2257 Comments.September 2007


Washington, D.C. 20530

In the Matter of Docket No. CRM 104

Revised Regulations for Records AG Order No. 2888-2007 Relating to Visual Depictions of

Sexually Explicit Conduct RIN 1105-AB18

To: Andrew Oosterbaan, Chief

Child Exploitation and Obscenity Section Criminal Division

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

Attn: “Docket No. CRM 104”


These comments are permitted pursuant to the above captioned proposed rule, dated July 12, 2007, 69 F.R. 38033, and relating to 18 U.S.C. § 2257, (“2257”).


The undersigned attorney is a partner in the law firm of Weston, Garrou, DeWitt & Walters, which represents many producers and distributors of still and motion picture and print publications, to which 2257 applies. Our clients include both brick-and-mortar businesses and Internet-based webmasters. The firm also represents numerous Internet service providers, hosts, search engines, age verification services, access providers, forum operators, blogs, as well as entrepreneurs involved in emerging technologies and communication devices not yet released. All of the proposed regulations apply to at least some of those clients. The undersigned has solicited and obtained significant input from the firm’s clients, and has used factual data and other information in compiling these Comments.



Imposing the requirements of full 2257 document maintenance and inspection on so- called “secondary producers” having no involvement in the actual hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers, imposes an undue and excessive burden on those secondary producers. The regulations interpret the Adam Walsh Child Safety and Protection Act, Public Law 109-248 (hereinafter “the Adam Walsh Act”) as requiring full compliance by all producers with respect to any depictions subject to 2257 compliance, produced after July 27, 2006. The Department contends that while it could require

compliance for images produced after July 3, 1995; the effective date of 2257; it chooses not to do so to avoid any “conceivable ex post facto concern.” However, significant ex post facto concerns remain with respect to requiring compliance for all images produced after July 27, 2006. Importantly, secondary producers had, until May 1, 2007, relied on the protections of the preliminary injunction issued in Free Speech Coalition v. Gonzalez, Case No. 1:05-cv-01126- WDM-BNB (D. Co.), which prevented records inspections and enforcement actions against secondary producers/Free Speech Coalition members. This injunction was based on the well- reasoned decision of Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998) holding that 2257 did not apply to secondary producers. As a result of these unique circumstances, many secondary producers have been unable to acquire age verification documents mandated by 2257, in connection with images displayed on secondary producers’ websites. Primary producers of such material have been hesitant to circulate personal information relating to performers depicted in such content, citing privacy concerns and the potential for stalking and/or identity theft resulting from widespread circulation of this information to all secondary producer/webmasters displaying the images on the Internet. This hesitancy was buttressed by the injunction rendered in favor of the Free Speech Coalition, as many primary producers took the position that secondary producers did not need to acquire 2257 documents. As a result, if the regulations are adopted with an effective date for compliance by secondary producers of July 27, 2006, a host of depictions, otherwise protected by the First Amendment to the United States Constitution, will be suddenly criminalized, and their continued display subject to federal felony prosecution. Such widespread criminalization of protected material offends basic First Amendment principles and must be avoided. The undersigned suggests that any records keeping requirements imposed upon secondary producers must be prospective only, or at the very least, relate back only to the date the Free Speech Coalition injunction was vacated.

The undersigned echoes the concerns expressed by the Free Speech Coalition in its comments simultaneously submitted. In particular, the undersigned can confirm that astronomical costs will be borne by industry producers in the attempt to ensure compliance with the new regulations. These costs take the form of additional staffing, software development, updating and maintenance, and institution of new compliance procedures. These costs will be excessive for large businesses, and insurmountable for smaller operations. Many secondary producers in the online community are operated by one or two individuals with a minimal legal compliance budget. Imposing complex document collection and cross-referencing requirements on such small business, when objectively reasonable alternatives remain available, is unnecessary and unduly burdensome. For many such businesses, this new regulatory requirement will mean the difference between a viable business, and a net loss. Any legitimate concerns relating to document availability can be addressed by allowing secondary producers to designate the name and address of the primary producer’s records custodian, without requiring the maintenance of a separate and duplicate set of regulatory documents.

The legal costs alone, to be borne by affected producers to ensure proper 2257 compliance, will be excessive. Some companies will be required to hire a specialized attorney to do nothing other than oversee the company’s 2257 compliance obligations. Given the draconian sanctions for failing to comply with one or more of the numerous substantive or procedural requirements imposed by the statute and the regulations, hyper-technical compliance oversight

and constant review is required. The cost to be borne by the industry, and the individuals involved, is exorbitant and unnecessary.

The undersigned reiterates the other concerns identified by the Free Speech Coalition with respect to the expense of storage or 2257 material, the volume of material required to properly comply, the cost of software to facilitate compliance, the expense of hiring Records Custodians available during all business hours for potential inspections, the practical and privacy concerns associated with address disclosure requirement for home-based businesses, the inapplicability of the regulations to live webcam performances, the inability to inspect original ID’s by secondary producers, and the additional concerns regarding retroactivity. If records keeping obligations are to be imposed on secondary producers at all, the undersigned urges the Department to make any such obligations prospective only, and not retrospective to July 27, 2006 – or any other date in the past.



The proposed rule seeks to impose 2257 obligations on the commercial display of depictions involving the “lascivious exhibition of the genitals or pubic area of the person.” 28

      1. § 75.1(n) (proposed). The Comments to the proposed regulations recognize that this term has been interpreted by federal case law, citing United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) (setting forth the so-called “Dost factors” for determining whether the display of a child’s genitals or pubic area is “lascivious” under 18 U.S.C. §2256). However, application of the Dost factors is not readily transferable to evaluating whether images depicting adults should qualify for 2257 compliance. The Dost factors primarily relate to whether the set, setting, pose, and visual depictions are appropriate or natural for a child on the one hand, or unduly suggestive or erotic for a child, on the other. These factors are virtually nonsensical when applied to depictions of adults. Children cannot legally be portrayed in adult-oriented, sexual poses and situations. Therefore, the factors set forth in the Dost opinion have some logical bearing on determining whether an image is an innocent depiction of a nude child – such as in a bathtub or a crib – versus a depiction of illegal child pornography. However, given the First Amendment’s protection of sexually explicit material, the factors make no sense when applied to erotic depictions of adults. Such depictions are not inherently illegal or improper. Therefore, considerations such as whether “the focal point of the visual depiction is on the child’s genitalia or pubic area; whether the child is depicted in an unnatural pose or in inappropriate attire; whether the child is fully or partially clothed; whether the visual depiction suggests sexually coyness or willingness to engage in sexual activity and whether the visual depiction is intended or designed to elicit a sexual response in the viewer,” are not appropriate or logical considerations where adult images are concerned.

Moreover, if case law is to determine the applicability of 2257 obligations to images involving the lascivious display of the genitals or pubic area, another decision renders the regulatory scheme entirely unworkable. In United States v. Knox, 32 F.3d 733 (3d Cir. 1994), the court concluded that federal child pornography laws could apply even to depictions of minors who are fully clothed, if other factors set forth in Dost were present. As a result, 2257

obligations could be imposed on an extremely voluminous amount of depictions – the vast majority of which should not be within the purview of the regulations, given their spirit and intent. Millions of images on websites such as Myspace.com, Youtube.com, and Facebook.com, given their commercial display, may now require full 2257 compliance even though they do not involve nudity or sexual activity. Expanding the scope of content covered by 2257 regulatory obligations by using the judicial interpretations of § 2256 – related to child pornography – causes the regulations to become overly broad and applicable to content to which they were never intended to apply. While the Comments to the proposed Rule refer to the previous statutory exclusion of lascivious depictions as an “anomaly,” it is more likely that the exclusion of this category of content was an intentional effort to restrict application of the law to only those images involving actual sexually explicit conduct, and avoid the overbreadth concerns resulting from application of the statutory and regulatory obligations to images depicting fully clothed adults.

Further concerns are generated by imposing a cutoff date of July 27, 2006, for 2257 compliance with respect to images depicting the lascivious display of the genitals or pubic area. Now, both primary producers and secondary producers/webmasters, many of whom have had no involvement in the creation of the content at issue, will be required to divine the date on which all content was originally produced (even though such information was never required by the 2257 statutory scheme) and isolate those images that somehow fall within the Dost factors for lascivious display, and further ensure that those images are fully supported by 2257 age documents. The potential for inadvertent erroneous compliance efforts in this regard is overwhelming. The producers should not be put in the position of first attempting to apply an illogical legal test to determine whether a particular depiction fits within the regulatory scheme, and then seek out information that was never required by the statute, to determine whether 2257 obligations attach to each and every image displayed on a website – sometimes numbering in the millions. These concerns render the proposed regulations overly broad and excessively burdensome.



As proposed, 28 C..F.R. § 75.6(a) requires that the statement describing the location of 2257 records be included on “every page of a website on which a visual depiction of an actual human being engaged in actually sexually explicit conduct appears.” This new obligation is unnecessary and overly burdensome.

The current regulations adopted on June 23, 2005, require that a link to the mandated disclosure statement appear on a website’s homepage or principle URL. § 75.8(d). The proposed regulations dramatically increase the required locations and reproductions of the full disclosure statement by mandating that it appear on each and every webpage where triggering content appears. No rationale is offered by the Comments to the proposed regulations for this dramatically more burdensome compliance obligation, and none exists. Affixing the required disclosure statement to the homepage or principle URL of a website has worked within the

industry for years. This compliance method was the industry standard even before the 2005 regulations first imposed the requirement. Now, the proposed regulations seek to require that webmasters reproduce the entire disclosure statement on each and every webpage, even though the information was readily accessible and immediately viewable when the user first entered the website.

Clearly the imposition of the requirement that the entire disclosure statement be placed on each page is not derived from the statute, and it is the proposed regulations that impose the unconstitutional burden on speech, not the statute. Specifically, § 2257(e)(1) states,

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 [Emphasis added.]. In this paragraph, the term “copy” includes every page of a website on which matter described in subsection

        1. appears.

It would not be an unreasonable implementation of the statute for the Department to apply the above by requiring that the disclosure statement on each applicable page be posted by way of a hyperlink, as allowed by the current regulations. While the interference with First Amendment freedoms might still be impermissible by such an implementation of the statutory requirement of that a disclosure appear on each page, it certainly would be a considerable step in the right direction, and perhaps the best that the Department can do without contradicting the requirements of the statute.

In the absence of some commonsense modification, the proposed duplicitous requirement will only increase the cost of regulatory compliance, and will do nothing to protect children or make the required information more readily accessible to the Department. Several pieces of information are required for a compliant disclosure statement. Moreover, since secondary producers are allowed to list the primary producers’ Records Custodian(s), as an optional disclosure compliance method, and since many websites are made up of content provided from numerous primary producers, the disclosure statement for some websites runs several “pages” long. This, combined with the newly-minted regulatory requirement of including an original date of production (as discussed infra) in the disclosure statement, will transform many websites into more disclosure statement than website. The new requirement will decimate the look and feel of all websites to which the regulations apply, and will require a complete restructuring of each and every website to allow for this substantially-increased compliance obligation.

It should be noted that website space is at a premium. Website designers struggle to include only the most relevant and necessary information on any particular webpage, given the short amount of time that a typical user spends on any given webpage.1 Website “clutter” is a constant problem for web designers who seek to create a clear interface that is not confusing or

1 The typical website user’s attention span is measured in seconds. Mainte-Net.com.

overwhelming for users. Requiring that each webpage now include a substantial amount of regulatory information, just for the privilege of displaying otherwise protected expression without criminal penalties, violates traditional notions of expressive freedom, interferes with the creative process, and is overly burdensome.



As proposed, 28 C.F.R. § 75.6(b)(2) inexplicably would change in the available dates that can be used to satisfy the ‘date’ requirement in the disclosure statement. While the current regulations allow each producer to select from the following dates: (as most applicable to the particular depiction) “manufacture, publication, duplication, reproduction, or reissuance of the matter;” the proposed regulation limits the information to the “date of original production of the matter.” Interestingly, nowhere in the existing statute or regulatory scheme is the original date of production required for triggering content. In fact, the current regulations, at § 75.2(e), require that the required information be segregated from all other records, which shall not contain any other records. Accordingly, it would have been a regulatory violation to include the original date of production of any depiction within the required 2257 records, and that still appears to be the case today. Therefore, the proposed rule mandates inclusion of information in the disclosure statement that cannot and must not be found within the required 2257 records. As a result, the requirement is ultra vires, illogical and overly burdensome.

Even if access to the original production date information were readily available, this new requirement (not found anywhere in the statute) will mandate a massive overhaul of each and every disclosure statement now existing in connection with any triggering content. Given the inability for most secondary producers to access original production date information for content appearing on websites, the vast majority of secondary producers choose from one or more of the other currently-authorized dates when completing their disclosure statements. Many use the date of duplication, reproduction, or reissuance – all of which would ordinarily be within their unique knowledge. If a new production-date requirement is imposed upon all producers, specifically included secondary producers/webmasters, such entities will be put to the Herculean task of identifying an original production date for each and every image appearing on their websites, which often number in the hundreds of thousands, if not millions, for some mega-sites. As noted above, the original production date is often not readily available, particularly since this information has never been required by § 2257. Consequently, hosts of most websites will immediately become out of compliance with 2257 obligations, in the event the proposed regulations include a new, original production date requirement for disclosure statements.

Another concern relates to the difficulty encountered in developing a rational system for tying production dates to images appearing on websites. Many webpages include content produced on different dates, within the same webpage. In many cases, each image will have been produced on a different date, although all are included in the same webpage. Accordingly, each webmaster will need to develop a unique system of cross-referencing, coding, or identifying the production date of each image on any given webpage, within the disclosure statement. This

new obligation will result in substantially increased burden and cost of compliance, if the information can be required at all. The undersigned therefore urges the Department to maintain the current system, allowing webmasters to identify the most relevant date, for the depictions in question, by authorizing producers to select from the dates of production, manufacture, publication, duplication, reproduction, or reissuance of any given depiction.



The Department contends, in accordance with Executive Order 12866, that the proposed rule will not have an annual effect on the economy of $100 million or more. This is factually untrue. The Department, itself, estimates that there are currently five-hundred thousand (500,000) websites producing visual depictions of actual sexually explicit conduct, constituting approximately five thousand (5,000) businesses. See, Comments to proposed rule. While the undersigned believes, having had considerable exposure to the industry, that the actual numbers are substantially higher, using the Department’s own estimates, it cannot be said that the impact of the proposed rule will be less than $100 million per year.

As noted by the Free Speech Coalition in its comments, the burden on both small and large businesses in terms of increased staffing, software support, and legal advice will be substantial and possibly incalculable. The need for secondary producers to employ a Records Custodian to be available a minimum of twenty (20) hours per week for five thousand (5,000) businesses would exceed the $100 million threshold itself,2 but the substantial costs resulting

from the redesign of each website to accommodate for a disclosure statement on each and every webpage, along with the research and implementation of the production date requirement, will easily exceed the threshold impact itself.

A poll of this firm’s web-based clients requesting a cost estimate to comply with the new disclosure requirements indicates an average cost of annual compliance at $210,092 per business. This, multiplied by the minimum 5,000 affected businesses, well exceeds the $100 million threshold requirement. Accordingly, this rule should be reviewed and promulgated in accordance with the requirements pertaining to rules which will have a greater than $100 million annual impact on the economy.


In summary, the undersigned requests that the Department substantially revise the proposed Rule to address the concerns outlined herein. The burden imposed upon producers as a result of compliance with the proposed Rule would be clearly excessive. This concern, along

2 Assuming that an average Records Custodian would require a salary of at least $30,000 per year, times five thousand (5,000) businesses, results in an annual impact of $150 million itself.

with the other legal issues identified in these Comments, should be considered and addressed when adopting the final Amended Regulations.

Respectfully Submitted,

Lawrence G. Walters, Esq. Larry@LawrenceWalters.com


781 Douglas Avenue Altamonte Springs, FL 32714 (407) 975-9150

Fax (407) 774-6151

Principal Office:

12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025

(310) 442-0072

Fax (310) 442-0899

Dated: September 10, 2007

Government Sanctioned Copyright Infringement


By: Lawrence G. Walters, Esq.

Weston, Garrou, DeWitt & Walters


A little-known dispute between the island nation of Antigua and the United States may turn into a major headache for media companies, including those in the adult entertainment industry. Specifically, Antigua is threatening to withdraw its agreement to protect United States copyright and other intellectual property rights, as a result of the United States’ refusal to honor a World Trade Organization (“WTO”) ruling, finding it in non-compliance with the 1994 General Agreement on Trade and Services (GATS).

The WTO dispute arose out of United States’ efforts to criminally prosecute online gambling websites – particularly those involved in sports betting. Antigua happens to be one of the nations that issues licenses for Internet gambling businesses. Accordingly, it has become a virtual haven for online gambling companies looking to set up shop and offer their services throughout the world, including to customers in the United States. A United States entrepreneur by the name of Jay Cohen decided to set up such a business, headquartered in Antigua, around the turn of the century. The United States Government took the position that his online sports

betting service violated the Wire Wager Act,1 and claimed that Cohen could be held criminally responsible as a United States citizen, even though his business was established offshore, in a jurisdiction that specifically permits online gambling. Cohen was convicted at trial, and his conviction was affirmed on appeal.2 The United States Supreme Court refused to intercede, and allowed the conviction to stand.3 Cohen served about 18 months in jail, and has since been released.4

This prosecution, and other saber-rattling by the United States against Antiguan casinos and sports books, caused the Country to evaluate its legal options in response. The option it chose to pursue was a formal claim filed with the World Trade Organization, alleging discriminatory treatment by the United States against offshore gambling enterprises, as compared to those based in the United States. Interestingly, the United States appears to allow some forms of online gambling – particularly off-track horse betting via the Internet5 – while it completely prohibits any such gambling on foreign-based websites. While Antigua raised a number of other

1 18 U.S.C. § 1084.

2 U.S. v. Cohen, 260 F.3d 68 (2nd Cir. 2001), cert. den. 536 U.S. 922, 122 S.Ct. 2587, 153 L.Ed.2d 777 (2002).

3 Id.

4 Ed Koch, “’Net gaming operator Cohen freed from prison,” Las Vegas Sun (March 23, 2004), which can be viewed at: http://www.lasvegassun.com/sunbin/stories/sun/2004/mar/23/516573962.html.

5 See, Title 15 U.S.C. § 57, the Interstate Horseracing Act.

arguments in the WTO proceeding, the discriminatory treatment claim ultimately succeeded, both at the initial level and in the Appellate Body.6

As a result, the United States was found to be in substantial non-compliance with its GATS treaty, and was given a period of time to correct the problem. Instead of taking any steps to open the door to offshore betting, the United States increased its hostility level towards online gambling, by initiating additional prosecutions against BetonSports.com, and others, and even charging industry service providers, such as NETELLER ® with money laundering.7 As one might imagine, such actions did not make Antigua happy, and put the United States at risk of substantial sanctions from the WTO. So, in an unprecedented move, the United States decided to withdraw its market access commitment – covering gambling – from the schedule of services it negotiated in the GATS treaty. In short, the United States essentially said that it would not play by the rules anymore.

While technically, the United States is permitted to withdraw its commitments in this manner, doing so exposes a country to compensation claims by other WTO members for lost trade opportunities resulting from the withdrawal. Any WTO member can seek financial compensation from the United States, if it can prove losses resulting from the withdrawal of commitments. In addition, Antigua is also considering its own retaliation against the United States by suspending its concessions and commitments under the “Trade Related Aspects of Intellectual Property Rights Agreement.” This important agreement protects intellectual property rights, such as copyrights and patents relating to pharmaceuticals, as well as the software and entertainment industries. Ultimately, Antigua could become a haven for the distribution of pirated DVDs and website content. Given the global reach of the Internet, Antiguan companies could compete with existing media outlets for United States customers by offering V.O.D. and other media delivery systems, containing bootlegged material. There may be little that United States webmasters – or the United States Government for that matter – can do to enforce their intellectual property rights against a country who has suspended its agreement to recognize those rights. Other industries are sweating out this issue as well, as pharmaceutical makers depend heavily on their patents to exclude competing generic brands, in order to maximize profit and recovery of research and development funds. Hollywood filmmakers and mainstream musicians are exposed as well.

All this may be the result of the stubborn insistence of the United States Government on protecting the gambling monopoly currently held by the brick and mortar casinos in Las Vegas and elsewhere. Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA) last year, despite the fact that over 85% of American citizens believe that the government should not restrict online gambling.8 The UIGEA was the last gasp of a soon-to-be-ousted Republican Congressional majority that attempted to preserve its position by pandering to family values groups on the Internet gambling prohibition, as well as other hot button issues, like prohibition on gay marriage and stem cell research. Their strategy failed, but the country is left with the

6 World Trade Organization, “United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services: Report of the Appellate Body,” (April 7, 2005).

7 US v. Lawrence, et. al., Case No: 1:07-cr-00597-PKC (S.D. NY 2007).

8 Zogby International Poll: 87% believe online gambling is a personal choice which should not be banned; Wall Street Journal Poll: 85% oppose government prohibition of online gambling.

consequences of their actions. Ultimately, this misguided effort to prohibit one form of gambling entertainment activity may result in a disaster for a wide variety of United States’ industries reliant upon international enforcement of intellectual property rights.

Some light exists at the end of the tunnel, however. Representative Barney Frank (D- Mass) has introduced legislation that would allow United States and foreign companies to obtain licenses to conduct online gambling, and offer those services to United States customers.9 Representative Wexler (D-FL) introduced a bill that would exempt poker from the definition of “gambling,” allowing online poker rooms to again serve United States’ customer demands.10 These baby steps may ultimately take the U.S. to a place of compliance with WTO rulings, or at least allow a settlement to be achieved with Antiguan authorities. For now, oddly enough, the fate of the adult Internet community may well be tied to the fate of the online gambling industry.

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 United States Supreme Court over the last 45 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.”

Give me Liberty or Give me Death


By: Lawrence G. Walters, Esq.

Weston, Garrou, DeWitt & Walters www.FirstAmendment.com

Would any adult industry participant be willing to die for the privilege of continued involvement in the adult industry? Doubtful, but that’s exactly the penalty that faces accused Iranian distributors and producers of websites in which pornographic works appear.1 Although the Bill imposing the death penalty must still be approved by Iran’s Guardian Counsel, it appears sure to pass, since it was overwhelmingly approved, 148 to 5, in Iran’s Parliament.

Paying the ultimate price for participating in ones occupation of choice seems somewhat barbarian in our “civilized” society, but some of those involved in the United States’ adult industry have come close. Reports have surfaced over the years of parents loosing custody of their children as a result of their appearing in, or producing adult films.2 Our firm has assisted some of these individuals in educating the court as to the constitutionally-protected nature of their commercial erotic activity, but the prejudice remains. Participants in the “porn” industry continue to be vilified by angry ex-spouses, conservative politicians, and power-hungry lawmakers.

We are now entering a new phase of obscenity prosecution where real individuals will pay a hefty price to defend the rights of others to engage in free expression. Karen Fletcher,3 Ray Guhn,4 Max Hardcore,5 JP Distributors, 6 and MoviesByMail.com7 are all facing state or federal obscenity charges as a result of their involvement in some form of commercial erotica. While they do not face the death penalty, any defendant dragged through an obscenity prosecution faces potential personal and financial ruin. Suddenly, your former “friends” and business acquaintances don’t want to have lunch with you because you may be “under surveillance.” They express concern about being dragged into court as a witness. Your family starts to wonder whether your protestations of innocence can really be believed. “He must have

1 L. Haines, “Iran Approves Death Penalty for Pornographers,” TheRegister.co.uk (June 13, 2007), which can be viewed at: http://www.theregister.co.uk/2007/06/13/iranian_bill/.

2 E.g., Anderson v. Anderson, 736 So.2d 49, 53 (Fla. 5th DCA 1999)(reversing child custody determination based, in part, on live-in boyfriend’s operation of pornographic website business).

3 C. Deitch, “Dirty Words,” Pittsburgh City Paper (May 10, 2007), which can be viewed at: http://www.pittsburghcitypaper.ws/gyrobase/Content?oid=oid%3A30196

4 M. Kernes, “ews Analysis: It’s People vs. Freeman, Florida Style,” AVN.com, which can be viewed at: http://avn.com/index.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=270764.

5 S. Javors, “Max Hardcore Indicted on Obscenity Charges,” XBiz.com (May 31, 2007), which can be viewed at: http://www.xbiz.com/news_piece.php?id=23329.

6 M. Kernes, “Attorney Says Justice Dept. Sold Same ‘Obscene’ Material As His Client,” AVN.com (March 16, 2007), which can be viewed at: http://avn.com/index.php?Primary_Navigation=Articles&Action=View_


7 S. Javors, “Feds Charge MoviesByMail.com Owners With Selling Obscene Materials,” (June 14, 2007), which can be viewed at: http://www.xbiz.com/news_piece.php?id=23606.

done something, or they wouldn’t be prosecuting him,” goes the popular refrain. Your income stream is usually halted – whether from a decision to avoid further involvement in the adult industry out of legal concern – or as a result of governmental seizure and forfeiture orders. It becomes hard to pay your employees when your payroll account is frozen. Same goes for your defense counsel. The government knows that the best way to win these cases is to make sure that the defendants are forced to turn to the public defender, instead of a competent First Amendment attorney. Sometimes that can be accomplished by impoverishing the defendant prior to a finding of guilt. Sometimes, that little ploy backfires, and certain lawyers will put aside their financial needs for a time, and take on those cases for a reduced fee, or even pro bono. Other times, the government simply picks defendants who do not have sufficient funds to afford high-end legal counsel. Case-in-point: Karen Fletcher and Max Hardcore. Fortunately,

however, attorneys have stepped forward to represent both those individuals despite the apparent lack of substantial defense funds.8

One must wonder, in this age of uncertainty, how many potential defendants would choose to stand and fight, if selected for an obscenity prosecution. This undoubtedly would be an excruciatingly difficult decision, given the personal risks to liberty and finances in the event of a negative outcome. The adult industry has been blessed with a number of freedom fighters who have chosen the path of most resistance over the years, in order to make law for the rest of the industry to enjoy at their leisure. Legends like Larry Flynt, Phil Harvey, Joe Redner, Al Goldstein, and others, give hope to an industry in the crosshairs of the government. Some targets will certainly plead guilty to avoid a fight,9 and even give up information on friends and associates, to reduce personal penalty. Perhaps that is human nature. But as obscenity prosecutions are on the increase, each and every business man and woman in the industry needs to reflect on what he or she will do if caught in the crossfire. The time will come in the not too distant future where the industry will desperately need its next freedom fighter. The courts have yet to rule on some of the key legal issues affecting modern freedom of speech – particularly in the online space. While it is often tempting to avoid conflict with those who can do you harm, a time for valor is upon us, and anyone reading this article may be put in a position of establishing constitutional precedent for decades to come. This is not an industry for the faint of heart, or those looking to make a quick buck with no risk. The risks were evident from the start.

Some of our world’s citizens create adult videos under the threat of death. While defendants in this country do not face death (yet) if convicted, the same cannot be said for cherished constitutional rights, which hang by a thread pending the outcome of current obscenity prosecutions. Who will be next to demand liberty and freedom at all costs?

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

8 Karen Fletcher is being represented on a pro bono basis by the author’s law firm, Weston, Garrou, DeWitt & Walters – specifically by John H. Weston, Jerry Mooney, Derek B. Brett, and Lawrence G. Walters, along with Warner Mariani of Pittsburgh, PA. Max Hardcore is being represented at reduced rates by Jeffrey Douglas and Jamie Benjamin, two respected FALA members and obscenity defenders.

9 The industry saw an unfortunate guilty please recently in the case involving the Pheromoans retail store owners, who pled guilty to obscenity violations in connection with the sale of classic adult videos like Deep Throat and

Devil in Miss Jones. A. Winter, “Va. Sex Shop Owners Plead Guilty to Obscenity Charges,” XBiz.com (June 18, 2007), which can be viewed at: http://www.xbiz.com/news_piece.php?id=23639.

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 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.”

McCowen Motion Website Version








CASE NO.: 2006-CF-003151-C

JUDGE: Allen










  1. The relevant geographic community standard first devel- oped in prior cases involving traditional ʺbrick and mor-

tarʺ applications of the obscenity laws 13

  1. Where obscenity prosecutions are based on materials available on the Internet, the courts have indicated that the relevant community by whose standards obscenity should be measured must be re-evaluated, because the use of purely local community standards would chill the dissemination of constitutionally protected expression to myriad other communities where the materials would be

accepted or tolerated and thus lawful 15




TICS ……………………………………………..









Supreme Court

Ashcroft v. American Civil Liberties Union (Ashcroft I), 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771

(2002) ………………………………. 15, 19, 20, 22, 26, 28, 30

Ashcroft v. American Civil Liberties Union (Ashcroft II), 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690

(2004) ………………………………………………. 18

Butler v. Michigan,

352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412

(1957) ………………………………………………. 33

Elrod v. Burns,

427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547

(1976) ………………………………………………. 32

Hamling v. United States,

418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590

(1974) ………………………………………. 19, 24, 25, 29

Manual Enterprises, Inc. v. Day,

370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639

(1962) ………………………………………………. 27

Miller v. California,

413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419

(1973) …………………………. 9, 10, 13, 14, 16, 18, 23, 27, 33

Pope v. Illinois,

481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439

(1987) ………………………………………………. 11

Reno v. ACLU,

521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874

(1997) …………………………………………. 16, 17, 26

Sable Communications of California, Inc. v. Federal Communications Commission,

492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93

(1989) ……………………………………………. 19, 29

Smith v. United States,

431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324

(1977) ………………………………………………. 11

Courts of Appeals

ACLU v. Ashcroft,

322 F.3d 240 (3rd Cir. 2003) 18

ACLU v. Reno,

217 F.3d 162 (3rd Cir. 2000) ………………………….. 15, 18

Luke Records, Inc. v. Navarro,

960 F.2d 134 (11th Cir. 1992) 11

Perfect 10, Inc. v. CCBill L.L.C.,

F.3d (9th Cir. 2007) 22

District Courts

ACLU v. Gonzales,

F.Supp.2d (E.D.Pa. 2007) (2007 WL 861120) ………. 18, 22

Skywalker Records, Inc. v. Navarro,

739 F.Supp. 578 (S.D. Fla. 1990) 14


Davidson v. State,

288 So.2d 483 (Fla. 1973) …………………………. 13, 14, 33


Souliaguine v. State of Florida,

Fifth Judicial Circuit of Florida, Appellate Division,

Case no. 2006-AP-300 11


United States Constitution:

First Amendment ………………………………….. passim

Florida Constitution:

Article 1, §§ 4 & 9 8


47 U.S.C. § 223 (a) 16

47 U.S.C. § 223 (d) 16

47 U.S.C. § 231 Child Online Protection Act (ʺCOPAʺ)1,8, 19, 21, 22, 30, 31, 34



§ 847.001 (10) ………………………………………… 10

§ 895.03 ……………………………………………. 10

§ 895.03 (3) …………………………………………. 10

§ 895.03 (4) ………………………………………….. 10

§ 847.011 …………………………………………… 10








CASE NO.: 2006-CF-003151-C

JUDGE: Allen


Defendant, Clinton R. McCowen, pursuant to the First and Fourteenth Amendments to the United States Constitution, and Article 1, §§ 4 & 9 of the Florida Constitution, moves this Court to determine the nature and geo- graphic scope of the relevant community whose standards are to be applied in this case in determining the question of obscenity. Specifically, defendant moves the Court to determine that the relevant community must be the

ʺnationalʺ community, rather than any state or local community.

Although use of local community standards has been held to be appro- priate in obscenity cases involving traditional ʺbrick and mortarʺ businesses, substantial precedent suggests that the unique manner in which the Internet operates compels the use of national rather than local standards. This is so because use of local standards would impose an unworkable burden on

internet providers, and would violate the United States Supreme Courtʹs admonition in Miller v. California, 413 U.S. 15, 33, 93 S.Ct. 2607, 2620, 37 L.Ed.2d 419 (1973), that the dictates of the most sensitive jurisdictions should not be allowed to suppress the nature of the materials available in communi- ties where they are accepted or tolerated.1/

Alternatively, defendant would move that the Court determine that the relevant ʺcommunityʺ whose standards will apply should be that of at least the entire state of Florida, as the use of at least a ʺstate-wideʺ standard will reduce, to some degree, the inherent self-censorship which would otherwise be caused by subjecting adult website operators to prosecution under the standards of the least tolerant geographic communities in a state. Use of a

ʺstate-wideʺ standard was specifically approved, though not required, in


However, Miller was decided long before the birth of the Internet and its widespread commercial development, the World Wide Web (hence

ʺwww.***ʺ). Miller thus involved only tangible brick-and-mortar businesses. In the context of Internet-based obscenity prosecutions, Millerʹs approval of state wide standards should — in this context only — establish the smallest

1 As that Court stated:

ʺPeople in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed unifor- mity. . . . [T]he primary concern with requiring a jury to apply the standard of ʹthe average person, applying contemporary community standardsʹ is to be certain that . . . it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person — or indeed a totally insensitive one.ʺ 413 U.S. at 33 (emphasis added).

geographic community whose standards should be applied. Use of the standards of any smaller geographic community than at least the entire state would virtually guarantee the type of self-censorship against which the Miller Court warned, as the most restrictive communities in the nation would ultimately dictate what would be available for viewing in each jurisdiction and community throughout the nation.


Defendant McCOWEN has been charged with two felony counts of violating specified subparagraphs of Florida Statutes (ʺFSʺ) § 895.03 prohibit- ing ʺracketeering activity,ʺ2/ including, inter alia, alleged violations of FS

§ 847.011 (transmission or distribution, etc., of obscenity), in connection with his alleged operation of an adult-oriented website.

The statutory elements which the state must prove to justify a finding of obscenity are set forth in FS § 847.001 (10):

ʺ(10) ʺObsceneʺ means the status of material which:

ʺa. The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

2 The first count asserts a violation of § 895.03(3) (engaging in a pattern of racketeering activity); the second count describes the same activity but asserts a violation of § 895.03(4), engaging in a conspiracy to violate the same provision.

ʺb. Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and

ʺc. Taken as a whole, lacks serious literaty, artistic, political, or scientific value.ʺ (Emphasis added.)

Superimposed on that statutory definition of ʺobsceneʺ would be additional constitutionally required refinements of that test. Most significant to the present motion is the requirement, first clarified in Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), that the ʺ(b) prongʺ (patent offensiveness), as well as the ʺ(a) prongʺ (i.e., prurient interest), must be measured by ʺcontemporary community standards.ʺ3/

In contrast, the ʺ(c) prongʺ (serious literary, artistic, political or scientific value – ʺLAPSʺ), is measured by a ʺreasonable manʺ standard which is not tied to the standards of any particular geographic community.4/

The issue presented by this motion is a determination of which geo- graphic communityʹs contemporaneous standards are to be applied when determining whether internet materials (which, by definition, are simulta-

3 ʺ[T]he jury must measure patent offensiveness against contemporary commu- nity standards.ʺ Smith, 431 U.S. at 301, 97 S.Ct. at 1764. Accord, Haggerty v. State, 531 So.2d 364, 365-366 (Fl.App. 1988), reading the CCS requirement of Smith into the obscenity statuteʹs (b) prong to save it from a claim of facial invalidity.

4 See Pope v. Illinois, 481 U.S. 497, 500-501, 107 S.Ct. 1918, 1921, 95 L.Ed.2d 439

(1987), as well as a recent unpublished decision in Souliaguine v. State of Florida, Fifth Judicial Circuit of Florida, Appellate Division, Case no. 2006-AP-300 (at pp. 4-5 of slip opinion) (a copy of which is attached as Exhibit A for the Courtʹs convenience). See also Luke Records, Inc. v. Navarro, 960 F.2d 134, 138 (11th Cir. 1992), citing Pope and recognizing that local acceptance of materials is irrelevant to the third prong of the obscenity test.

neously and immediately viewable in real time world wide) meet the (a) and

(b) prongs of the statutory and constitutional definitions of ʺobscene.ʺ



Although judicial opinions appear to conflict as to the appropriate makeup and geographical dimensions of the relevant geographic “commu- nity” whose standards are to be applied in obscenity cases, these apparent conflicts are readily explained by contrasting the opinions involving tradi- tional ʺbrick and mortarʺ businesses and those operating solely via the Internet.

  1. The relevant geographic community standard first developed in prior cases involving traditional ʺbrick and mortarʺ applications of the obscenity laws.

Traditionally, the question of which geographic communityʹs standards should apply came up solely in the context of prosecutions for selling or distributing tangible ʺhard copiesʺ of allegedly obscene materials into or from a particular jurisdiction in which the defendant had chosen to do business. For example, in the seminal obscenity case of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973),5/ the United States Supreme Court determined that the geographic community was properly found to include the entire State of California (rather than the entire nation), at least with respect to prosecution of a mail-order business which knowingly mailed ʺhard copiesʺ of allegedly obscene materials to a particular address located in California.6/ A Florida case similar to Miller was Davidson v. State, 288 So.2d 483, 486-

87 (Fla. 1973). Like Miller, Davidson involved a defendant who knowingly chose a particular community into which to ship tangible ʺhard copiesʺ of allegedly obscene materials. While acknowledging that it would have been permissible to employ state-wide standards, the court in Davidson, as in Miller, indicated that, at least in the context of mailing hard copies of materials to a specific address, it was also constitutionally permissible to apply the commu-

5 Miller is a seminal decision because it represented the first time in decades of attempts that a majority of the Supreme Court was finally able to agree on a constitutional test for defining obscenity.

6 The Court also stated, in dictum, that use of a smaller geographic community would have been permissible, but was not required.

nity standards of the local geographical area to which the material was shipped.

In the subsequent case of Skywalker Records, Inc. v. Navarro, 739 F.Supp. 578, 587-588 (S.D. Fla. 1990), reversed on other grounds, 960 F.2d 134 (11th Cir. 1992), and again a case involving hard copies of materials which a party had sold in a specified local community,7/ the United States District Court for the Southern District of Florida held that the jury must apply the standards of a tri-county area consisting of Palm Beach, Broward, and Dade Counties (which coincided with the boundary of the jury pool for that court).8/ Both of the parties asserted that a smaller geographic community should be used, that of Broward County alone,9/ but the Court disagreed, holding that ʺthe bound- aries of the relevant community under Miller are a matter for judicial, not legislative, determination.ʺ10/

However, whether the court used the community standards of an entire state (Miller), a three-county area (Skywalker Records), or a single county (Davidson), the common element of those cases was that they all involved

7 This action involved a civil suit brought by a record company seeking a determination that 2 Live Crewʹs records and audio cassettes were not obscene, contrary to the claims and enforcement threats of the Broward County Sheriff.

8 Although the trial judge ultimately found the recording obscene, the Court of Appeals reversed on grounds that the trial judge could not conclude that the recording lacked serious artistic value based solely on his own value judgments, and the trial record reflected no other evidence to support a finding of a lack of serious artistic value.

9 ʺBoth parties apparently assumed that the relevant community was only Broward County, Florida.ʺ 739 F.Supp. at 587.

10 739 F.Supp. at 587.

knowing, targeted dissemination into a particular jurisdiction. They did not involve a medium like the Internet (or, more specifically, the World Wide Web) where the materials are theoretically ʺpresentʺ simultaneously every- where in the entire world and per force, in every jurisdiction in the nation, with the disseminator having no way to prevent distribution into jurisdictions with more restrictive community standards.11/

  1. Where obscenity prosecutions are based on materials available on the Internet, the courts have indicated that the relevant community by whose standards obscenity should be measured must be re-evaluated, because the use of purely local community standards would chill the dissemination of constitutionally protected expression to myriad other communities where the materials would be accepted or toler- ated and thus lawful.

With the advent of Internet communications, the constitutionally relevant community in obscenity cases has become exponentially more difficult to determine. The United States Supreme Courtʹs first ʺinternet

11 This inability to control the geographic areas capable of viewing the informa- tion on a website has been well documented. See, e.g., ACLU v. Reno, 217 F.3d 162 (3rd Cir. 2000), enjoining enforcement of the Communications Decency Act (CDA) based specifically on its finding of ʺthe inability of Web publishers to restrict access to their Websites based on the geographic locale of the site visitor.ʺ Id. at 166. On direct appeal, no member of the Supreme Court disagreed with this particular proposition, and four of them expressly addressed it and agreed with it. See Ashcroft

v. American Civil Liberties Union (Ashcroft I), 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002), concurring opinion of Justice OʹConnor, 535 U.S. at 587; concurring opinion of Justices Kennedy, Souter and Ginsburg, 535 U.S. at 595.

opinion,ʺ Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997),

struck down under the First Amendment portions of the Communications Decency Act that criminalized the online transmission of materials with

ʺindecentʺ content to persons under 18,12/ and the sending or displaying of

ʺpatently offensive messagesʺ to persons under 18.13/ The Court concluded that the portions prohibiting ʺindecentʺ or ʺpatently offensiveʺ materials were vague and posed too great a risk of self-censorship by website operators. Such self-censorship, in turn, would unconstitutionally limit the scope of constitutionally protected non-obscene materials to which adult users would have access.14/

Significantly, the Reno Court emphatically rejected the Governmentʹs argument that these portions of the CDA should be treated as ʺsecondary effectsʺ-based restrictions, analogous to ʺa sort of ʹcyberzoningʹ on the Internet,ʺ subject only to the relatively lax standards for analyzing time, place, and manner restrictions of expression. Instead, the Court held that they should be analyzed under the strict First Amendment standards that govern content-based restrictions on expression. Id. at 868, 117 S.Ct. at 2342.

12 47 U.S.C. § 223(a).

13 47 U.S.C. § 223 (d).

14 The terms ʺindecentʺ in § 223(a), and ʺpatently offensiveʺ in § 223(d), were both found impermissibly vague, as neither required proof of all the elements of the Miller Court’s definition of ʺobscene.ʺ Id. at 871-874, 117 S.Ct. at 2344-2346. The plaintiffs did not challenge the CDAʹs separate statutory prohibition of ʺobsceneʺ materials.

Equally significant, Reno rejected the Governmentʹs argument that regulations of the internet should be subject to the same level of somewhat deferential constitutional scrutiny the Court had previously allowed for regulations of the content of the broadcast industry. Id. at 868-869, 117 S.Ct. at 2343. The Court concluded that ʺthe Internet is not as ʹinvasiveʹ as radio or televisionʺ (id.), because it would be far easier to be accidentally exposed to sexually explicit content if such were available on broadcast radio or televi- sion stations, than it would be to accidentally encounter such materials on the World Wide Web.” Id. at 869-870, 117. S.Ct. at 2343-2344.

Although the issue of which geographic communityʹs contemporary standards should be employed in determining whether online materials are either indecent or patently offensive obscene did not arise in Reno (because the Courtʹs ruling of facial invalidation made it unnecessary to reach that issue), Reno did offer the following observation which sheds some light on what is at issue when a court must determine what geographic communityʹs stan- dards should be employed in the context of an internet-based obscenity prosecution. Specifically, the Court noted that the various internet-based media (including, e.g., web-sites, listservs, and ʺchat roomsʺ) — collectively

ʺknown to its users as ʹcyberspaceʹ — [are] located in no particular geograph- ical location but available to anyone, anywhere in the world, with access to the Internet.ʺ Id. at 851, 117 S.Ct. at 2335. The Court estimated that by 1999, the Internet would be used by at least 200 million people. Id. at 850, 117 S.Ct. at

2334. Of course, the current number of users entirely dwarfs that 1999 esti- mate.15/

After the Supreme Court invalidated the CDA, Congress responded by enacting the Child Online Protection Act (ʺCOPAʺ), 47 U.S.C. § 231, which uses a modified version of the Miller test to determine whether Internet materials are considered “harmful to minors.” In reviewing a preliminary injunction restraining enforcement of the statute, the Third Circuit Court of Appeals determined that COPA was facially unconstitutional to the extent that it required the ʺprurient interestʺ and ʺpatent offensivenessʺ prongs to be assessed on the basis of contemporary community standards.16/ It reasoned that while the use of contemporary community standards makes sense in traditional obscenity prosecutions where a defendant has an opportunity to limit the geographic areas into which he sells or mails materials, its applica- tion in the context of an internet obscenity prosecution rendered the statute facially invalid.17/

On appeal, a majority of the Supreme Court vacated the Court of Appealsʹ ruling and remanded. The Supreme Court said it was premature to

15 A more recent estimate (updated as of March 10, 2007) places the world-wide number at 6 1/2 billion current users. See Internet World Stats, Useage and Popula- tion Statistics, http://www.internetworldstats.com/stats7.htm.

16 American Civil Liberties Union v. Reno, 217 F.3d 162, 169-170 (3rd Cir. 2000), vacated by Ashcroft v. American Civil Liberties Union (Ashcrost I), 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002); opinion on remand, ACLU v. Ashcroft, 322 F.3d 240 (3rd Cir. 2003); second opinion on appeal, Ashcroft v. American Civil Liberties Union (Ashcroft II), 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004); Dist. Ct. opinion following remand, sub nom. ACLU v. Gonzales, F.Supp.2d (E.D.Pa. March 22, 2007) (2007 WL 861120).

17 ACLU v. Reno, 217 F.3d 162, 169-179 (3rd Cir. 2000).

hold the statute facially unconstitutional, and that the Court of Appeals had erred in concluding that COPA was necessarily rendered facially invalid solely by virtue of the fact that it had employed any ʺcommunity standardsʺ require- ment at all.18/ However, every member of the Court joined in one opinion or another describing the appropriate ʺcommunity standards.ʺ Significantly, only three members of the Court (Justice Thomas, Chief Justice Rehnquist, and Justice Scalia) concluded that it would be permissible to apply local (rather than national) community standards in Internet prosecutions under COPA. No other justices shared that view.

In contrast, Justice OʹConnor concluded that COPA could only meet constitutional requirements if a ʺnational [community] standardʺ were used. 535 U.S. at 587. Justice OʹConnor first traced the Courtʹs precedents to conclude that adoption of a national standard in the internet context was not precluded by any prior decisions. She then explained the basis for her opinion:

I agree with Justice Kennedy that, given Internet speakers’ inabil- ity to control the geographic location of their audience, expecting [Internet speakers] to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable,[19/] may be entirely

18 Ashcroft v. American Civil Liberties Union (Ashcroft I), 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002).

19 Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), involved a brick and mortar prosecution for mailing obscene materials. Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989), involved decency regulations applicable to what the Court referred to as a ʺdial-a-pornʺ service.

too much to ask, and will potentially suppress an inordinate amount of expression.20/

Justice Breyer, also writing individually, concurred on the basis that Congress, as a matter of legislative intent, had intended the statutory word

ʺcommunityʺ to refer to the entire nationʹs adult community taken as a whole, and not to geographically separate local areas. Id. at 589. However, as reflected in the following passage, he appeared to believe that even had that not been Congressʹ intent, such a standard might have been constitutionally required:

ʺTo read the statute as adopting the community standards of every locality in the United States would provide the most puritan of commu- nities with a heckler’s Internet veto affecting the rest of the nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious.ʺ21/ Three other Justices – Justices Kennedy, Souter, and Ginsburg — sepa-

rately concurred on the ground that a critical issue is ʺcommunity standards as to what?ʺ Id. at 592 (emphasis added). Those Justices concluded that the use of community standards, per se, was not unconstitutional, but expressly disagreed with Justice Thomasʹ opinion that ʺthe Act is narrow enough to render the national variation in community standards unproblematic.ʺ Id. at

20 Ashcroft I, 535 U.S. at 587 (O’Connor, J., concurring).

21 Ashcroft I, 535 U.S. at 590 (Breyer, J., concurring).

593. In explaining their reasoning, they also commented on the problems associated with using purely local standards:

ʺWhether the national variation in community standards produces overbreadth requiring invalidation of COPA, . . . depends on the breadth of COPAʹs coverage and on what community standards are being invoked.ʺ 535 U.S. at 592 (emphasis added).

Justice Kennedy expanded upon the above-italicized language:

ʺThe Court of Appeals found that COPA in effect subjects every Internet speaker to the standards of the most puritanical community in the United States. This concern is a real one . . . . Unlike Justice Thomas,

. . . I would not assume that the Act is narrow enough to render the national variation in community standards unproblematic.ʺ Id. at 593. Justice Stevens likewise noted the special First Amendment problems created when internet speech is subjected to ʺthe standards of the community most likely to be offended by the message,ʺ id. at 603, and concluded that COPA was facially unconstitutional in all circumstances. He further observed:

ʺIn its original form, the community standard provided a shield for communications that are offensive only to the least tolerant members of society. . . . In the context of the Internet, however, community stan- dards become a sword, rather than a shield. If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web.ʺ

Based on that reasoning, he found COPA facially invalid in all applications, apparently being unwilling to give it a potential saving construction that would require use of national rather than local standards.

Consequently, although the Supreme Court in Ashcroft I did not render a square holding on whether national or local community standards should apply where Internet prosecutions are at issue, at least six Justices strongly suggested that an Internet-based prosecution based upon use of local rather than national community standards was likely to be unconstitutional.22/ Cf. Perfect 10, Inc. v. CCBill L.L.C., F.3d (9th Cir. 2007).23/

22 In a postscript to this point, defendant notes that a final judgment was just rendered by the District Court in that action on March 22, 2007, following two remands from the Supreme Court. ACLU v. Gonzales, F.Supp.2d. (E.D.Pa. 2007) (2007 WL 861120). The District Court found COPA entirely unconstitutional on its face, after it made numerous findings of fact regarding the adverse impact of such a law on Internet expression. As this most recent ruling on remand was not based on the ʺcontemporary community standardsʺ issue, it is not otherwise discussed in the present motion.

23 In this very recent decision, the Ninth Circuit Court of Appeals concluded that state penalties for certain Internet copyright violations are preempted by federal copyright exemptions for Internet content providers, saying:

ʺBecause material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state’s definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress’s expressed goal of insulating the development of the Internet from the various state-law regimes. *** In the absence of a definition from Congress, we construe the term ʺintellectual propertyʺ to mean ʺfederal intellectual property.ʺ Id. at *11.



Although the Miller Court approved use of state-wide community standards, many courts trying such cases opted for more localized standards, simply because they believed that jurors would be much more familiar with local standards than state-wide or national standards. In the 1970s, when this case law was evolving, that perception may well have been correct.

However, over the last 30 or more years, isolated American communi- ties operating in oblivion and ignorance of the standards and mores outside their borders have become a thing of the past. This striking change in Ameri- can culture has been brought about by a combination of many factors, including the disappearance of local broadcast news media (increasingly replaced by national and cable newcasts), a significant decrease in other local broadcast programming, and last, but certainly not least, the omnipresent nature of information (including both news and entertainment) coming from the Internet. Everyone potentially sees and experiences everything at the same time — or within hours — of everyone else.24/

24 This contemporaneous level of experience is facilitated by the increasingly


Because of this increased nationalization, all Americans are now exposed to the same information, including the same sounds, images and expression. Consequently, the notion of jurors from an isolated community of sheltered ʺstay-at-homeʺ citizens being unable to fathom or ascertain national community standards, is certainly not a significant concern (even assuming it ever once was25/).

Certainly, there are still significant differences in that which is tolerated in one community compared to another. However, even in more conservative communities, citizens today have a much greater awareness of what exists in the broader national community.26/ These days, and to an ever-increasing extent, we all see essentially the same news reports, the same entertainment, etc.27/

24 (…continued)

ubiquitous handheld and mobile devices which allow users to instantaneously receive news and information on everything from pending military action to the latest celebrity scandal.

25 As noted infra, Hamling v. United States, 418 U.S. 87, 105-106 (1974), expressly recognized that there was no constitutional or practical problem with jurors, in appropriate cases, applying contemporary standards of communities other than their own.

26 Moreover, even if a particular local community may happen to have compara- tively restrictive standards, jurors from such communities can recognize and apply a standard other than their own if told to do so. (Again, as Hamling clarified, a jury may be asked to apply the standards of another community if a case is transferred, e.g., on a motion for change of venue.) Just as in the course of a trial, lay jurors can become familiar with and apply concepts, procedures or regulations previously unknown to them, so too can properly instructed jurors working with different communitiesʹ standards apply them in an obscenity case.

27 For example, Janet Jacksonʹs notorious ʺwardrobe malfunctionʺ at the 2005 Superbowl was simultaneously viewed on television by millions from every American community (and later was then repeatedly viewed again and again by millions on the Internet). Another example, exclusive to the Internet, is of a notorius


Consequently, should this Court agree with the majority of Supreme Court justices who have concluded that Internet obscenity should be measured by national community standards, that would be a relatively easy legal ruling to implement; it would not be terribly difficult to find a local jury with a reasonable understanding of — or at least an ability to apply — those stan- dards. Certainly, experts could assist jurors in ascertaining those standards, but most jurors will have at least a general sense of those standards at the outset. Moreover, the Supreme Court long ago made clear that jurors, if so directed, may constitutionally apply the standards of communities other than their own.

Specifically, in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), and in the context of a prosecution of a traditional brick- and-mortar business mailing allegedly obscene materials into a targeted community, the Supreme Court observed that although local community standards should apply to such prosecutions, it was also permissible, in appropriate cases, for jurors to apply community standards other than their own. After recognizing that the jurors in that case could apply their own local community standards, given that the offense occurred in the same jurisdiction from which the jurors were drawn, the Court nonetheless advised:

27 (…continued)

photo of the pubic area of entertainer Britney Spears captured by a paparazzo as the actress was exiting a vehicle. That photo was on thousands of websites, and viewed by millions, within a short period of time after it was taken. Comments concerning that photo (and the propriety of its being published) were equally widely available on the Internet. All this material makes a national community standard much more

ʺknowableʺ in each local community, regardless of whether that national standard is congruent with each local standard.

ʺBut this is not to say that a district court would not be at liberty to admit evidence of standards existing in some place outside of this particular district, if it felt such evidence would assist the jurors in the resolution of the issues which they were to decide.ʺ 418 U.S. at 105-106 (emphasis added).

Clearly the Court contemplated that, in appropriate cases, jurors could be presented with evidence with which to assist them in evaluating the standards of a broader or different community beyond their own. Moreover, as made clear by six of the Justices in dictum in Ashcroft I, prosecutions of those having sexually explicit materials on Internet sites is precisely the type of case where such broader community standards should be employed.

Finally, perhaps the simplest reason for concluding that national standards should apply is that, in the past, there was nowhere near the level of national sharing of information and opinions that there is today. The Internet has been called “the most participatory form of mass speech yet developed.”28/ According to the Court, the Web is a “unique and wholly new medium of worldwide human communication.”29/

In part because of the highly participatory nature of the Internet itself, and also because of the ubiquitous nature of network programming and cable

28 Reno v. American Civil Liberties Union, 521 U.S. 844, 863 (1997) (quoting

American Civil Liberties Union v. Reno, 929 F.Supp. 824, 883 (E.D. Pa. 1996)).

29 Reno v. American Civil Liberties Union, 521 U.S. at 850.

television, national standards are far more ascertainable than in the past.30/ Consequently, although national standards may, in the past, have occasionally been considered to be too inherently ʺunknowableʺ compared to local stan- dards,31/ today, given the total saturation of nationwide network entertain- ment, news, opinions and commentary, as well as the ubiquitous availability of the same information to hundreds of millions of people simultaneously over the Internet, there is no longer any validity to the assertion that national standards are significantly less knowable than local standards.

30 And, again, another component is that this information is now received and shared not only via computer, but also through cell phones, PDAʹs, iPods, MP3 players, podcasts, Bluetooth devices, gaming consoles, and countless other electronic gadgets and media.

31 Contrast, e.g., Miller, which, in the context of a ʺbrick and mortarʺ medium had rejected national standards as being too ʺhypothetical and unascertainableʺ (413 U.S. at 31), with Justice Harlanʹs plurality opinion in Manual Enterprises, Inc. v. Day, 370

U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962), concluding that national community standards should apply to all federal obscenity prosecutions. 370 U.S. at 488. Justice Harlan had come to that conclusion because of what he saw as ʺthe intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards.ʺ Id.



As many of the Supreme Court justices (indeed, a majority) expressly noted in Ashcroft I, each mode of expression has its own unique characteristics, and therefore must be accessed for First Amendment purposes by the stan- dards best suited to it. For example, Justice Stevens found significant distinc- tion between online communications and those sent through the mail, or over the telephone lines, because in the latter two circumstances the sender could avoid destinations with the most restrictive standards.32/ Ashcroft I, 535 U.S. at 602 (Stevens, J., dissenting). In previous cases, he observed, local commu- nity standards were upheld based on the sender’s ability to tailor his messages to the communities it chose to serve, thus creating a permissible burden on the speaker to comply.33/ However, the sender of Internet transmissions must necessarily display his message ʺto all of the 176.5 million Americans who have access to the Internetʺ if he chooses to display that message to even one.

32 Of course, unlike both mailed communications and telephonic communications, there simply is no ʺsenderʺ at all in the Internet context. The viewer goes to the website electronically and gets the material, whether the actual website is situated down the block or entirely across the world. No web publisher reaches out to the specific locale of the consumer.

33 Id. at 605.

Id. Accordingly, he concluded that this “fundamental difference in technolo- gies,” requires a difference in the rules applicable to that particular medium:

ʺIn light of this fundamental difference in technologies, the rules applicable to the mass mailing of an obscene montage or to obscene dial-a-porn should not be used to judge the legality of messages on the World Wide Web.ʺ Id. at 606.

Likewise, Justices Kennedy, Souter, Ginsburg and OʹConnor agreed that the standards for controlling the content of traditional mail-order businesses and even phone-sex businesses should not apply to Internet-based businesses due to the uniqueness of that medium. See, e.g., 535 U.S. at 594-596 (Kennedy, Souter and Ginsburg, JJ., concurring),34/ and 535 U.S. at 587 (OʹConnor, J., concurring)35/

34 Justice Kennedy, in a concurring opinion joined by Justices Souter and Ginsburg, stated:

ʺIt is true, as Justice Thomas points out, . . . that requiring a speaker addressing a national audience to meet varying community standards does not always violate the First Amendment. See Hamling v. United States, 418 U.S. 87, 106, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (obscene

mailings); Sable Communications of California, Inc. v. Federal Communica- tions Commission, 492 U.S. 115, 125-126, 109 S.Ct. 2829, 106 L.Ed.2d 93

(1989). These cases, however, are of limited utility in analyzing the one before us, because each mode of expression has its own unique charac- teristics, and each ʹmust be assessed for First Amendment purposes by standards suited to it.ʹ Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). Indeed, when Congress purports to abridge the freedom of a new medium, we must be particu- larly attentive to its distinct attributes, for ʹdifferences in the character- istics of new media justify differences in the First Amendment stan- dards applied to them.ʹ Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).ʺ Id. at 594-95.

35 Justice OʹConnor stated:

ʺI agree with Justice Kennedy that, given Internet speakersʹ inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable, may be entirely too much to ask, and would




As discussed above, a clear majority of the Justices of the Supreme Court in Ashcroft I rejected the notion of applying local community standards to sexually oriented materials on the Internet. A majority of those judges con- cluded that application of local community standards in the Internet context would have too great a chilling effect on protected expression to be consistent with the requirements of the First Amendment. In all, five of the nine Justices concluded that use of nationwide standards, at least in the context of COPA, was not inherently unascertainable or unworkable, and a sixth, Justice Stevens, found COPA facially unconstitutional no matter how applied. Only three Justices36/ found that use of local community standards would be permissible in a prosecution under COPA.

35 (…continued)

potentially suppress an inordinate amount of expression.ʺ Id.

36 Counsel recognize that one of the six justices (Justice OʹConnor) is no longer on the Court. However, her departure leaves five Justices in support of or without opposition to a national standard for Internet obscenity.

All six Justices gave the same reason for insisting upon national, rather than local, standards: the chilling impact which applying local standards would have on Internet expression. See, e.g., 535 U.S. at 587 (OʹConnor, concurring opinion), finding that use of local standards ʺwould potentially suppress an inordinate amount of expressionʺ; 535 U.S. at 590 (Breyer, concurring opinion), stating that ʺ[t]o read the statute as adopting the commu- nity standards of every locality in the United States would provide the most puritan of communities with a hecklerʹs Internet veto affecting the rest of the Nationʺ; 535 U.S. at 593 (concurring opinion of J. Kennedy, joined by Justices Souter and Ginsburg), concluding that subjecting Internet expression to local community standards ʺin effect subjects every Internet speaker to the stan- dards of the most puritanical community in the United Statesʺ and stating that

ʺ[t]his concern is a real one.ʺ Finally, Justice Stevens dissented, 535 U.S. at 603, because he would have held COPA unconstitutional because ʺʹthe ʺcommu- nity standardsʹ criterion as applied to the Internet means that any communica- tion available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.ʹʺ

Based on these opinions, it is clear that, at least where Internet-based speech is involved, it would be error of constitutional dimension to apply local standards, as there is simply too great a risk that such prosecutions will chill vast amounts of expression by others not before the court. Speakers would inevitably be fearful of having the constitutionality of their expression evaluated by the least tolerant communities in America and would then self-

censor to avoid the risk of prosecution in such jurisdictions. The resultant reduction in Internet available fare might please some, but given the inability of webmasters to limit geographical availability, others all over the country and the world would be deprived of constitutionally protected expression. This is a significant concern.37/



For all the reasons above, the materials charged in this case should be evaluated under national community standards rather than local ones. However, in the alternative, defendants move the Court, as a matter of policy, fairness, and the overwhelming weight of authority, to require that the jury at least apply state-wide community standards. While such a standard might not be adequate, in many states, to be used as a substitute for national standards, Florida is a sufficiently diverse state that it may well be that the

37 For example, in Elrod v. Burns, 427 U.S. 347, 373-374, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976), the Supreme Court held that even temporary interferences with the dissemination of constitutionally protected expression constitute injury which is ʺirreparable.ʺ A fortiori, where as here, a challenged statutory interpretation has the potential of effecting a permanent censorship, such a concern mandates use of a statutory interpretation that protects constitutional values.

diversity of standards within this state fairly represents the diversity of standards within the nation as a whole.38/

Moreover, since the United States Supreme Court, in Miller, and the Florida Supreme Court in Davidson, have both expressly approved of use of a state-wide community standard, the use of such a standard is the absolute minimum to which defendants should entitled in an internet-based obscenity prosecution. It will at least reflect a sufficient breadth and diversity of experience and viewpoint to dilute the potential for First Amendment damage which is the inevitable byproduct of exclusive reliance solely on local stan- dards in an Internet-based case.

In short, insuring that at least full state-wide standards apply will provide some barrier to a type of concern analogous to the one described in Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957), where the Supreme Court struck down a law that ʺprohibited distribution of a book to the general public on the basis of the undesirable influence it may have upon youth.ʺ 352. U.S. at 381. The Court concluded that the impermissible effect of the enactment was ʺto reduce the adult population of Michigan to reading only what is fit for children.ʺ Id. at 383. By analogy, the use of anything less than at

Florida is a true melting pot, and thus representative of the views and opinions of individuals throughout the nation. Therefore, many of the concerns presented by using the community standards of a less diverse state are not as pointed given Floridaʹs unique makeup.

least a full state-wide community standard would be to reduce that which is available on the Internet to that deemed acceptable only in the communities with the most restrictive community standards. As the more recent COPA cases teach, that is an approach impermissibly restrictive of expression.



Lawrence G. Walters Florida Bar No.:776599 Derek B. Brett

Florida Bar No.: 0090750 781Douglas Avenue Altamonte Springs FL 32714

(407) 975-9150 (phone)

(407) 774-6151(fax)

Jerrx Mooney

Cahfomia Bar. No. 199542 Admitted ].JYO hac vice 12121Wilshire Blvd. Suite 900 Los Angeles CA 90025

(310) 442-0072

(310) 442-0899 (fax)

Of Counsel

Attorneys for Defendant McCOWEN


I HEREBY CERTIFY that a true and correct copy of the foregoing Motion to Determine the Nature and Scope of the Community has been provided via U.S. Mail to Russell Edgar, Esquire, State Attorney’s Office, Post Office Box 12726, Pensacola, Florida 32575, M. James Jenkins, Esquire, 1211 West Garden Street, Pensacola, Florida 32501, and Clinton Couch, Esquire, 3 West Garden Street, Suite 352, Pensacola, Florida 32502, this 5th day of April 2007.