Lessons Learned from the Recent Round of Obscenity Prosecutions


Lessons Learned from the Recent Round of Obscenity Prosecutions

By: Lawrence G. Walters, Esq.

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

  1. Introduction

The recent round of obscenity indictments, trials, and resolutions has left some webmasters anxious, and other confused. Few are encouraged by the latest developments. But what should be taken away from this flurry of activity? This article is intended to help sort out fact from fantasy, and identify the lessons that might be learned from the Government’s actions in these recent cases.

  1. Obscene Paranoia

Being indicted on obscenity-related charges ranks among the top fears for any adult webmaster. Depending on the specific statute supporting the charge, and whether the prosecution is filed in the state or federal system, an obscenity conviction may result in a consequence as minor as fines and probation, or as catastrophic as decades in jail and forfeiture of all business assets. While the risks associated with obscenity have been on adult webmasters’ radar for many years, they have been brought back into focus by the recent indictments of Evil Angel/Stagliano in Washington, D.C.; AmateurAction.net/Thomas in San José, California, along with the conviction of Max Hardcore in Tampa, Florida, and the guilty pleas accepted by Karen Fletcher in Pittsburgh, Pennsylvania, and Ray Guhn in Pensacola, Florida. Has the Government turned up the heat in the waning months of the Bush Administration? Will Justice Department officials take a “parting shot” at the industry before their tenure expires? These concerns are a

hot topic of discussion in industry circles, and not without good cause. A number of lawyers and other industry leaders have opined that the current Justice Department will unleash a substantial number of new indictments before the next Administration takes over – particularly if Sen. Barak Obama wins the election in November. This effort is seen as potentially the last opportunity to cause damage to the adult industry, at the federal level, before a more sympathetic Attorney General takes the helm – potentially flushing all further federal obscenity prosecutions as was done during the Clinton era. This may also be the final opportunity for the current Administration to pay back the Religious Right for its unwavering support of President Bush during the last two election cycles.

  1. Why Now?

While the above-described theories may justify a growing fear over a new onslaught of obscenity indictments, this author believes that an avalanche of new cases is unlikely – regardless of who prevails at the polls in November, 2008. Instead, the Justice Department is probably closing out the remaining investigations that were accepted by various U.S. Attorneys, after prodding by the Obscenity Task Force during the last few years. As had been widely reported, several U.S. Attorneys refused to take on obscenity cases that were presented by the Washington Office, given concerns over the viability of the prosecutions and the inability to prove guilt of the targeted defendants beyond a reasonable doubt.1 But a few of these cases did go forward, as evidenced by the recent high profile indictments. These cases often take a year or more to assemble, and the industry is just now seeing the culmination of those investigations that were initiated during the Gonzales Administration.

Similarly, the three cases that recently reached conclusion; Max Hardcore, Ray Guhn, and Karen Fletcher, were all pending for many months before the recent resolutions. The Ray Guhn case – a state-level prosecution – had been pending since July, 2006. The raid on Karen Fletcher’s home occurred about the same time. Accordingly, while it might appear that a bunch of action is happening all at once on the obscenity front, this is all largely the result of a confluence of events resulting in a spike of activity in a one or two month period. While any level of obscenity prosecution is unacceptable from a First Amendment standpoint, the recent spurt of news stories and discussion should not be over-emphasized, or result in any greater degree of concern than is warranted. In other words, there does not appear to be a concerted effort to “turn up the heat” on the industry, at this particular point in time, using obscenity prosecutions; instead, a variety of activity in pending obscenity cases all happened to occur during the summer of 2008.

  1. What Does This All Mean?

  1. Recent Punishments

Notwithstanding the above admonitions, the industry cannot overlook the fact that one adult content producer has recently been jailed on charges stemming from his adult website operation,2 and another will almost certainly follow next month.3 A small time Internet content producer in Orlando, Florida was incarcerated for almost a year during his prosecution for federal obscenity violations until he was sentenced to ‘time served’ and deported pursuant to a plea agreement in September, 2007.4 While the writer of erotic stories, Karen Fletcher, avoided jail completely with her plea bargain, the case against her resulted in a de facto closure of her website forever.5 As a result of these recent judicial activities, the perception by some in the industry is that the legal risks relating to obscenity have increased. However, a nuanced evaluation is required to more carefully evaluate these concerns.

  1. Plea vs. Conviction

First, a significant distinction should be made between guilty pleas and convictions. The conviction of Paul Little, a/k/a Max Hardcore, based on various movies and website clips, operates as a determination on the merits that the subject video content is obscene. The same can be said of the material forming the basis of the corporate conviction in the Five Star Video case.6 This content no longer enjoys the presumption of protection it formerly received under the First

Amendment, prior to conviction. The Government can now legitimately label the content at issue in the Max Hardcore case, and the one video convicted in the Five Star Video case, illegal contraband. Assuming that a given conviction is not reversed on appeal, this finding of obscenity will be permanent.7 While a defendant might argue that he or she did not know whether certain content was obscene when first arrested, no such claim can be made with respect to materials determined to be obscene, on the merits, by a judge or jury at trial.

By way of illustration, the material alleged to be obscene in the Karen Fletcher case has not been determined to be obscene by the fact finder, as a result of her plea bargain. Ms. Fletcher simply agreed to resolve the case by entry of a guilty plea, and accepted the punishment of temporary home confinement. While the Government may claim some sort of victory in exacting a guilty plea from Karen Fletcher, due largely to her documented agoraphobia (i.e., fear of public places) the written material at issue has not been adjudicated obscene. Notably in the Ray Guhn case, the Defendant entered a plea to illegal financial transactions (i.e., “money laundering,”) under § 896.101, Fla. Stat. (2006), and not to obscenity or racketeering. As a result, the issue of obscenity was not a major facet of the Plea Agreement, and the material at issue was not judged to be obscene.8 However, where an actual conviction results from a trial, the material loses its presumption of protection.

  1. Legally Obscene Material

While the Government undoubtedly hopes to strike fear into the hearts of adult content producers and adult webmasters through obscenity prosecution, a very small number of titles have actually been adjudicated obscene by the fact finder at trial, in recent times. Our research has demonstrated that only the following list of movies and video clips have been found obscene in the more recent cases:9

Max Hardcore Content:

(Video Clips:) me20europromo.wmv, px19europromo.wmv, ffo4promo.wmv, pm16europromo001.wmv.

(Movie Titles:) MAX HARDCORE EXTREME Volume Number 20 – Euro Edition, Pure Max 19 – Euro Edition, MAX HARDCORE Golden Guzzlers 7 – Euro Edition, Fists of Fury 4 – Euro Edition, PLANET MAX 16 – Euro Edition.

Croce Content: Toilet Man 6, Bukkake 3, Scat Pleasures, Scat Fist Fucking 2.

Gartman/McDowell/Ragsdale Content: Real Rape 1, Brutally Raped 5, www.forbiddenvideos.com.

Five Star Video Content: Gag Factor 18.

Given the huge amount of content produced by the adult video and Internet industries each year, the above-referenced material can be viewed as the proverbial “drop in the bucket.” Moreover, the vast majority of this content involves “fringe” fetish behavior, which is not within the mainstream of current erotic fare. While Max Hardcore is a well known name in the adult industry, his material is designed for a very specific viewing audience. The impact of a conviction in his case appears to be minimal, as few adult content producers veer into the fetishes and topics addressed in Hardcore’s videos. Those who do produce such content, have by and large not been deterred by the prosecution and conviction, as of yet. Accordingly, the few titles that have been found obscene in recent times may be dismissed as ‘extreme’ material, which does not translate into a widespread threat to the industry’s well-being.

  1. Pending Cases

More disturbing than the recent cases that have been concluded, however, are those that have been recently initiated. In particular, the prosecution of John Stagliano of Evil Angel carries the potential to set the most important precedent of any obscenity case litigated in modern times. The reasons for this are three-fold: One, Stagliano’s material is more closely associated with the mainstream of adult product currently available to the public.10 While some of the topics like squirting and fisting are still taboo for many companies, they have become familiar

fare in most adult films. A conviction on the merits pertaining to any of these films will impact the industry in ways not yet experienced from any other recent case. Secondarily, the case is important since it is being brought in Washington, D.C., which is not particularly known for its conservative population and jury pool. Mixing mainstream content with an open-minded jury may be a disaster for the prosecution if the defendant is acquitted, but could also set a tremendously adverse precedent if a conviction results. The final important facet of the Stagliano case is the charge relating to the exposure of allegedly-obscene material available for minors to view on the web, in Count VII of the indictment. This charge stems from the 1989 “Dial-A-Porn” law which was intended to prevent children from accessing phone sex lines, but which has never been used in connection with online pornography. If successful, it could resurrect the age verification concerns that have not been at the forefront of the industry since the passage of COPA in 1998. These issues make the Stagliano case of significant importance to the industry in general, and to the future of free expression, itself.

The Ira Isaacs case exploded in the face of the government, as the presiding judge was found in possession of some interesting erotica on his personal computer web page. He immediately declared a mistrial, and the defendant is seeking to prevent a retrial on double jeopardy grounds. The content involved in that prosecution primarily involves scat fetish material.11 What makes this case important is that is was filed in the heart of the industry’s

production jurisdiction – Los Angeles.

The case against amateuraction.net12 is in its formative stages, still, but will also prove to be interesting. The defendant in that case, Robert Allan Thomas, is the same individual whom the government prosecuted in the U.S. v. Thomas13 case involving obscene material distributed via a Bulletin Board System, during the formative days of the Internet. That case was significant as it approved the government’s strategy of downloading allegedly obscene material in a conservative jurisdiction, on the opposite end of the country from where the defendant resided, and using the place of downloading as the forum for the prosecution. The appellate decision was later criticized for its failure to consider the inability of a website operator to block receipt of Internet content by particular geographic locations, thus preventing downloading in communities determined to be too conservative for the content available on the system. Apparently, the Department of Justice is back for round two with the recent Indictment. Although details regarding the actual content forming the basis for the charges are sketchy, at this time, the site

appears to focus on “Pissing, Fisting, Peeing, Golden Showers, BDSM, Extreme Insertions & Sex Fetish DVD Videos.”14 Such topics have been on the government’s obscenity radar for decades, although watersports content has become so pervasive online that its former status as ‘taboo’ or off limits has been diluted in the last decade. Importantly, the government has chosen

one of the most open-minded, progressive areas of the country for this prosecution; San Jose, California. It could be argued that the Department of Justice is seeking to establish a track record of prevailing in more ‘liberal’ jurisdictions, thus sending the message that it can win anywhere.

  1. Conclusion

The crime of obscenity is, by its very nature, amorphous and not subject to much certainty. It is therefore difficult to grasp the practical impact of a given indictment, prosecution, conviction or acquittal. Usually, one case means very little, on its own, unless it is appealed to a higher court which renders an appellate opinion that becomes binding in a certain jurisdiction. The outcome of trial court cases have, frankly, very minimal impact on the industry as a whole – but certainly have a tremendous impact on the individual defendant(s). In the early days of obscenity prosecution against the adult industry (1970’s), adult theaters would routinely plead out cases and accept the resultant fines as a ‘cost of doing business.’ But today, with instant access to information about every obscenity case, and the industry’s intense interest in the topic (partially fueled by the industry attorneys’ fixation on it) each case is followed through its every twist and turn. The good news is that no adverse precedent has been set by any of the recent obscenity cases. No critical issue has been ruled on to the detriment of the industry, although a few evidentiary rulings could have come out better in certain cases. The appellate courts have

not gotten hold of any of these cases, yet, and have been unable to harm or help the development of First Amendment law. The one exception is the U.S. v. McDowell15 case, which established some good law on the issue of scienter or criminal intent to violate obscenity laws by a minor participant in a criminal scheme. But otherwise, obscenity law has remained as it was since 1973, when it was first ‘invented’ by the Court in Miller v. California. Since then, the U.S.

Supreme Court and various Circuit Courts of Appeal have reaffirmed Miller’s validity and applicability – even to digital content. The next appeal to the Supreme Court in the COPA litigation may finally give the industry some clarity on issues such as the applicability of local community standards to online material, and the scope of Internet material to be considered as the ‘whole work’ under the Miller Test, but that decision is a year or two away, in all likelihood.

Until then, the obscenity issues remain about as clear as mud for the average adult webmaster seeking to operate his or her business in full compliance with the law. If you happen to be selected for prosecution, you are in for months and possibly years of an expensive, difficult time – even if you ultimately win your case. The government often throws in a host of other charges (or threatened charges) unrelated to the obscenity issues, and offers to dismiss those in exchange for a guilty plea to obscenity. Our attorneys have seen the Department of Justice drop offenses relating to income tax fraud, money laundering, automatic weapons and other serious charges in exchange for a plea to the lesser crime of obscenity, given the political considerations involved in landing a conviction in these cases. As a result, much plays out behind the scenes in obscenity prosecutions, just like most other criminal cases. While much has been said of the recent round of obscenity cases, the truth is that the climate is much the same as it has been for the last 8 years. Fetish material is being randomly prosecuted, often based on circumstances having little to do with the content, but more to do with the defendant. The most important developments are the willingness of the government to prosecute more mainstream content, and its desire to initiate charges in more progressive jurisdictions. Those cases have not come to fruition yet, but many eyes are on the cases.

Adult webmasters should investigate all the details of any given obscenity case before assigning it any substantial degree of concern. In addition, the industry should be more focused on trends and patterns rather than the results in particular cases. By heeding this advice, you will remain informed while avoiding undue alarm.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, Walters & Mooney, with offices in Orlando, Los Angeles, Salt Lake City, and San Diego. Mr. Walters represents clients involved in all aspects of the adult industry and has practiced law for two decades. 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@FirstAmendment.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”

1 M. Hayes, “White House May Have Tried to Purge All U.S. Attorneys, Obscenity an Issue,” Xbiz.com, (March 14, 2007), found at: http://xbiz.com/news_piece.php?id=20082.

2 State v. McCowen, Case No. 07-823-CFA (Santa Rosa Cir. Ct.), Plea Agreement resulting in 48 months incarceration.

3 U.S. v. Paul Little, Case No. Case No: 8:07-cr-00170-SCB-MSS (M.D. Fla), Guidelines Sentence expected to result in approximately 3 years incarceration with a maximum penalty of 50 years incarceration.

4 U.S. v. Croce, et al, Case No.: 6:06-cr-00182-GAP-DAB (M.D. Fla. August 29, 2007)

5 On August 31, 2008, FBI agents raided Ms. Fletcher’s home and seized the computer equipment she used to run her erotic stories website, www.Red-RoseStories.com. Despite numerous requests, the Government refused to return her property, resulting in the closure of the website at issue.

6 U.S. v. Five Star Video, L.C., CR-06-515-PHX-ROS (D. Ariz. 2007) (conviction as to Count VII).

7 It should be noted, however, that a different court, in a different jurisdiction, could determine that some or all of the subject content is not obscene, depending on how the jurors vote in any future cases. Case in point: The movie Deep Throat has been both convicted and acquitted in various courts throughout the country.

8 Importantly, however, the State argued that the financial transactions at issue were illegal because they involved transactions relating to material that was alleged to be obscene under federal law. It is an open question whether the state courts would be empowered to make a determination whether erotic material violated federal obscenity statutes; however the guilty plea obviated the need for the court to rule on this legal issue.

9 Not included in the list below is any material involved in cases that were resolved by plea, dismissal or acquittal, as such has not been adjudicated obscene. Other material from state level prosecutions not followed by the media may also have been omitted, although the impact of any such convictions is considered de minimis.

10 The movies named are Milk Nymphos, Storm Squirters 2, and Fetish Fanatic 5.

11 Gang Bang Horse, Pony Sex Game, Mako’s First Time Scat, Hollywood Scat Amateurs 7, Laurie’s Toilet Show,

and Bae 20.

12 See DOJ press release at: http://www.usdoj.gov/opa/pr/2008/July/08-crm-650.html.

13 74 F.3d 701 (6th Cir. 1996).

14 See, www.AmateurAction.net.

15 Case No.: No. 06-10818 (5th Cir. 2007).

Evaluating the ‘As a Whole’ Requirement of the Miller Test


The Whole Truth:

Evaluating the ‘As a Whole’ Requirement of the Miller Test

By: Lawrence G. Walters, Esq.

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


In the old days, applying the ‘taken as a whole’ requirement in obscenity cases1 was simple: The book must be read from cover to cover, the movie must be watched from beginning to end, and the magazine must include both the pictures and the articles. But the advent of modern technology has complicated the ‘taken as a whole’ element, and presents some difficult challenges for both the courts and litigants in obscenity prosecutions.

Modern digital media is presented in a variety of forms and formats. Films can be chopped, ripped and edited in infinite ways with simple media software. Website users are now permitted to download portions of feature-length films and combine clips together to create their own favorite compilation set from a variety of different producers. Hardcore internet television services allow the same kind of content manipulation and display.2 Websites present perhaps the most difficult challenge since their content changes on a routine basis, imposing both a temporal and a spatial component of the ‘whole’ work. It is also often difficult to determine where one site leaves off and another begins with the increased use of linking and framing technology, coupled with the sharing of traffic, content and members by and between competitors. The practice of “hot-linking” creates yet another set of concerns as to whose content the user is actually viewing when accessing a particular image or video clip.


    1. The Cases

It should be no surprise, then, that the courts have struggled with the ‘as a whole’ requirement, and are poised to render some problematic decisions. This whole issue is complicated by the fact that state and federal prosecutors are intentionally parsing out individual sections of media from larger works, and alleging those discrete portions to be obscene. For example, in the case of U.S. v. Extreme Associates,3 the Government downloaded a number of individual video clips from the ExtremeAssociates.com website, and indicted each clip as a

separate obscene work. The ‘as a whole’ legal challenges in that case remain pending after years of litigation, and probably will not be resolved until the case actually goes to trial. In the Red Rose federal obscenity case,4 the Government identified six (6) individual written stories from the Defendant’s erotic text site, and charged each story as a separate obscene work. That case was resolved by plea agreement before the ‘as a whole’ issues could be litigated. Judge Susan Bucklew, presiding in the U.S. v. Paul Little, et. al.5 (Max Hardcore) case, permitted the Government to show only portions of the allegedly-obscene videos at issue, because the jurors seemed to be getting uncomfortable when viewing the material in open court.6 The defense was forced to introduce the remainder of the movies at issue, allowing prosecutors to blame the defense for forcing the jury to sit thorough hours and hours of extreme erotica.7 Some of the counts on which the defendant was indicted arose from portions of his website, and not the site as a whole. Ultimately, the jury convicted Mr. Little on every count, including those associated with online content.

At the state level, prosecutors in Polk County, Florida, have, on at least two occasions, selected separate pictures and/or video clips from larger websites, and charged those distinct segments as obscene.8 In one of those cases, prosecutors identified 100 images, out of hundreds of thousands residing on a user-generated content website – none of which had been produced or even seen by the Defendant – as the basis for the obscenity prosecution.9 The trial judge used a few pictures isolated from the remainder of the content on the web pages as a basis for revoking the Defendant’s bond – finding probable cause that the images were obscene. Fortunately, the appellate court rendered an emergency ruling reversing the bond revocation order, and freeing him from this illegal incarceration.10 Both of the Polk County cases were resolved by favorable plea agreement before the court had an opportunity to rule on the ‘as a whole’ issues, so the question remains open.

    1. The Legal Decisions

The existing law on the ‘as a whole’ issue does not completely answer the question with regard to digital media forms, but does support a favorable interpretation for the adult industry. By way of review, the Miller Test for obscenity is as follows:

“Obscene” means the status of material which:

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

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

  1. taken as a whole lacks serious literary, artistic, political, or scientific value. 11

It is well-established that the courts must apply all of the prongs of the Miller Test when evaluating allegedly-obscene material, and the omission of any part of the Miller analysis constitutes reversible error by the court.12 Put another way, the failure to strictly apply all elements of the Miller Test, including the ‘as a whole’ requirement, constitutes a fundamental denial of constitutional rights of the Defendant.13 Since the adoption of the Miller Test in 1973, the courts have uniformly required that materials be evaluated in their entirety, instead of in isolation, before they can be declared obscene.14

The requirement that materials be evaluated as a whole is critical when applying the ‘serious value’ prong. It is often the case that serious value can be found in the parts of the work that the Government overlooks or fails to present to the jury. The ‘value’ prong was formulated in the Supreme Court case of Roth v. United States,15 wherein the Court rejected the segmented review approach of earlier cases, instead adopting the requirement that: “the books, pictures, and circulars, must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion.16

Later, the Fifth Circuit Court of Appeal, in Penthouse v. McAluiffe,17 reaffirmed the importance of the ‘as a whole’ requirement, and ruled that magazines must be considered in their entirety, and not as a volume of separate “works” in the form of individual pictures.18 That court concluded that Supreme Court precedent requires that magazines must be considered as whole works, even though made up of individual articles and pictures.19 The only conceivable exception would be where valuable material is inserted as a “sham” such as where hardcore images are interspersed throughout the Bible.20 In this regard, another court observed that “[t]he inclusion of serious literary matter in significant proportions may preclude a finding that a magazine is obscene, even though the magazine contains items; photographs for example, which standing alone would be found obscene under the Miller Test.”21 Other courts have issued similar rulings.22

The ‘as a whole’ requirement also comes up in the context of evaluating probable cause to issue search warrants. The United States Supreme Court ruled that the magistrate considering issuance of a search warrant must either review, or consider descriptions of, the entire movie or magazine to allow for the required determination of obscenity which, in this context, must be made with “scrupulous exactitude.”23

The Florida Supreme Court had an opportunity to evaluate the importance of the ‘as a whole’ requirement in Ladoga Canning Corporation v. McKenzie,24 wherein the court considered the propriety of injunctions issued by the lower court, prohibiting future distribution of certain identified obscene material, along with “other printed materials which violate the provisions of Florida Statute Section 847.011(1)(a).” The problem was, that these “other printed materials,” were not specifically identified by the court’s orders, and had never been found obscene. Instead, the lower court merely recited the Miller Test, and enjoined the sale of materials which depicted eleven (11) specific actions or poses, apparently finding that the materials depicting this sexual conduct were automatically obscene under the Miller standards. The Appellants challenged the injunctions as a prior restraint on First Amendment-protected expression. The Florida Supreme Court agreed, and noted the following:

The Miller Court made it clear that the portrayal of sexual conduct, without more, does not render a publication obscene. The determination of obscenity must be based on an examination of the work as a whole, rather than isolated passages.25

The court found, in invalidating the injunctions, that publications may not be suppressed merely because they contain certain poses or actions, since materials must be considered as a whole work, instead of in isolated parts.26

Most recently, the United States Supreme Court considered the ‘as a whole’ requirement as it pertains to website content, when discussing the constitutionality of the Child Online Protection Act, (COPA).27 Initially, it should be noted that COPA requires speech to be considered ‘as a whole.’28 However, on the Internet, speech by different content providers, on different computers around the world, is seamlessly linked together, making such determinations unwieldy. Justice Kennedy noted in his concurrence in the COPA case, “It is unclear…what constitutes the denominator – that is, the material to be taken as a whole – in the context of the World Wide Web.”29 Justice Kennedy went on to note that “it is unclear whether what is to be judged as a whole is a single image on a Web page, a whole Web page, an entire multiple Web site, or an interlocking set of Web sites.”30 Although information on the Web is contained in individual computers, the fact that each of these computers is connected to the Internet through World Wide Web protocols allows all of the information to become part of a single body of knowledge and may appear to be a single integrated system. ACLU v. Reno, 31 F. Supp. 2d 473-

74. Justice Kennedy further suggested that the lower courts would need to answer “the vexing question of what it means to evaluate Internet material ‘as a whole,’ when everything on the Web is connected to everything else.”31

In light of the above, it appears that the existing law on the subject favors an interpretation of the Miller Test requiring consideration of an expansive amount of interrelated material when evaluating the obscenity, vel non, of a work. Parsing a single image, or set of images, from a larger website fails to include the required context of the material in the obscenity consideration, therefore possibly violating the First Amendment.


The Government will likely continue its efforts in ‘cherry picking’ extreme content from larger works, in the hopes of convincing juries that these individual segments are obscene, without regard to the remainder of the work. This is often problematic, since it is the remainder

29 Ashcroft v. ACLU, 535 U.S. at 601; see also ACLU v. Reno, 31 F.Supp.2d at 484, ¶ 17 (E.D. Pa. 1999) (“From a user’s perspective [the Web] may appear to be a single, integrated system.”).

30 Ashcroft v. ACLU, 535 U.S. at 593 (Kennedy, J. Concurring).

31 Id. at 600.

of many works that give the graphic portions context and meaning. If the courts allow a larger work to be branded ‘obscene’ based on a select image or passage, publishers and content producers will need to become increasingly concerned as to whether they will be prosecuted on obscenity grounds for portions of their works. If even a small segment of the material is considered shocking or objectionable by a potential jury, the publishers and producers may be found guilty without regard to the greater meaning provided by the remainder of the work at issue. For a user-generated content site, the liability concerns resulting from such legal theory will likely scare off many future operators, since webmasters of such sites cannot control the nature of the content posted without personally reviewing each image or video before it is posted to the site – a task that is impractical for a typical user-post site.

The ‘as a whole’ requirement provides an important safeguard against overzealous prosecutors seeking to capitalize on the worst aspects of a production or a work in order to obtain an obscenity conviction. Prosecutors should not be allowed to claim that digital media should be treated any differently when it comes to the application of the ‘as a whole’ requirement of the Miller Test. While the interconnectedness of media on the Internet, for example, may complicate the application of the Miller Test – including its ‘as a whole’ requirement – neither prosecutors nor the courts should be permitted to disregard the sound policy considerations supporting this critical element of the legal evaluation. The First Amendment mandates that serious value be judged by considering the work as a whole.

For many works, it is the non-explicit portions that give the graphic depictions context and meaning. For example, in the State v. Wilson prosecution referenced above, the very graphic images and video clips posted by users had a much different impact on the viewer when considered on their own, in isolation, as compared to the impact on the viewer when considered

in conjunction with the often humorous and insightful comments posted by the creator or other viewers. These comments were carefully excised by the prosecution from the pictorial content, to avoid any appearance of ‘value’ when shown to the judge. This sort of contextual manipulation should be patently rejected by the courts as an affront to the constitutional protection afforded erotic media under the First Amendment. To the extent that prosecutors are allowed to alter the meaning and impact of sexually-explicit works by changing the manner and context in which they were intended to be presented, it is the government that should be accused of creating any ‘obscene’ works that result from such manipulation.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, Walters & Mooney, with offices in Orlando, Los Angeles, Salt Lake City, and San Diego. Mr. Walters represents clients involved in all aspects of the adult industry and has practiced law for two decades. 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@FirstAmendment.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”

1 The well-known Miller Test requires that allegedly-obscene materials be taken as a whole when considering the prurience and serious value prongs of the Miller Test. See Miller v. California, 413 U.S. 15 (1973).

2 For an example of such a service, see www.FireTv.com.

3 U.S. v. Extreme Associates Inc., 352 F.Supp.2d 578 (W.D. Pa. 2005), rev’d 431 F.3d 150 (3d Cir. 2005), cert. den.

547 U.S. 1143 (2006), remanded to Case No. 05-1306 (W.D. Pa.)

4 U.S. v. Karen Fletcher, Case No. 2:06-cr-00329-JFC (W.D. Pa.).

5 Case No: 8:07-cr-00170-SCB-MSS (M.D. Fla).

6 K. Graham, “Juror Asks to View Less Porn in Court,” St. Petersburg Times (May 30, 2008), which can be viewed at: http://www.tampabay.com/news/courts/criminal/article537208.ece.

7 M. Kernes, “Closing Arguments In Max Trial Reveal Prosecution’s True Agenda,” AVN.com (June 6, 2008), found at: http://www.avn.com/law/articles/30592.html.

8 State of Florida v. Tammy Robinson and Herbert Robinson, Case Nos. CF-99-01463-A-XX & CF-99-01465-A-XX (Fla. 10th Cir. 2001); State of Florida v. Christopher M. Wilson; Case No. CF-05-7738 (Fla. 10th Cir. 2006).

9 Wilson, supra.

10 Wilson v. Judd, Case No.: 2D05-6073 (Fla. 2d DCA 2005).

11 This definition is taken from § 847.001(10), Fla.Stat. (2007) [Emphasis Added] but is representative of the test applied by the courts throughout the nation.

12 See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (Where the Court struck down portions of the Child Pornography Prevention Act due to its failure to include certain elements of the Miller Test.

13 Id.

14 See, e.g., Penthouse International, Ltd. v. McAulzfe, 610 F.2d 1353, 1367 (5th Cir. 1980) (rejecting the state solicitor general’s argument “that each article and pictorial presentation is a ‘work’ and a magazine is merely a

conglomeration of these works resulting in a ‘volume’”); United States v. One Book Entitled Ulysses, 72 F.2d 705 (2d Cir. 1934) (requiring Government to look at entirety of book “Ulysses” and not individual excerpts taken therefrom); United States v. Miscellaneous Pornographic Magazines, etc., 526 F.2d Supp. 460 (N.D. Ill. 1981) (agreeing that obscenity determination cannot be based solely on pictures in a publication, and that relevant text in same publication must be translated first in order to assess whether, “taken as a whole,” material is obscene); Moses

v. County of Kenosha, 649 F.Supp. 451, 456-457 (E.D. Wis. 1986) (holding that “taken as a whole” requirement applies to “prurient interest” test and “serious value” test, but not to “patent offensiveness” test); State v. Walden Book Co., 386 So.2d 342 (La. 1980) (agreeing that “taken as a whole” requirement applied to entirety of a magazine); People v. New Horizons, Inc., 616 P.2d. 106, 109-110 (Colo. 1980) (tracing historical derivation of “taken as a whole” requirement to Regina v. Hicklin, L.R. 3 Q.B. 360 (1868), and striking obscenity statute for allowing possibility that obscenity of a magazine could be determined solely based on its photos without taking into account any accompanying text); and Leech v. American Booksellers Assn., Inc., 582 S.W. 2d 738, 749 (Tenn. 1979) (striking Tennessee obscenity statute’s definition of “taken as a whole” because it allowed the possibility that newspapers and other periodicals could be found obscene based on separate pieces of writing or photographs within such newspapers or other periodicals)

15 354 U.S. 476 (1957).

16 Id. at 490 [Emphasis Added].

17 610 F.2d 1353 (5th Cir. 1980).

18 Id. at 1367.

19 Id. at 1368.

20 Id.

21 City of Urbana v. Downing, 539 N.E.2d 140, 148 (Ohio 1989).

22 U.S. v. Thevis, 484 F.2d 1149, 1155, 1157 (5th Cir. 1973); U.S. v. Toushin, 714 F.Supp. 1452, 1460-61 (M.D.

Tenn. 1989)

23 Standford v. Texas, 379 U.S. 476, 481-85 (1965), see also Roadan v. Kentucky, 413 U.S. 496, 504 (1973).

24 370 So.2d 1137, 1141 (Fla. 1979).

25 Id. at 1141 [Citations omitted].

26 Id.

27 Ashcroft v. ACLU, 535 U.S. 564.

28 47 U.S.C. § 231(e)(6)(C).

Three Alternate Futures


Three Alternate Futures:

Evaluating the State of the Adult Industry under Each Presidential Candidate

By: Lawrence G. Walters, Esq.

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

As the Democratic Party wrestles with its knock-down, drag-out primary contest between Senator Barack Obama (D-IL) and Senator Hillary Clinton (D-NY), desperately seeking a solution for unity, the adult industry is no doubt wrestling with its own concerns regarding how it will fare under the potential presidency of the three remaining major candidates. The choice of the voters in November 2008, will dramatically impact the way in which the adult industry will fare – potentially for many years to come. Therefore, an objective, informed evaluation of each candidate’s stance on erotic entertainment, and First Amendment issues in general, is critically important to determining the potential impacts on the industry.

This article is not intended as a political endorsement, or as a recommendation on how to cast your vote. That personal decision will likely be influenced by a variety of factors beyond First Amendment issues. It should also be noted that the author is not affiliated with any political party, and is not employed by any candidate’s election campaign.

Hillary Clinton

Senator Clinton is a complicated political persona. Her views on First Amendment issues tend to fluctuate with the political objective at hand, and do not appear to be significantly influenced by any strongly-held moral or philosophical beliefs. Interestingly, when Senator Clinton became First Lady in January 1993, one of her first official acts was to order an end to the routine access to the West Wing that the media covering the White House had taken for granted for decades.1 She even tried to get the press corps removed from the White House, altogether, and banished to a detached structure called the “Old Executive Office Building.”2

While such a sweeping policy change never came to pass, it does demonstrate a degree of antipathy toward fundamental notions of a free press. The distrust of the press carried over into recent times, as Senator Clinton has continued to block access to important documents housed in the Clinton Presidential Library, relating to her White House work.3 While this Candidate’s attitude toward media access and open government may not directly impact the free expression issues relevant to the adult industry, they do reveal a certain degree of casualness when it comes to upholding core First Amendment values.

During her tenure as a Senator from New York, Clinton has shown a willingness to impose government regulation on violent or sexually-oriented media. For example, she was one of the first to jump on the bandwagon criticizing the videogame, Grand Theft Auto: San Andreas, which contained un-lockable content that some deemed “pornographic” but which would not have earned a Hollywood movie more than a PG-13 rating, by today’s standards.4 As the instructions for unlocking the graphic content become widely available on the Internet, Clinton responded by saying: “The disturbing material in Grand Theft Auto and other games like it is stealing the innocence of our children and is making the difficult job of being a parent even harder.”5

In response to this incident, Clinton proposed what became known as the Family Entertainment Protection Act (FEPA), cosponsored by several Senators, including Joe Lieberman.6 The Bill called for mandatory, federal enforcement of the (currently) voluntary Entertainment Software Rating Board (ESRB) rating system for videogames, purportedly for the purpose of protecting children from inappropriate content.7 The FEPA sought to impose fines of $1000.00, or 100 hours of community service, for first-time offenses of selling videogames labeled “Mature” (M) or “Adult Only” (AO) to a minor. The Bill also called for an investigation by the FTC into the ESRB, to determine whether games have been properly rated in the first place. Clinton introduced the measure because of her purported belief “that the ability of our children to access pornographic and outrageously violent material on videogames rated for adults is spiraling out of control.”8

Clinton has also apparently bought into the largely discredited studies allegedly demonstrating a link between exposure to violent videogames and aggressive behavior of children, conducted by researchers at the Indiana University School of Medicine, and others.9 Thus far, none of these purported studies have been accepted as evidence of “harm” caused to minors playing violent videogames, in any court of law.10 The FEPA subsequently died in Committee and has not been reintroduced.11

This aggressive approach toward regulating erotic and violent videogame content provides some insight into Senator Clinton’s views on adult-oriented media in general. While the focus of her efforts in connection with the Grand Theft Auto matter was on protecting children, such justification is universally cited for censorship of the adult industry. Accordingly, while Democrats, as a whole, have been traditionally less hostile to the interests of the adult industry than Republicans, Senator Clinton appears to jump on the “protect the children” bandwagon when necessary to satisfy political objectives.

Senator Clinton did show some promise in regard to Free Speech issues, during the dispute over an art display at the Brooklyn Museum of Art, which was described as “offensive to Catholics.”12 At the time, then-Mayor, Rudolph W. Giuliani threatened to cut City financing to the museum if the display, which depicted the Virgin Mary adorned with elephant dung and sexually-explicit photos, was not removed.13 Giuliani characterized the debate as an effort to use public funds to bash the Catholic religion.14 Despite the potential political fallout from alienating the Catholic voters in New York, Clinton supported the free expression rights of the museum to display the art. Carefully tempering her remarks, Clinton summed up her position by stating: “I would not go to see this exhibit [but] it is not appropriate to penalize and punish an institution such as the Brooklyn Museum.”15 Whether Clinton was attempting to appeal to the highbrow New York art crowd, or simply standing on principle, cannot be known. However, a glimmer of First Amendment purism can be seen by her stance in this dispute.

John McCain

As noted above, the Republicans, as a group, have historically been substantially more aggressive against the interests of the adult entertainment industry, over the last several decades. From Nixon to Reagan to Bush I and II, Republican administrations have pursued criminal charges against the industry, and blamed erotic material for the moral decline of society and dissipation of family values. Nixon ordered the preparation of the Meese Commission Report,16 which was designed to “find’ a causal link between pornography and sex crime, after the first presidential report on pornography (under President Johnson)17 failed to uncover any statistically significant correlation.

Under President Reagan, the Justice Department began to pursue adult video producers aggressively, for the first time using the nation’s racketeering laws, which were amended up to include obscenity violations as “predicate offenses.”18 This move increased the potential jail terms and fines for obscenity offenses, exponentially. George H. W. Bush continued the War on Pornography until President William J. Clinton took the reins, bringing additional obscenity cases to a screeching halt – instead devoting Justice Department resources to the prosecution of child pornography. The adult industry – which now included the adult Internet – proliferated in the 1990s under Clinton, despite his signing of one of the worst pieces of censorship legislation to ever be passed by Congress. This law, called the Communications Decency Act of 1996, made virtually all erotic media on the Internet a federal felony.19 Of course, in 1997, a unanimous Supreme Court quickly invalidated the law prior to occurrence of any enforcement.20

George W. Bush reignited the obscenity debate by appointing an ultra-conservative, Religious Right, Attorney General – John Ashcroft. Ashcroft’s appointment resulted in the initiation of a new round of obscenity cases.21 Ashcroft’s successor, Alberto Gonzales, then wielded the baton, and actually (and more relentlessly) pursued a greater number of obscenity prosecutions than Ashcroft. Further, Gonzalez, upon confirmation, committed to prosecuting “the distributors of hardcore pornography that meets the test for obscenity.”22 Gonzales was forced to resign in disgrace, as a result of the U.S. Attorney firing scandal, and is now succeeded by Michael B. Mukasey. While the new AG has not been particularly vocal on adult industry issues, the obscenity cases continue, with a new prosecution against Evil Angel’s John Stagliano, occurring in April 2008, under his watch.

It is against the foregoing backdrop that a potential McCain presidency must be evaluated. Irrespective of Senator McCain’s individual views on obscenity or the First Amendment, it must be assumed that his Republican Administration will be filled with substantially more conservative prosecutors23 and appointed officials. Consequently, this translates into comparatively worse news for the adult industry than either of the Democrats.

That being said, John McCain has often been viewed as a “maverick” and an independent- minded Republican, often bucking the system and rejecting the counsel of the more conservative wing of the party.24 Notwithstanding, for McCain to clinch the election, he must sew up the conservative block’s vote. That means promises will be made, and those promises might be kept. Conservatives have been demanding the obscenity prosecutions they were “promised” since they first helped elect Bush in 2000.25

It may be possible to overlook some of this negative predisposition by Republican candidates if it were not for the fact that Senator McCain appears to have bought into the whole concept of blaming media for criminal activity by viewers. When asked about violence in movies and television, McCain voiced support for legislation requiring warning labels on violent media products similar to cigarette warning labels.26 He calls for a close look at the “entertainment media and the violent images … with which they are bombarding our children.”27 Moreover, McCain does not appear to have much general respect for First Amendment principles. When confronted by talk show host Don Imus about the claim that his campaign finance legislation28 violated the First Amendment, McCain responded by stating: “I would rather have a clean government than one where quote ‘First Amendment rights’ are being respected that has become corrupt … If I had my choice, I’d rather have the clean government.”29 McCain has routinely relegated the First Amendment to second place in political debates, even supporting prohibitions on burning the American Flag; a patently unconstitutional effort.30 McCain’s other anti-First Amendment blemishes include sponsoring the library filtering law; dubbed the Children’s Internet Protection Act (CIPA),31 requiring that schools and libraries receiving federal funds install filters to block material that is deemed obscene or harmful to minors. He also recently sponsored the Stop the Online Exploitation of Children Act, which proposed expansion of penalties for obscene content to bloggers and other web hosts, in order to protect children. McCain, one of the drafters of the legislation, stated in a speech on the Senate floor: “Technology has contributed to the greater distribution and availability, and some believe, desire for child pornography.”32 To date, the bill has failed to pass.

McCain’s consistent, anti-First Amendment stance has earned him a lifetime rating of 26%, relating to his votes on civil liberties legislation, as determined by the American Civil Liberties Union.33 This poor record may be partially explained by his views on the relationship between religion and government. Interestingly, when asked whether he thinks the United States Constitution established a Christian nation, McCain responded that “I would probably have to say yes, that the Constitution established the United States of America as a Christian nation.”34 So much for First Amendment principles of separation of church and state.35

As is evident from the above, McCain appears, from his public comments, voting record, and political party’s lengthy history, to be the worst choice for the adult industry’s interests. While questionable notions of a purported, independent-leaning mentality may hold some margin of hope in less open hostility to the adult industry than that which has been exhibited by the current Administration, some new legislation, and criminal prosecution is virtually guaranteed, using the hack-kneed justification of protecting children. Those in the adult industry still supporting Senator McCain for President should carefully consider the potential consequences of such a decision on their business interests, for years to come.

Barack Obama

One source names Barack Obama the most liberal member of the United States Senate.36 However, “liberal” does not always equate to “civil libertarian,” as evidenced by the many feminists who view themselves as socially liberal, yet are vehemently opposed to pornography, which is seen as a means to victimize women.37 Indeed, while Senator Obama may ultimately be viewed as the candidate who is least hostile against adult industry, he has a varied record when it comes to First Amendment issues. Certainly, Obama has been schooled in constitutional law, as he serves as a Senior Lecturer at the University of Chicago, where he specialized in due process issues.38 While employed as an attorney with Miner, Barnhill, and Gallard, PC, Obama litigated civil rights cases, but focused on issues involving voting rights and employment, not free speech cases.

There is something to be said for electing a civil rights attorney as President of the United States, generally, as an individual with such qualifications would presumably be much more sensitive to constitutional obligations and restraints than, for example, the current Administration, which has viewed the Bill of Rights as more of a hindrance to its objectives than a set of guiding principles. Obama has demonstrated some sensitivity to religious freedom in his speeches and public presentations. However his commitment to separation of church and state is questionable, given statements like: “Secularists are wrong when they ask believers to leave their religion at the door before entering into the public square.”39

Senator Obama does appear to be committed to the concept of freedom of information and open government. As a state senator in Illinois, Obama cosponsored the Verbatim Record Bill, SB1586, adopted into law in August 2003. This law requires public bodies to make video or audio recordings of any meetings behind closed doors, and was the first of its kind.40 His commitment to open government carried over to his U.S. Senate position, where he has advocated similar transparency in government, cosponsoring the Federal Funding Accountability and Transparency Act of 2006. The bill created an online database to track approximately one trillion dollars in government on grants and contracts. Subsequently, it was signed into law effective January 1, 2008. Moreover, Obama has pledged to increase public access to government information if he is elected President by, for example, posting non-emergency bills for five days online to give the public a chance to provide feedback before he signs them into law.41

Although his record on open government and religious freedom may be impressive, Obama appears to be less committed to free expression as a cultural value. For example, when Obama was a state senator in Illinois, the State sought to issue “Choose Life” license plates. Obama was critical of the plates, and believed that their issuance resulted in an unfair promotion of an anti-abortion position.42 Ultimately, an advocacy group sued, and a District Court Judge ordered the State to start offering the plates, observing that the First Amendment protects unpopular and even some hateful speech.43 Obama’s position in this dispute could, however, arguably be considered a pro-First Amendment stance, as preventing the issuance of license plates with a traditionally pro-Christian, anti-abortion message, may be seen as preventing an Establishment Clause violation.

Obama has also been critical of misogynistic and violent lyrics in rap music, opining that the rappers were “degrading their sisters” with their slang terms for women.44 Obama has also supported more indecency regulation of broadcasters and cable companies. However, this often involves a difficult balancing act. In a November 2005, speech to the Kiser Family Foundation, Obama described the difficulty in balancing First Amendment liberties with cultural values in the context of regulating sex and violence on television.45

However, Obama does see a role for the government in regulating the videogame industry. In that regard, he said: “I would call upon the videogame industry to give parents better information about programs and videogames by improving the voluntary rating system we currently have … and even if the industry does do some responsible self-policing, there is still a role for the federal government to play.”46 In another comment, Obama ominously threatened to get the FTC involved if videogame ratings did not become clear: “If the industry doesn’t, then my administration would.”47

Turning specifically to the Internet, Obama’s comments regarding a particularly offensive website raised some eyebrows. That incident occurred when Lindsay Ashford, an American expatriate living in Europe, and a self-professed pedophile, posted pictures of the presidential candidates’ children, evaluating their “cuteness.” Obama’s attorney, Robert Bauer, sent a cease and desist letter to Ashford, calling the use of the photos and the comments “a criminal act.” Obama’s representative demanded immediate removal of the photos, as well as any references to Obama and his family.48 Various Free Speech organizations and advocates expressed surprise at this demand, as Free Speech principles clearly covered the display of a presidential candidate’s family on a website – irrespective of the disturbing context.49 After a brief First Amendment backlash, the issue died down, and Obama did not further pursue the demand for removal.

Aside from these few points of diversion from core First Amendment principles, Obama’s background and training in civil rights issues, and his overall approach to open government and free expression suggest that his administration would be the least likely to pursue a campaign of open hostility and criminal prosecution against the adult entertainment industry, as exemplified by the current Administration’s efforts.


As in most presidential elections, there is no perfect candidate. The same holds true for the adult entertainment industry in the upcoming 2008 election. Each of the candidates has particular strengths and weaknesses. The two Democrats have a limited experience scorecard, thus making it difficult to predict exactly how they would approach certain cultural issues of importance to the adult entertainment industry. McCain has a long track record, but has been fairly consistent in his hostility toward First Amendment interests.

After enduring eight years of a Republican-influenced law enforcement policy, and appointment of two ultra-conservative Supreme Court Justices, voting for McCain appears to be the most detrimental from the standpoint of the adult industry’s interests. Alone, his ability to appoint more conservative judges at all levels of the judiciary presents a serious concern.

Of the two Democrats, Hillary Clinton has evidenced a willingness to propose and support legislation adverse to media interests, based on a purported desire to protect the children. This mentality can result in tremendously detrimental legislation for the adult industry. Although Obama has delivered some troubling public comments on issues impacting freedom of speech, his track record, education, and overall civil rights mindset suggest that his administration would be the least hostile to the livelihood of those involved in the adult industry.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, Walters & Mooney, with offices in Orlando, Los Angeles, Salt Lake City, 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.”

1 T. Mauro, “Hillary Clinton: Wariness of the Press,” FirstAmendmentCenter.org (October 30, 2007).

2 Id. This building is, however, connected by tunnels, and serves as the Vice President’s primary office building.

3 Id.

4 Staff, “Senator Clinton announces legislation to keep inappropriate videogames out of the hands of children,”

www.Senate.gov (July 14, 2005).

5 Id.

6 Wikipedia.com – Family Entertainment Protection Act.

7 Id.

8 Senate.gov, supra.

9 Id.

10 See, e.g., Entertainment Software Association v. Blagojevich, 404 F. Supp. 2d 1051 (N.D. Ill. 2005); Videogame

Software Dealers Ass’n v. Schwarzenegger, 401 F. Supp. 2d. 1034 (ND Cal. 2005); Interactive Digital Software Association v. St. Louis County, 329 F.3d 954, 958 (8th Cir. 2003).

11 Wikipedia.com – Family Entertainment Protection Act.

12 A. Nagourney, “First Lady Assails Mayor Over Threats to Museum,” New York Times (September 28, 1999).

13 Id.

14 Id.

15 Id.

16 Attorney General’s Commission on Pornography, Final Report, July 1986, Vol. I, 225, 903.

17 Report of the Commission on Obscenity and Pornography, September 1970, U.S. Government Printing Office. (This Report was commissioned by President Lyndon B. Johnson, near the end of his administration. The Pornography Commission found that the government “should not seek to interfere with the right of adults who wish to do so to read, obtain, or view explicit sexual materials.”)

18 18 U.S.C. § 1961.

19 Title 47 U.S.C.A. § 223 (1994 ed., Supp. II).

20 Reno v. ACLU, 521 U.S. 844 (1997).

21 D. McCullagh, “Ashcroft’s hard line on hard-core,” Wired News (June 9, 2001).

22 J. Kay, “U.S. Attorney’s porn fight gets bad reviews,” Law.com (August 30, 2005).

23 Moreover, any President normally appoints numerous federal judges during his tenure. That power, itself, should figure carefully into the analysis, since judges will ultimately be deciding the Constitution.

24 Mathews, Blitzer call McCain a “Maverick”, Media Matters (August 31, 2007).

25 T. Chris, “Gonzales’ strange priorities,” TalkLeft.com (September 19, 2005).

26 OnTheIssues.org, citing: Press Release: “Violent Labeling Bill” Jun 16, 1999.

27 OnTheIssues.org, citing: CNN AllPolitics Apr 30, 1999.

28 Bipartisan Campaign Reform Act of 2002 (BCRA), Public Law No. 107-155.

29 T.Mauro, “For McCain, First Amendment runs 2nd to campaign reform,” FirstAmendmentCenter.com (September 4, 2007)

30 “Where does McCain stand on the flag burning amendment?” Yahoo.com (April 8, 2008).

31 Pub. L. 106-554.

32 D. McCullagh, “Senator: Illegal images must be reported,” CNetNews.com (December 11, 2006).

33 “For McCain, First Amendment runs 2nd to campaign reform,” supra.

34 Id.

35 This concept is derived from the “Establishment Clause” of the First Amendment, which has been interpreted by the courts as prohibiting any excessive entanglement between the government and religion.

36 B. Friel, R. E. Cohen & K. Victor, “Obama: Most Liberal Senator In 2007,” National Journal (January 31, 2008).

37 “Anti-pornography movement,” Wikipedia.com; Feminists Against the First Amendment, The Atlantic; http://www.theatlantic.com/doc/199211/feminism-censorship/2.

38 C. Holliday, “Obama’s First Amendment shows varied views,” FirstAmendmentCenter.org (August 9, 2007).

39 Id.

40 Id.

46 B. Crecente, “Presidential Candidates Talk Video Game Censorship,” Kotaku.com, citing


47 P. Haas, “Candidates Weigh In On Video Game Regulation,” Cinemablend.com (December 12, 2007).

48 Obama’s First Amendment shows varied views,” supra.

49 Id.

User Generated Content


User Generated Content Sites

Formula for Profit, or Recipe for Disaster?

By: Lawrence G. Walters, Esq.

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

Given the smashing success of YouTube™ and other video-sharing websites, it was inevitable that the adult industry would see a surge of similar business models involving adult material. Adult dating sites, ex-girlfriend sites, ‘tube’ sites, freak sites, community sites – you name it, and users are posting it. This online business method seems to be the latest rage in the industry, with about half of our firm’s clients looking to sue an adult tube site and the other half looking to open one. A major lawsuit has already been filed against the operators of PornoTube.com by powerhouse studio producer, Vivid Entertainment, asserting some interesting

claims, including a novel take on the legal effect of § 2257 non-compliance.1

Given the viral spread of this new business and entertainment model, it is important to examine the legal risks associated with operating a user generated adult content website, and consider whether the legal risks outweigh the potential rewards. This article will delve into the varied legal concerns associated with online erotic video-sharing. As with all legal issues, an article is no substitute for competent legal advice. Before considering the operation of a user generated adult content site, it is essential to consult with an experienced adult industry attorney.

Section 2257 Issues

An obvious place to begin the discussion is with the complicated and nuanced issue of Section 2257 compliance. User generated website content is not, strictly speaking, produced by

1 Vivid Entertainment LLC v. Data Conversions, Inc. et al, Case No. 2:2007cv08023 (C.D. Ca. Dec. 10, 2007), wherein the Plaintiff claims that Pornotube.com’s failure to comply with § 2257 results in unfair competition, with respect to all the other websites that are required to comply.

the operator. Rather, it is provided by the site’s users, who may, or may not, have created the content. Everything from erotic spousal activity, to shocking body modifications, to hidden bathroom cams, and even clips from unreleased, professionally-produced adult films, may appear on a typical user generated, adult content site. Most of this content is posted automatically to the

website for immediate viewing by the site’s users, without prior screening or approval by the webmaster.2 Naturally, the following question comes to mind: Does the operator of such a website need to comply with either the records keeping or labeling requirements of Title 18,

      1. § 2257?

As with most 2257 records keeping questions, the issue of compliance comes down to whether the business operation in question “produces” the actual sexually-explicit content. For purposes of this discussion, the term “produces,” as defined in Title 18, U.S.C. § 2257(h)(1)(2)(a), includes:

digitizing an image, of a visual depiction of sexually-explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a…digital image…[and],

inserting on a computer site or service a digital image of, or otherwise managing the sexually-explicit content, of a computer site or service that contains a visual depiction of, sexually-explicit conduct.

The term “produces” does not include activities that are limited to:

…digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually-explicit material

* * *


* * *

2 Sometimes all of the content is pre-screened by the operator; however this practice may impact some of the legal issues, as discussed below.


the transmission, storage, retrieval, hosting, formatting…of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with 230(c) of the Communications Act of 1934 (47 U.S.C. § 230(c)) shall not constitute such selection or alteration of the content of the communication.

Therefore, the relevant consideration comes down to whether the operation of a video- sharing site constitutes digitization of an image, assembly of an image, publication of an image, or managing the sexually-explicit content of a computer site on the one hand; or whether such operation will be considered digitization of a previously-existing visual depiction, mere distribution of the content, or the transmission, storage, retrieval, hosting, or formatting of a communication, on the other hand. Thus far, the courts have not addressed whether the current definitions of compliance-triggering activities, contained in § 2257, apply to the operation of a user generated content website.

In light of the Sixth Circuit’s decision striking down § 22573, records keeping compliance

issues have taken somewhat of a back seat to other legal concerns, given the widespread industry perception that neither 2257 inspections nor prosecutions will occur until the constitutional issues are sorted out in court. Notwithstanding the accuracy or inaccuracy of this perception, the lull in 2257 activity has provided a unique opportunity for proliferation of user generated content sites.4

3 Connection Distributing Co. v. Keisler, 505 F.3d 545 (6th Cir. 2007).

4 It should be noted, however, that failure to comply with 2257 requirements could result in civil claims based on

unfair competition, as have been asserted in the lawsuit by Vivid Entertainment against Pornotube.com. See Vivid Entertainment LLC, supra.

The trial court’s decision in the above-referenced case involving Connection Distributing5 held that the operation of a “swingers” classified website, which allowed users to post sexually-explicit images of themselves on profile pages, did not require records keeping compliance so long as the website operator did not control the areas of the site where the users posted the 2257 triggering content.6 While this decision was ultimately superseded by the Sixth Circuit Court of Appeal’s opinion declaring § 2257 unconstitutional on it face, the trial court’s opinion provides some insight into how this issue might be interpreted by the courts.

The mechanics of the content submission process can significantly impact whether a video-sharing site is exposed to § 2257 compliance burdens. While a final determination whether to comply rests with the site’s operator, in consultation with the its attorney, the following factors might be considered in making this important decision:

        1. Whether the content is reviewed and approved by the operator prior to its appearing on the site, or whether it is posted automatically (or some combination thereof);

        2. Whether specific categories of content are solicited for, or permitted on, the site, or whether all content types are accepted;

        3. Whether any content subjects or categories are deleted after posting, and how decisions relating to deletion of content are made;

        4. Whether users are restricted in the manner in which content is submitted; i.e., whether profiles or restrictive forms are used, or whether content can be provided in a free form manner;

        5. Whether the site is promoted as featuring specific subjects, or is more general interest in erotic fare;

5 Connection Distributing Co. v. Gonzalez, Case No. 1:95CV1993 (N.D. Oh. 2006).

6 The case did not decide whether the “labeling” obligations were triggered by this activity, however.

        1. Whether any ‘seed’ content is included by the operator, and the impact of this content on the ultimate nature of the content submitted by users.

Generally, the less control the operator has over the posting of content by the user, the less likely the site will need to comply with 2257. However, this lack of control comes with a price, since the site operator will therefore be unable to prevent potentially illegal images or video from appearing – even temporarily – on the site. This heightens some of the other legal concerns such as child pornography, obscenity, or copyright infringement, as discussed below.

Even if the webmaster’s activities do not fall within the definition of “produces” in the Statute, so as to trigger records keeping obligations, they may meet the definition of the term “distribution.” While distributors are not subjected to records keeping obligations under the Statute, they are required to ensure that a proper “label” appears on the 2257-triggering content. From the standpoint of a user generated content website, this means that the webmaster would need to ensure that each depiction of actual sexually-explicit conduct is accompanied by a proper 2257 disclosure statement, identifying the full name and physical address of the records custodian along with the date and title of the work. Given the natural hesitation of many amateur content producers to provide information about themselves when posting sexually-explicit materials, non-compliance by users is virtually guaranteed if webmasters are considered distributors. The labeling issue therefore presents a significant concern.

The legal validity of § 2257 is far from over, since the Government is seeking further judicial review of the Sixth Circuit’s opinion. Thus, it is too early to discount the potential impact of 2257 on user generated content sites. The courts could reinstate the current version of 2257 by subsequent decision, or Congress could act to correct the constitutional concerns noted by the court. While passing new laws may lead to new challenges, it bears noting that the

appellate court’s decision in the Connection Distribution case came after more than 12 years of litigation and repeated constitutional challenges. Given the prevalent attitude hostility towards the adult industry that currently exists in Washington D.C., it is likely that some sort of performer age verification law will be on the books for years to come.

With respect to the current Statute, there are valid arguments on both sides with respect to its applicability to user generated content. On the one hand, website operators often act to digitize images hosted on user generated sites – even if the process is automated. Erotic images are “inserted” on these user generated content sites by both the user and the operator, and webmasters have some role in “managing” the content of the website — if only to “assemble” or “arrange” the categories or profiles.

On the other hand, the visual depictions posted to the site are “previously existing” and usually not created by the operator. Moreover, the webmaster’s activities may well be limited to activities like “transmission, storage, retrieval, hosting, and/or formatting” of the preexisting images, so as to fall within the plain meaning of the records-keeping exemption language. Notwithstanding the above, it remains an open question whether website transmission constitutes ‘distribution’ within the meaning of Section 2257. If so, labeling is required, at a minimum. Obviously, risks of non-compliance exist. Therefore, a decision can only be intelligently made in consultation with an adult industry lawyer, and must be based on the operator’s unique risk tolerance level.

Obscenity & Child Pornography

One of the strengths of the user generated content business model is the fact that the webmaster need not purchase or create content – instead it comes free of charge from the users. This strength is also one of the business model’s great weaknesses.

Since the content comes directly from users, the webmaster has no opportunity to make decisions as to what kind of content will appear on the site in question. While other adult website operators only purchase or create content that falls within their own risk tolerance levels, user generated content can (and often does) depict just about anything under the sun. This includes content that might be considered obscene or – worse yet – child pornography.

With respect to obscenity, the inability to review and approve each image or video clip before it is posted to the website means that some content, that the webmaster may not like, ends up on the website – at least for some period of time. The operator can delete the content – either in response to user complaints or its own review process – without losing any exemption that would otherwise be applicable, pursuant to § 2257(h)(b)(V).7 However, removing the content

after it has been posted does not change the fact that it may have appeared on the website at one

time, and may have been viewed or downloaded by claimants or government agents. One obvious answer is to review and authorize all content before it goes live to the website. In theory, this is a good option, but it has both legal and practical drawbacks. Initially, as a site’s popularity increases, so does the amount of content posted to it at any given time. The manpower necessary to review each second of every video clip or every image posted to the website may be cost-prohibitive. Moreover, the decision to review all content ahead of time may impact the viability of any claimed exemption under § 2257, as well as the immunity from civil suits provided by § 230 of the Communications Decency Act (discussed later). Pre-selection of acceptable content may well put the webmaster in the position of “assembling” or “managing” the sexually-explicit content, and thus trigger § 2257 obligations. The impact on these legal issues of any particular posting policy should be properly evaluated by the operator and the legal

7 Some deletion policies may be so broad as to result in “management” or “assembly” of the content, so caution is urged when developing a deletion policy.

department. However, the foregoing helps illustrate the “Catch 22” facing many user generated content website operators, since both auto-post and content review policies come with associated legal pros and cons.

One of the key advantages of 2257 compliance is the almost automatic defense to child pornography claims. The child pornography issues associated with user generated content are serious. Given the lack of 2257 performer records, website operators will usually be in the position of being unable to prove the age of individuals depicted on their user generated content website. No records mean no proof of age and possibly no defense to child pornography charges.

Prosecutors in the federal system use something called the “Tanner Scale” to prosecute individuals for child pornography charges, particularly where the actual birth date of the individual depicted in the images is unknown. The Tanner Scale allows prosecutors to call a pediatrician to the stand to testify regarding such factors as breast development, presence/absence of pubic hair,8 and maturity of the inner thigh tissue, when reviewing images of

suspected child pornography, to make prognostications about the suspected age of the individual

depicted. Therefore, federal prosecutors need only secure the testimony of a friendly pediatrician “expert” who is willing to testify that the individual depicted on the user generated post appears to be approximately 16-17 years of age, based on these factors. While the operator may ultimately win his or her criminal trial on issues of reasonable doubt, etc., by that time most of the serious consequences of a child pornography prosecution have been experienced, and the victory is quite hollow. Therefore, child pornography risks constitute one of the major drawbacks of the user generated content business model.

8 Given current industry grooming trends, this factor is becoming increasingly irrelevant.

A strict review policy may be necessary to weed out any even arguable underage images, or obscene material, to avoid the serious consequences. However the details and mechanics of how such a policy is instituted, will affect other issues such as § 2257 compliance and § 230 immunity.


User generated content sites are copyright minefields. Much of the material posted on both the mainstream and adult-oriented user generated sites is clearly infringing. Some of the larger content producers and website operators blame their declining revenues on the widespread availability of their stolen content on ‘tube’ sites. The adult industry has taken steps to combat this rampant piracy, and is organizing in an effort to present a unified front against these infringers. 9

While the posters of infringing content are directly liable for copyright infringement, they are often penniless individuals sitting in their basement playing on the Internet. Even the RIAA would pass on the opportunity to sue most of them. The only deep pocket here is the website operator. That leads to the following question: Can user generated content sites be sued for vicarious or indirect copyright infringement for allowing routine use of their services to display copyrighted material without a license? The answer to that vexing question will likely come from the courts in the case filed by Viacom Entertainment against YouTube.com.10 The legal

issues are thorny. Ordinarily, websites which merely allow others to post material online, without any other interest in, or selection of, the content of the material posted, can argue that they are protected by the ‘safe harbor’ provisions of the Digital Millennium Copyright Act

9 Bourne, Justin “‘Piracy Roundtable’ Offers Solutions From Producers,” AVNOnline.com (Jan. 16, 2008), which can be viewed at: http://www.avn.com/index.cfm?objectID=839050DA-AAC2-F716-33386ED5B50B24EC.

  1. Viacom Int’l, Inc. v. YouTube, Inc., et al., Case No. 1:07-cv-02103-LLS (S.D. N.Y. March 13, 2007).

(DMCA).11 If safe harbor applies, the site cannot be held liable for damages in a copyright case. Before DMCA safe harbor can be asserted, the website must take certain steps to perfect its status as a protected site, including designation of an agent for receipt of copyright notices, posting of a Notice and Takedown policy, and filing the proper forms with the U.S. Copyright Office. The website must also properly respond to any DMCA notices it receives, in order to maintain safe harbor protection. Repeat offenders must be terminated, or the site could lose its

safe harbor arguments.12

But, what if the website’s user-posting technology is routinely used as a device to disseminate infringing materials? Can copyright liability be imposed under those circumstances? A similar argument was made against the Sony Corporation in the days of the Betamax video recorders, by the mainstream movie studios.13 They alleged that this device’s primary purpose was to facilitate duplication of copyrighted movies and TV shows, and the company should

therefore be held liable. The Supreme Court disagreed, and concluded that the Betamax VCR had substantial non-infringing uses, such as making personal backup copies or playing home movies.

However, when the Courts considered the Napster14 and Grokster15 cases, involving the

downloading and copying of mp3 music files, the websites lost. In those cases, the Court found that the primary purpose of both systems was to infringe on copyrights, despite any lawful uses they might have had. In the Grokster case, the Court observed that the device was intentionally

  1. Digital Millennium Copyright Act, 17 U.S.C. § 512. Notably, not all user generated websites will enjoy DMCA safe harbor, depending on their level of control over the content posted to the site. See: Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 489 F.3d 921 (9th Cir. 2007).

12 17 U.S.C. §512(i)(1)(A).

13 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

14 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

15 MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005).

marketed to the public as a means to download and trade mainstream music files, which otherwise enjoyed copyright protection.16

The outcome of the Viacom case against Google’s Youtube.com site, will be governed by the legal principles established by Sony, Napster and Grokster. Good arguments can be made either way, and much will depend on the copyright policing and protections undertaken by Youtube.com. Accordingly, future cases may be dependent on the specific facts relating to the operating policies of the sites in question. To the extent that efforts are made to protect copyright holders’ rights, that will sit well with the courts when DMCA safe harbor is asserted. For now, operators of user generated content sites take a risk when allowing users to upload copyrighted material.


The trademark issues are similar, but not identical to, the copyright issues. Trademark issues usually arise, in this context, when a trademark owner seeks to hold a website operator responsible for trademark infringement as a result of the webmaster’s involvement in display of the protected mark on the website. Where the webmaster intentionally uses content containing the trademarked word or phrase in a commercial manner, the liability issues are clearer. However, where the webmaster merely creates an online venue allowing third party users to post information without the operator’s prior review or approval, the liability for infringement is less certain. Unlike copyright claims, Congress has not created a safe harbor allowing website operators – or even true ISP’s – to avoid liability as exists with the DMCA notice procedure. Lawmakers apparently overlooked potential trademark liability when designing the DMCA safe harbor, thus creating something of a “no-man’s land” of liability when protected marks are improperly included in user generated content posts.

16 Id. at 913.

The author has defended hosts, and others, against trademark claims resulting from user generated, or customer generated, content. Concepts of fair use may come into play when the marks are not prominently featured in the content, or only a passing reference is made to them. However, some companies take an aggressive enforcement policy when it comes to any unauthorized display of their marks on websites, thus creating a potential liability concern for operators of user generated content sites. The law has not developed to the point of any type of certainty, thus far. Accordingly, liability resulting from unauthorized publication of protected trademarks on user generated content sites remains a potential area of concern for operators.

Online Agreements, Terms & Conditions

Some of the legal concerns referenced above can be mitigated substantially by proper implementation of a good set of User Terms & Conditions. Members authorized to post content to an adult-oriented website should be constrained by a specific set of policies governing the type of content that is acceptable, and the grounds for suspension/termination of the user’s account. It goes without saying that uploading of obscene and child pornographic material must be categorically prohibited by the website’s user agreement. However, the website operator may want to adopt more specific policies as to the type of sexual material that is authorized to be posted to the website. Some operators will restrict depictions of certain fetish practices or depictions of violence, mutilation, amputation, menstruation, bodily fluids, and other distasteful topics. Other operators will try to avoid § 2257 liability by prohibiting any content containing actual sexually-explicit conduct. None of these depictions will be considered obscene, automatically, since the obscenity determination depends on a number of factors, including the local community standards where the case is brought. Certainly, the website operator is free to exclude any type of material that the operator believes will pose an inordinate risk to his or her

business operation. However, care should be taken to avoid being so selective to result in a loss of § 230 immunity, loss of DMCA safe harbor, or imposition of § 2257 obligations, as discussed above. Once the site’s policies are adopted, they should be enforced consistently through a meticulous content review procedure. It does little good to adopt strong content posting guidelines which result in little or no actual enforcement activity.

The member terms for a user content website must also focus on taking advantage of the immunities provided by the Communications Decency Act,17 (“CDA”), and the DMCA safe harbor. Section 230 of the CDA provides immunity to certain websites against claims based on the content of messages created by third parties and posted on those websites. Websites protected by Section 230 will be immune from claims like defamation, negligence, infliction of emotional distress, false light, invasion of privacy, etc.18 The website operator is permitted to delete certain content posted by third parties from the website, which is believed to be obscene, indecent, defamatory, or otherwise illegal, without losing the immunity protection, under the so- called “Good Samaritan” provisions of the Statute. A well-written set of User Terms can outline

the nature of this protection, and advise all users of the existence of the immunity protection against claims. At the same time, the Terms can outline the site’s Good Samaritan removal policy. Relatedly, the Terms & Conditions should include a “Notice and Takedown Policy” referenced above, to protect the site’s DMCA compliance efforts. This policy must include the name and contact information for the website’s DMCA Agent, who is appointed to receive and process copyright infringement notices. Done correctly, the inclusion of this information can help protect against damages claims resulting from copyright infringement. Finally, the User

17 Communications Decency Act of 1996, 47 U.S.C. § 223

18 E.g., Doe v. American Online, 783 So.2d 1010 (Fla. 2001).

Terms should adopt some sort of age verification policy and procedure.19 Of course, user generated content sites need all of the other legal goodies like Privacy Policies, Age Verification, Affiliate Agreements, SPAM Policies, etc. Cutting edge legal documents are essential for all adult-oriented websites, but given the increased potential for legal claims arising out of the often uncontrollable content submitted by users, all forms of legal protection become even more important. Needless to say, user generated content website operators will be thankful for all the protection that legal agreements can offer, in the event a claim arises.


As can be seen by the foregoing, the legal issues associated with user generated content sites are numerous, unsettled, and interrelated. Given the relative recent popularity of this particular business model, little law exists to specifically guide operators or their lawyers. However, legal decisions involving similar websites can be consulted in an effort to predict how the law will develop. Thus far, online companies that merely provide a venue or system for others to communicate on the Internet are treated surprisingly favorably by the courts. Therefore, decisions relating to services such as hosts, ISPs, and chat rooms, have tended to come down on the side of the service provider. However, as webmasters blur the line between access provider and content provider, the courts will be forced to take a closer look at how far the law should go in imposing liability on the operator for content submitted by users. The more involvement that the operator has in the ultimate selection or arrangement of content displayed, or the manner in which it is displayed and promoted, the more likely that the operator will be subjected to the ordinary liability of a content provider. The outcome of the Viacom Entertainment and Vivid Entertainment cases will significantly impact the law in this area, as the first cases to interpret these cutting edge issues. Until then, operators should diligently educate

19 For an example of such a procedure, see, www.BirthDateVerifier.com.

themselves as to the potential legal concerns, and work with trained professionals in an effort to reduce liability to reasonably tolerable levels.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, DeWitt & Walters, with offices in Orlando, Los Angeles, Las Vegas, Salt Lake City, 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.”