LEGAL BEAT
By: Lawrence G. Walters
www.firstamendment.com
Just when we began to question whether the U.S. Supreme Court was still interested in upholding First Amendment freedoms, the Court announced a big win for Free Speech in the Playboy case. In late May, the Court announced a decision prohibiting the government from enforcing a federal law requiring erotic cable channels to scramble their signal, or prohibit viewing during daytime hours. In a well-reasoned decision, the Supreme Court held that Playboy’s programming is fully protected by the First Amendment, and that the law imposed a prior restraint on free speech.
The government’s concern was with what is known as “signal bleed,” which occasionally allows scrambled images to be discerned by viewers who have not subscribed to the channel. An occasional “moan” could also be heard by non-subscribers. Apparently this signal bleed issue prompted the government to pass legislation prohibiting explicit cable channels, including Playboy and the Spice channel (who were even mentioned in the legislative history) from operating during the daytime, or to completely scramble the signal. Since complete signal scrambling technology is currently not available, although it will be with the advent of digital signal transmission, most cable channels opted for “time channeling” which allowed the channels to operate only when children presumably would not be awake.
Despite the many years during which The Playboy Channel had operated throughout the litigation, the government could only document a handful of incidents where children were exposed to brief erotic clips or sounds. The court observed that if this was a real problem, the government should have been able to provide better evidence of it. The Court, therefore, struck down the regulation on free speech grounds, noting; “Speech that many citizens find shabby, offensive, even ugly” is protected. I debated a representative of Morality and Media on The Fox News Channel regarding the impact of this decision. The Morality and Media folks were outraged, and accused the Court of protecting the porn industry’s profits and not our children. What I pointed out, and what the “morality police” always forget, is that decisions like this protect the First Amendment rights of children who will soon grow up to inherit them. We must be careful not to take away these liberties, under the guise of protecting children, which will have the effect of eliminating the rights of children who will quickly grow up to be adults.
Protecting children is a favorite battle-cry of the censorship groups. Our firm has been retained to advocate on behalf of the adult Internet community during the upcoming hearings in Washington D.C. to discuss protection of children from offensive material on the Internet. The government’s first two attempts to censor Web content have failed, both being struck down by federal courts. Ultimately, the adult Internet industry will likely see the wisdom of setting up a red light cyberzone, using a .xxx address or something of that nature.
On another note, the amateur Webcam craze appears to be the new fad sweeping the nation. The cover stories of both AVN® and AVN Online® feature stories about the use of inexpensive Webcams by amateur models to provide erotic entertainment on the Internet. This craze is giving mainstream porn companies a run for their money, and has greatly increased the diversity of erotic content available for public consumption. This fad is not without its pitfalls, however. The Legal Beat column has detailed the plights of several employees who have lost their jobs as a result of their amateur erotic expression on the Internet, during their free time. Most recently, we have been retained by a client named Bill Owens, who, along with his wife, operated featuring erotic images of both he and his wife. Mr. Owens worked as a salesperson for Home Depot and, when word got out of his involvement in the website, his female co-workers went crazy! They began taking liberties with Mr. Owens’ body on the job, including inappropriate touching and constant lewd comments. Apparently, they believed that his involvement in the website made him fair game for sexual harassment. Our client was forced to resign from his job due to the hostile environment, and he is considering his legal options including a sexual harassment suit.
With the elections looming in November, all eyes in the adult entertainment industry are focused on the candidates’ platforms. It can be safely assumed that the Republican administration would take a completely different stance on the adult entertainment industry than has the current administration. As always, we encourage all readers to become politically active to protect their right to view erotic speech. Turning out the vote will be particularly important given a recent poll conducted by Republican pollster Ed Goeas and Democrat Celinda Lake on the votenet website. Surprisingly, most Americans polled felt that the country is going in the wrong direction, and are now decidedly pessimistic. This could spell trouble for the incumbents in November. Most undecided voters are pessimistic. When asked what was the most important issue for Congress to address, the number one response was “restoring moral values.” With poll results like this, a new administration would be virtually forced to take a hard line on pornography and adult entertainment.
The only known obscenity prosecution against a website model took a turn for the better, and then for the worst. The State Attorney in Polk County, Florida, agreed to dismiss the obscenity charges against Tammy Robinson, who appears using the pseudonym Becka Lynn at However, when the prosecutor heard a radio talk show host named “Bubba the Love Sponge” talk about the proposed dismissal, and insult the prosecutor in the process, the State Attorney’s office backed out of the deal and re-instituted the charges. All this occurred while a camera crew with 48 Hours filmed, to their horror. Welcome to Polk County, Florida.
On a lighter note, the Louisiana Supreme Court declared a New Orleans sex toy law unconstitutional. The fifteen year old law prohibited the sale of any “artificial device that resembles genitalia and is designed or marketed for the stimulation of the human genital organs.” The law was passed during the (almost forgotten) anti-pornography crusade of the mid-eighties, and was rarely enforced. The ruling has the Big Easy buzzing with excitement.
Across the pond, the British Board of Film Classification refused to ban numerous pornographic videos in the wake of a high court ruling on censorship in May, 2000. The Board has drawn up some guidelines for the video industry, and allowed numerous films to be released including, Horny Cat Babe, Nympho Nurse Nancy, TV Sex, Office Tart and the Miss Nude International continental version. The Brits used to be known for keeping a stiff upper lip; apparently that’s not all these days.
Lawrence G. Walters, Esquire, is a partner in the law firm of Wasserman & Walters in Winter Park, Florida. His practice is limited to First Amendment and constitutional law. He represents clients involved in all aspects of adult media. You can access the firm’s web site at: www.firstamendment.com