Sex, Lies and Videogames

By: Lawrence G. Walters

Weston, Garrou, DeWitt & Walters

www.GameCensorship.com

© Lawrence G. Walters, Esq. (2006). All rights reserved.

Introduction

It has been said, “Censorship is the bastard child of technology.” Technological advances in video gaming software have created a rapid evolution from 1970’s arcade game technology to today’s role playing games, featuring an almost life-like level of realism, which mirrors the natural world in all of its graphic violence and sexual activity. In tandem with electronic gaming’s rapid evolution and realism has been a meteoric rise in popularity and revenues which now rivals that of the motion picture industry.¹ This tremendous growth and change has also spurred protest from family values groups. The fact that violence, sex, and videogames seem to play well in the media has brought out a fair number of lawmakers, eager to prove their “family values” mettle by answering the call that something be done at the legislative level to control access by minors to this increasingly violent and sexually-explicit game content.

This article will explore the current efforts to control dissemination of graphic videogames at both the state and federal levels, and will discuss how such efforts have fared in the courts. This study will then give the reader an evaluation of the industry’s future, and some suggestions as to how parental concerns can be balanced with the rights of game developers.

The Reality of Virtual Reality

Videogames have evolved from the primordial “Pong” to modern virtual reality in a relatively short time. As the little green aliens on the screen began to take on more lifelike characteristics, games started to deal with increasingly adult themes. Videogame developers were no longer hindered by the perception that “videogames are for kids,” and they began to embrace the “darker” side of human activity. Today’s games fascinate, terrify, repulse, and sexually arouse users with such intensity that some claim that it threatens the ability of users to separate fantasy from reality.²

Online role playing games such as Second Life^®™ allow users to create a virtual alter ego, and engage in the entirety of human activity, from land acquisition to dating – from sex to serial killing. It is only a matter of time before game developers will begin exploring deeply taboo subjects, such as pedophilia, incest, or rape. This potential has the videogame industry stepping back to ask itself whether any content boundaries exist, or if free expression rights should allow for examination of all these topics. At a recent sex and videogames conference, developers, attorneys, and sex therapists queried whether some degree of voluntary industry regulation would be appropriate in order to ward off government censorship. ³ Opinions vary widely on this issue, and consensus appears to be elusive. The certainty is that videogames are destined to reflect elements of the human condition never contemplated by the developers of the innocuous Pong, and some backlash is likely to result.

Previous Legislative Attempts

Already, six states have passed bills that restrict the sale of violent or sexually-explicit videogames.⁴ Similar bills are pending in several others.⁵ Fortunately for the videogame industry, the courts have thus far been uniformly protective of the game developers free expression rights, and have struck down these laws on First Amendment grounds. Importantly, the courts have unanimously held that videogames constitute protected “speech” under the Constitution, particularly given the extensive themes and artistic/literary content included in modern games.⁶

State lawmakers have struggled to define what constitutes a “violent” videogame, and how such determinations should be made. Some have focused on specific acts of violence towards police officers, while others have attempted to use a modified “obscenity” test; focusing on whether the game has serious literary, artistic, political, or scientific value with respect to what is appropriate for minors.⁷ However, First Amendment jurisprudence dictates that the government may only regulate the sale and distribution of erotic, as opposed to violent, media. Only when an expressive work crosses a certain line of eroticism will the courts approve restrictions on otherwise protected speech.⁸ This counterintuitive dichotomy has served to frustrate many legislators, and their attempts to restrict the sale of violent videogames exclusively to adults have met with crushing defeats in the courts.⁹ It is unlikely, however, that this string of legal victories will continue unbroken. At some point, lawmakers will find the “sweet spot” of regulation, and pass a law that will be upheld.

Case Law

The first case to recognize the constitutional protections afforded to videogame content was Interactive Digital Software Association v. St. Louis County.¹⁰ The case was initiated as a challenge to St. Louis County’s ordinance restricting the sale of violent videogames to minors. After denying the industry’s motion for summary judgment, the District Court dismissed the complaint and upheld the Ordinance’s constitutionality. The Eighth Circuit Court of Appeals reversed, on the grounds that the Ordinance violated the First Amendment.¹¹ The Appellate Court focused on the fact that the county attempted to restrict access to violent videogames based specifically on their content, along with the alleged harms potentially befalling those who play them.¹²

Where laws seek to regulate speech based on content, the courts are bound to analyze the laws under a very stringent method of legal review known as “strict scrutiny.” Under this test, the government bears the heavy burden of demonstrating that the law is justified by a “compelling governmental interest,” and that the least restrictive means have been used to achieve the interest.¹³ The strict scrutiny test has been the downfall of numerous videogame laws, given the inability of the state governments to demonstrate any actual “harm” resulting from violent videogame play, as would be necessary to satisfy the state’s initial burden. In case after case, the state or local government seeking to justify the videogame restriction failed to come forth with any convincing evidence demonstrating that playing videogames causes any discernible harm to either children or adults.

In the next legal challenge, Video Software Dealers Assn. v. Maleng,¹⁴ the plaintiffs, including an industry trade association, challenged the State of Washington’s ban on selling violent videogames to minors.¹⁵ The Washington statute prohibited only violence against a “public law enforcement officer.”¹⁶ In attempting to justify the law, the State attempted to argue that the violent content regulated by the law fell into the category of “obscenity” and was “harmful to minors,” under existing legal standards. However, the court rejected the invitation from the state to expand the definition of “obscenity” or “harmful materials” to include violence.¹⁷ In addition to faulting the government for failing to establish a sufficient governmental interest in regulating violence, the court invalidated the law based on the fact that it was unconstitutionally vague, in that it failed to precisely identify the range of videogames the State sought to regulate.¹⁸

Later challenges met with a similar fate: The State of California passed Cal. Civil Code § 1746, restricting the sale of violent videogames, and requiring that the games carry a particular label identifying them as such. The content regulated under the Act involved any depictions of “killing, maiming, or assaulting of any image of a human being.”¹⁹ The District Court threw out the law, holding that while the Statute was not unconstitutionally vague, it likely violated the First Amendment due to the government’s failure to establish a compelling state interest in protecting minors from violent videogame content.²⁰

Illinois jumped into the fray, passing a statute prohibiting the sale of violent and sexually-oriented videogames to minors, requiring forced labeling, prohibiting self-checkout procedures, and requiring warning signs near points of sale.²¹ In ruling on the Entertainment Software Association’s Motion for Preliminary Injunction against the law, the court noted that the State did not submit sufficient proof that violent videogames incited lawless action, aggressive behavior, or “brain damage” (as alleged by the State).²² The court ruled that the State’s ability to regulate violence is limited to media inciting imminent lawless action.²³ However, the State’s mere desire to censor violent videogame content was insufficient to support a legitimate governmental interest, as required to support the legislation.²⁴ A similar ruling resulted from the First Amendment challenge to Michigan’s violent videogame legislation, which was enjoined in November 2005, on First Amendment grounds.²⁵

As a result of these legal (and other) challenges, it is now well-established that modern videogames are entitled to full First Amendment protection. This is significant since regulations impacting speech based on its content are presumed to be unconstitutional, and governed by a completely different set of legal rules and principles than legislation impacting just about any other topic. Consistently, state and local governments have faltered when attempting to establish a causal link between videogame violence and real world aggression – particularly in children. The anecdotal observations by sociologists and psychologists in this regard have thus far been insufficient to justify a ban on the sale of expressive materials, even to children.

What does the future hold?

The losses in court have not dissuaded censorship advocates from encouraging lawmakers to keep trying to pass these laws. For example, state lawmakers worked with one well-known anti-gaming figure to develop a Bill prohibiting the sale of violent videogames to minors in Louisiana, which cleared the state’s legislature in June, 2006. However, a federal court quickly intervened and entered a Temporary Restraining Order barring its enforcement.²⁶ Similar efforts continue in Florida, Utah, Maryland, Virginia, and Oklahoma. Nonetheless, any attempt to equate violence with explicit sexuality will likely be rejected by the courts, given the clear distinction recognized by established judicial precedent.

A. Sexually Oriented Regulations

Undoubtedly, lawmakers will learn from their failed efforts in the courts, and attempt to tweak both their legislative and judicial strategies. One strategy may be to focus only on sexually-oriented video game content. Efforts to restrict erotic videogames may receive a much warmer reception in the courts given the historical precedent referenced above. However, the continued viability of these arguments is not a sure thing. In 2004, the United States Supreme Court rendered its decision in Lawrence v. Texas²⁷ wherein the Court invalidated the nation’s anti-sodomy laws. The rationale used by the Court for its decision is important, and may lay the groundwork for a change in the approach to legislation based on enforcement of a “moral code.” The majority of Justices in that case found that the government’s interest in enforcing morality can no longer justify legislation affecting fundamental freedoms.²⁸ In fact, this revolutionary decision caused Justice Scalia to lament the potential demise of all laws premised on morality, such as those prohibiting prostitution, bigamy, bestiality, and importantly: obscenity.²⁹ Although one district court picked up on this concern, and struck down the federal obscenity statute based largely on Lawrence v. Texas,³⁰ that decision was later reversed by the Third Circuit Court of Appeal.³¹ The full impact of the Lawrence v. Texas case is not yet known, however, the winds of constitutional change may be blowing in favor of erotic expression.

B. Violence Regulations

Some change could be in the works regarding how violent content is addressed by the courts as well, but that change may be detrimental to the videogame industry. As mentioned above, in striking down previous regulatory attempts to date, courts have largely relied upon the lack of evidence of “harm” allegedly caused by videogame violence. However, family values groups are focused on generating scientific evidence to justify restrictions on violent videogames, particularly with regard to consumption by minors. These groups realize that the courts will not “rubber stamp” legislative attempts to restrict access to videogames just because some county council or state legislature thinks it’s a good idea. Moreover, the government will be unable to meet its censorship burden by simply calling some hack psychologist or scientist to the stand to testify as to anecdotal incidents of violent behavior by teens after playing certain videogames. The censors have learned that “real” evidence is required, if the courts are to begin taking their arguments seriously. The industry can therefore expect to see mounting evidence in the form of studies suggesting a link between real world violence, and exposure to violent videogames. The initial studies are starting to come out.³² To the extent that these studies are not discredited – either by challenging their conclusions or their methodology – the government may begin achieving more success in the courts, when seeking to justify violent videogame legislation.

C. A Call to Arms

This should be a call to arms for the videogame industry. A substantial knowledge bank must be generated by the industry’s trade groups and leaders, on the issue of whether videogames impact the real world behavior or attitudes of players. Moreover, the opposition’s studies and testimony must be critically evaluated and publicly discredited, where appropriate. Widespread dissemination of this industry-sponsored information should occur, to help educate the public.

D. The Court of Public Opinion

Of course, the battles in the courts are only part of the equation, and will never ultimately resolve the issues. This battle between censors and proponents of free expression must be waged and won in the court of public opinion as well. Only when the impetus for passing videogame restrictions dries up, will the legislative and legal battles cease. While certain conservative factions will mount objections to violent or sexually oriented videogame entertainment forever, the majority of lawmakers’ constituencies can be educated as to the fallacy of the censors’ arguments. Current evidence utterly fails to establish causation between real world violence and videogame consumption. While proponents of regulation will point to occasional cases of violent outbursts sometime after an individual played a violent videogame, the fact that the media consumption occurred before the violence does not mean that the violence occurred because of the media intake. It would be just as reasonable to assume that playing a game of basketball causes violent behavior, if the individual played basketball before the violent outburst occurred. The public will respond favorably to truthful information about videogame consumption.

E. Working with Parents

In order to protect its own interests, the videogame industry must learn to work with parents who desire to shield their children from violent or sexually-explicit videogames. While the ultimate responsibility falls on the parent, a climate of cooperation must be fostered by the industry to facilitate implementation of each parent’s decision on behalf of their children. Insufficient and/or misleading game ratings, hidden content, media intake, and questionable marketing activities directed toward children will only lead to an adversarial relationship between videogame distributors and the nation’s parents. This will, in turn, lead to more legislative attempts to ban violent and/or sexually-oriented content, forcing an endless round of legislation and litigation. To break this cycle, the videogame industry must collectively ask itself how it can empower parents with sufficient information about videogame content to allow informed purchasing decisions at the point of sale – whether that is a retail location, or via Internet download. It must also re-double its efforts to avoid inappropriate marketing of mature-rated games to children, or through venues populated by minors.

While game-makers view publication of videogames as a right, the government sees it as a privilege – a privilege that the government will be all too happy to take away for political gain. While the courts afford a last line of defense, the videogame industry should heed parents’ calls to review marketing practices, effectively label content, and voluntarily regulate point of sale activity before the government finds a way to take control.³³

Conclusion

As videogames become ubiquitous in American homes, and as the generation that grew up on modern videogames becomes parents themselves, attitudes will change and conservative hysteria will hopefully be relegated to amusing background noise. However, the videogame industry must become active in protecting its own collective interests to mitigate any damage that could occur before attitudes calcify. Media outreach, governmental relations, symposiums, and other visible efforts to educate the public are critical at this unique juncture in the videogame industry’s development. This will drive a wedge between reasonable parents and hysterical censors. If the videogame industry speaks for parents along with children, and is perceived as their ally, the elements of censorship will be left with no support.

Lawrence G. Walters, Esq., is a partner in the national law firm of Weston Garrou, DeWitt & Walters, www.FirstAmendment.com. He has been practicing for over 18 years, and represents clients involved in all aspects involved in the video gaming industry. He recently launched www.GameCensorship.com to serve as a clearinghouse for information relating to videogame censorship efforts. Nothing contained in this article constitutes legal advice. Please consult with your personal attorney regarding specific legal matters. Mr. Walters can be reached at Larry@LawrenceWalters.com, or via AOL Screen Name: “Webattorney.”

 

THE TRUTH ABOUT OBSCENITY LAW

Substantial misinformation has circulated about the issue of obscenity law and compliance guidelines. This handout is designed to call the readers’ attention to some simple truths about the concept of “obscenity,” and how the issue is handled in the courts. Nothing contained herein should be considered legal advice. Please consult your own personal attorney on specific legal questions. The author can be reached atLarry@LawrenceWalters.com.

1. “‘Pornography” is protected speech. “Obscenity” is illegal.” True. Significant confusion surrounds this issue, and the press often confuses these two terms. “Pornography” is a lay term generally used to describe sexually-explicit media. All such media is presumed to be protected by the First Amendment to the United States Constitution, unless and until declared obscene by a judge or jury at a final hearing. “Obscenity” on the other hand, is a legal term used to describe material that meets the “Miller Test” established by Miller v. California, 413 U.S. 15, 93 S.Ct 2607, 37 L.Ed.2d 419 (1973). Although various nuances exist in state statutes, the Miller Test can be boiled down to the following:

Obscene means the status of material which: (a) the average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest; (b) depicts or describes, in a patently offensive way, “sexual conduct” as specifically defined by law; and, (c) taken as a whole, lacks serious literary, artistic, political, or scientific value.

2. “Nudity, without sexual activity, cannot be declared obscene.” False! The obscenity laws apply to depictions of sexual activity as well as the “lewd display of the genitals.” This is different than the scope of materials covered by Section 2257, which governs to records keeping and labeling. That law applies to “actual sexually-explicit conduct,” which is generally boiled down to penetration, masturbation, bestiality, or S&M conduct. The scope of materials that can be

declared obscene is much broader than the scope of materials which requires 2257 compliance. Our firm has defended images depicting even simple nudity against obscenity charges.

3. “Mixing in some famous literary quotes with hard core material will prevent an obscenity charge.” False! While obscene materials are evaluated “as a whole,” to determine whether they lack serious literary, artistic, political, or scientific value, the courts have held that a stray quote from Volatire or Shakespeare on the pages on an otherwise obscene work will not provide a defense. In order for literary material to be considered in the obscenity analysis, it must be integrated and related to the overall theme of the sexually-explicit materials. The advice of an experienced attorney is critical on this issue.

4. “If other webmasters are distributing similar content, I will be safe from an obscenity prosecution.” False! Prosecutors can pick and choose their defendants. The mere fact that many people are violating the law does not mean you have a defense to distribution of obscene materials. Each case is viewed independently. Remember, some content originates from overseas, and therefore may be subject to a different standard than content published in the United States. In addition, the community standards differ from region-to-region. Therefore, the availability of similar materials on the Internet should not be looked to for guidance in content risk analysis.

5. “If adult bookstores in my area are selling similar content as my website, I am in the clear.” Maybe. Some courts will allow defendants to introduce “comparables” in proving the nature of local community standards in an obscenity case. However, judges are not required to do so. Often, judges will exclude such evidence. Moreover, the mere availability of materials in a geographic location does not mean they are “accepted” as required to establish community standards. Proving acceptability requires information such as sales records or consumption statistics.

6. “I can only be charged where my business is located, or where the website is hosted.” Wrong! The federal government takes the position that defendants in obscenity cases can be charged in any location where the content originates from, passes through, or is received. There is some support for this position in the courts. U.S. v. Thomas, 74 F.3d 701 (6^th Cir. 1996). Therefore, a defendant in an obscenity case may be charged in a jurisdiction where he or she never anticipated defending the materials. Given the current inability to block specific geographic locations from receipt of website materials, this presents a

significant problemforwebmasters. Therefore, you should consider the needtodefend your content in any location in the United States of America.

7. “Obscenity charges are usually just misdemeanors.” False! While some states treat the retail sale of obscene materials as misdemeanor offenses, operating an adult website can result in felony charges relating to wholesale promotion of obscene materials, distribution of obscene materials across state lines, and/or racketeering. Felony obscenity charges can carry drastic consequences, including decades in jail, six figure fines, and forfeiture of all business assets related to the adult website.

8. “The government has to give me fair warning and an opportunity to remove the materials before charging me with obscenity.” Wrong! No notice is required, and webmasters can be physically taken into custody on obscenity charges without any prior knowledge of the investigation.

9. “The government must at least prove that the defendant knew the materials were obscene, right?” Wrong! The courts typically only require that the government prove the defendant had knowledge of the “nature and character of the materials,” not that they were obscene. Therefore, if you know that you are distributing sexually-explicit materials, the government will likely be able to meet its burden in this regard. The question of obscenity is purely a matter for the jury to decide. Obscenity defendants usually have no idea whether they are innocent or guilty, until the jury returns a verdict.

10. “The First Amendment provides a defense to obscenity cases though, correct?” Sort of. Obscene materials are not protected by the First Amendment. They fall within an exception to the First Amendment’s protections, like defamatory speech and national security threats. However, your lawyer can argue that the materials are not obscene, and therefore protected by the First Amendment. But once the materials are found to be obscene, they no longer enjoy First Amendment protection, and are treated as contraband, just like drugs, gambling devices, or automatic weapons.

11. “Only the owners, or day-to-day managers of a website operation can be charged with obscenity.” False. First, any individual or company up the chain, from production, through distribution, to retail sale, can be charged with obscenity violations. Only the end user, in the privacy of his or her own home, is safe from obscenity threats, due to the right of privacy. In addition, the government often seeks to indict as many individual participants in any particular case, as they can legitimately get away with. This usually includes webmasters, designers, assistants, spouses, bookkeepers, managers, owners, operators, consultants, and any other individual with virtually any degree of decision making authority. The idea is to compel underlings to provide favorable testimony against more important figures to the operation. Often this becomes a race to the prosecutor’s office, with many co-defendants seeking to be the first to obtain an immunity deal and turn “State’s evidence.” Sometimes, criminal charges are only threatened, and never pursued, in exchange for an agreement to provide favorable testimony. What will the people in your organization do?

12. “There is no way to protect myself from obscenity charges.” False! Educating yourself on the legal issues, with the help of a competent attorney, will allow you to identify your personal comfort zone or risk tolerance level, given previous prosecution trends. Lawyers skilled in this area can quickly review content and advise whether it is out of the mainstream of current defensibility, or within reasonable risk levels. In addition, a good attorney-client team can generate “valuable” content to be integrated into the sexually-explicit materials, in the hopes of providing a potential defense in terms of literary, artistic, scientific, or political value, for the work at issue.

13. “My chances of being charged with obscenity are astronomically small.” Probably right. Given the vast number of adult websites published on the web at the current time, any given webmaster’s chances of being selected for an obscenity prosecution are remote. However, the stakes are too high, to leave this issue to chance. The likelihood of being targeted for obscenity can be reduced, with proper planning, and the chance of conviction can be likewise reduced by implementing proper legal advice. Practical issues should be addressed as well, like forming a relationship with a bondsman, engaging a private investigator, and establishing a war chest to fight the government if your day to be a freedom fighter comes.

THE END OF THE AGE OF INNOCENCE

– AND THE BEGINNING OF RESPONSIBLE AGE VERIFICATION

By: Lawrence G. Walters, Esq.

Weston, Garrou, DeWitt & Walters

www.FirstAmendment.com

Introduction

Why worry about age verification? “That’s the parents’ job.” “What right does the government have to force me to protect children?” “There is no law in the United States requiring online age verification.” “Age verification devices do not always work, and cost too much.” “They interrupt our traffic flow, and cause us to lose sales.”

The same arguments have been repeated over and over in an effort to avoid implementation of functioning age verification online. However, the era of the adult website without age verification has come to an end. The adult Internet industry has matured to a level that requires acceptance of responsibility for age verification of end users. Adult webmasters can no longer avoid the issue based on the misinformation and excuses that abound in the industry.

New legislation is pending that would require all adult websites to implement a form of age verification approved by the Federal Trade Commission (FTC).¹ A “black list” of noncompliant websites would be created for some unstated purpose.² Credit card processors would only be permitted to service adult websites that incorporated some approved form of age verification.³

This bill is clearly a reaction to the dismal age verification efforts previously undertaken by the adult Internet industry. Unless webmasters decide to take this issue seriously, and adopt a high level of voluntary compliance on their own, the government will be more than happy to provide mandatory compliance requirements which will dramatically impact the ability of U.S. adult webmasters to compete in the worldwide marketplace.

Each of the other mainstream media industries figured this out on its own, before it was too late. The Motion Picture Association of America (MPAA) quickly adopted a ratings system for Hollywood movies to avoid government censorship. The video game industry adopted an even more complex and descriptive ratings system for games with violent or sexually-oriented themes.⁴ The mainstream music industry came close to mandatory warnings and labels before it

¹ Internet Safety & Child Protecton Act of 2005, S. 1507.

² Id. at §103(2).

³ Id. at § 102.

⁴ See: ESRB.org

voluntarily agreed to adopt an explicit lyrics warning system on its own.⁵ These industries recognized that some degree of voluntary compliance was essential to stave off mandatory legislation. Family values groups and conservative lawmakers will always seize the opportunity and utilize an industry’s failure to address child protection issues as a means to garner support, increase donations, and rally their base. The adult Internet industry is a sitting duck for this kind of political shenanigan. While the issue of how to deal with access by minors to adult material online is a complicated one, it must be addressed immediately if the adult Internet industry is to continue enjoying the level of success and free reign that it has experienced over the last decade.

Recent statistics, reported to lawmakers, on access by minors to adult material are shocking, and will certainly motivate Congress to address the problem in the absence of immediate, substantial, voluntary compliance by the industry. For example, researchers allege:

• Only 3% of adult websites require age verification beyond the honor system.

• The largest group of viewers of explicit materials is children between 12-17 years old.

• 74% of adult websites display “free” content.⁶

Statistics like these, while certainly subject to debate and questions about their accuracy, will be accepted as gospel truth by the average citizen, who is fed up with receiving multiple hardcore spam emails every day in their inbox. Irresponsible promoters and affiliates who disseminate such materials are causing immense harm to the vast majority of otherwise responsible, ethical webmasters who seek to scrupulously avoid child customers. While the American lawmakers will not be able to have any impact on foreign webmasters or affiliates who are not subject to United States law, the responsible American webmaster must lead the way by implementing creative, viable, age verification, before any access is provided to sexually-explicit materials. Such efforts may head off governmental efforts to impose age verification requirements that are not realistic, functional or practical for the webmaster trying to compete in the global marketplace.

But what about the issues raised in the first paragraph of this article? Let’s take them one

by one:

Parents Should Protect Children From Adult Media

While it is easy to attempt to shift the obligation to protect children from exposure to inappropriate materials away from the webmaster, and toward the parents, such is not a viable option in the current social/political climate. Indisputably, parents must act as the final gatekeeper when it comes to exposure to any form of information or media. However, billion dollar industries, such as the adult Internet, take on a certain level of responsibility to protect their vast potential audience from age-restricted materials or services. This expectation is fueled partly by the substantial revenues available (or perceived to be available) in the industry. But the obligation also stems from the use of a public communication tool upon which the average citizen is becoming more and more dependent for everyday activities. Just as the airwaves are held in the “public trust” by radio and television stations, in exchange for their agreement to

⁵ The effort organized into a group known as the “Parents Music Resource Center.”

⁶ The Porn Standard, www.thirdway.com (2005)

honor a certain code, there is a perceived obligation on the part of those utilizing the Internet to communicate or distribute commercial goods, to honor a similar implied code of good faith and fair dealing. Failure to honor that code by the adult Internet industry will result in a public backlash.

While most Internet users do not inadvertently become exposed to adult materials online, the rampant exposure to adult-oriented spam email, along with the common use of misleading domain names redirected to adult websites, has resulted in increased accidental exposure to sexually-explicit materials by both adults and children. The public has had enough, and demands some form of voluntary compliance or governmental regulation to deal with this issue. Thus, while we can all agree in principal that parents have the primary obligation of protecting children from exposure to explicit materials, or anything else that they do not want their children to view, the freedom to use the Internet as a tool for profiting from the distribution of erotic materials brings with it socially-imposed responsibility to ensure that age restricted materials are directed at, and consumed by, the appropriate audience.⁷

“Age Verification Does Not Work”

There can be no dispute about the fact that online age verification has not reached a level of perfection. Underage users will inevitably break through any form of age verification currently on the market. Pending developments in biotechnology will ultimately allow websites to screen users by retina imaging, fingerprints, or bone mass scans. However, the level of advancement that has been achieved thus far should not constitute a reason for failing to implement one or more forms of age verification. Neither the government, nor society, demands perfection in this regard. Minors regularly purchase alcohol and cigarettes; yet these products continue to be available on a widespread basis. Should legislation like Representative Lincoln’s Bill, described above, become law at some point, the approved forms of age verification that webmasters must implement will not be 100% perfect, either. However, what is expected by society, and the government that represents it, is some good faith attempt to exclude minors from adult websites.

Most state laws that forbid the sale of pornography to underage individuals contain a “safe harbor” defense, allowing retailers to escape prosecution if they undertook some good faith effort to prevent the sale of age restricted media to minors. This can be something as simple as requiring the clerk to retrieve such items, or enforcing a strict policy of requiring identification from persons who appear under the age of thirty. While none of these efforts will prevent all minors from getting their hands on a copy of Hustler or Penthouse in the brick-and-mortar world, society is prepared to accept some degree of imperfection so long as reasonable efforts are undertaken. Thus, while each age verification device has its weaknesses, something is better than nothing. One final note: Significant incentive exists for webmasters to be among the first to implement real age verification on their websites. Those webmasters will be in a position to argue that they are doing more to protect children from exposure to inappropriate material than the vast majority of the industry. Assuming the remaining webmasters ultimately see the light, and the industry adopts age verification in toto, this argument cannot be made for very long.

⁷ The author does not advocate for, or against, the merits of this burden being imposed on adult webmasters. This is merely an observation based on the author’s knowledge and experience.

However, there is a unique, albeit fleeting, opportunity for webmasters to set themselves apart from the norm, by implementing age verification now, before it becomes the industry standard.

“Age Verification Will Decrease Traffic & Revenues”

In the short term, the implementation of any age check device will likely have an effect on both traffic and revenue. Navigation of age verification screens conflicts with the inherent laziness of the average web surfer. Some companies that have experimented with age verification devices have indicated however, that the lost traffic falls into the category of “junk” that merely eats up bandwidth and costs more than it is worth. Whether this is true or not, the industry must come to terms with the fact that protecting minors from exposure to explicit materials comes with a price. However, in paying that price, webmasters receive significant legal protection and political benefits that are invaluable. Once age verification becomes commonplace, the costs associated with implementation of these devices will be dramatically reduced, since the end user will become accustomed to, and forced to use, some form of age verification on most adult websites. The user’s option to simply choose an alternative site without age verification will quickly disappear. On balance, though, the benefits of implementing age verification far outweigh any potential revenue or traffic losses that may be experienced. Several companies that have implemented age verification on their network of websites have reported to this author that they experienced two, three, or four fold increases in profits after doing so, despite the initial expectation of decreases. While an argument can be made that those increases could have been even higher without age verification, one criminal prosecution or civil claim, resulting from access by minors, would quickly eat up any increased profitability potentially realized by omission of an age verification solution.

“There Is No Law Requiring Age Verification”

Not true. Significant misinformation has been circulated in the adult webmaster community about this issue. Initially, almost every state has adopted a statute prohibiting the retail display or sale of sexually-explicit materials to minors. Some of the statutes specifically prohibit doing so via a computer, and others are vague in their potential scope. Some of these state laws have been struck down⁸ although most are untested in the courts. A local prosecutor with a thirst for headlines could certainly initiate a criminal charge against a website operator who fails to implement a viable form of age verification. While the courts may ultimately find constitutional problems with any given state statute, prevailing in court is never guaranteed. Moreover, as the United States Supreme Court appears to be swinging towards the conservative side, civil liberties cases will become more difficult to win.

In addition to state law concerns, it should be noted that the Child Online Protection Act (COPA) requires age verification for adult websites. Commercial websites must implement age

⁸ See: Reno v. ACLU, supra, American Book Sellers Foundation for Free Expression v. Dean, 202 F.Supp.2d 300 (D. Vt. 2002); PSI Net, Inc. v. Chapman, 167 F.Supp. 878 (W.D. Pa. 2001), question certified, 317 F.3d 413 (4th Cir. 2003); Cyberspace Communications, Inc. v. Engler, 142 F.Supp.2d 827 (E.D. Mich. 2001); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997); Center for Democracy & Technology v. Pappert, 337 F.Supp.2d 2006 (E.D. PA 2004); Southeast Booksellers Ass’n v. McMaster, 371 F.Supp.2d 773 (D.S.C. 2005).

verification based on 1) credit cards; 2) verified passwords; or, 3) “other means” that are reasonably feasible under the current technology.⁹ While the courts have thus far preliminarily enjoined COPA,¹⁰ the case has still not been decided, and the law could still be upheld by the United States Supreme Court. The results of the pending Supreme Court nomination process may bear heavily on the outcome of this particular case when it reaches the High Court for the third time. Until then, webmasters cannot be assured that they are out of the woods with regard to COPA compliance. Moreover, the government has never promised that it will not retroactively enforce the Act against those webmasters who failed to comply while it was enjoined, assuming that the law is ultimately upheld.

In sum, both state and federal law pose potential age verification concerns for adult webmasters. Moreover, as noted above, pending legislation may soon be adopted to require use of certain forms of approved age verification by adult webmasters. To say that the law does not require age verification for adult websites is simply wrong.

Conclusion

As is evident, online age verification is about to become a reality – whether through the adoption of voluntary guidelines, or government mandate. Various online age check options are currently available, ranging from database verification to voluntary affirmation of age under the penalties of perjury.¹¹ Some combination of systems may be required, depending on the nature of the content involved, the structure of the website, and the level of compliance desired. For example, soft core free tours may require a device that is less intrusive and time consuming than a free hardcore website. Unless and until government-mandated age verification becomes a reality, compliance will be guided by the webmaster’s good faith. This good faith can pay off in the end, since functioning age verification eliminates a powerful argument for government regulation – protection of children. This theme recurs over and over again whenever the government pursues legal action against adult-oriented websites. Often, the issue of access by minors has nothing to do with the charge involved, such as in obscenity prosecutions. However, those cases are much harder to defend when the prosecution can argue that the webmaster is providing obscene materials to children. By taking away that argument, the webmaster forces the government into a pure free speech battle over censorship of erotic materials. In that way, the webmaster has dramatically increased his or her chances of success in defending just about any legal claim. In the end, the industry may do well, by doing good.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, DeWitt & Walters, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of the adult industry. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the

⁹ Child Online Protection Act, 47 U.S.C. § 231.

^{10 10} American Civil Liberties Union v. Reno, 217 F.3d 162, 169-170 (3^rd Cir. 2000) certiorari granted by, Ashcroft v. American Civil Liberties Union, 532 U.S. 1037, 121 S.Ct. 1997, 149 L.Ed.2d 1001 (2001), vacated by, Ashcroft v.

American Civil Liberties Union, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002), remanded to, American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3rd Cir. 2003), cert. granted by, Ashcroft v. American Civil Liberties Union, 540 U.S. 944, 124 S.Ct. 399, 157 L.Ed.2d 274 (2003), aff’d and remanded by, Ashcroft v. American

Civil Liberties Union, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (June 29, 2004).

¹¹ See: www.idology.com; www.electracash.com; www.aristotle.com; www.birthdateverifier.com.

United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”