzzed with speculation regarding how Attorney General John Ashcroft’s replacement might approach regulation of erotic materials. The jury is still out, so to speak, as Alberto F. Gonzales has not been terribly vocal in regards to his views on sexually explicit content. It is clear that he falls squarely into the conservative camp, and was the chief architect of the justification for treating terrorists as enemy combatants, to whom the Geneva Convention does not apply, which led to the torture of prisoners at Abu Graib detention facility in Iraq.16 He was also instrumental in ending the American Bar Association’s involvement in commenting on federal judicial appointments.17 The ABA was perceived as too liberal a group to have any viable role in the appointment process, and not their recommendations are given very little weight. Fortunately, Gonzales’ focus in the past has been on international issues such as terrorism, so it is hoped that domestic issues such as sex industry regulation remain out of the limelight for him, as the United States is still embroiled in fighting the War on Terrorism.

2257 Regulations . . . Where are you?

The period for public comment on the proposed regulations pertaining to 2257 records keeping compliance closed on August 25, 2004, but the regulations have not been published in the Federal Register as of the date this article goes to print. The adult industry remains on pins and needles as various groups posture to challenge whatever regulations are passed, and webmasters scramble to comply with perceived new obligations such as obtaining copies of age records compiled by primary producers. The adult Internet industry remains in limbo as to what is required to comply with 2257 until the final regulations are passed, and the anxiety level remains high in light of the results of the presidential election. A second term Republican generally spells bad news for the adult industry, as Bush is no longer concerned with re-election. Some will remember the Meese Commission which occurred in a second term Republican Administration. Few webmasters have initiated full compliance with the proposed regulations before they are formally adopted, given the onerous requirements, instead choosing to wait and see what provisions actually make their way into the Federal Register. Now that the election is past the Bush Administration, they have little to fear, justifying any further delay in adopting a tough set of regulations. However, given the industry’s strong outpouring of criticism against the proposed regulations, Department of Justice lawyers may be reviewing and editing the proposed regs in the attempt to develop a more defensible version before they ‘go live’ with the amendments.

Obscenity Update

Two important obscenity cases progressed this month: Defense attorneys asked the U.S. District Court to dismiss the federal government’s prosecution of Extreme Associates, arguing that the right to watch pornographic or even obscene materials in the privacy of one’s home means nothing if the government can criminalize the means of getting that content in the home.18 The court did not immediately rule on the motion; accordingly, many important issues remain undecided in this first case involving application of obscenity laws to the transmission of allegedly obscene materials across the Web. Parenthetically, Extreme Associates recently implemented this author’s age verification device, the BirthDateVerifier to screen users from access to its free tour areas.19

In another case, Barbara Nitke and the National Coalition for Sexual Freedom began its trial in New York in the case it filed against the Department of Justice, claiming that sections of the Communications Decency Act (CDA) prohibiting “obscene” transmissions are unconstitutional as applied to Internet content.20 The court is considering whether the failure to define the ‘community’ whose standards are to be applied in resolving the obscenity question, renders the CDA unconstitutional given the global nature of the Internet.21

Obscenity cases continue to be filed throughout the country. The latest involved the owner of a video store in Bastrop, Louisiana, based on the sale of adult novelties (which, of course, are not protected by the First Amendment). The district attorney claimed, “State law is very clear about what constitutes obscene material,” and “there is no question the merchandise… meets those requirements.”22

At Least it’s not China

China shut down 1600 Internet cafes in the last few months, and levied over $12 million dollars in fines, against those cafes that allowed children to play violent or adult-only games and other violations.23 Thus far, Internet cafes in the U.S. remain open, but it’s still early in Bush’s second term.

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, or AOL Screen Name: “Webattorney.”

1 Notes from the Hearing held on November 11, 2004, before the Senate Committee on Commerce, Science and Transportation, entitled: The Science Behind Pornography Addiction.

2 Kernes, Mark. “U.S. Senate Committee Hears Bad Science,” (November 22, 2004), found at:

3 Notes from hearing, supra.

4 Id.

5 Collar, Jim. “Many factors create sex abusers: Reasons behind deviant sexual behavior complicated,” (November 15, 2004).

6 Id.

7 Id.

8 Id.

9 Id.

10 Notes from hearing, supra.

11 Ross, Scott. “Senate Subcommittee Holds Hearing on Porn Additction,” (November 18, 2004), found at:

12 Collar, Jim. “Many factors create sex abusers: Reasons behind deviant sexual behavior complicated,” (November 15, 2004).

13 Walsh, Jim. “Prosecutors: Crime shows blur reality,” (August 29, 2004); found at:

14 _ U.S. _, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

15 Id., 123 S.Ct. at 2495 (J. Scalia, dissenting).

16 Kernes, Mark and Scott Ross. “Incoming Attorney General Supported Abu Graib Torture, Government Secrecy About 9/11,” (November 10, 2004), found at:


17 Id.

18 Ross, Scott. “Sirkin Argues Obscenity Laws Unconstitutional in Extreme Associates Case,” (November 2, 2004), found at: &Content_ID=203405

19 “Extreme Associates Implements Birth Date Verifier™ Age Check System,” (September 13, 2004).

2257 Statute

18 U.S.C.A. § 2257
United States Code Annotated Currentness

Title 18. Crimes and Criminal Procedure (Refs & Annos)
Part I. Crimes
Chapter 110. Sexual Exploitation and Other Abuse of Children (Refs & Annos) § 2257. Record keeping requirements

(a) Whoever produces any book, magazine, periodical, film, videotape, or other matter which–

(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and
(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

(b) Any person to whom subsection (a) applies shall, with respect to every performer portrayed in a visual depiction of actual sexually explicit conduct–

(1) ascertain, by examination of an identification document containing such information, the performer’s name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations;
(2) ascertain any name, other than the performer’s present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and

(3) record in the records required by subsection (a) the information required by paragraphs (1) and (2) of this subsection and such other identifying information as may be prescribed by regulation.

(c) Any person to whom subsection (a) applies shall maintain the records required by this section at his business premises, or at such other place as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times.

(d)(1) No information or evidence obtained from records required to be created or maintained by this section shall, except as provided in this section, directly or indirectly, be used as evidence against any person with respect to any violation of law.

(2) Paragraph (1) of this subsection shall not preclude the use of such information or evidence in a prosecution or other action for a violation of this chapter or chapter 71, or for a violation of any applicable provision of law with respect to the furnishing of false information.

(e)(1) Any person to whom subsection (a) applies shall cause to be affixed to every copy of any matter described in paragraph (1) of subsection (a) of this section, in such manner

and in such form as the Attorney General shall by regulations prescribe, a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located.

(2) If the person to whom subsection (a) of this section applies is an organization the statement required by this subsection shall include the name, title, and business address of the individual employed by such organization responsible for maintaining the records required by this section.

(f) It shall be unlawful–

(1) for any person to whom subsection (a) applies to fail to create or maintain the records as required by subsections (a) and (c) or by any regulation promulgated under this section;
(2) for any person to whom subsection (a) applies knowingly to make any false entry in or knowingly to fail to make an appropriate entry in, any record required by subsection (b) of this section or any regulation promulgated under this section;
(3) for any person to whom subsection (a) applies knowingly to fail to comply with the provisions of subsection (e) or any regulation promulgated pursuant to that subsection; and
(4) for any person knowingly to sell or otherwise transfer, or offer for sale or transfer, any book, magazine, periodical, film, video, or other matter, produce in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce or which is intended for shipment in interstate or foreign commerce, which–
(A) contains one or more visual depictions made after the effective date of this subsection of actual sexually explicit conduct; and
(B) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

which does not have affixed thereto, in a manner prescribed as set forth in subsection (e)(1), a statement describing where the records required by this section may be located, but such person shall have no duty to determined the accuracy of the contents of the statement or the records required to be kept.

(g) The Attorney General shall issue appropriate regulations to carry out this section. (h) As used in this this section–

(1) the term “actual sexually explicit conduct” means actual but not simulated conduct as defined in subparagraphs (A) through (D) of paragraph (2) of section 2256 of this title; (2) “identification document” has the meaning given that term in section 1028(d) of this title;

(3) the term “produces” means to produce, manufacture, or publish any book, magazine, periodical, film, video tape, computer generated image, digital image, or picture, or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted; and

(4) the term “performer” includes any person portrayed in a visual depiction engaging in, or assisting another person to engage in, actual sexually explicit conduct.

(i) Whoever violates this section shall be imprisoned for not more than 5 years, and fined in accordance with the provisions of this title, or both. Whoever violates this section after having been convicted of a violation punishable under this section shall be imprisoned for any period of years not more than 10 years but not less than 2 years, and fined in accordance with the provisions of this title, or both.


(Added Pub.L. 100-690, Title VII, § 7513(a), Nov. 18, 1988, 102 Stat. 4487, and amended Pub.L. 101-647, Title III, §§ 301(b), 311, Nov. 29, 1990, 104 Stat. 4808; Pub.L. 103-322, Title XXXIII, § 330004(14), Sept. 13, 1994, 108 Stat. 2142; Pub.L. 108- 21, Title V, § 511(a), Apr. 30, 2003, Stat. 684.)

Revision Notes and Legislative Reports
1988 Acts. For Related Reports, see 1988 U.S. Code Cong. and Adm. News, p. 5937.

1990 Acts. House Report Nos. 101-681(Parts I and II) and 101-736, Senate Report No. 101-460, and Statement by President, see 1990 U.S. Code Cong. and Adm. News, p. 6472.

1994 Acts. House Report Nos. 103-324 and 103-489, and House Conference Report No. 103-711, see 1994 U.S. Code Cong. and Adm. News, p. 1801.

Revision Notes and Legislative Reports

2003 Acts. House Conference Report No. 108-66 and Statement by President, see 2003 U.S. Code Cong. and Adm. News, p. 683.

References in Text

Chapter 71, referred to in subsec. (d)(2), is 18 U.S.C.A. § 1460 et seq.


2003 Amendments. Subsec. (d)(2). Pub.L. 108-21, § 511(a)(1), struck out “of this section”, and inserted “of this chapter or chapter 71”.

Subsec. (h)(3). Pub.L. 108-21, § 511(a)(2), inserted “, computer generated image, digital image, or picture,” after “video tape”.

Subsec. (i). Pub.L. 108-21, § 511(a)(3), struck out “not more than 2 years” and “5 years”, and inserted “not more than 5 years” and “10 years”.

1994 Amendments. Subsecs. (f), (g). Pub.L. 103-322, § 330004(14), struck out the subsections (f) and (g), relating to regulations and definitions, which had been enacted as part of the original enactment of this section by Pub.L. 100-690 in 1988. Amendment served to correct the results of an error in directory language of section 311 of Pub.L. 101-647 which had moved the existing subsecs. (f) and (g) to the end of the section by adding new subsecs. (f) through (i) to follow subsec. (e) without deleting such existing subsecs. (f) and (g).

1990 Amendments. Subsec. (a)(1). Pub.L. 101-647, § 301(b), substituted “November 1, 1990” for “February 6, 1978”.

Subsec. (d). Pub.L. 101-647, § 311, substituted in par. (1) “in this section” for “paragraphs (2) and (3)” and struck out par. (3), which provided that in a prosecution for violation of section 2251(a), a required element of which is establishment of a performer as a minor, proof of violation of subsecs. (a), (b), or (e) raises a rebuttable presumption that such performer was a minor.

Subsec. (e)(3). Pub.L. 101-647, § 311, struck out par. (3), which provided that in a prosecution for violation of section 2252 of this title, a required element of which is establishment of a performer as a minor, proof that the matter in which the visual depiction is contained did not contain the statement required by this section raises a rebuttable presumption that such performer was a minor.

Subsecs. (f) to (i). Pub.L. 101-647, § 311, added subsecs. (f) to (i). Effective and Applicability Provisions

1990 Acts. Section 312 of Pub.L. 101-647 provided that: “Subsections (d), (f), (g), (h), and (i) of section 2257 of title 18, United States Code, as added by this title shall take effect 90 days after the date of the enactment of this Act [Nov. 29, 1990] except–

“(1) the Attorney General shall prepare the initial set of regulations required or authorized by subsections (d), (f), (g), (h), and (i) of section 2257 within 60 days of the date of the enactment of this Act; and

“(2) subsection (e) of section 2257 and of any regulation issued pursuant thereto shall take effect 90 days after the date of the enactment of this Act.”

1988 Acts. Section 7513(c) of Pub.L. 100-690 provided that: “Section 2257 of title 18, United States Code, as added by this section [this section] shall take effect 180 days after the date of the enactment of this Act [Nov. 18, 1988] except–

“(1) the Attorney General shall prepare the initial set of regulations required or authorized by section 2257 [this section] within 90 days of the date of the enactment of this Act [Nov. 18, 1988]; and

“(2) subsection (e) of section 2257 of such title [subsec. (e) of this section] and of any regulation issued pursuant thereto shall take effect 270 days after the date of the enactment of this Act [Nov. 18, 1988].”




Washington, D.C. 20530

Docket No. CRM 103 AG Order no. 2723-2004 RIN 1105-AB 505

To: Andrew Oosterbaan, Chief

Child Exploitation and Obscenity Section Criminal Division

United States Department of Justice Washington, D.C. 20530


These comments are submitted pursuant to the above captioned proposed rule, dated June 25, 2004, 69 F.R. 35547, and relating to 18 U.S.C. § 2257.


The undersigned law firm represents many producers of still and motion pictures and print publications to which 18 U.S.C. § 2257 applies, as well as webmasters, Web hosts, Internet service providers and access providers, age verification services and distributors of such still and motion pictures in videotape, DVD, magazine and other formats, including the Internet. All of the proposed regulations apply to at least some of those clients. Following are the most significant concerns of those clients.



Enforcement of 18 U.S.C. § 2257 and the regulations thereunder promulgated by the Department was enjoined from the outset until July 3, 1995. Thereafter, the Department, in response to threatened litigation, agreed that the effective date of both 18 U.S.C.§ 2257 and the regulations promulgated thereunder would be July 3, 1995, rather than the effective dates specified therein, respectively November 1, 1990 and May 26, 1992. Because the district court conclusively established July 3, 1995 as the effective

date, which the Department publicly agreed would be uniformly applied, producers and distributors of materials made before then cannot be forced to comply with the statute and regulations retroactively.


The Child Protection Restoration and Penalties Enhancement Act of 1990 was enacted on November 29, 1990. PL 101-647, 104 Stat 4789. Compliance with 18 U.S.C.

§ 2257, according to the face of the statute, was required as of November 1, 1990. Id., § 301(b); 18 U.S.C. § 2257(a)(1).

The regulations promulgated pursuant to the Act, 57 FR 15017-01, issued April 24, 1992 established an effective date for their application as May 26, 1992. 28 C.F.R.

§§ 75.2(a, b), 75.6 and 75.7(a)(1).

On February 21, 1991, several plaintiffs filed suit in the United States District Court for the District of Columbia, challenging the constitutionality of the Act, along with an application for a temporary restraining order. American Library Association, et al. v. Thornburgh, et al., case number 91-cv-00394-SS. Five days later, the court entered a “Stipulated Order by Judge Stanley Sporkin re Non-Enforcement of the Child Protection Restoration and Penalties Enhancement Act of 1990 Until Regulations Implementing the Act become effective; allowing time for comment following publication; and extending Filing Time for all Motions and Responses.”

The regulations promulgated pursuant to the Act, 57 FR 15017-01, issued April 24, 1992 established an effective date for their application as May 26, 1992. See 28 C.F.R. §§ 75.2(a)(1-2), 75.6 and 75.7(a)(1).

Following a flurry of briefing and argument, the court in the American Library Association case granted summary judgment in favor of the plaintiffs, largely striking down the statute:

“ORDER by Judge Stanley Sporkin: granting motion for summary judgment [36-1] by plaintiff(s), denying motion for summary judgment [25-2] by RICHARD THORNBURGH, DOJ; declaring that the record-keeping and labeling provisions of the Child Protection Restoration and Penalties Enforcement Act of 1990 as applied to producers and distributors of any material that contains depictions of people under 18 years of age is constitutional; declaring that the Act as applied to producers and distributors of any material who have satisfied themselves after due diligence that such material does not contain depictions of people under 18 years of age is unconstitutional; and enjoining the defendants from

enforcing the record-keeping and labeling provisions of the Act with respect to producers and distributors of any material who have satisfied themselves after due diligence that such material does not contain depictions of people under 18 years of age.”1

The supporting opinion is published, American Library Ass’n. v. Barr, 794 F.Supp. 412 (D.D.C. 1992).

The resulting permanent injunction remained in effect during the appeal process, which ultimately resulted in some aspects of the Act being found unconstitutional, but finding that the Act in general did not offend the Constitution. Id., affirmed in part, reversed in part sub nom. American Library Ass’n. v. Reno, 33 F.3d 78 (D.C. Cir. 1994) rehearing denied (1995), suggestion for rehearing en banc denied 47 F.3d 121 (28, 1995)

cert. denied 515 U.S. 1158, 115 S.Ct. 2610, 132 L.Ed.2d 854 (1995).

The Court of Appeals received notice on June 27, 1995 that the United States Supreme Court had denied the petition for writ of certiorari on the previous day. Accordingly, the mandate of reversal was issued by the Court of Appeals on July 3, 1995.2

The effect of the issuance of the mandate of reversal was to dissolve the permanent injunction and its prohibition against the enforcement of the Act. On July 28, 1995, a hearing was held in the district court concerning the issue of enforcement of the Act with respect to activities that took place prior to the July 3, 1995 mandate, dissolving the injunction. The court found that the Department should be prohibited from enforcing the Act with respect to materials produced prior to that date. The order, in relevant part, stated:

“. . . [D]efendants shall not seek to enforce the Act against, or hold liable under the Act, plaintiff producers and distributors, their members or anyone in their chain of supply or distribution, for materials containing visual depictions made prior to July 3, 1995, provided such producers and distributors satisfied themselves after due diligence that such visual depictions are not of people under 18 years of age.”

The Department appealed from that order to the United States Court of Appeals for the District of Columbia Circuit.

1 The forgoing is according to the records of the United States District Court for the District of Columbia, case number 91-cv-0394, which records can be accessed at the PACER (“Public Access to Court Electronic Records”) Web site. See

2 The forgoing is according to the records of the United States Court of Appeals for the District of Columbia Circuit, case number 92-5271, which records also can be accessed at the PACER Web site.

Meanwhile, those in the adult industry raised same issue with respect to those that were not plaintiffs in the American Library Association litigation. The Free Speech Coalition, an adult-industry trade group not a plaintiff, threatened to undertake litigation to achieve the same result as in the American Library Association case. However, after some negotiation, Deputy Assistant Attorney General Kevin V. DeGregory wrote a letter to Paul J. Cambria, Esq., the attorney who had been representing the Free Speech Coalition in the matter, as follows:

“Dear Mr. Cambria:

“It has come to my attention that you intend to file a complaint in the United States District Court for the Central District of California challenging the constitutionality of the recordkeeping statute, Title 18 United States Code, Section 2257 (“the Act”). It is my understanding that your primary concern is that your clients be treated similarly to the plaintiffs in American Library Association v. Reno with respect to compliance obligations under the Act in the period May 26, 1992 to July 3, 1995.

“The Department will apply the ultimate judicial determination in the ALA case to your clients. Thus, if the United States pursues its appeal of the July 28, 1995 order in American Library and is not successful, or determines not to pursue the appeal, your clients’ obligations under the Act would be identical to the obligations of those explicitly covered by the July 28th order.

“I hope this proposal offers a solution to your clients’ concerns and that your proposed lawsuit proves unnecessary. Please do not hesitate to contact my office if I can provide more assistance on this or any other matter.”

On November 29, 1995, the Department moved the court of appeals to dismiss the appeal, which motion was granted on December 18, 1995.3

Since then, the entire adult entertainment industry has been laboring under the reasonable belief that the effective date of both the Act and of the underlying regulations was July 3, 1995. Numerous articles in trade publications and on Internet sites have expressed that position.4 Moreover, on November 29, 1995 Ann M. Kappler, Esq., one

3 Id., case number 95-5342.

4 E.g., Special AVN Report on the Labeling and Record-Keeping Compliance, ADULT VIDEO NEWS September, 1995, p. 265, Clyde DeWitt’s Legal Commentary, ADULT VIDEO NEWS October, 1995, Clyde

DeWitt’s Legal Commentary, ADULT VIDEO NEWS December, 1995, The Labeling and Record Keeping Law As We Now Know It, ADULT VIDEO NEWS January, 1996, YNOT News, Ask the Lawyers, April 3, 2003,, Gone Too Wild, AVN ONLINE, April,

of the attorneys in the American Library Association case, issued a memorandum to the Plaintiffs “and supporters”, announcing that the government was filing its motion to dismiss the appeal from the order concerning the effective date of the Act and its regulations.

“Once the court grants [the Department’s motion to dismiss the appeal of the order concerning the effective date], Judge Sporkin’s order will become final. Because the government has already informed interested parties that it will adopt a uniform enforcement policy, the order will apply to everyone.

“In sum, once the court grants the motion to dismiss, it will be absolutely clear that images created prior to July 3, 1995 are not subject to the recordkeeping law (regardless of when they are published, duplicated or distributed. [Emphasis in the original.]”

That memorandum was widely circulated in the adult media industry, and was relied upon universally, as was the letter from Deputy Assistant DeGregory.

There remains in place the July 28, 1995 order, prohibiting the Department from enforcing the Act against the American Library Association plaintiffs “or anyone in their chain of supply or distribution.”

Suggested Remedy

The regulations should respect that injunction, and its corresponding promise to obey it and enforce the Act along with the implementing regulations evenhandedly. Accordingly, 28 C.F.R. § 75.2(a) should be corrected by substituting July 3, 1995 in place of November 1, 1990; 28 C.F.R. § 75.2(a)(1) should be corrected by substituting July 3, 1995 in place of May 26, 1992; 28 C.F.R. § 75.2(a)(2) should be corrected by substituting July 3, 1995 in place of May 26, 1992; 28 C.F.R. § 75.6 should be corrected by substituting July 3, 1995 in place of May 26, 1992; and 28 C.F.R. § 75.7(a)(1) should be corrected by substituting July 3, 1995 in place of May 26, 1992.

2003, p. 32, The Labeling And Record-Keeping Requirements of 18 U.S.C. § 2257, ADULT VIDEO NEWS June 2003, p.305 and Knock, Knock, It’s the 2257 Man, ADULT VIDEO NEWS June, 2004, p. 279.



The underlying statute expressly states that the requirement to inspect and copy identification documents, acquire information from performers and keep and index records to be available for inspection applies to anyone who produces qualifying images which, according to statutory definition, “does not include mere distribution or any other activity which does not involve hiring, contracting for[,] managing or otherwise arranging for the participation of the performers depicted.” Both as originally enacted and as proposed to be amended, the regulations require what are defined as “secondary producers” to keep, index and make available for inspection the enumerated records, despite the clear statutory exemption for most of those so defined. The only case addressing the issue, Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), held that aspect of the regulations exceeded the Department’s statutory authority. The proposed, amended regulations, nonetheless, effectively retain the requirement that secondary producers maintain records in the same manner as primary producers, a requirement that was squarely struck down in Sundance. Additionally, a requirement that primary producers supply to all secondary producers copies of information about the performers, including identification documents typically including the performers’ residential addresses, serves no purpose but creates a significant risk that private information about the performers will become publicly available.


While anyone involved in the distribution of an image that falls within the purview of 18 U.S.C. § 2257 is required to insure that the required statement is attached, the statute commands that producers also examine identification, collect information and keep and index the records created as a result, allowing inspection by the Attorney General. Those requirements apply to “[w]hoever produces” the material in question. 18

U.S.C. § 2257(a). The statute defines “produces” as “to produce, manufacture, or publish any book, magazine, periodical, film, video tape or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the performers depicted.” 18

U.S.C. § 2257(h)(3).

However, both the original regulations and the proposed, amended regulations define producers as both “primary producers” and “secondary producers,” the latter including a large universe of functionaries engaging in an “activity which does not involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the performers depicted.” This was challenged with respect to the original regulations in Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir.1998), which held that the application of the producer requirements to “secondary producers” who engaged in an

“activity which does not involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the performers depicted” exceeded the regulatory power that Congress granted the Department of Justice. The proposed, amended regulations leave the defect found in the Sundance case materially unchanged.

Requiring webmasters and others in the chain of reproduction to obtain copies of age records is of particular concern because of understandable concern about performer privacy. Most age records contain substantial private, personal identification information such as driver’s license numbers, telephone numbers, residence addresses and, perhaps, social security numbers. The more this information is shared with third parties, the greater the likelihood that the information will fall into the wrong hands, and be used for improper purposes, such as identity theft or stalking.

Additionally, many webmasters obtain content from a large number of content producers, and have invested significant resources in establishing their online presence by displaying many gigabytes of content previously licensed from third party content producers. Given the industry-wide acceptance of the Sundance decision as the law, and its prevalence as industry standard, few webmasters have obtained copies of age records from every content producer from whom they have licensed or purchased content displayed on their websites. This new requirement would mandate that webmasters seek out age records from content producers, many of whom have moved, ceased doing business, or simply disappeared since the content was purchased. Those content producers, if they can be located, normally would have little or no incentive (and, certainly, no financial incentive) to provide the requested records. The webmaster would be forced to remove the content from display even though the content has been duly licensed and appropriate records custodian disclosures appear on the website. The practical implication of this requirement would be to immediately criminalize the display of a substantial amount of First Amendment-protected material on the Internet, because of the lack of supporting records.

Suggested Remedy

The proposed regulations, 28 C.F.R. § 75.1(c)(4) should be modified to strike the words “, other than those activities identified in paragraphs (c)(1) and (2) of this section,” so that all of the activities exempted by the statute are likewise exempted by the regulations.



Section 75.1(c)(5) of the proposed regulations defines “producer” to include “any subsidiary or parent organization, and any subsidiary of any parent organization, notwithstanding any limitations on liability that otherwise would be applicable.” This

expands the burden on organizations related to the producing organization well beyond anything authorized by the statute. The scope of this definition would impose criminal liability on, for example, a far-flung corporation that does not itself engage in any publishing activities at all, if it did not itself keep, index and allow inspection of records generated by another subsidiary of the same conglomerate which was in the publishing business a half a world away.


28 U.S.C. § 75.1(c) defines a producer as follows:

“Producer means any person, including any individual, corporation, or other organization, who is a primary producer or a secondary producer.”

28 U.S.C. § 75.1(c)(5) states:

“A producer includes any subsidiary or parent organization, and any subsidiary of any parent organization, notwithstanding any limitations on liability that would otherwise be applicable.”

As explained above, the definition of “secondary producer” broadly causes to be included in the definition of “producer” effectively anyone who makes any modification of the image to which § 2257 applies. Proposed § 75.1(c)(5) causes further and unjustifiable expansion of those upon whom the producer’s requirements are imposed. There are two points of comment concerning this, one practical and one legal.

From a practical standpoint, this stands to place burdens on corporations that the Department (or Congress, for that matter) could not possibly have intended. For example, in the circumstance of a conglomerate corporation with wholly owned subsidiaries in a variety of endeavors around the country and the globe, the fact that one subsidiary produces, modifies or reproduces so much as one image requiring compliance with § 2257 and its regulations would require the home office of the parent corporation and all of the subsidiaries around the world to have the mechanism to display the records at its office and for at least 5, and perhaps as many as 12, years, 10 hours every day.

Moreover, this section raises the question of whether, in the above circumstance, the statement must disclose each of the dozens of locations where the records are stored. But, so long as there is one location where the records can be found, the objective of the statute clearly is achieved.

From a legal standpoint, § 75.1(c)(5) violates the principles articulated in

Sundance more dramatically than the requirements imposed by the regulations on a

“secondary producer.” This further expansion of the “producer” definition, well beyond what § 2257 authorizes, cannot possibly pass muster in the courts.

Suggested Remedy

Delete 28 U.S.C. § 75.1(c)(5) of the proposed regulations.



The proposed regulations exceed the Department’s authority under the statute in additional ways. First, as with the original regulations, the proposed, amended regulations require that the disclosure statement include “the date of production, manufacture, publication, duplication, or reissuance of the matter.” Second, the proposed, amended regulations purport to partially exempt non-commercial activities. Those components of the proposed regulations exceed the authority of the statute, for much the same reasons as do the requirements imposed upon “secondary producers”, as explained above.


First, 18 U.S.C. § 2257(e)(1) requires that producers affix to every copy of any material within the scope of the statute, “in such a manner and in such form as the Attorney General shall by regulations prescribe, a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located.” Nothing in this section either requires the producer to include in the statement anything about any date or does it authorizes the Attorney General to promulgate regulations requiring that the disclosure statement include any date. Nonetheless, 28 C.F.R. § 75.6 (a)(2) requires that every statement shall contain “the date of production, manufacture, publication, duplication, reproduction, or reissuance of the matter.” None of those dates have any bearing on where the records can be located, nor do the categories of required dates further the objectives of the statute in protecting children from involvement in the production of sexually explicit material.

Second, 18 U.S.C. § 2257(a) states that “whoever produces any book . . . or other matter which . . .” is within the purview of the statute “. . . shall create and maintain individually identifiable records . . ..” The balance of the statute defines the required conduct and prohibited conduct to “any person”, without any reference to or requirement of commercial activity, and without any exemption for non-commercial activity. Nonetheless, as proposed, 28 C.F.R. § 75.1(d) states that “sell, distribute, redistribute and re-release refer to commercial distribution” of materials covered by the statute, “but does

not refer to non-commercial or educational distribution of such matter, including transfers conducted by bona fide lending libraries, museums, schools, or educational organizations.”

The terms defined in § 75.1(d) do not appear to be operative terms anywhere in the statute or regulations such that an exemption of non-commercial would be effected by

§ 75.1(d). The terms sell, distribute, redistribute and re-release are not found elsewhere in the regulations other than in the proposed 28 U.S.C. § 75.6, which states, “The information contained in the statement must be accurate as of the date on which the book, magazine, periodical, film, videotape, computer-generated image, digital image, picture, or other matter is sold, distributed, redistributed, or rereleased.” The statute, at 18 U.S.C.

§ 2257(f)(4), defines an offense for someone to “sell or otherwise transfer, or offer for sale or transfer” any material requiring a disclosure but does not have one.

Thus, to the extent that the proposed 28 C.F.R. § 75.1(d) is an effort to exempt to some extent noncommercial activities from compliance with the requirements of the statute, it does not appear to do so. To the extent that it might create such an exemption, the statute is plainly designed to apply with equal force to noncommercial activity.

In Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), as explained above, the court addressed the issue of the extent to which 18 U.S.C. § 2257 authorized the Attorney General to promulgate regulations. In so doing, the court noted that the starting point of any analysis of the breadth of regulatory authority begins with Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, the court noted,

“As an initial matter, we decide whether Congress has directly spoken to the precise question at issue. . . . If the statute is clear and unambiguous that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. . . . The traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress.” 139 F.3d at 807 (internal quotations and citations omitted).

The court went on to note that where “the text and reasonable inferences from it give a clear answer against the Government,” that is “the end of the matter.” Id. at 808.

Nothing is different here. The plain language of the statute allows the Attorney General to promulgate regulations with respect to the “form” of the “statement describing where the records . . . may be located.” It neither requires a statement concerning any date nor authorizes the Attorney General to promulgate regulations with respect to any disclosure, other than “where the records . . . may be located.” A date is a “when”, not a “where”. Congress could not have been clearer. Nor does the statute authorize the Attorney General to exempt selected activities from liability.

Suggested Remedy

28 C.F.R. § 75.6 (a)(2) should be deleted, thereby eliminating the regulatory, but not statutory requirement that the statement include “the date of production, manufacture, publication, duplication, reproduction, or reissuance of the matter.” 28 C.F.R. 75.1(d) should be deleted, eliminating any suggestion of an exemption for noncommercial activity.




Although the regulations are not entirely clear on this point, the Department has consistently taken the position that the place where the records must be maintained and made available for inspection be the producer’s and custodian’s place of business. So long as the records are situated in a place where they reasonably can be inspected, there is no justification for requiring that they be at the producer’s and custodian’s place of business.


With the advent of inexpensive video technology, a large, heavily capitalized organization is no longer required for the production of motion pictures, and it never has been necessary for the production of photographs. Many producers do not maintain an office, accomplishing photography at “locations” that are either a producer’s residence or leased from the locations’ owners. And to the extent that secondary producers are required to keep and index records and make them available for inspection, Web site operators are implicated, and it is well-documented that many webmasters do not maintain places of business outside of their residences.

As interpreted by the Department, the current and proposed regulations require that a producer identify a place of business – which in thousands upon thousands of instances would necessarily be the producer’s residence, for lack of any other place over which the producer has control – at which the records are located and available for inspection. As the industry understands the Department’s position, it will not approve location of the records at a commercial repository.

This has a substantially detrimental impact upon speech, given the controversial nature of this genre. By this regulation, the Department imposes – uniquely upon authors of sexually oriented speech – a requirement that a controversial speaker reveal his or her residential address on every copy of every publication. Faced with that requirement, and

without the wherewithal to maintain a commercial operation, some producers will decide simply to not go forward.

Moreover, the above-described individuals have a tendency to move their residences more often than is typical of those involved in commercial endeavors, although even the larger producers move their businesses with some regularity. The requirement that the location of the records be the producer’s place of business is thereby counterproductive to the purpose of the statute. Once the materials are in circulation, the location of the custodian of records – at the time of its release – remains affixed to the matter. If the producing business moves, particularly if it is a small one, the Department may have no way of knowing where the producer’s office has relocated, thus frustrating the ability to inspect the records.

Additionally, this requirement has an immense financial impact on publishers, especially of print or DVD media. It is common knowledge that the “setup cost” for any printed material (which would include magazines, the boxes for video tapes and the paper inserts for DVDs), as well as for DVDs, is immense. Accordingly, printed materials and DVDs normally are initially produced in sufficient numbers to anticipate all future sales. If the producer moves, the inventory of unsold copies of magazines, DVDs and boxes for videotapes becomes worthless.

Suggested Remedy

Third parties should be allowed to act as custodian of records. If the regulations were to require third-party custodians to register with the Department and to notify the Department of any change of address, the Department would be assured that inspection of the records would be possible, notwithstanding the fact that a producer relocates, dies or goes out of business. The producers, of course, would be responsible for ensuring that the third-party custodian continued in compliance.



In defining the time when inspections must be allowed, the time includes “normal business hours,” defined as 8:00 AM to 6:00 PM local time, and any time when the producer is conducting business. That definition imposes unreasonable burdens on producers for two reasons. First, it requires that they be open for business 10 hours per day on every day of the year, requiring the records custodian to be present for unannounced inspections during all such hours, under penalty of incarceration, without any break, meals or vacation, which may violate state and federal employment laws.5 Second, it requires that inspections be allowed any time the producer is conducting

5 Notably, the proposed regulations do not provide for designation of alternate records custodians.

business, including production, such that inspections must be allowed at the producers place of business when, for example, the producer is creating a “location” production on another continent.


28 C.F.R. § 75.5(c)(1), as proposed, requires:

“Inspections shall take place during normal business hours and at such places as specified in § 75.4. For the purpose of this part, ‘normal business hours’ are from 8 a.m. to 6 p.m., local time, and any other time during which the producer is actually conducting business relating to producing depiction of actual sexually explicit conduct.”

This imposes two extremely unreasonable requirements on producers.

First, this requires that they be open for inspection 10 hours per day, 365 days per year. There is no exemption for holidays or weekends, no allowance is made for lunch breaks, and a 10-hour day is two hours longer than what is typical in American businesses, as recognized by wage-and-hour laws of many states.

Second, this requires that the producer be open for inspections any time the producer is conducting business involving production. Accordingly, for example, if a producer based in Los Angeles is filming on location in Budapest from 8:00 AM until 4:00 PM Budapest time, he would be required to keep his Los Angeles offices open from 11:00 PM until 7:00 AM to allow for an inspection because the producer is engaging in activity relating to producing.

18 U.S.C. § 2257(c) requires that a producer make the records available at “all reasonable times”. The times specified above are patently unreasonable, and thus not authorized by Congress.

All of this must take into account the fact that not all producers are large companies, and they do not necessarily produce large numbers of motion pictures or other images which are regulated by § 2257. The above regulations require the producer of a single photograph to be open for business as described above for many years after the production.

Suggested Remedy

Limit the time of inspections to days and times on which the producers in fact are open for business at the office of the custodian, requiring that the business hours be posted at the custodian’s office.



Inspectors, who can be anyone designated by the Attorney General, are generally granted broad authority to seize any evidence of the commission of any felony during the course of an inspection. Evidence of a felony could include evidence of violation of an obscenity statute, and seizure of media materials under those circumstances without a judicial determination of obscenity would offend the First Amendment. Moreover, this provision runs afoul of the established Fourth Amendment principles relating to searches and seizures. Finally, there is no limit to what the inspectors can copy, thus allowing the Department to require the producers to produce exactly the type of membership lists that the Supreme Court has held protected.


As proposed, § 75.5(g) of the regulations, Inspection of Records, states: “(g) Seizure of evidence. Notwithstanding any

provision of this part or any other regulation, a law

enforcement officer may seize any evidence of the commission of any felony while conducting an inspection.”

The plain language of this proposal is extraordinarily broad, and is objectionable for a variety of reasons, especially when taken along with other regulations.

First, the term “law enforcement officer” is not defined anywhere in the proposed regulations or the underlying statute. A private citizen, not otherwise a law enforcement officer, who is deputized as an “inspector” by the Attorney General pursuant to § 75.5(a) of the proposed regulations could be said to be a “law enforcement officer” by virtue of that designation, alone. The proposed regulations certainly do not preclude such an interpretation.

Moreover, restricting the definition of “law enforcement officer” to someone who under some law is deemed a “law enforcement officer” of any variety does not necessarily limit to appropriately qualified personnel the class of persons who can exercise the broad seizure power granted by this proposed section. While every state presumably has standards for training and certification of law-enforcement personnel, those standards do not guarantee that a given inspector will be properly trained. For example, WIS. STAT. § 165.85(4)(b) excepts from much of the training and certification requirements law enforcement officers serving on a temporary or probationary basis. See

Kraus v. City of Waukesha Police and Fire Com’n., 261 Wis.2d 485, 497, 662 N.W.2d 294 (2003). And lack of qualification of the inspector may not provide any protection for the subject of the inspection. For example, in Barnes v. State, 305 Ark. 428, 810 S.W.2d 909 (1991), the Arkansas Supreme Court held that failure to meet Arkansas’ statutory law enforcement standards does not invalidate actions taken by law enforcement officers, in that case warrantless arrests.

Even assuming appropriately qualified inspectors, this proposal is riddled with potential violations of the Constitution. The most significant is that violation of any federal anti-obscenity law is a felony, e.g., 18 U.S.C. §§ 1461, 1462, 1465 and 1466, as is violation of the obscenity laws of many states, e.g., OKLA. STAT. ANN. TITLE 21 § 1021 and N.D. CENT. CODE § 12.1-27.1-01, including some states that define the offense as a felony, notwithstanding the fact that the punishment is more akin to that generally associated with a misdemeanor. E.g., ARIZ. REV. STAT. § 13-3502, LA. REV. STAT. ANN.

§ 14:106 and OHIO REV. CODE ANN. § 2907.32. Moreover, of course, violation of 18

U.S.C. § 2257 itself is a felony. Accordingly, this proposed regulation authorizes an inspecting law-enforcement officer to seize an extraordinarily broad array of evidence items.

Most striking is the authorization concerning obscenity offenses. The Supreme Court has long held that a prior restraint of speech cannot be brought about absent appropriate procedural safeguards. As explained in New York v. P.J. Video, Inc., 475 U.S. 868, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986):

“We have long recognized that the seizure of films or books on the basis of their content implicates First Amendment concerns not raised by other kinds of seizures. For this reason, we have required that certain special conditions be met before such seizures may be carried out. In Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), for example, we held that the police may not rely on the ‘exigency’ exception to the Fourth Amendment’s warrant requirement in conducting a seizure of allegedly obscene materials, under circumstances where such a seizure would effectively constitute a ‘prior restraint.’ In A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and Marcus v.

Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), we had gone a step farther, ruling that the large-scale seizure of books or films constituting a ‘prior restraint’ must be preceded by an adversary hearing on the question of obscenity. In Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), we emphasized that, even where a seizure of allegedly obscene materials would not constitute a ‘prior restraint,’ but instead would merely preserve evidence for trial, the seizure must be made

pursuant to a warrant and there must be an opportunity for a prompt postseizure judicial determination of obscenity. And in Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), we held that a warrant authorizing the seizure of materials presumptively protected by the First Amendment may not issue based solely on the conclusory allegations of a police officer that the sought-after materials are obscene, but instead must be supported by affidavits setting forth specific facts in order that the issuing magistrate may ‘focus searchingly on the question of obscenity. Marcus, supra, at 732, 81 S.Ct., at 1716; see also Stanford v. Texas, 379 U.S. 476, 486, 85

S.Ct. 506, 512, 13 L.Ed.2d 431 (1965).” 475 U.S. at 873-


The proposed regulation fails to take the above into account. For example, if an inspecting law-enforcement officer personally believes that a particular motion picture is obscene, although it never has been so adjudicated, this regulation allows the officer, upon reviewing the copy of it that is required to be kept with the records pursuant to the proposed § 75.2(a)(9)(i), to seize, with no warrant, every copy of the motion picture, along with any document constituting evidence of the operation of the production company involved in its distribution. As noted above, a warrant authorizing the very same seizure would be held invalid under the special constitutional protections afforded to expressive material. In another example, if while inspecting an Internet company an inspecting law-enforcement officer found in the records a depiction that the officer personally regarded as obscene, the inspector by this regulation is authorized to seize the computer that is disseminating the Web site, along with any records that evidence the operation of the Web site.

It is not only obscenity offenses that are problematic. Similar drastic consequences are authorized where an inspecting officer, for example, in reviewing the records of a particular performer for compliance with these regulations, finds that the records omit one of the stage names that the inspector remembers that the performer had used, there is little limit as to what the officer could seize in an effort to demonstrate that the omitted stage name was known to the producer. To the extent that records are kept and indexed on a computer – which is effectively required because of the extensive indexing requirements of proposed §§ 75.2(a)(3) and (d) and 75.3 – the officer’s observation of a single violation of these regulations, no matter how technical, would authorize the seizure of at least the computer and all backup files, as well as any paper records that might evidence anything about the operation of the subject business. Seizure of every copy of a producer’s records that are kept as required by these regulations not only places a producer in the untenable position of being unable to comply with the statute for want of records, it also has the effect of preventing the producer from, for example, continuing to operate the producer’s Web site or selling motion pictures, neither of which can be done without the infrastructure to comply with these regulations. This is akin to seizing the projector from a movie theater, a practice that has been universally

condemned by the courts as an unlawful prior restraint of speech, back when local police departments occasionally would engage in such tactics. E.g., Maguin v. Miller, 433 F.Supp. 223 (D. Kan. 1977) and Bongiovanni v. Hogan, 309 F.Supp. 1364, 1366 (S.D.N.Y. 1970); see also Southland Theatres, Inc. v. Butler, 350 F.Supp. 743, 745 (W.D. Tex. 1972)(return of the projectors was ordered.). More to the point, even if one of the films eventually were to be adjudicated obscene, the business cannot be closed as a consequence, regardless of procedural safeguards, Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980), much less on the inspecting officer’s personal conclusions alone with no judicial intervention.

Additionally, this broad provision runs afoul of established, constitutional limits on search and seizure. Assuming arguendo that law-enforcement officer inspector is properly entitled to conduct an inspection according to these regulations, the inspector’s broad authority that would be authorized by this seizure proposal runs afoul of established rules concerning search and seizure. The effect of this regulation, as proposed, fails the requirement that administrative searches be “carefully limited in time, place, and scope.” New York v. Burger, 482 U.S. 691, 702, 107 S.Ct. 2636, 96 L.Ed.2d

601 (1987), citing United States v. Biswell, 406 U.S. 311, 315, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). Viewed another way, “if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no ‘search’ within the meaning of the Fourth Amendment

– or at least no search independent of the initial intrusion that gave the officers their vantage point.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). And “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Id. at 374. This proposed regulation ignores the caveats established by these cases. Nothing in the regulation at all limits the scope of the search or confines that which can be seized to either what is incidental to the search or what is of immediately apparent incriminating character. If the evidence of commission of a felony is found in the records themselves, those records can be copied pursuant to § 75.5(e) and according to the recent amendments to the underlying statute, used against the business maintaining the records.

As a last point with respect to seizure, all of the wrongs that would be authorized should this provision be adopted are exacerbated by the Department’s requirement that the records be kept and made available for inspection at the producer’s/custodian’s place of business which, in the case of an increasingly large number of producers, means the producer’s residence. The prohibition against third-party custodians, which has been the Department’s consistent position, allows the law-enforcement inspectors to engage in this intrusive search and seizure activity in a producer’s residence. The home has consistently been afforded the highest level of constitutional protection against unreasonable searches and seizures by the courts.

Finally, § 75.5(e) allows the inspectors without any limitation to copy “any” record subject to inspection. The absence of limitation allows the inspectors to copy every record subject to inspection, which means every record of every depiction that the

producer has made since the effective date of these regulations. The impact of this is to allow the Department to amass a database about every performer involved in these productions. There is no need for the Department to create a database of performers’ records merely to satisfy its idle curiosity. This proposed regulation allows the Department to do indirectly that which it cannot do directly, which is to force the industry to produce the functional equivalent of membership lists of people engaged in constitutionally protected (albeit controversial) activity. The Supreme Court long ago rejected such a practice. National Ass’n. for Advancement of Colored People v. State of Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

Suggested Remedy

Delete proposed § 75.5(e), and limit § 75.5(g) to copying at no expense to the producer, rather than seizure.



Apart from the fact that a mere printer, video duplicator, DVD replicator or duplicator of other media must be excluded from the requirements imposed upon producers because to do otherwise would exceed statutory authority according to the Sundance case, supra, there is no practical need for those entities to be subject to the requirements imposed upon producers. Nevertheless, both the original regulations and the proposed new ones broadly impose such burdens upon printers and the like. Moreover the failure to exclude “printers, film processors, and video duplicators whose sole function is to provide similar services to a producer” fails to take into account the holding in American Library Ass’n. v. Reno, 33 F.3d 78, 94 (D.C. Cir. 1994), invalidating the statute and regulations to the extent that they apply to those functions.


The proposed regulations include a definition of “producer” that includes a “secondary producer”, which would include printers, videotape duplicators, DVD replicators and, but for the express exception in proposed § 75.1(c)(4)(i), photo processors. In American Library Ass’n. v. Reno, 33 F.3d 78, 94 (D.C. Cir. 1994), the court addressed this issue:

“The next objection concerns the inclusion within the definition of ‘secondary producers’ of persons who duplicate or reproduce sexually explicit materials that are

intended for commercial distribution. 28 C.F.R. § 75.1(c)(2). Appellees [challenging the regulations] point out that such persons include printers, film processors, and video duplicators whose roles are functionally indistinguishable from that of photo processors, who are specifically excluded from the definition of ‘producer.’ See

. . . § 75.1(c)(4)(i). As we understand the photo processing exception, it applies to persons to whom a producer delivers films for development or the making of prints and who, on completing their work, return the films and prints to the producer. The Government does not explain what interest is served by according different treatment to printers, film processors, and video duplicators whose sole function is to provide similar services to a producer. We agree, therefore, that the Act does not apply to persons who perform such services and return their work product to the producer who employed them.”

The regulations should respect the decision of the court on this point. Moreover, those who perform solely those functions are engaged in “activity which does not involve hiring, contracting for[,] managing or otherwise arranging for the participation of the performers depicted.” Accordingly, the Sundance case, supra, likewise prohibits imposing producer requirements on those engaged in the above functions.

Suggested Remedy

At the very least, § 75.1(c)(4) of the proposed regulations should be altered to specifically exclude from the definition of “producer” those “persons who perform only duplication services, and return their work product to the producer who employed them.” More appropriately, the entire holding of the Sundance case should be embraced.




When evaluated in the context of real-world publications of magazines, motion pictures and Web sites, the regulations concerning the size and location of the required statement are sometimes overly burdensome in some instances, vague in others and, in still others, do not make practical sense or reasonably further any legitimate purpose of the statute. The requirement that the typeface of the statement be at least as large as the largest typeface of the performers, director, producer, or owner, for example, likely would require the typeface of the statement in a magazine be the same size as the title,

which might easily be 100-200-point. Likewise, with respect to a motion picture, a title screen of a motion picture often names the producer in a typeface equal to the title which, again, would cause the typeface for the statement to be very large. Further, the minimum requirement of 11-point type on a videotape, DVD or Web page is immeasurable because the typeface of the statement is a function of the screen dimensions and settings of the monitor on which the material is viewed.


Section 75.6(e), as proposed, requires that the statement be in the type size at least as large as the largest used to identify a performer, director, producer or owner, or in any case no smaller than 11-point-type, in black and white, un-tinted background. However, the 11-point-type requirement is meaningless in the context of cyberspace. The type display size will depend on the size of the monitor and/or chosen screen dimensions. Most Windows-based programs for example, allow for modification of screen size with a click of a mouse, which consequently modifies the type size of all text. Reference to any type size is illogical as it pertains to digital display. The same is true for video media, where the size of the typeface is a function of the size of the video monitor on which the matter is viewed.

Moreover, requiring the disclosure to be in a size equal to the largest used to identify a performer, director, producer or owner is overly burdensome, and amounts to forced speech that significantly impacts the message being conveyed in the media. Many adult-oriented websites use the name of the performer as the title of the website, which is often in very large type, which is typical of titles in any form of media. Requiring the disclosure to be in the same sized type as the title, forces the webmaster to substantially reduce the title size, or provide for a disclosure in huge letters, taking up many web pages of space.

With respect to many magazines, the title is often the name of the owner or producer. Titles, of course, are invariably in a very large typeface. The unreasonableness of a requirement of a statement in 144-point type, for example, is obvious. Similarly, the star performer in a motion picture or its producer often appears above the title and in an equally large typeface. This creates an equally unreasonable regulation.

Finally, the requirement that the type be “black on white, untinted background” is unreasonable. Many web pages use templates for their creation, wherein each page is the same color throughout the website. Requiring the first page to be white, with black type, could require substantial redesign of entire websites, merely to comply with the disclosure requirement. Such requirement would also potentially interfere with the theme and message sought to be conveyed by imposing artistic and editorial control on webmasters under penalty of fine and incarceration.

Suggested Remedy

Require only that the disclosure to be plainly viewable by the reader, thereby allowing the publisher or webmaster to choose the size of the text, along with the theme and color of the background.



DVDs were not in existence at the time the original regulations were promulgated, they are not considered by the proposed, amended regulations and, as they now are likely the most popular means of distribution of motion pictures, should be addressed by the regulations. Given the mechanism by which DVDs operate, it would be entirely consistent with the stated purpose for the statute to allow the statement to appear either on the opening screen or, in the alternative, on a conspicuous screen accessible from the opening screen.


The required location of the statement is defined by the proposed regulations as follows:

Ҥ 75.8 Location of the statement.

“(a) All books, magazines, and periodicals shall contain the statement required in § 75.6 or suggested in §

75.7 either on the first page that appears after the front cover or on the page on which copyright information appears.

“(b) In any film or videotape that contains end credits for the production, direction, distribution, or other activity in connection with the film or videotape, the statement referred to in § 75.6 or § 75.7 shall be presented at the end of the end titles or final credits and shall be displayed for a sufficient duration to be capable of being read by the average viewer.

“(c) Any other film or videotape shall contain the required statement within one minute from the start of the film or videotape, and before the opening scene, and shall

display the statement for a sufficient duration to be read by the average viewer.

“(d) A computer site or service or Web address . . ..

“(e) For all other categories not otherwise mentioned in this section, the statement is to be prominently displayed consistent with the manner of display required for the aforementioned categories.”

Other than the addition of vague requirements for locating the statement on Web pages (addressed elsewhere), this regulation, as proposed, would remain unchanged. DVDs are eclipsing videotapes as the preferred medium for prerecorded motion pictures. The functionality of DVDs is different from videotapes in that the latter, like motion picture film, is simply played from beginning to end (videotapes having the additional fast-forward and fast-reverse functions). DVD technology allows that functionality, but the more popular format allows a “home” screen, allowing the viewer to choose from various functions, such as out-takes, previews of other motion pictures, interviews with the performers or the director, jumping to a particular point in the motion picture (to allow resumption of viewing after only viewing part of the motion picture), along with simply playing the motion picture from start to finish. The purposes of the statute could be served completely if the regulations allowed one of the selections on the “home” screen to direct the viewer to the disclosure required by the statute.

Additionally, the proposed regulations are perplexing in some circumstances with respect to DVDs. For example, a DVD could contain more than one motion picture, with a home screen allowing the viewer to select from two or more that are available. Other DVDs have one motion picture available in multiple languages or varying screen formats. It is not clear from the regulations where the disclosure should be situated, on the home screen, at the beginning of the motion picture selected from the home screen, or along with the end credits found at the end of the motion picture(s).

Suggested Remedy

Add a subsection to § 75.8 specifying where the statement should be placed on a DVD. The most practical and reasonable method would give the producer the option of either placing the statement on the first screen displayed or, alternatively, displaying it on a screen that can be selected from the first screen displayed.




Both as written and according to the proposed, amended regulations, the statement with respect to motion pictures and videotapes is required to be at the beginning of the tape unless there are end titles or end credits to the motion picture, in which case the statement must be associated with the end credits. Since “end credits” and “end titles” can be ambiguous in the context of current videotapes, the producer should always be given the option of placing the statement at the beginning of the videotape or motion picture.


For reasons that never have been made clear, the regulations as originally promulgated and as now proposed require that the statement on motion pictures be at the beginning of the motion picture but, if there are end titles or credits, with them, then the statement must be associated with them:

“(b) In any film or videotape that contains end credits for the production, direction, distribution, or other activity in connection with the film or videotape, the statement referred to in § 75.6 or § 75.7 shall be presented at the end of the end titles or final credits and shall be displayed for a sufficient duration to be capable of being read by the average viewer.

“(c) Any other film or videotape shall contain the required statement within one minute from the start of the film or videotape, and before the opening scene, and shall display the statement for a sufficient duration to be read by the average viewer.” 28 C.F.R. § 75.8(b-c).

From the standpoint of producers, this regulation is onerous because some statements at the conclusion of a motion picture may or may not consist of an “end title” or “end credit”, depending upon how those terms are interpreted. For example, if at the conclusion of the motion picture there is a copyright notice identifying the producer, is that an “end credit”? Is one “credit” sufficient to require that the disclosure be at that point, or must there be more?

Suggested Remedy

28 C.F.R. § 75.8(b-c) should be combined and modified to state,

“Any film or videotape shall contain the required statement within one minute from the start of the film or videotape, and before the opening scene, and shall display the statement for a sufficient duration to be read by the average viewer. If the film or videotape has one or more end titles or end credits, the required statement may, instead or in addition, follow the final end title or end credit.”



The proposed regulations require that the required records be entirely segregated from and not contain any records other than those required to be maintained under the statute and regulations. While producers as a general matter would be expected to segregate required records simply to protect the integrity of trade secrets and other confidential information, an absolute ban on commingling any non-required records prevents, for example, inclusion of a copy of a second form of identification or additional information that would be helpful in locating performers.


28 CFR § 75.2(e), as proposed, says, “Records required to be maintained under this part shall be segregated from all other records, shall not contain any other records, and shall not be contained within any other records [emphasis added].” While technically feasible, conforming to this regulation is extremely impractical. As proposed, the regulation essentially defines as a felony including one item of information not required by the statute and regulations. This, for example, would prohibit the careful producer from retaining copies of additional identification documents or information that would assist in locating the performer. All of that runs counter to a stated purpose of the statute and regulations, to identify performers who may have been photographed when underage.

There are legitimate business reasons for generally segregating the required records from a producer’s general business records. To do otherwise would cause inspections to be disruptive to the producer’s business operation. Additionally, commingling records could give inspectors access to trade secrets and other sensitive information that should not be public. Thus, this proposed regulation is not necessary.

Indeed, in articles written about the subject, lectures and legal advice given to producers, attorneys for the industry have uniformly advised producers to keep records required by these regulations segregated from other company records. Almost uniformly, producers are following this practice with no known exceptions.

A practical problem created by this requirement which results in it being unreasonable arises from the use of a computer to keep the records, which is effectively mandated for all but the smallest producers because of the indexing requirements of §§ 75.2(a)(3), 75.2(d) and 75.3. Even assuming that the producer uses a computer with no information stored on it other than records required by these regulations, those records are not entirely segregated from each other because they all are found on the same storage device (e.g., hard disk); and the computer must contain other data, such as executable programs, cache files, and so on.

Suggested Remedy

Delete 28 CFR § 75.2(e). Alternatively, modify it to require that the records “should be segregated from materially all other records, shall not contain any unrelated records . . . ,” and to take into account the reality that records often will be kept on computers.



Section 75.2(a)(1)(ii), as proposed, requires that the records must include “where the depiction is published on an Internet computer site or service, a copy of any URL associated with the depiction.” This requirement is vague, and subject to misinterpretation, and inadvertent noncompliance. The regulations must clarify what information, exactly, must be included with the depiction in terms of a URL or domain name, and limit it so as to be reasonable.


According to The American Heritage® Dictionary of the English Language (Houghton Mifflin 4th ed. 2000), “URL means:

“An Internet address (for example,, usually consisting of the access protocol (http), the domain name (, and optionally the path to a file or resource residing on that server (trade).”

Thus, even according to a recognized lexicon, “URL” is a vague term. For example, using the above, simply a copy of the letters “” may or may not be in compliance. Or, again using the above, a photocopy of what appears on may, or may not, be compliant. But the language of the proposed regulation, requiring a copy of “any URL associated with the depiction,” could easily be interpreted to include a copy of every page on the entire Web site on which the image is published. Thus, another interpretation, using the above example, would require all of the pages associated with to be recorded, which would be the entire Web site. Many of them include hundreds or thousands of pages and images.

Assuming the webmaster could determine which “URL” to copy (unless it were limited to simply the URL address, e.g.,, the webmaster is next faced with the dilemma arising from the fact that, unlike print and motion picture media, Web pages regularly change, some every day. For example, materially every major newspaper – and for that matter, most every non-major news publications – has an “online edition”, the content of which changes at least at the rate of publication (i.e., daily, weekly, etc.), and often hourly. Adult entertainment Web sites are no different, updating content on a regular basis. Thus, this regulation may leave webmasters with the daunting and unacceptably burdensome task of changing all of the required records every time a Web page is changed.

Arguably, however, the above requirement, as written, requires only a copy of the URL at the time the record is made, and does not require updating. If that is the case, then this is duplicative of the preceding requirement that the records include “a copy of the depiction.”

Finally, imposing the burden of continuously updating the copy of the URL serves no purpose sufficient to justify that burden. The presumed purpose of it, to allow inspectors to correlate the performers with the depictions, is not furthered by requiring continuous updating of the records in that regard.

Suggested Remedy

Eliminate § 75.2(a)(1)(ii).


Section 75.2(a)(1)(i) requires that a “copy of the depiction” be kept with the age records pertaining to all content subject to the requirements of § 2257. The requirement is vague and overly burdensome.


In the context of traditional media, compliance with this requirement means that a copy of an entire motion picture or magazine be in the file along with the balance of each of the performer’s records. This serves no purpose, so long as the depiction is adequately identified. The regulations already require a copy of an identification card containing the performer’s photograph, along with records identifying the material(s) in which the performer is depicted. Thus, faced with the need to verify that a particular performer appeared in a motion picture or magazine in question, the records already identify the motion picture or the issue of the magazine in which the performer can be found, along with a photograph of the performer found on the identification document. Thus, this requirement is duplicative.

The requirement also is particularly burdensome. To the records already required, this adds that a copy of the material be associated with each performer depicted in it. Thus, for example, if a publisher produced a magazine depicting 50 individuals, the publisher would be required to cram 50 copies of the magazine in with its records – for each month, assuming a monthly publication. The problem is magnified with respect to videotapes, and particularly motion pictures recorded on traditional film (a print of a typical motion picture feature length film consumes one or two cubic feet of space).

Of particular concern would be streaming video that changes from day to day, even hour to hour. It would be a near impossibility for a webmaster to keep a “copy” of digital media generated from a camera that may be running as much as 24 hours per day in one of the many “voyeur rooms” or “voyeur houses” available for access online.

In sum, this requirement serves little or no useful purpose, but is extraordinarily burdensome on publishers.

Suggested Remedy

Eliminate § 75.2(a)(1)(i-ii).


Sections 75.2(a)(3), 75.2(d) and 75.3 require that all records be retrievable in the following manners: 1) alphabetically; 2) numerically; 3) by legal name; 4) by alias; 5) by maiden name; 6) by nickname; 7) by stage name; 8) by professional name; 9) by title; 10) by number; 11) by “similar identifier of the media.” This is unreasonably burdensome on producers. Moreover, as proposed, the amended regulations would set forth indexing requirements in three places, §§ 75.2(a)(3), 75.2(d) and 75.3. The addition of § 75.2(d), to the extent that it is not duplicative of what already is found in §§ 75.2(a)(3) and 75.3 is unreasonable, particularly if applied to secondary producers.


As proposed, 28 C.F.R. § 75.2(a)(3) states:

“(3) Records required to be created and maintained under this part shall be organized alphabetically, or numerically where appropriate, by the legal name of the performer (by last or family name, then first or given name), and shall be indexed or cross-referenced to each alias or other name used and to each title or identifying number of the book, magazine, film, videotape, computer- generated image, digital image, picture, URL, or other matter.”

The above is identical to the existing regulations, except that it adds “computer- generated image, digital image, picture, URL,” which is not a material change given the “or other matter” language, a catch-all that would have included computer-generated images in any event (assuming that they are images of actual persons6). The same is true with respect to § 75.3, which, as proposed, would provide:

“Records required to be maintained under this part shall be categorized alphabetically, or numerically where appropriate, and retrievable to: All name(s) of each performer, including any alias, maiden name, nickname, stage name, or professional name of the performer; and according to the title, number, or other similar identifier of each book, magazine, periodical, film, videotape, computer-generated image, digital image, picture, or other

6 The industry always has assumed – and there is no reason to believe otherwise – that § 2257 does not apply to visual depictions that are not of actual persons, given that it would be impossible to have an “identification document” for other than a natural person. Moreover, actual sexually explicit conduct can only take place between actual, natural persons.

matter. Only one copy of each picture of a performer’s picture identification card and identification document must be kept as long as each copy is categorized and retrievable according to any name, real or assumed, used by such performer, and according to any title or other identifier of the matter.”

Notwithstanding the above, comprehensive indexing requirements, the proposed, new regulations add a third indexing requirement, largely duplicative of the first ones:

“(d) For any record created or amended after [insert date 30 days after publication of the final rule in the Federal Register], all such records shall be organized alphabetically, or numerically where appropriate, by the legal name of the performer (by last or family name, then first or given name), and shall be indexed or cross- referenced to each alias or other name used and to each title or identifying number of the book, magazine, film, videotape, computer-generated image, digital image, picture, or other matter (including but not limited to Internet computer site or services). If the producer subsequently produces an additional book, magazine, film, videotape, computer-generated image, digital image, or picture, or other matter (including but not limited to Internet computer site or services) that contains one or more visual depictions of actual sexually explicit conduct made by a performer for whom he maintains records as required by this part, the producer shall add the additional title or identifying number and the names of the performer to the existing records and such records shall thereafter be maintained in accordance with this paragraph.”

First, it makes no sense to include three subsections that address indexing of records. And to the extent that this new section adds anything, either legally or in practice, to the existing requirements of §§ 75.2(a)(3) and 75.3, it is unimaginable that it is necessary. Indeed, the requirements are unduly burdensome as they exist.

In practice, the indexing requirement for the most part accomplishes little. If it is necessary to determine the date of birth of a performer, that can be accomplished with little indexing. So long as the records, for example, associated with the performers in a particular motion picture or magazine list the actual names of those depicted therein, the inspector can turn to the records concerning the particular performers. Otherwise, the burden of the required indexing is not justified by what it might accomplish. Most performers who appear in multiple motion-picture productions, multiple magazines or multiple Web sites, work for many producers. And since the indexing is on a producer- by-producer basis, if the objective of the indexing is to locate other places that a

particular performer has appeared, the most cursory search of the Internet is likely to produce profoundly more useful information.

Worse, if this requirement is allowed to apply to secondary producers, materially every adult Web site displaying images to which § 2257 applies will be required to create a computer database which likely will be more costly than is the operation of the site.

Suggested Remedy

Delete 28 C.F.R. §§ 75.2(d) and 75.3, and modify 28 C.F.R. § 75.2(a)(3), limiting the mandated indexing to a requirement that the records associated with any motion picture, magazine, or Web site include the actual names of all relevant performers or models7 depicted therein.



Section 75.4 requires that the records be maintained for seven (7) years from the last amendment to the record. This is unreasonable, and contrary to the decision of the United States Court of Appeals for the District of Columbia Circuit.


In American Library Ass’n. v. Reno, 33 F.3d 78 (D.C. Cir. 1994), the Court held that the open-ended requirement in the present regulation was unreasonable, rendering a saving construction:

“Pending its replacement by a provision more rationally tailored to actual law enforcement needs, we will accept a period of five years as reasonable. We do so because it conforms with both the five-year statute of limitations applicable to the Act, 18 U.S.C. § 3282 (1988), and the minimum period recommended by the Pornography Commission.” Final Report8 at 621.” Id. at 91.

7 There may be portions of, for example, a motion picture or a magazine that do not contain any visual depiction of actual sexually explicit conduct. Accordingly, there need not be any records with respect to the performers depicted in those scenes so long as they are not in other scenes depicting actual sexually explicit conduct. A good example of this is an advertisement in a magazine, where the advertisement contains no depiction of actually sexually explicit conduct, but such depictions are found elsewhere in the issue.

8 Attorney General’s Commission on Pornography, Final Report (1986)

There is no justification for requiring that records be retained for more than five

(5) years. Nor is there justification for the requirement later in § 75.4 that the records be kept for five (5) years after the dissolution of the relevant organization. In total, § 75.4 can require that a record be retained as long as 12 years after its last amendment.

Suggested Remedy

Re-write the regulations to state that, notwithstanding any other requirement of these regulations, records need not be retained more than 5 years after the making of the depiction.



Section 75.6(d) requires that “[t]he information contained in the statement must be accurate as of the date on which the [material] . . . is sold, distributed redistributed, or re[-]released.” 18 U.S.C. § 2257(f)(4), in turn, defines a felony criminal offense for selling or transferring materials covered by the statute and regulations without “a statement describing where the records required by this section may be located.” As written, the regulation could be construed to prohibit a wholesale or retail distributor from selling materials with an outdated statement, notwithstanding the statutory caveat that “such person shall have no duty to determined [sic] the accuracy of the statement or the records required to be kept.”


In interpreting § 2257 and the current regulations, the court in American Library Ass’n. v. Reno, 33 F.3d 78 (D.C. Cir. 1994) found that the requirement that the statement be accurate as of the date of sale, etc., could not be applied to re-sellers:

“On its face, the regulations’ updating requirement would reach wholesale and retail transactions that lie entirely beyond the scope of the Act. See id. at § 75.1(d) (defining ‘sell, distribute, redistribute, and re[-]release’ to include ‘commercial distribution of a book, magazine, periodical, film, videotape, or other matter’ covered by the Act). The Act, however, imposes the obligation to keep records and affix statements only on those who ‘produce[ ] any book, magazine, periodical, film, videotape, or other matter which . . . contains . . . depictions . . . of actual sexually explicit conduct,’ 18 U.S.C. § 2257(a)(1); and it defines ‘produces’ to mean ‘produce, manufacture, or publish any

[such material] . . . and includes the duplication, reproduction, or reissuing of any such matter.’ Id. § 2257(h)(3). Because the Act does not apply to those solely engaged in the sale of these items, its requirements may not be imposed on them. The Act cannot be read to require a magazine vendor, for example, to revise the statement in a pornographic periodical ‘as of the date on which [it] is sold’ to a consumer.” Id. at 93.

The proposed regulations ignore the above.

Suggested Remedy

Modify § 75.6(d) to require only that “[t]he information contained in the statement must be accurate as of the date on which the [material] . . . is sold, distributed redistributed, or re-released by the primary producer.”



Section 75.2(a)(2) requires that the producer obtain from the performer “any name, other than each performer’s legal name, ever used by the performer, including the performer’s maiden name, alias, nickname, stage name, or professional name.” Arguably, this requires some variety of verification from the performer, although the Department has taken the position that the producer need only inquire of the performer and accept as true the performer’s response. The regulations, as written and as proposed, if construed literally would hold the producer responsible for the difficult task of verifying the accuracy of each of the names given by the performer and the impossible task of insuring that the performer did not omit any name.


A statement of a person’s family history, which would include a name maiden name or a nickname, is a recognized exception to the hearsay rule. E.g., FED. R. EVID. 804(b)(4). If there is not a dispute at the time, legal scholars tell, it can be considered sufficiently trustworthy that it is admissible. If there is an issue of trustworthiness, as may be the case in this instance as to the performer’s identity or date of birth, it does not apply. Thus, the requirement that the producer examine an identification document is not unreasonable (at least whether the performer is over 18 years of age might be called into question). However, a statement of someone’s maiden name or nickname has no lack of indicia of trustworthiness. Producers should be allowed to take the performer’s word for those facts.

More fundamentally, however, is that there is usually no other source. Unlike a person’s legal name, which can be verified – more or less – by documents such as drivers’ licenses, there is no source for verification that a list, for example, of stage names is complete. If, for example, a producer knows that a performer has a stage name that the performer did not list, failure to include that name in the records likely would violate

§ 2257(f)(2). But a producer cannot determine the negative. If a performer has used a particular stage name, but fails to reveal it to the producer, it is unfair to hold the producer responsible

Suggested Remedy

Add to § 75.2(a)(2) a caveat, similar to that found in § 2257(f)(4), that the producer “shall have no duty to determine the accuracy of the performer’s representations beyond examining the required identification document.”



The regulations permit the Department to appoint inspectors on an ad hoc basis. Moreover, there are no standards for inspectors, so the Department can appoint as inspectors anyone ranging from private censorship groups to convicted felons. Additionally, there is nothing found in the proposed regulations establishing any identification cards or credentials for the inspectors, leaving producers prey to imposters.


Proposed 28 U.S.C. § 75.5(a) states:

“(a) Authority to inspect. Investigators designated by the Attorney General (hereinafter ‘investigators’) are authorized to enter without delay and at reasonable times (as defined in subsection (c)(1)) any establishment of a producer where records under § 75.2 are maintained to inspect, within reasonable limits and in a reasonable manner, for the purpose of determining compliance with the record-keeping requirements of 18 U.S.C. 2257.”

However, the underlying statute requires only that the records be made “available to the Attorney General at all reasonable times [emphasis added].” 18 U.S.C. § 2257(c). The Department obviously takes the position here that Congress could not have intended

to limit the inspection privileges exclusively to the Attorney General – the member of the President’s Cabinet – personally. What Congress clearly did not do, however, is allow the Attorney General to deputize any private citizen to conduct inspections under this Act. And there are good reasons Congress did not write such expansive language as is found in the regulations.

28 U.S.C. § 515 defines persons who can act for the Attorney General: “Authority for legal proceedings; commission, oath,

and salary for special attorneys

“(a) The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.

“(b) Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.”

The proposed regulations are not authorized by Congress to the extent that they allow inspections by other than those persons identified in § 515, above. Worse, the regulations do not identify any class of persons or qualifications required for those designated as inspectors. There is a good reason why Congress enacted § 515 and why the Department of Justice has rigorous standards for employing attorneys. This regulation empowers a low-ranking attorney in the Department to deputize virtually anyone as an investigator. And, although it can be presumed that those appointed as investigators would not be convicted felons or minors, certainly zealots who oppose any form of erotic expression will be knocking on the Department’s door to volunteer.

While it is doubtful that anyone other than those identified in § 515 could legally be appointed as inspectors, at the very least the class and qualifications for inspectors must be included in the proposed regulations and subjected to public scrutiny and comment. Indeed, the list of each individual proposed as an investigator should be subject to such scrutiny.

Most important is that individuals who fall under § 515 are issued identification badges by the Department of Justice. A producer subject to an inspection can become acquainted with the character of those identification badges, as is done with drivers’ licenses to identify the age of a performer, so as to be able to verify the credentials of a purported inspector.

The records required by § 2257 maintained contain very sensitive information, most significantly the residence address of a performer. Under the proposed regulations, that places a producer confronted with someone claiming to be an inspector in an untenable position. The producer could be guilty of a felony by refusing to allow the inspection, or could subject performers to harassment by allowing an imposter to inspect and copy the identification documents.9

If inspections are to be allowed by other than Department of Justice Attorneys – the legality of which is doubtful – the Department must, by regulation, create a special identification document (such as a card), affirming the inspector’s appointment by the Attorney General. By so doing, producers can learn to recognize such documents, thereby knowing whether the inspector is bona fide or an imposter. By the creation of such an identification document, anyone forging one would be subject to punishment under 18 U.S.C. § 1028, and other anti-forgery statutes.

Suggested Remedy

Modify the proposed § 75.5(a) to replace “Investigators designated by the Attorney General” with “The Attorney general and anyone designated by 28 U.S.C. § 515”. In any event, the investigators must be specifically defined, and an identification document establishing authority to conduct inspections must be created.



The exclusion from the definition of “producer” of certain Web hosting services exceeds the Department’s regulatory authority, and is vague and inadequate, ignoring the realities of the Internet.


Section 75.1(c)(4)(iv) excludes from the definition of a producer “a provider of web hosting service who does not manage the content of the computer site or service.” This exclusion is vague, and does not clearly exempt all hosts and other service providers

9 This is for exactly that reason that California has excluded drivers’ license records from the public. CAL. VEHICLE CODE § 1808.21(a).

who merely allow for access to some form of online content without exercising editorial decisions over the content. For example, some hosts or service providers may exercise editorial or managerial control over some forms of content online, such as free hosts who include banner advertisements on the display of various websites, as their means of revenue generation. Other hosts may, to a certain extent, control the way in which content is displayed, thus, potentially removing those hosts from the scope of the exemption. To include them would apparently contradict the presumed intent of the exemption.

More fundamentally, however, the exclusion must be broadened to embrace the decision in Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998) which, as explained earlier, prohibits the regulations from requiring record keeping by anyone involved only in an activity “which does not involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the performers depicted.”

Suggested Remedy

Combine 75.1(c)(4)(iv) and 75.1(c)(4)(v), to state, “A provider of Web-hosting services, of an electronic communication service or of a remote computing service engaged only in activity that does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted.” At least, the word “content” should be modified with the words “sexually explicit,” thereby changing the definition to “a provider of web hosting services who does not manage the sexually explicit content of the computer site or service.”



The required location of the disclosure on a Web page is unreasonable and vague.


As proposed, § 75.8(d) requires:

“A computer site or service or Web address containing a computer-generated image, digital image, or picture, shall contain the required statement on its homepage or principal URL.”

This creates several problems. First, many websites operate under a “sub- domain” business model, wherein a particular domain can have hundreds or thousands of sub-domains, making the “principal URL” or “homepage” difficult to identify with certainty. Moreover, requiring the entire text of the disclosure, which may involve

records custodian names and addresses for many content producers, which in some cases may consume pages and pages, will substantially interfere with the content and message sought to be conveyed on websites complying with the disclosure. The homepage of a Web site is often designed to be quickly loaded by a user’s computer because studies have established that Web surfers will not wait very long for a page to load; but will instead stop the loading process and go to another website if any substantial delay is generated by the loading of too much information on a homepage. Requiring the disclosure statement to be contained on the “homepage” or “principal URL” may cause significant downloading delays, resulting in lost user traffic and reduced revenue.

Moreover, an alternative that would be perfectly acceptable and consistent with the purpose of the statute would be to establish a link on the home page, directing the viewer to a page where the required information is displayed. Many Web site operators have adopted that approach, and in no case is there any difficulty locating the statement. Further, that approach allows the webmaster to place the link on a number of different pages where there might be some doubt as to which is the homepage or principal URL.

Suggested Remedy

Rewrite § 75.8(d) to state, “An interactive computer service shall contain the required statement either on a document that can be viewed by utilizing a conspicuous link from the first page accessed, or on that page.”

Respectfully submitted, WESTON, GARROU & DEWITT

12121 Wilshire Boulevard, Suite 900 Los Angeles, CA90025

(310) 442-0072

Fax (310) 442-0899

Dated: August 24, 2004

781 Douglas Avenue Altamonte Springs, FL 32714 (407) 389-4529

Fax (407) 774-6151



July 2004

By: Lawrence G. Walters


California’s new Online Privacy Protection Act is effective starting this month.1 The Act requires all commercial Internet businesses doing business in California to conspicuously post privacy policies in one of the following three ways: (1) post the full privacy policy on the home page or on the first significant Web page after entering the site; (2) post an icon on those pages, containing the word “privacy” and that must contrast with the color on the Web page; or (3) post the privacy policy on another Web page that is linked to the home page or first significant page by hypertext. The Act requires that the privacy policy text or icon must be bigger than its surroundings. The Act also requires sites to disclose what personal identification information they collect, use, and share. Third parties and those who offer managing services are exempted from the Act. The type of consumer information that is protected, as defined under Section 22577 of California’s Business and Professions Code, is as follows: (1) first and last name; (2) home or other physical address; (3) e-mail address; (4) telephone number; (5) social security number; (6) identifiers that allow a person to be contacted; and (7) any information used in combination with 1-6 above.2 Additionally, personally identifying information when combined with cookies, profiles and preference combined with 1-6 appear to be protected. An operator of a Web site will receive notice if their site is not in compliance, and will have 30 days to post a compliant Privacy Policy after it receives notice. Since most Web sites will do business at some point with users or members located in California, all sites should become compliant with this new law.

New Section 2257 Regulations

As noted in last month’s Update, a new set of regulations were introduced by Attorney General John Ashcroft, substantially amending and clarifying the records keeping obligations of content producers and distributors of adult-oriented materials. The proposed regulations, located at, are not final yet, but may take effect on or after August 24, 2004, when the period for public comment closes.

The most significant change is the requirement that all secondary producers (now including webmasters that do not themselves produce content) must obtain copies of age- verification records and I.D.’s required by Section 2257, and maintain them in accordance with the law, in the same manner as primary content producers. §75.1(2). Compliance with the new regulations also means that any performers residing in countries outside of the United States must now produce a passport as the only means of identification, assuming that the regulations are approved as proposed. International or foreign driver’s licenses or country I.D. cards will not be acceptable for foreign models. Additionally, the required age records must be maintained and cross indexed in such a way that they are alphabetically and numerically (whatever that means) retrievable.

The other significant change is the updated requirement for the location of the Disclosure pertaining to the Custodian of Records. Under the proposed regulations, the Disclosure must be contained on the Web site’s “home page” or “main URL.” §75.8(d). The Disclosure must be in typeface not smaller that 11 points and must be displayed in black type, on a white, untinted background. §75.6(e). Moreover, under the proposed regulations, the Disclosure must be displayed in the same typeface as the names of the performer, director, producer, or owner, whichever is largest, and shall be no smaller in size than the largest of the names of the performers, director, producer, or owner.

There are a couple of other miscellaneous changes worth mentioning. First, Section 2257 obligations now apparently apply to any content produced on or after November 1, 1990. Given that the universally recognized effective date for the law was June 30, 1995, webmasters will now need to determine which date to use, in consultation with their attorneys. Also, as alluded to above, those individuals required to keep records, must maintain those records for a period of seven (7) years, unless the producer goes out of business, in which case the retention period is five (5) years. §75.4. In regards to Section 2257 inspections, inspections can only occur between the hours of 8 a.m. and 6 p.m. – every day of the year, including weekends and holidays!

§75.5(c)(1). Generally there can be no more than one inspection every four months of a particular individual’s records, unless there is reason to believe that continued violations are occurring. §75.5(d). Inspectors must produce valid credentials showing that they have the right to inspect the records, and they must explain the purpose of the inspection. §75.5(2). The Records Custodian may provide additional information to the inspectors bearing on any concerns identified during the inspections. §75.5(4). Finally, Section 2257 Records must be kept separate from all other business records. §75.2(e). Now, more than ever, is the time to make ensure that all website content complies with Section 2257, and begin preparing for the ultimate adoption of the new regulations.


Jeree Mills, owner of Dreamworld, an adult shop in Knox County, Kentucky, and employee Belinda Brown were arrested and charged with a misdemeanor for violating Kentucky state law against distributing obscene material.3 Leanna Philpot, manager of the store, stated that after the arrests, Dreamworld closed for just over three weeks, but reopened shortly after. The sheriff’s office does not anticipate more arrests until the courts decide whether or not Dreamworld’s products are obscene under the law.4 Both entered a plea of not guilty.


Time Warner Inc.’s America Online, Yahoo Inc., EarthLink Inc., Microsoft Corp., Comcast Corp., and BT Group Plc have developed a proposal with voluntary guidelines that would allow Internet providers to unplug users who allow their computers to forward unwanted spam emails.5 The proposal was developed due to the fact that spam accounts for approximately 83 percent of e-mail traffic, and costs large Internet providers billions of dollars each year because of the wasted bandwidth, legal bills and additional customer service. The group’s main recommendations relate to stopping channels that allow spammers to cover their identity, like making sure the Internet company’s equipment is properly secured so messages cannot be routed through it by spammers. The plan also sets out that the amount of email user’s are allowed to send out should be limited, and that consumers should be held accountable if their computers are infiltrated by spammers.


Twenty-four year old Jason Smathers, an AOL software engineer in AOL’s Virginia office, was arrested for stealing AOL’s entire subscriber list consisting of 92 million screen names and selling the list to Sean Dunaway, a spammer in Las Vegas.6 The list was used by Dunaway in promoting his online gambling site and he also resold the list to other spammers for a price of $52,000. The complaint also alleges that Smathers sold an updated list with 18 million screen names for $100,000 to Dunaway. A spammer who purchased the lists from Dunaway helped the Secret Service’s probe in order to be granted leniency in the alleged conspiracy. Smathers and Dunaway are charged with conspiracy, which has a five year maximum prison sentence.

In the first instance a spammer has been successfully prosecuted in Russia, a Russian university student was convicted of sending “spam” for hacking one of Russia’s largest mobile phone operators and using a program to send an obscene text message to approximately 15,000 cell-phones.7 He was ordered to pay a fine of 3,000-roubles (around $100) and given a one-year suspended sentence.


Implementing a “do not e-mail list” was declared to be an ineffective solution to spam by the Federal Trade Commission. Timothy J. Muris, the chairman of the FTC, stated, “A national registry was a great solution to unwanted telemarketing calls. At this time it’s not the solution to unwanted e-mail.”8 In the CAN-SPAM Act, which passed last December, Congress ordered the FTC to report on the effectiveness of implementing a do not e-mail list. The FTC report proposed that the best way to stop spam was to create new technology, which verifies that e-mail messages are sent from the e-mail address it claims to be from. The FTC proposed creating a federal advisory committee to encourage adoption of a standard, if a standard does not emerge soon. Many Internet companies and e-mail marketers reject the idea of a do-not-e-mail list, since most spammers would ignore the list by using methods to avoid detection. The report stated that in Britain, a country that has banned unsolicited e-mail, the amount of spam has increased.

The FTC is also considering another approach of putting a bounty on spammers’ heads, which would give spammer hunters no less than 20 percent of the fines imposed against the spammer.9 The FTC is compiling and reviewing expert testimony on the bounty plan and will report back to Congress by September on whether the idea is viable. Stanford Law School professor Lawrence Lessig said, “If the vigilantes who are working so hard to keep lists of offending e-mail servers were to turn their energy to identifying and tracking down spammers, then this passion to rid the world of spam might actually begin to pay off — both for the public and for the bounty hunters.”10 But the bounty plan has received criticism. As Spokesman for the Direct Mail Association Louis Mastria eloquently stated, “If spammers are difficult for the FTC, the FBI, the state attorneys general and even ISPs to track down, it’s difficult to imagine that I can sit at home one day and say ‘I’m going to hunt me down a spammer.’”11 But this is not the end of the debate on how to end spam. Jana Monroe, with the FBI’s Cyber Division, testified last month before Congress that the bureau is “actively pursuing criminal and in some cases joint civil proceedings” against 50 spammers — including three groups that may constitute organized criminal enterprises –- and is likely to act before the end of the year.”12


John K. Coil admitted in a plea deal to mailing fraudulent tax returns and transporting obscene materials, specifically the video: “Nympho Bride.”13 Prosecutor Tim Gallagher said, “It’s not that it portrays sexual conduct; it’s that it portrays it in a patently offensive way.”14 John

A. Coil, his son, admitted to making false statements on his tax return. They held corporations in different names in order to avoid paying taxes, to hide income, and to insulate them from police enforcement. The federal case dismantled most of the adult empire Coil had built over the last three decades. The United States’ government initially wanted to seize 58 properties located in seven states and estimated at about $9.7 million, but plea negotiations led to only 45 Texas properties being confiscated, including homes, office buildings and approximately 24 adult video stores.15 John K. Coil’s wife and daughter and three others have also entered a guilty plea to tax fraud or evasion, but he faces the harshest sentence of up to 10 years in prison.

Jenna Lewis, a contestant on Survivor, was caught engaging in various sexual acts in a home video, which was filmed on her wedding night with her new husband, Travis Wolfe. The couple eloped to Las Vegas after knowing each other for only six weeks.16 The Internet site selling the video does not say how the video was acquired. The lawyers representing the couple are attempting to stop distribution of the videotape. If Lewis did not provide the tape to the site and the tape is truly authentic, Lewis will join other celebrities, like Paris Hilton and Pamela Anderson, whose private sex lives went public due to someone stealing their home videos.

An invasion or privacy suit brought by Paris Hilton against an Internet company that distributed video of her having sex with an ex-boyfriend, was recently dismissed by a Los Angeles judge. Florida-based Kahantani Ltd., was a party to the $30 million lawsuit over the notorious 45 minute video that circulated on the Internet involving Hilton, who claimed the video had been “intended only for personal use.”17 Hilton asked the judge to dismiss her lawsuit against the Internet company, but she reserved the right to refile the suit. The suit’s dismissal was part of Hilton’s “litigation strategy,” her lawyer Heather McCloskey said.18


Nielsen/NetRatings tracked the Internet activities of more than 46 million users in the United States that participated in Internet gaming and released a report finding that online gaming is the stickiest content on the Web. Kaizad Gotla, an Internet analyst for Nielsen/NetRatings, said, “Ranging from sites that offer original games to content sites that offer the latest information on popular console and PC games, the gaming industry’s presence online is indisputable.” Astonishingly, the report shows that middle-aged females outnumbered teenage boys on the gaming sites. According to Business Week, video games are a bigger business than movies, measured by revenues, and online gaming is contributing significantly to overall industry growth. Another report released by IDC, tech industry data providers, computer-based Internet games had revenues of $450 million in 2003, which is expected to triple to $1.5 billion in 2007. Of course, online gaming sites can raise a host of legal concerns for owners or operators, given various U.S. laws prohibiting gambling in various forms.


A study released by the Secure Computing Corporation of San Jose, California, which surveyed non-U.S. country suffixes, such as .de for Germany and .jp for Japan, revealed that most online adult sites are based out of Europe and the Pacific, excluding domains ending in .com and .net. The study showed approximately 46 million pornography pages in the top 100 individual country suffixes. The top countries for porn sites were Germany with 10,030,200 porn domains, followed by United Kingdom at 8,506,800, and Australia at 5,655,800. When broken down into region, the survey revealed that Europe led with 28,430,600 pornographic domains, the Pacific had 12,352,600, Asia had 3,193,000, Latin America had 1,048,600, Africa had 389,400, Canada had 283,600, the Caribbean had 255,000, and the Middle East had 77,800. Additionally, the survey showed that almost every country suffix from Europe had a few porn sites, including very small countries.


Some members of Congress are supporting legislation called the Family Movie Act that would allow DVDs to be “sanitized” through filters for home use without violating the federal copyright laws and without first requiring the consent of studios or directors. The bill awaits action in the House Judiciary Committee, and the Senate has not introduced any comparable bills. The studios and the Directors Guild contend that this bill, by removing dialogue and scenes, can ruin entire films by taking away their meaning.

The movie studios oppose the legislation and consider the bill the most outrageous of a wave of anti-indecency legislation moving through Congress. Included in that wave, a “decency” provision was attached by the Senate as a rider to its annual defense bill, which would increase penalties tenfold for violations of the federal indecency rules. The Senate Bill was approved and would allow the Federal Communications Commission to raise fines from a maximum of $27,500 to $275,000 per violation, up to $3 million a day per broadcaster. Earlier this year, the House overwhelmingly approved a similar bill, which would raise fines to a maximum of $500,000 per violation, almost ensuring tougher fines will be signed into law.


Mark Roberts, the British man who streaked during the Super Bowl with only a thong and an online casino advertisement painted on his body, was found guilty of criminal trespassing by a Texas jury.27 Roberts admitted that he snuck into the Super Bowl wearing a fake referee outfit. As Roberts said, “If making people laugh is a criminal offense, then they should send me to prison for life.”28

Last, but definitely not least, several United States and Canadian anti-adult groups including, Citizens for Families, and United Mothers and Citizens Voice have combined efforts to start their own war on pornography, which includes the implementation of the new Web site, The Website brags that, “We want to be as effective as possible in protecting and promoting this great institution and know that in order to do so we need to strike at the major root of the problem – pornography – the silent killer of families, individual self-esteem and ultimately the good in our society. It is taking hold of our youth and many adults and locking our society onto a collision course with disaster.”30 claims, without citing any reliable sources, that nine out of 10 minors

between the ages of 8 and 16 have seen pornography on the Internet on accident while doing their homework, that minors between the ages of 12 and 17 are “the single largest group of consumers of Internet pornography,” and that Internet pornography is more addictive than drugs, alcoholic beverages, and cigarettes. Additionally, the Website boasts that “Pornography knows no borders so there must be a multinational effort in place. We are doing just that. We are establishing an alliance of Family organizations and politicians in both the U.S. and Canada that will pool their resources and become the largest and most influential force in the War on Pornography.”31 Who was it that said recently, you can’t declare war on a noun?

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, or AOL Screen Name: “Webattorney.”

1 Charles Farrar, California E-Privacy Law Takes Effect, AVN, July 7, 2004, at

2 Ian Rambarran, Web Site Operators Must Prepare to Follow Privacy Act, Los Angeles Daily Journal, June 25, 2004, Page 7.

3 AP, Porn Store Owners Will Challenge Obscenity Laws,, June 14, 2004, at

4 Id.

5 Reuters, E-mail Providers: Unplug Spam-sending PCs,, June 22, 2004, at

6 Pair Nailed In AOL Spam Scheme, The Smoking Gun, June 23, 2004, at

7 Reuters, Court Convicts Obscene Text Messager, Yahoo! News, June 24, 2004, at


8 Saul Hansell, Federal Agency Declines to Create Do-Not-Spam Registry, The New York Times, June 16, 2004, at

9 Mike Brunker, FTC Mulls Bounty System to Combat Spammers, MSNBC Interactive, June 30, 2004, at

10 Id.

11 Id.

12 Id.

13 AP, Porn Mogul, Son Plead Guilty in not Paying Taxes,, June 14, 2004, at

14 Id.

15 Id.

16 Frank Meyer, Survivor Sex Tape Scandal: Jenna Lewis Caught In The Act?, AVN Online, June 23, 2004, at


17 Reuters, Paris Hilton Privacy Suit Dismissed,, July 13, 2004 at

18 News Services, Speaking of Paris . . .,, July 14, 2004 at AD86256ED20008B284?OpenDocument&Headline=Elvis’+women+–+What+would+the+King+say?.

19 Gretchen Gallen, Online Games Stickier Than Porn, XBiz, June 21, 2004, at

20 Id.

21 Rhett Pardon, Germany Leads in Overseas Porn — Survey, XBiz, June 24, 2004, at

22 Id.

23 Id.

24 Id.

25 Richard Simon, Push to Allow DVDs to Be ‘Sanitized’ Alarms Studios, L.A. Times, June 23, 2004, at,1,1706536.story?coll=la-healines-pe-business.

26 Id.

27 Reuters, British Streaker at Super Bowl Convicted,, June 21, 2004, at

28 Id.

29 Charles Farrar, U.S., Canadian Groups Ally For War On Pornography, AVN, July 6, 2004, at

COPA Article


The United States Supreme Court today decided one of the last controversial cases left this term: Ashcroft v. ACLU, Case # 03-218, involving the issue of online age verification. In a stunning victory for Free Speech advocates, the High Court, in a 5/4 decision, upheld the preliminary injunction against the law that was entered by the Third Circuit Court of Appeal.

The Court found several potential problems with enforcement of COPA. First, the government is required to use the least restrictive means in regulating speech-related activities. Filters are less restrictive than age verification requirements. Moreover, filters may be more effective, since COPA does nothing to block adult content coming from overseas. The Court recognized that 40% of ‘harmful’ materials originate from overseas, and will thus not be impacted by enforcement of COPA. While the Court did not require filters, it strongly suggested that they may be a better alternative. The Court also noted that minors can readily circumvent credit card-based age verification requirements by gaining access to credit card numbers themselves. The Government will now need to address the question, at trial, of why filters are not a less restrictive alternative than age verification. The Court also expressed concern over the significant chilling effect that COPA had on free expression. Given the harsh penalties imposed for violating the law, the Court determined that upholding the injunction against enforcement served the interests of freedom of speech.

Another point identified by the court is the rapidly-changing nature of Internet technology. Much has changed online since the law was first enacted 5 years ago. Allowing the parties to brief the impacts of new Internet technologies at the trial court made more sense than making a decision on a record that was 5 years old, which is a lifetime in Internet time. Also important to the Court’s decision is the fact that Congress has passed two laws since COPA was enacted: The Truth in Domain Names Act, and the statute creating a Dot Kids Domain. These alternative means of protecting children from inappropriate online speech may have changed the legal and constitutional landscape, which is something the lower courts had not considered yet. This case is destined to come back to the Supreme Court, after a final decision has been rendered by the trial court. Since the opinion was a 5/4 decision, one change in the makeup of the court could result in a dramatically different result next time.

The most troubling part of the Opinion is the suggestion that in the interim, while the courts are continuing to evaluate COPA, the Government can enforce obscenity laws already on the books. That suggestion is consistent with Justice O’Connor’s comments during Oral Argument, where she questioned why the Justice Department is not prosecuting the many adult websites that appear to be in violation of the obscenity laws. This suggestion has added more fuel for the fire in the anticipated crackdown on adult websites using federal obscenity laws. For now, anyway, adult webmasters have one less law to worry about, since the Court maintained the injunction against COPA which has been in place since its adoption. This is not the end of the story, however, since the case will now go back to the District Court in Pennsylvania which will conduct a trial on whether COPA meets constitutional muster. We could be in for another several years of hearings, rulings and appeals, while the courts sort this mess out.

This author has always recommended that adult websites comply with COPA, regardless of the legal rulings, however. The government often likes to mix the issues of children and adult materials, when prosecuting obscenity offenses. Obscenity cases are harder to defend if the materials are being made available to children. When the issues involve adult materials created by adults, for adults, the First Amendment arguments tend to work better. However, when the Government can throw in the issue of access by children, juries tend to turn against the webmaster. Therefore, all free sites, and free tours, should contain some form of age verification.

The historical difficulty with online age verification has been the inability to see the customer, and visually evaluate their age, unlike the retail sales of adult materials at an adult video store. Most webmasters want to comply with the law, and keep erotic materials away from minors, but many sites offer free materials, or do not require that credit cards be presented before gaining access to sexually explicit content. That concern motivated this author to create the Birth Date Verifier™, a patent-pending age verification device that does not rely on credit cards or password identification for age verification. The idea is simple: the user completes an online form, under the penalties of perjury, using the E-Sign (“Electronic Signatures”) Act. By electronically signing the document under oath, the user submits the equivalent of an electronic affidavit, swearing to his/her date of birth. The device then checks that date of birth against the current date on the server, to determine whether the user seeking access to the age restricted materials is actually over the age of eighteen, on that date. If so, the user is permitted entrance; if not, the user is sent elsewhere. Any minor attempting to gain access to adult materials, through this system, would be committing a federal felony by doing so.

Today marks a great victory for Free Speech online. However, webmasters should not loose sight of the fact that protecting minors from accessing adult materials is in the best interests of both children, and themselves.

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, or AOL Screen Name: “Webattorney.”



June 2004

By: Lawrence G. Walters


Attorney General John Ashcroft weighed in on the issue of age records inspections as required by Title 18 U.S.C. § 2257. On June 14, 2004, he proposed tougher regulations that would narrow the list of acceptable forms of identification, and eliminate such options as college I.D.’s and selective service cards.1 The forms of I.D. would also have to be accessible to government agencies to verify their legitimacy.2 The new guidelines will take effect after the public has an opportunity to comment. In the course of presenting this proposal, the Justice Department conceded that it has never conducted a records inspection in the adult industry during the entire time the law has been effective.3 While the adult industry lobbying groups are unlikely to oppose a call for tighter age verification regulations, Ashcroft’s attention to § 2257 issues is a likely sign that records inspections are coming. Adult webmasters are encouraged to redouble their efforts to comply with all requirements of federal law pertaining to age verification in light of this recent attention to the issue.


California Assemblyman Paul Koretz of the Assembly Labor Committee called a public hearing after a bill to create health and safety standards for the adult movie-making industry stalled in another committee Koretz belongs to. The purpose of the hearing was to gather information and to discuss health and safety issues within the adult entertainment industry, where his initial impression was to have the adult industry voluntarily adopt a “condom-only policy.”4 Many people testified at the hearing, which discussed: (1) whether the measures taken by the adult industry give adult actors sufficient safety and health protections, and (2) whether additional regulations would economically hurt the adult industry.5

At the hearing, public health officials and adult performers, as well as other individuals within the adult industry, argued over whether mandatory condom use should be required during filming.6 While some adult industry leaders warned that mandatory condom use could drive adult production studios underground or out of state, other industry leaders asked for increased governmental protection of adult performers’ health and safety. However, some argue that the adult film business may already be regulated to wear condoms by the California Division of Occupational Safety and Health (“Cal/OSHA”), which has a requirement that states all employers must provide their employees “barrier protection” if their eyes, skin, or other membranes are exposed to blood or other bodily fluids carrying pathogens.7

A report with specific details on the hearing will be released in the next two to three weeks.8 Koretz’s recommendations to the state concerning the best way to resolve this issue will be included in the report. Unsure of the nature of his recommendations, Koretz said, “It’s a lot of food for thought and we’re going to analyze all of the information we have and come up with something thoughtful and intelligent to respond.”9


The Supreme Court’s recent decision in City of Littleton v. Z.J. Gifts concerned an adult bookstore, Christal’s, which opened in Littleton, Colorado.10 The bookstore did not apply for a license under the adult-business ordinance, but opted to open in violation of the ordinance and challenge it in federal court, arguing that it violated the First Amendment in various respects. Licensing schemes such as that adopted by Littleton, are subject to strict ‘procedural safeguards’ to guard against undue delay in making a licensing decision. One of those safeguards is the requirement of prompt judicial review of any decision to deny a license to engage in protected speech. The Supreme Court reviewed the case to clarify the issue of whether the First Amendment requires a prompt judicial determination of the validity of the denial, or simply prompt access to judicial review, by common law on statutory appeals procedures. In a ruling written by Justice Stephen Breyer, the Court decided that when a government denies adult business licenses, courts must promptly review and rule on the issue; prompt access to a court is insufficient. However, the Court reversed the appellate court’s ruling on the issue, finding that the state’s common law appeals procedure provided prompt judicial review in the abstract, and that there was no reason to conclude that state court judges will not treat appeals of licensing denials in First Amendment cases with proper sensitivity to the loss of speech at issue. Thus, state court judges are expected to promptly expedite such cases and render prompt determinations of the issues when confronted with license denials.11

As Justice Breyer’s majority opinion stated, “A delay in issuing a judicial decision, no less than a delay in obtaining access to a court, can prevent a license from being issued within a reasonable period of time.”12 However, he went on to write that Colorado’s regular procedures for handling civil lawsuits satisfy the requirement for prompt decisions, “as long as the courts remain sensitive to the need to prevent First Amendment harms and administer those procedures accordingly.”13 The fear raised by the decision in the case is that courts can treat appeals from adult businesses the same as other types of suits, where the wheels of justice often grind slowly. In light of this decision, litigants would now need to show that a state court actually delayed the review of a license denial in the course of common law appellate review, in order to establish a First Amendment violation. The courts were previously split as to whether the potential for such delay alone gave rise to a First Amendment violation.


Three men were indicted by a federal grand jury on charges of obscenity for allegedly selling sadomasochistic and rape videos on the Internet.14 Brent Alan McDowell and Clarence Thomas Gartman face charges of conspiracy to distribute, and transportation of, obscene material, aiding and abetting, and mailing obscene materials.15 Lou Anthony Santilena is charged with conspiracy to distribute obscene material and mailing obscene material.16 The three men were allegedly associated with and, several years ago. McDowell and Gartman were found in Canada, though the assistance of Canadian law enforcement authorities. They now face extradition to the U.S. If convicted, Santilena faces ten years, and Gartman and McDowell each face a mandatory federal prison sentence in the range of roughly 3 – 7 years under the federal sentencing guidelines.


Acacia Research Corporation is now trying to enforce a patent on all adult oriented sites by filing a class action lawsuit against all websites using video or audio which require Section 2257 statements and are not paying Acacia a percentage of the revenues.17 General Counsel for Acacia Robert Berman stated that people, including those in the adult entertainment industry, have been stealing Acacia’s intellectual property for many years. On July 7th, the judge is expected to render a decision concerning whether this class action lawsuit will be allowed to continue.18 If the lawsuit is approved, every adult site using audio or video without a license from Acacia will be forced to defend Acacia’s patent claims in court.


A Superior Court jury awarded the Flesh Club, a nude cabaret, $1.4 million for lost profits from when the city of San Bernardino forced it to shut down for four years between 1995 and 1999.19 Manta Management, the Flesh Club’s parent company, argued it was entitled to damages during the club’s forced closure when the city of San Bernardino refused to allow the club to operate due to an ordinance that was later declared unconstitutional. However, jurors did not completely side with the club when they agreed with the city that some profits from the club arose from “illegal activities.”20


Despite the CAN-SPAM Act that became effective on January 1, 2004, spammers have been forwarding an increased amount of mass email and very few have been caught due to the difficulty in locating spammers. According to Network Security Company MX Logic, one out of six adult unsolicited emails complied with the CAN-SPAM Act’s labeling requirements.21 Thus, the war against spam has gone to private investigators at large software companies and law enforcement officers who are using traditional investigative techniques as well as cyber- sleuthing in their attempt to catch spammers. The Direct Marketing Association has paid $500,000 to hire 15 investigators to work with F.B.I. and other governmental agencies in a program known as Project Slam-Spam.22 Daniel Larkin, chief of the FBI’s Internet Crime Complaint Center which coordinates Project Slam-Spam, said “Initially you start to work backwards from the e-mail and find that to be a very frustrating route. That doesn’t lead to a live body. We have collectively realized you have to go the other way and follow the money trail.”23 Project Slam-Spam has enough evidence against at least 50 spammers that it will continue to hand over to prosecutors. So, it more important now, than ever, to comply with the requirements of the CAN-SPAM Act.


After the 9-11 terrorist attacks, fear launched the government to take away civil liberties for national security purposes, and Americans appear to be willing to trade their rights for safety.24 American Enterprise Institute Polling expert Karlyn Bowman said, “Most people don’t see a broader threat. People seem to be pretty comfortable with the general state of affairs regarding civil liberties.”25 The average American does not appear to be troubled by civil liberty issues like prisoners rights, and tend to turn a blind eye when it does not involve their personal life. The question concerning how far is too far to intrude on Americans’ civil liberties has been compared to pornography, with the infamous “definition”: maybe you cannot define pornography, but you will know it when you see it. Ken Weinstein of the Hudson Institute said, “Americans react pretty quickly when they think their liberties are being curtailed to any serious degree. The policies of the Bush administration have been fairly well accepted because I don’t think they’ve crossed that barrier where people say, ‘Wait a second.”‘26


Twenty-six year old Jason Heath Morgan’s Internet activity – email, photo images exchanged, and chat room conversations – were scrutinized by federal agents for more than three weeks, as Morgan became the first United States individual to have Internet usage monitored for a child pornography investigation under the PROTECT Act.27 Federal agents are now tracking approximately 1,700 e-mail and chat-room users Morgan contacted in connection with stopping a child-pornography ring.28 In the past, federal agents had limited ways to catch suspects such as Morgan, besides getting a search warrant. However, the PROTECT Act (“Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today”), which passed in April 2003, gives governmental authorities the ability to wiretap a suspect’s computer in order to catch child abusers and Internet pornographers. The surveillance technology consists of a monitoring device attached to a suspect’s phone line that tracks the suspects Internet use. Sacramento FBI Agent Ronald Wilczynski stated that with Internet wiretaps, “it doesn’t matter who you’re dealing with, we’re standing over the top of you watching everything that’s going on.”29 Morgan pleaded not guilty to charges of child pornography and currently remains in federal custody. The extent to which the government is monitoring citizens’ online activities is not known, since evidence of such intrusive surveillance only comes out in the course of a criminal prosecution. It is fair to say that such electronic searches are sure to become more commonplace as the federal government takes a greater interest in prosecuting Internet-related crimes, such as obscenity violations.


On May 19th, the House Judiciary Committee passed a federal ban on “upskirt” photography as well as other forms of video voyeurism such as filming by cellular telephone cameras and so-called mini-cameras.30 The Senate also has passed this Bill, which defines “improper image” as including the “naked or undergarment-clad genitals, pubic area, buttocks, or female breast,” if it “is depicted in the improper image under circumstances in which that individual has a reasonable expectation of privacy regarding such body part or parts,” in September 2003.31 If the Bill, written by Senators Mike DeWine (R-Ohio) and Charles Schumer (D-New York), passes the full House and is signed by President Bush, violators of the Bill may be fined and jailed for a year.32 A time frame for when the Bill will be brought in front of the full House is still unknown. Such public filming prohibitions have been criticized in the past as a potential infringement on freedom of the press or problematic from a security standpoint.


Hitwise Inc., a California-based company that tracks Internet activity, says that adult entertainment websites get approximately three times more hits than the top search engines like Google.33 Additionally, other large categories spotted by Hitwise include “Adult” visited 18.8%, “Entertainment” at 8%, “Business and Finance” at 7.4%, and “Shopping and Classifieds” at 7%.34 Such statistics may well show up in the upcoming federal obscenity cases to help illustrate the changing community standards and widespread public acceptance of erotica.

In other news, police in Dallas are posting on the Dallas Police Department’s Website pictures of people caught allegedly soliciting acts of prostitution.35 The Website, which contains these images on the “indecency related offenses” Web page, also posts the hometowns and birthdates of these individuals. The Website got more than 4,100 hits in the first 24 hours the site was active.36

Another attempt to stifle sexual activity through public humiliation was made by Pastor Jim Norwood, who started out on a mission to close down local sex shops by photographing customer’s license plates and sending them postcards to attend church, and it turned into him being voted into office as the mayor of Kennedale.37 Now that he is mayor, Norwood will continue fighting adult oriented businesses through increased regulation. The owners of sexually oriented businesses in Kennedale believe they are being unfairly singled out in the community. Regardless, Norwood will continue his fight against the businesses. As Norwood said, “The battle is not mine. It’s the Lord’s, and I’m confident that I’m not going to be sued.”38


In the recent case of Io Group, Inc. v. Pivotal, Inc.,39 Chief Judge of the United States District Court for the Northern District of California Marilyn Patel ruled that individuals who steal images or movies from producers based in California may be required to defend their activities in California’s courts. The judge held that the intentional tort of copyright infringement can be a basis for determining jurisdiction, especially since the adult industry is mainly located there. In this case, brought a lawsuit against Pivotal, Inc., who was allegedly stealing images from to generate traffic and also allegedly redirecting the images in order to earn affiliate commissions at other websites. Pivotal, in a motion to dismiss, argued that since it was a corporation in North Carolina with no connection to California the California courts did not have jurisdiction over the case. Judge Patel did not agree and stated that “adequately demonstrated that defendants published images belonging to a California company, affecting an industry primarily centered in California, knowing that harm would likely be felt in that state. Construing these facts in a light most favorable to the plaintiff, [Titan] has made a prima facie case that defendants are subject to the personal jurisdiction of this court.”40 This ruling could mean that infringers across the country are subject to suit in the Golden State of California, as the birthplace of erotica. The parties ultimately settled this case out of court.


Text messagers, e-mail users and Internet instant message users beware, because these wireless messages may be saved on computer servers and used in criminal prosecutions. A spokesman for the Cellular Telecommunications and Internet Association, Travis Larson, said text messaging information such as the sender, the recipient, the content, and the sender’s location may be stored for billing purposes, even after the user has deleted the messages.41 Now, text messages sent only a few hours after the woman who alleges that Kobe Bryant raped her may help determine whether the sex was consensual or whether Bryant is guilty of rape as charged. This case seems to be the first high-profile United States criminal case where text messages sent between cell phones could be entered into evidence.42 Many criminal cases in Europe and Asia have been determined on text messaging conversations. Jeff Kagan, an independent telecommunications analyst in Atlanta, said, “I think in these days of corporate fraud and in these days of terrorism we’re seeing more and more reason to store forever. Don’t ever say anything on e-mail or text messaging that you don’t want to come back and bite you.”43


Shaukat Ali Afsar, a cab driver in England, was fined for illegally picking up two undercover police officers in his private car for hire car and showing them hardcore pornography on his in-cab DVD player.44 The cab driver did not know they were undercover police officers on a sting operation to stop private hire cars from picking up passengers at a rail station. The policemen thought they had caught the driver for illegally picking up passengers, but were stunned to see pornography on their ride. The cabbie pleaded guilty to showing indecent material, driving while being distracted by a television screen, picking up passengers at an illegal area, and driving with invalid insurance.45

One final news item of interest: LL Media, a Danish IT business, as a perk gives its employees free subscriptions to Internet pornography websites.46 The company initiated this policy in order to stop workers from looking at pornography while at work. Levi Nielson, director of LL Media, stated, “We know that 80 per cent of all hits on the Internet are on porn sites. And we can see that people also surf porn pages during work.”47 Nielsen hopes this perk makes employees more efficient and relaxed while at work.

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, or AOL Screen Name: “Webattorney.”

1 C. Farrar, Ashcroft Wants Tougher Records Inspections for Adult Works, AVN Online, June 14, 2004, at

2 Id.

3 Id.

4 Scott Ross, Scrutiny of Adult Industry Safety Practices Begins with Public Hearing, AVN, June 4, 2004, at 5 Id.

6 Caitlin Liu, Porn Figures Clash at Hearing, L.A. Times, June 5, 2004, at

7 Id.

8 Scott Ross, Koretz Says Report on Adult Industry Health and Safety Coming Soon, AVN, June 10, 2004, at

9 Id.

10 Tony Mauro, Advocates find little to cheer in free-speech victory, First Amendment Center Online, June 8, 2004, at

11 Id.

12 Id.

13 Id.

14 Scott Ross, Three Men Indicted on Federal Obscenity Charges, AVN, May 27, 2004, at 15 Id.

16 Id.

17 Brandon Shalton, Acacia to Lump all Adult Industry into Class Action Lawsuit Based on 2257,, June 7, 2004, at

18 Id.

19 Jason W. Armstrong, Verdict Reveals Partial Victory For Flesh Club, Daily Journal Newswire,, June 03, 2004.

20 Id.

21 Rhett Pardon, Can-Spam Act Not Yet Effective, Study Asserts, XBiz, June 10, 2004, at

22 Saul Hansell, When Software Fails to Stop Spam, It’s Time to Bring In the Detectives, The New York Times, May

31, 2004, at

23 Id.

24 Ellen Wulfhorst, Experts: Americans Would Trade Rights for Security, Reuters,

June 7, 2004, at

25 Id.

26 Id.

27 Sam Stanton and Denny Walsh, Child-porn Probe used First Live Internet Wiretap,, May 20, 2004, at

28 Id.

29 Id.

30 Charles Farrar, Video Voyeurism Ban Passes House Committee, AVN, May 20, 2004, at

31 Id.

32 Id.

33 Lisa Baertlein, Web Porn Entices Far More Surfers Than Search-Study, June 3, 2004, at

34 Id.

35 AP, Web Site Shows Photos Of Prostitutes’ Alleged Customers,, June 10, 2004, at

36 Id.

37 Pastor Brings Porn Fight To Mayor’s Office,, June 7, 2004, at

38 Id.

39 2004 U.S. Dist. LEXIS 6673 (U.S. Dist., 2004).

40 Id.

41 AP, Think Before You Text: Wireless Messages Show up in Court,, June 7, 2004, located at

42 Id.

43 Id.

44 Louise Male, Cab driver showed porn DVD, Leeds Today, May 20, 2004, at 45 Id.

46 ANI, Surfing porn is a company perk!, The Times of India, May 30, 2004, at

47 Id.

May 2004 Update


By: Lawrence G. Walters


Justice Department officials promise to “send ‘ripples’ through an industry that has proliferated on the Internet and grown into an estimated $10 billion-a-year colossus profiting Fortune 500 corporations such as Comcast, which offers hard-core movies on a pay-per-view channel.”1 For the first time in ten years, the government is spending millions of dollars bringing anti-obscenity cases. With 32 prosecutors, a team of FBI agents and many investigators combing the Internet for pornography, many cases are expected to be filed in the near future. The government has warned that no material is off limits, including soft-core television programs like HBO’s show Real Sex or adult movies offered in hotel rooms,2 notwithstanding its wide acceptance.

The Bush administration boasts about its perfect record in prosecuting the 25 adult obscenity cases filed so far. The cases it has brought in mainly conservative communities have ended in two guilty verdicts and 23 guilty pleas.3 Bruce Taylor, the new head of the anti- obscenity effort at the Justice Department, recently stated, “Just about everything on the Internet and almost everything in the video stores and everything in the adult bookstores is still prosecutable illegal obscenity.”4 The Justice Department’s apparent strategy is to target not only the most egregious hard-core pornography, but also more conventional material in order to most effectively hit those found most responsible for the proliferation of pornography on the Internet. The new trend by federal prosecutors is to initiate cases in communities to which the materials are distributed, as opposed to where they are made or from where they are sent.5 The latest information indicates that new prosecutions are being filed across the country – one in Pittsburgh, three in Kentucky, five in Southern West Virginia, six in Utah and eight in Eastern Virginia.6 A federal prosecutor recently acknowledged that investigators are focusing on the most egregious and widely available materials, in selecting cases for prosecution.7 Interestingly, the United States Attorney involved in a recent Internet obscenity case arising from Bluefield, West Virginia, admitted he does not “pretend to know where community standards are and where to draw the line.”8 Well now, if the prosecutors can’t know community standards, how are the webmasters supposed to divine that very same concept . . . under the penalty of criminal prosecution? With the number of adult-oriented Web sites surging over the last four years to approximately 1.6 million from 88,000 in 2000,9 and President Bush’s 2005 budget proposal containing a $4 million devotion to targeting obscenity, the industry is certainly in for some trying times.10 The time has never been better to focus on legal compliance.


Twenty-nine adult novelty items purchased at the Lion’s Den Adult Superstore in Dickinson County, Kansas, were deemed obscene by a grand jury. Kansas is one of six states with a law prohibiting the sale of dildos and other items designed or marked primarily for the stimulation of human genitals. After receiving a complaint from the Citizens for Strengthening Community Virtues, that gathered enough voter signatures to force a prosecution, the Dickinson County Sheriff’s Office purchased 36 novelty items including “artificial devices, vaginas, dildos” from the Lion’s Den.11 All of the 29 counts in the indictment allege that between October 28, 2003, and the present time, the Lion’s Den “knowingly, recklessly and unlawfully is engaged in promoting obscenity . . . ”12 Under Kansas law, selling and promoting obscene adult novelties is a misdemeanor for the first offense, which may be punished by up to one year in jail and/or a $2,500 fine.13 Dickinson County Attorney Kristie Hildebrand stated, “The grand jury’s indictment here may lead to other obscenity cases being filed across the state.”14 Additionally, Hildebrand has contacted Bruce Taylor, who has agreed to provide assistance for prosecuting this case through “drafting responses to Motions typically filed in such cases.”15 Meanwhile, the United States Court of Appeals for the Eleventh Circuit is wrestling with an appeal from a District Court that has twice struck down an identical Alabama law.16

In another case, Gary A. Robinson pleaded guilty to transportation of obscene materials in what United States Attorney Bill Mercer believed constituted the first federal obscenity prosecution in Montana.17 Robinson’s videotapes entitled “Ride’um Cowgirl” and “Dogs and Horses and Pigs and Chickens” among others, contained bestiality as well as excretory functions. The videotapes were sent through the United States Postal Service. Robinson has been released until sentencing.

In the second obscenity case brought within the same week in Montana, two men, Thomas Lambert and Sanford Wasserman, were charged with transportation of obscene materials and face numerous other federal charges. The allegedly obscene videotapes include such titles as “Rape and Sodomize” and “Physically Raped.”18 The two men could face a maximum prison sentence of 20 years and a $500,000 fine for money laundering, and may face a prison sentence of five years and a $250,000 fine for transportation of obscene material and conspiracy.19


The House of Representatives Judiciary Committee voted to approve the Video Voyeurism Prevention Act, S. 1301, an Act that would outlaw many forms of voyeurism occurring with miniaturized technology such as cameras on cell phones.20 Passed by the Senate in September, the Act would prohibit picture taking in bedrooms, locker rooms, among other locations where there is a reasonable expectation of privacy.21 The Act would punish violators with a maximum one year prison sentence and fines.22 The Act now moves to the full House for consideration.

Texas Governor Rick Perry wants to implement a tax on adult clubs to help pay for public school education, but the State Comptroller Carol Keeton Strayhorn wants to pass a law depriving adult clubs of liquor licenses, which may put them out of business.23 Perry’s strategy is to lower taxes on property and increase what he calls “sin taxes” through the creation of a $5 tax to enter adult businesses, and a $1 tax on cigarettes.24 The Governor’s plan would minimize the tax burden on home owners while at the same time maintaining school funding. However, Strayhorn disagrees with this plan stating, “I don’t want my five granddaughters growing up in a state where the governor says partnering with sexually oriented nightclubs is an acceptable way to finance their education.”25

On the spam front, Maryland is considering a bill containing some of the toughest punishments for sending spam proposed in all 50 states.26 The bill, which contains provisions for jail sentences of up to ten years for fraudulent and deceptive email practices by Internet marketers and up to five years in prison for misleading headers on spam, is expected to be signed into law by Maryland Governor Robert Ehrlich.27 State Senator Robert Garagiola “analogize[s] it to putting more anti-spam cops on the beat. There are finite resources to fight crime. As you see more people being gone after and more spammers captured and prosecuted, you’re going to see less spam as a result.”28 The state of Virginia has passed a similar law, which provides for up to a five year jail sentence for individuals who send fraudulent emails.29 Although most state spam laws have been pre-empted by CAN-SPAM, that Act allows states to regulate spam in limited ways, particularly in the area of fraudulent practices.

Notwithstanding objections about the limitation on free speech rights, Missouri is in the process of approving a bill prohibiting new adult-oriented billboards and requiring existing adult- oriented billboards to be removed within three years after the bill’s passage.30 The bill has passed the House and the Senate and is now in Missouri Governor Bob Holden’s hands. The bill would also ban signs on adult entertainment businesses within a one-mile radius of a highway, and would only allow those establishments to post two signs: one sign displaying the business name and hours of operation and the other sign stating that minors are not allowed in the establishment.31 Commenting on the billboard legislation, Republican Representative Bob Johnson stated, “What we’re talking about here is probably a violation of the United States Constitution. This singles out certain businesses and their ability to conduct their business.”32 See, there are some legislators who read the Constitution.


Four individuals in Detroit were charged with violating the CAN-SPAM Act by fraudulently promoting weight loss products.33 The four are charged with hiding their identities in hundreds of thousands of emails, and using relay computers to deliver their messages.34 According to a professor at the Mayo Medical School consulted by federal investigators, the ingredients in the product promoted did not work.35 The case is still pending, and no judgments have been obtained under the CAN-SPAM Act as of yet. Jeffrey G. Collins, United States Attorney for the Eastern District of Michigan, stated, “The cyber scam artists who exploit the Internet for commercial gain should take notice. Federal law now makes it a felony to use falsehood and deception to hide the origin of the spam messages hawking your fraudulent wares.”36 Moreover, as of May 19, 2004, all adult-oriented emails must contain the term “Sexually-Explicit,” as the first 19 characters of the subject line and in the text, as very specifically set forth in the regulations.


The H.I.V. outbreak is the first involving performers in the San Fernando Valley adult- video industry since 1999. It forced a voluntary moratorium on filming adult-oriented productions,37 which was lifted on May 12, 2004.38 Darren James is the actor believed to have brought the virus into the industry after he did a film in Brazil.39 Five actors have since tested positive for the virus.40 In response to the outbreak, Los Angeles County and state officials attempted to force actors in adult entertainment productions to use condoms in scenes involving sexual activities.41 The idea was struck down by the adult industry in California, which produces approximately 4,000 videos per year (probably tens of thousands of sex scenes), with the majority of producers calling mandatory condom use, “an attack on their business and the quality of films.”42 Some production studios located in San Fernando stated that they would move their production business from California if mandatory condom use was required.43 The National Institute for Occupational Safety and Health is currently investigating the H.I.V. outbreak in the adult industry, and will offer advice to the Los Angeles Health Department concerning potential workplace safety and health solutions for adult production sets.44 The backlash from this looms large for content producers.


The first DVD unit, which skips over swearing, nudity, violence, explicit drug use, and other allegedly offensive content, is now available at Wal-Mart.45 The DVD player sells for $79, and allows users to fast-forward and filter original movies depending on how the user has preprogrammed the machine.46 However, the DVD player is involved in a legal battle with Steven Spielberg, Martin Scorsese, Steven Soderbergh as well as other members of the Directors Guild of America.47 They argue that the DVD units allow users to violate copyright law when users “mute and skip the playback of movies on DVDs that they have lawfully bought or rented.”48 Issues relating to the creation of unauthorized “derivative works” are also implicated by the device. The lawsuit is still pending.



Keira, a freshman at Indiana University, operates and poses nude on her Web site that she produces from her seventh floor dorm room.49 Richard McKaig, Dean of Students, stated that since the freshman uses the school’s space, and probably its name, without the school’s authorization, it is up to the campus judicial system if Keira broke the school’s ethics rules.50 If so, punishment would range from a reprimand to expulsion.51

In other news, “toothing” is the latest sex craze to hit the United Kingdom.52 Toothing is when wireless technology devices and pre-specified language is used to help two strangers meet for anonymous sexual encounters.53 Toothing boards, blogs, and Web sites are available on the Internet, where devoted toothers can meet and share ideas.54 As a toothing Web site states, “Toothing is a form of anonymous sex with strangers – usually on some form of transport or enclosed areas such as a conference or training seminar. Toothers meet by first connecting suitable equipment – such as a modem, phone or palmtop computer. Users discover other computers or phones in the vicinity and then send a speculative message.”55


The Louisiana House Criminal Justice Committee just approved House Bill 1626, the “Baggy Pants Bill,” which states: “It shall be unlawful for any person to appear in public wearing his pants below his waist and therefore exposing skin or intimate clothing.”56 The Baggy Pants Bill would punish violators with 3 eight-hour days of community service and a maximum fine of $175.57 State Representative Derrick Shepherd, when asked about the Bill, stated, “Hopefully, if we pull up their pants, we can lift their minds while we’re at it.”58 However, Joe Cook, Executive Director of the A.C.L.U. Louisiana Chapter, believes the Bill “infringes on young people’s freedom of expression and their privacy rights.”59

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, or AOL Screen Name: “Webattorney.”

1 L. Sullivan, “Administration Wages War on Pornography,” Baltimore Sun (April 6, 2004), at,0,3004361.story?coll=bal-home-headlines.

2 Id.

3 S. McCaffrey, “Justice Dept. Cracks Down on Adult Porn,” The Charlotte Observer (April 3, 2004), at

4 L. Sullivan, “Administration Wages War on Pornography,” Baltimore Sun (April 6, 2004), at,0,3004361.story?coll=bal-home-headlines.

5 A. Walls, “Prosecutors seek conservative venues for porn trials,” Pittsburgh Tribune-Review (May 18, 2004), at

6 Id.

7 Id.

8 T. Coleman, “Porn Cases Raise Concerns,” Charleston Daily Mail (May 10, 2004)

9 R. Pardon, “Porn Sites Surge to 1.6 Million,” XBiz (April 5, 2004), at

10 S. McCaffrey, “Justice Dept. Cracks Down on Adult Porn,” The Charlotte Observer (April 3, 2004) at

11 S. Ross and A. Anderson, “Major Brand Novelties Deems Obscene by Kansas Grand Jury,” AVN (April 12, 2004), at

12 Id.

13 Id.

14 Id.

15 Id.

16 Williams v. Pryor, No. 02-16135-00 (11th Cir.), argued September 23, 2003.

17 T. Brown, Man Pleads Guilty to Federal Obscenity Charges in Montana, AVN (March 25, 2004), at

18 C. Johnson, “Porn Charges Denied; Defendants Made $400k Selling Videos, Lawmen Say,” The Billings Gazette (April 2, 2004), at .

19 Id.

20 R. Pardon, “Anti-Video Voyeurism Federal Bill Moves Forward,” (May 13, 2004), at

21 Id.

22 Id.

23Reuters, “Tax Plan Turns Into Strip Club Spat,” (April 22, 2004), at

24 Id.

25 Id.

26 G. Gallen, “Maryland Lawmakers Lean Hard on Spammers,” (April 26, 2004), at

27 Id.

28 Id.

29 Id.


31 Id.

32 Id.

33 AP, “Missouri Governor Mulls Ban on Sexy Signs,” (May 7, 2004), at

35 Id.


37 N. Madigan, “New H.I.V. Infection in Sex-Film Industry,” The New York Times (April 30, 2004), at


39 N. Madigan, “New H.I.V. Infection in Sex-Film Industry,” The New York Times (April 30, 2004) at

40 AP, “First Four Charged Under ‘CAN-SPAM’ Law,” (April 29, 2004), at R. Pardon, “AIM Lifts Porn Moratorium a Month Early,” (May 12, 2004), at R. Pardon, “AIM Lifts Porn Moratorium a Month Early,” (May 12, 2004) at

41 D. Evans, “County Can’t Force Condoms, Porn Lawyers Say,” Daily Journal Staff Writer (April 21, 2004), at

42 AFP, “US Porn Films Roll Again – Without Condoms,” The Sunday Times (May 14, 2004), at

43 Id.

44 R. Pardon, “AIM Lifts Porn Moratorium a Month Early,” (May 12, 2004), at

45 Hollywood Reporter, “Wal-Mart Sells Anti-Smut DVD Player,” Reuters (April 13, 2004), at

46 Id.

47 Id.

48 Id.


50 Id.

51 Id. 52 R. Pardon, “Porn Stars Blooming at Indiana University,” (April 7, 2004), at G. Gallen, “Toothing Sex Craze

53 Id.

54 Id.

55 Id.

56 B. Thomas, “Memo to Britney: Lose the Low-Slungs,” NBC News, May 13, 2004, at,” (April 19,2004), at




March 2004 Update


By: Lawrence G. Walters


Bruce Taylor, a Department of Justice (“DOJ”) Special Attorney from 1989 to 1994, was recently rehired as part of a renewed effort by the government to prosecute obscenity cases against the adult industry. Taylor was an attorney for the DOJ during the heyday of its Regan- Bush Sr. anti-porn effort, which reinforces the current commitment to escalate its war against adult erotica. As DOJ spokesman Bryan Sierra stated, “Bruce has vast experience, both at the federal and state level, prosecuting those kinds of cases. It is all part of our overall effort to kick- start obscenity prosecutions after a long absence.”1 The DOJ has also assigned an elite FBI team to focus exclusively on the DOJ’s newly invigorated assault on adult erotica. Additionally, President Bush is seeking an increased budget to fight adult entertainment companies using obscenity laws, as evidenced by his fiscal 2005 budget proposal released in February. 2 Given the groundswell of support from Congress for the concept of obscenity prosecutions, this effort should receive all the funding requested by Bush and Ashcroft. Now that the training sessions have been completed, the funds set aside, a leader picked and the gumshoes in place, all signs point to a significant effort coming down the pipe against the adult industry. The time for legal evaluation and compliance is now. ‘Nuff said.


On March 2, 2004, the United States Supreme Court heard oral arguments in Ashcroft v. ACLU, which was the government’s third attempt to have the Child Online Protection Act (“COPA”)declaredconstitutional. TheCourtmustdecidewhetherCOPAprotectschildrenfrom adult online content without stifling adults’ free speech rights. The Third Circuit Court of Appeal struck down COPA because it allowed the Internet to be judged by “contemporary community standards” which is difficult to enforce due to the Internet’s breadth, and the Philadelphia-based federal appeals court struck down COPA on broader free speech grounds. The ACLU argued that “COPA’s bludgeon suppresses an enormous amount of speech protected for adults and is unnecessary and ill-tailored to address the government’s interest in protecting children from sexually explicit images.”3 COPA, which has been on hold pending the Court’s decision, may impose $50,000 fines and six-months of jail time for first-time offenders, with increased fines for repeat COPA offenders. The Court is expected to render a decision within this term, which closes this summer.

The pending decision in that case reinforces the need for some form of age verification protecting the free areas of adult websites, or free sites themselves. Various options are available, and the author’s firm allows its clients to use the method described on Regardless of the method chosen, age verification is becoming a critical issue both in terms of compliance with COPA (if upheld) and to prevent the government from accusing webmasters of providing erotica to children during the expected wave of obscenity prosecutions on the horizon. Despite the possibility that COPA may be struck down, compliance is universally recommended by Industry attorneys.


In one of the first federal obscenity cases in almost a decade, Garry Ragsdale was sentenced to serve 33 months and his wife, Tamara, was sentenced to serve 30 months for conspiracy to mail obscene material, transporting obscene material, and aiding and abetting.4 The material at issue included videos entitled “Brutally Raped.” The two are currently out on bail, pending appeal. Others are also facing federal obscenity charges, including Jon Coil, Rob Black, and Extreme Video.

A federal grand jury indicted Harold Foote Hoffman II on March 10, 2004, for transporting allegedly obscene videos depicting bestiality via Federal Express to an address in Alabama. If convicted, the indictment orders Hoffman to forfeit all money and property gained from transporting the material. United States Attorney Kasey Warner said, “Our strategy is to focus on cases involving the online distribution of obscenity for commercial gain and obscenity involving children.”5 This is the first time that this author has seen an indictment where a private commercial courier, Federal Express, as opposed to the United States Mail, was used in a case involving the transportation of obscene materials , although such prosecutions have been statutorily authorized for decades.

In Canada, Steve Sweet, the head of Sweet Entertainment Group, is currently being tried for allegedly making and distributing obscene material. The materials at issue include videos depicting urination, bondage, and sadomasochism. Sweet will offer evidence regarding consensual acts displayed in the videos, the popularity of bondage, the unlikelihood of harm from the videos, and the widespread nature of bondage sites on the Internet. This case will raise issues regarding “contemporary Canadian community standards.”6 This case is also important as a glimpse into what the future may hold for webmasters indicted for obscenity offenses here in the United States. This trial may last as long as six weeks. Until then, Sweet Entertainment is continuing to provide adult entertainment via its site,


Culminating with the now infamous Janet Jackson exposure, the federal government has decided that it has had enough of Americans deciding what they want to watch and listen to and is set to come down with new regulations aimed at accomplishing just that goal. Never mind the fact that the event at the Super Bowl has been the most-searched in the history of the Internet, receiving more than three times the number of hits than the 2000 election received on the day after voting and five times as many searches as the day the Space Shuttle Columbia exploded.7 Parent groups and the moral majority are pushing Congress and the Federal Communications Commission (“FCC”) to come down on broadcasters over indecency law violations and the revocation of licenses.8 The House of Representatives overwhelmingly voted, 391 to 22, to increase penalties to $500,000 for the holders of broadcast licenses and performers who violate federal standards at times when children may be listening, between 6 a.m. and 10 p.m., and also supported the revocation of licenses of repeat offenders. The Senate version of the bill proposes to increase fines to $275,000, with a maximum fine of $3 million for a 24-hour period for corporations and a maximum fine of $500,000 for a 24-hour period for individuals.9 The passage of the House bill, H.R. 3717, which encompasses only content broadcast over public airwaves and not cable or satellite programs, bars the transmission of obscene, indecent, and profane material. The measure was strongly supported by the White House, which said in a statement, “This legislation will make broadcast television and radio more suitable for family viewing.”10 This measure may make television safer for children, but what about those adults who use their brains and want the right to choose what they watch or listen to? Howard Stern fans across the country did not have a choice when their favorite disk-jockey was pulled from Clear Channel Communications’ programming recently over allegedly “indecent conduct” aired during the broadcast. A campaign designed to oppose this new decency push by the FCC is circulating, and can be found here: StopFCC.Com – The campaign for free speech. Free speech is an essential liberty provided to Americans, yet it is one that we must fight the most to preserve, as evidenced here.


A February court hearing suggested that Paris Hilton not only debuted in her first adult film with ex-boyfriend, Rick Solomon, but she also directed and shot the film. In response to a $10 million copyright infringement lawsuit filed by Solomon, Seattle-based Marvad Corp., which is owned by Solomon’s ex-roommate, argued that Hilton played a big role in the production and shooting of the film, she is the co-owner of the film’s copyright, and that Solomon’s failure to acknowledge her on the copyright registration renders the registration invalid. Solomon’s attorney stated, “When an actor appears in a motion picture and may help direct scenes…that doesn’t change ownership.”11 The Court has yet to decide this issue.


In an unusual joint effort, some of the United States’ largest Internet Service Providers are teaming up to file lawsuits against hundreds of people who have been accused of violating the CAN-SPAM Act for sending millions of unwanted emails known as “spam.” Much like what the Recording Industry Association of America did to combat song swapping, Microsoft, America Online, Earthlink and Yahoo! targeted mostly “John Doe” defendants in the suit and plan on working together for future lawsuits.12

Since its commencement in January of this year, the Act has yet to meaningfully reduce the amount of spam being sent to users’ inboxes. According to Brightmail, a spam filtering company, the volume of spam has grown continuously since the Act took effect, with spam taking up as much as 60 percent of emails in January up from the 58 percent in December.13 Consequently, the Federal Trade Commission (“FTC”) has decided to post a Web forum at to gather public thoughts and input about the “war on spam.” The FTC is soliciting comments on modifications of the Act, its application and whether the public feels like more regulations are necessary. The FTC also seeks public input on what other questionable online practices should be added to listings of “aggravated violations,” like e-mail harvesting and dictionary attacks.14


Acacia has done it again. Disney Enterprises, Inc., which owns ESPN, Disney, and ABC News, entered into a license agreement with Acacia Technologies Group for the Digital Media Transmission technology. Acacia has licensed more than 116 companies for its technology in all industries, including online music, adult entertainment, movies, and news industries. 1 5 Resolution of the Acacia digital media transfer technology issue is still pending in the courts. However, until the courts resolve the validity of the claims, Acacia will continue compelling users to license its technology.

In other news, Playboy Enterprises, Inc., entered into a multimedia venture with France- based men’s lifestyle publisher 1633SA to start an adult Web site featuring young men called, which will be launched in March of this year. The venture also includes a deal for Playboy to supply content to cellular phones, which would allow users to download such things as wallpaper images and streaming video. Playboy currently operates many other international Web sites in Germany, Taiwan, Brazil and the Netherlands.16

Also, Harvard’s Committee on College Life approved a plan to distribute and publish its first edition of an adult-oriented student run magazine, which will be called the “H Bomb.” This magazine will be an official Harvard publication and distributed during its May commencement ceremonies. Although the magazine was approved by Harvard, it will not necessarily be funded by the college. The magazine will feature articles concerning sexual issues as well as naked pictures of Harvard undergraduates, with the stipulation that no naked pictures may be taken inside Harvard buildings. Now that is what you call a Harvard education.


Elizabeth Book, 42, of Ormond Beach, Florida, planned a nationally publicized political protest for “decriminalizing the female breast” for the last day of Bike Week in Daytona Beach. She filed a federal lawsuit seeking an emergency restraining order against the City of Daytona to allow the protest to occur without arrests or harassment, but the federal court denied the request because it did not have enough time to hear from the City. The protest went on as planned, but Book was arrested during the protest when she bore her breasts, which violates Daytona’s public nudity ordinance that states a “full and opaque covering” of the nipple and areola is required, along with half of the outside surface of the breast below the areola.17 She will take her ordinance violation case to court, with the assistance of the author as defense counsel. Book faces a fine of $253 and the possibility of one year in jail.18 Book will fight for her First Amendment right to protest and said, “Do you think for one minute I would pay them? Never!”19
Also, a driver in New York was arrested for breaking New York state law prohibiting

watching television while driving, as well as another law barring the display of sexually explicit material in a public place.20 The driver was arrested after cruising by police playing a DVD entitled “Chocolate Foam,” which was visible from his passenger-side sun visor and on screens located in the car’s headrests. Depending on a motorists’ location, he or she could face fines and even jail time for the display of X-rated images. Regarding the penalties involved, supporters of the state law believe, “Those restrictions would apply if the content is located in a vehicle. You have effectively moved beyond the privacy of your own home,” stated Jeff Matsuura, Director of the Law and Technology Program at the University of Dayton.

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, or AOL Screen Name: “Webattorney.”

1 Richard Schmitt, Yes Plans to Escalate Porn Fight, Los Angeles Times, (Feb. 14, 2004) at,1,7713213.story .

2 Id.

3 AP, Supreme Court weighs porn, free speech,, (Mar. 2, 2004), at

4 Scott Ross, Ragsdales Sentenced to Federal Prison, AVN, (Mar. 8, 2004), at

5 Chris Wetterich, Nitro Man Indicted on Obscene-Video Charges, The Charleston Gazette, (Mar. 11, 2004) at

6 Angus Fitzpatrick, Steve Sweet Goes to Trial, Xbiz, Feb. 18, 2004, at

7 A. Schatz, The Lycos 50 Daily Report, Lycos (Feb. 4, 2004) at 8 J. Pelofsky, House Panel Pushed TV, Radio to Clean Up Shows, Reuters (Jan. 28, 2004) at .

9 Scott Ross, Broadcast Decency Enforcement Act of 2004 Passed in Landslide Vote, AVN, (Mar. 11, 2004), at

10 C. Hulse, House Votes 391-22, To Raise Broadcasters’ Fines For Indecency, New York Times (March 12, 2004) at

11 Cory Kincaid, Hilton Called the Shots, Xbiz, Feb. 24, 2004, at .

12 C. Cobbs, Microsoft, AOL Earthlink and Yahoo! Sued At Least 165 Suspected Spammers, Orlando Sentinel (March 11, 2004) at

13 C. Farrar, “Fraction” Of Spam Complies With CAN-SPAM: Report, (Feb. 11, 2004), at

14 C. Farrar, FTC Seeking Commment on Spam Reg, Definitions, (March 11, 2004),

15 Brandon Shalton, Disney Gets Goofy,, Feb. 26, 2004, at Disney.html.

16 Cory Kincaid, Playboy Unveils Wireless Plan, Xbiz, (Feb. 20, 2004), at =1116.

17 Mike Schneider, Women Sue to March Topless During Daytona Beach Protest, Orlando Sentinel, Mar. 5, 2004, at,0,6372207.story?coll=sfla-news-florida.

18 Henry Frederick, Experts Disagree About Topless Protest’s Effect, Daytona Beach Journal, Mar. 10, 2004, at

19 Id.

20 CNN, XXX-DVDs A New Hazard For Drivers, (March 10, 2004) at


U.S. Plans to Escalate Porn Fight

U.S. Plans to Escalate Porn Fight

Justice Department hire of a veteran prosecutor answers criticism from Christian conservatives who have long sought a crackdown on smut.

By Richard B. Schmitt Times Staff Writer

WASHINGTON — The Justice Department has quietly installed an outspoken anti-pornography advocate in a senior position in its criminal division, as part of an effort to jump-start obscenity prosecutions.

The Bush administration’s election-year move follows three years of heat from the Christian right, which believes that Atty. Gen. John Ashcroft, a longtime friend and ally, has fallen down on the job when it comes to fighting smut.

Now, the appointment of a tough new cop on the porn beat and other recent moves by the department to bolster obscenity cases are galvanizing conservatives, while leaving representatives of the adult-entertainment industry to wonder whether they have become a political football.

Officials said the appointment of Bruce A. Taylor, who worked in the department during the heyday of its anti-porn efforts in the late 1980s and early ’90s, shows that Justice is serious about cracking down on porn after what critics called lax enforcement by the Clinton administration.

In his resume, the 53-year-old Taylor, who got his start as a Cleveland city attorney in the 1970s, lists his involvement in more than 600 obscenity cases as a prosecutor or a legal advisor.

The defendants in those cases constitute a who’s-who of adult-entertainment industry tycoons, including Hustler magazine publisher Larry Flynt and Reuben Sturman, a onetime comic-book salesman turned porn magnate.

In a survey two years ago, Adult Video News, a trade publication based in Chatsworth, identified Taylor as one of the top “enemies” of the industry. The story was titled: “These Are the Folks Who Want to Put You Out of Business.”

Taylor, who in recent years has headed a conservative advocacy group fighting for tougher regulation of the Internet, has been given the title of “senior counsel” within the criminal division at Justice, with a focus principally on federal adult obscenity issues.

The department’s obscenity chief, Andrew Oosterbaan, who has been drawing much of the flak from conservatives, will retain his position. But instead of reporting to him, Taylor will answer to a more senior-level assistant attorney general.

Bryan Sierra, a Justice spokesman, said that by hiring Taylor — which the department didn’t publicize but confirmed when asked by The Times — the department was simply marshaling additional resources rather than undercutting anyone’s authority or submitting to political pressure.

“Bruce has vast experience, both at the federal and state level, prosecuting those kinds of cases,” Sierra said. “It is all part of our overall effort to kick-start obscenity prosecutions after a long absence.”

Sierra said Taylor was unavailable for comment.

The department has made other moves recently to shore up its anti-porn effort, including assigning for the first time in years a team of FBI agents to focus exclusively on adult-obscenity cases.

In his fiscal 2005 budget proposal released this month, President Bush sought increased spending to fight obscenity; it was one of the few spending increases — besides for anti-terrorist efforts — in the otherwise austere proposal.

Porn industry representatives said all the activity had the look of an administration trying hard to appease an important constituency during an election cycle.

“This is a crude, crass political effort,” said Jeffrey Douglas, executive director of the Free Speech Coalition, a trade association for the adult-entertainment industry.

He questioned whether the public at large was as interested in cracking down on adult fare as the Justice Department and said the hiring of Taylor was “a very dangerous, disturbing step” toward infringement on free speech.

Some defense lawyers say Taylor’s record in court has been a decidedly mixed bag. His first case against Sturman, the erstwhile comic-book salesman, resulted in a hung jury. A few years ago, he was brought in to act as a special prosecutor in a case against an adult bookstore operator in South Bend, Ind.; the defendant was acquitted. Some of the Internet legislation he has pushed in recent years has been roundly rejected by the U.S. Surpeme Court as violating the 1st Amendment.

But conservative activists said the moves in the Justice Department were long overdue. They have been unhappy because, with funds limited for purposes other than the war on terrorism, the department has been targeting only purveyors of the worst forms of sexually explicit material — such as that involving simulated violence. One such pending case is against a North Hollywood film distributor known as Extreme Associates.

Anti-porn groups have argued that this tack misses the largest distributors and the bulk of the problem, including the growth of pornography over the Internet. They are looking to Taylor to launch a tough enforcement era.

“He believes in taking on big cases that will have a major impact,” said Patrick Trueman, an advisor to the Family Research Council who headed the Justice Department’s anti-pornography unit in the 1980s and was once Taylor’s boss. “They are bringing him in for the same reason I did: They want to win, and he is the most experienced guy.”

In the 1980s, Taylor was the lawyer for an anti-porn group known as Citizens for Decency Through Law, which was founded by Charles Keating, who later became embroiled in the savings-and-loan scandals and went to jail.

Over the years, Taylor has advised scores of attorneys around the country on the niceties of obscenity law, and two years ago was invited by the Justice Department to participate in a training symposium for new prosecutors.

He maintains a collection of legal papers from pornography cases that covers “every brief in every case,” according to Trueman.

Most recently, he has been the president and chief counsel of the National Law Center for Children and Families, a Fairfax, Va., group active in writing federal legislation outlawing indecent material on the Internet as well as fighting child exploitation.

Among the supporters of his law center is Cincinnati billionaire and philanthropist Carl Lindner, who in the early 1990s gained additional celebrity by helping lead the opposition to a local exhibit of sexually explicit work by photographer Robert Mapplethorpe.

Lindner gave Taylor’s group $100,000 in 2002, according to federal tax records.

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