THE SILVER LINING?

Looking for the ‘good’ in §2257

By: Lawrence G. Walters Weston, Garrou, DeWitt & Walters

www.FirstAmendment.com

With all of the industry outcry and vociferous objections to the recently-amended Section 2257 regulations, many in the industry have failed to recognize that this otherwise burdensome legislation may have some unintended positive effects. While the entire statute may be unconstitutional, and the courts should certainly strike down portions of the regulations as invalid, the law may provide some unintended and unexpected benefits for the adult entertainment industry.

Industry experts have long been preaching about the positive aspects of 2257 compliance such as the creation of defenses against child pornography charges. In essence, if a webmaster or content producer complies with 2257, he or she should never be successfully prosecuted for child pornography. Theoretically, it is possible for a minor to slip through the cracks by presenting a forged driver’s license or passport, but given the criminal intent requirements¹ associated with child pornography violations, 2257 compliance should provide a defense to all but the most egregious violations involving the knowing use of a minor in explicit imagery.² However, the creation of a specific mechanism for the commercial production of sexually explicit content may result in more than just a defense to child pornography. Read on…

¹ See U.S .v. X-citement Video, 513 U.S. 64, 115 S.Ct. 464, 63 USLW 4019, 130 L.Ed.2d 372 (1994) [criminal intent as to model’s age required for most child pornography offenses, even if not specifically written into the law.]

² Nothing contained in this article constitutes legal advice on child pornography offenses or any other legal issue. Please consult with your personal attorney if anything in this article impacts you.

Since the proliferation of digital cameras and cheap webcams, the creation of sexually explicit materials has spread from the valleys of southern California to virtually every state, county and city throughout the United States of America. The adult industry flourished in the State of California during the 1970’s and 80’s as a result of a California Supreme Court decision holding that the state’s “pandering” laws could not be enforced against those involved in the production of commercial erotica, consistent with the state constitution.³ However, that decision is only binding in the State of California, and despite popular perception, it provides no protection for the countless photographers, cam girls and other content producers located in the other 49 states. That leaves non-California content producers in a state of legal limbo as to whether their activities are constitutionally protected, or whether they fall within traditional notions of prostitution wherein individuals are hired to perform sexual activity. Until recently, this issue remained under the radar as most professional adult production companies set up shop in Southern California. However, the legality of erotic content production will now likely confront one or more courts outside of California, as law enforcement and prosecutors grow bolder in their fight to preserve “societal decency” and garner political support while using the adult industry as a scapegoat.

Enter Section 2257: The federal government may have unwittingly, yet formally, legalized and authorized the creation of hardcore adult materials, so long as 2257’s age verification procedure is followed. After all, Section 2257, and its implementing regulations found at 28 C.F.R. § 75 et. seq., specifically contemplate the commercial production and display of depictions of actual human beings engaged in various forms of sexual activity; even including bestiality. Law enforcement would be hard-pressed to prosecute content producers who strictly followed the dictates of 2257’s records compilation and maintenance requirements, for any sort

³ People v. Freeman, 250 Cal. Rpt. 589 (Cal. 1988) U.S. cert. den. 488.S.311(1988).

of prostitution-related offense based on the activity that is specifically defined and regulated in federal statutes and regulations. In other words, how could the U.S. government authorize and regulate the creation of commercial adult materials if such activity constituted an obvious violation of the country’s prostitution, solicitation, or assignation laws? In fact, it appears that the government has conceded that the adult industry may legitimately create depictions of actual sexually explicit conduct so long as it follows the rules in doing so.

It is just this sort of legitimacy that right wing conservative groups have feared all along. Recently, the Family Research Council objected to the adoption of a .xxx tld for the adult industry since it feared that such actions would legitimize the adult web and end up providing adult sites with de facto protection from obscenity prosecutions.⁴ Similarly, the Concerned Women of America has objected to zoning ordinances for brick and mortar adult entertainment establishments on the same theory, i.e., that such laws lend legitimacy to adult businesses. In its effort to strictly regulate the adult industry, Congress and the Department of Justice may have provided just the sort of legitimacy that these groups fear. Even obscenity prosecutions may be rendered more difficult for the prosecutors as a result of the 2257 regulations. Certainly, in order to pursue such a prosecution, the government would need to prove that something beyond the depiction of actual sexually explicit conduct occurred since such activities are impliedly licensed by the federal regulations.

State prosecutors may face even more difficulty in pursuing adult content producers for violations arising out of the creation of adult material given the legal concept of “federal preemption.” When the federal government decides to regulate a specific field or industry, any inconsistent state laws may be rendered invalid to the extent they attempt to inconsistently regulate that same field.⁵ Federal preemption can be explicitly stated in the statute’s language, or implicitly contained in the structure and purpose of the regulatory scheme.⁶ The nuances of federal preemption are beyond the scope of this article, however it suffices to say that the enactment of Section 2257, and the recent adoption of the amended regulations give potential defendants in state prosecutions a new set of arguments and defenses given the apparent permission to create adult materials granted by federal law.

Imagine the look on the face of the sheriff or prosecutor when he first learns that his well- thought-out sex crime prosecution against an adult content producer in Small Town America may be gutted by the existence of a specific federal statutory procedure authorizing the creation of sexually explicit imagery. Anecdotal evidence already exists of local law enforcement agents’ ignorance of Section 2257 and associated regulations of the adult industry. Given the government’s obvious intent to create one specific and recognized method for producing adult materials, the industry may have gained significant protections against state level prosecutions for prostitution or even obscenity related offenses. While this may come as little comfort for those content producers and webmasters struggling to comply with the burdensome dictates of the new records keeping regulations, the industry must always strive for legitimacy and mainstream recognition. Section 2257 may be just the vehicle for that to occur.

© Lawrence G. Walters (2005)

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

⁵ Preemption derives from the Supremacy Clause, Article VI, Clause 2 of the United States Constitution; see, English v. General Elec. Co., 496 U.S. 72, 70-79, 110 S.Ct. 2270, 110 L.Ed. 2d., 65 (1990) [Enumerating the three circumstances in which state law is preempted under the Supremacy Clause as: 1) where Congress explicitly defines the extent to which its enactments preempt state laws; 2) where a state law regulates conduct in a field that congress intended the federal government to occupy exclusively; and 3) to the extent that state law actually conflicts with federal law.]

⁶ Moralis v. TransWorld Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992).

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

OBSCENITY IN THE DIGITAL AGE: THE RE-EVALUATION OF COMMUNITY STANDARDS

By: Lawrence G. Walters, Esq. and Clyde DeWitt, Esq.

Weston, Garrou, DeWitt & Walters

Introduction

Constitutionally protected erotic expression “is often separated from obscenity only by a dim and uncertain line.”¹ That line is the tripartite test articulated in 1973 by a quintet of Supreme Court decisions, the centerpiece of which was Miller v. California.² The Miller Test determines whether a speaker should be hailed as a contributor to the marketplace of ideas or jailed like a common criminal. Due to the inherent vagueness of the Miller test, in a 1977 obscenity case, Supreme Court Justice Powell identified that “the dicey business of marketing [adult] films [is] subject to possible challenge.”³ Given the 2003 PROTECT Act’s ratcheting up of the minimum sentences for federal obscenity convictions⁴ and the Supreme Court’s 1993 approval of wholesale forfeitures for as few as two related obscenity convictions, the stakes are significantly higher now.⁵

Generally, the Miller test holds that, in order to strip erotic speech of its presumed constitutional protection so that the disseminator may be punished, a prosecutor must establish, in very general terms, that the materials at issue (a) appeal to the prurient interest in sex, (b) contain patently offensive representations of nudity or sexual activities, and (c) lack serious artistic, scientific, or literary value. While the particulars of each of those prongs of the Miller test are beyond the scope of this article, what is important here is that prong (a) and prong (b)both are a function of “local community standards;” prong (c) is not a function of community standards, but rather what a “reasonable person” would conclude.⁶ This article questions the definition of “community” in this day and age, when online communities have blurred all past definitions of that term. In short, what is a “community” in the Internet era?

In the context of sale of three-dimensional objects such as books and films, the concept of “community standards” is hopelessly unworkable. It is even more cumbersome in the environment of the Internet. Any recognizable definition of a “local community” is quickly disappearing in the age of ubiquitous and homogenous media brought about by satellite and cable television, international news channels, and more recently, the Internet. Yet prosecutors, and to some extent the courts, have continued to cling to the archaic notion of “contemporary community standards” as measured by local geographic boundaries. As the United States, and indeed the world, becomes more transient, standardized, uniform, and homogenized, the ability of one community to isolate itself by erecting a fictitious legal barrier, designed to keep out certain categories of erotic speech, is quickly evaporating and the law must keep pace.⁷

The time has come for courts to accept the diminished reality of local geographical standards and the development of a variety of national communities, whose standards must be considered in the context of American obscenity law. Assuming the Miller test is not too vague for the imposition of criminal sanctions in every instance – 4 of the 9 Justices in the Miller quintet believed it was⁸ – the definition of “community” must be reexamined given the realities

⁶ Pope v. Illinois, 481 U.S. 497 (1987).

⁷ Ironically, in Miller, 413 U.S. at 32, despite the rapid homogenization of the country that was developing then due to migration and national communication, the Court moved from the then-prevailing view that obscenity should be

measured by a national standard to local standards, Chief Justice Burger explaining, “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.”

⁸ Justice Brennan’s dissent in Miller, 413 U.S. at 47, incorporating his dissent in Paris, 413 U.S. at 73, makes a

powerful case for the proposition that obscenity cannot be measured with sufficient specificity to adhere to the Due Process Clauses of the Fifth and Fourteenth Amendments of the Constitution and, indeed, nearly carried the day.

of the current decade. Although a complete reassessment of the local community standards requirement of the Miller test is certainly justifiable with respect to all forms of erotic media, the most timely place for such recognition to evolve is in relation to Internet content, which does not exist in any geographic space, and which cannot be blocked from receipt by any particular, local community.

2. The Miller Test in Cyberspace

1. Reno v. ACLU

The first opportunity the United States Supreme Court took to consider application of the Miller Test in the context of online content was in response to the challenge brought by the American Civil Liberties Union to the Communications Decency Act of 1996 (“CDA”).⁹ At issue were provisions of the CDA that prohibited the transmission of “indecent” communications by means of a telecommunications device to persons under the age of 18, or sending patently offensive communications through use of an interactive computer service to persons under the age of 18.¹⁰

The Supreme Court invalidated the CDA in a unanimous decision. Finding that it

constituted a content-based regulation of speech, the Court subjected the CDA to the strict scrutiny standard of review.¹¹ The Court found that the act’s lack of a precise definition of prohibited behavior would create confusion as to what was truly prohibited,¹² and due to the “obvious chilling effect on free speech” the CDA was void for vagueness.¹³ The potential stigma of a criminal conviction and the severe penalties including up to two years’ imprisonment for

⁹ Reno v. ACLU, 521 U.S. 844 (1997).

¹⁰ 47 U.S.C. § 223 (a, d) (2002).

¹¹ Reno v. ACLU at 872.

¹² Reno v. ACLU at 871 (noting that serious discussions about birth control practices, homosexuality, First Amendment issues raised by the Appendix to the Pacifica opinion (438 U.S. 726), or the consequences of prison rape might be perceived by speakers or law enforcement as violating the CDA).

¹³ Reno v. ACLU at 872 (citing e.g. Gentile v. State Bar of Nev., 501 U.S. 1030, 1048-1051 (1991)).

each violation would likely cause speakers to remain silent rather than approach the zone of impermissible conduct.¹⁴

The government argued that although the CDA regulated speech that was not deemed harmful to adults, but was deemed harmful to children, precedent supported such regulations. The government specifically relied on Ginsberg v. New York,¹⁵ City of Renton v. Playtime Theatres Inc,¹⁶ and Federal Communications Commission v. Pacifica Foundation.¹⁷ However, the Court held that these cases actually supported the ACLU’s position rather than that of the government.¹⁸

The Ginsberg decision permitted the government to restrict the commercial sale of materials deemed “harmful” in the hands of a minor, but merely “indecent” in the hands of an adult. However, the law reviewed in Ginsberg did not bar parents from acquiring prohibited materials for their children. Under the CDA, parental consent or even parental participation in

the acquisition of material on AIDS prevention could still hold the provider of that information criminally liable.¹⁹ Furthermore, the Ginsberg case applied only to commercial transactions, and the material was required to be “utterly without redeeming social importance for minors.”²⁰ The CDA has no such limitations.

Renton dealt with a zoning ordinance that prohibited adult movie theaters from residential neighborhoods in an attempt to minimize secondary effects of such businesses. The target of the

¹⁴ Reno v. ACLU at 872 (citing e.g. Dombrowski v. Pfister, 380 U.S. 479, 494 (1965)).

¹⁵ 390 U.S. 629 (1968) (Government was permitted to forbid the sale of materials to minors not obscene to adults because the state has an independent interest in the welfare of its youth and the right of parents to regulate the

content of material consumed by children in their household).

¹⁶ 475 U.S. 41 (1986) (The Court upheld zoning ordinances designed to keep pornographic theaters out of residential areas).

¹⁷ 438 U.S. 726 (1978) (Upheld FCC sanctions administrative sanctions against a radio station that broadcast George

Carlin’s “seven dirty words” routing because the words were deemed offensive in the context of an afternoon broadcast with children in the audience).

¹⁸ Reno v. ACLU at 864.

¹⁹ Reno v. ACLU at 865.

²⁰ Id at 867.

regulations was not the speech itself, but crime and diminished property values.²¹ The government’s contention that it was merely engaging in a zoning of cyberspace was rejected due to the fact that the CDA applied to all of cyberspace.²² Upholding this reasoning would have been analogous to the government placing a zoning ordinance from Key West to Kodiak, while asserting that it was not a blanket provision.

Pacifica was distinguished by the Court in that the FCC had a history of regulating radio content and the broadcast targeted was “a significant departure from traditional program content.”²³ The FCC regulations were “time, place, and manner” restrictions, and not blanket prohibitions on speech.²⁴ Finally, and most importantly, the Court distinguished radio from the internet as a medium because of radio’s potential to invade the home unchecked, whereas a series of affirmative steps is required in order to receive internet content.²⁵ In addition, its analysis that the Internet is not radio’s younger brother comes from the recognition that radio’s scarce number of frequencies make each channel a public resource.²⁶ The Internet’s boundless size defies the importation of radio’s rules.²⁷ The Court’s wisdom in refusing to apply rules properly shackled upon a medium developed in the age of the horse and buggy should not be cast aside in its discussion and application of the term “Community.”

The Court’s decision in Reno began the slow descent into a swirling morass of online censorship jurisprudence, which has plagued the High Court ever since, and has yet to be

²¹ Id at 867.

²² Id at 868.

²³ Id at 867.

²⁴ Id.

²⁵ Id.

²⁶ See id. at 870 citing Red Lion Broad Co. v. FCC, 395 U.S. 367, 399-400 (1969).

²⁷ Id.

resolved.²⁸ Although this early case (1997) involved only one prong of the Miller Test, pertaining to patently offensive material, the Court took the opportunity to compare the elements of the Miller Test to those used by the CDA.²⁹ The Court noted that the CDA criminalized all patently offensive communications, whereas the Miller Test significantly limited the scope of materials not protected by the First Amendment by requiring that “the [offensive materials also] appeal to the prurient interest, and…lack serious literary, artistic, political or scientific value.”³⁰ In noting the “wholly unprecedented” scope of the CDA as defining a new category of criminal speech, a unanimous Supreme Court struck down the challenged portions of the law as overbroad and a violation of the First Amendment.³¹

2. Revisiting Miller v. California

A brief review of the basic requirements of the Miller Test is in order: In 1973, the United States Supreme Court finally settled on a definition of “obscenity,” for purposes of regulating erotic materials, after much wrestling, agonizing and debate.³² Notably, Miller was a 5-4 decision that reportedly went the other way on the first vote. The dissenters took the position that regulation of erotica involving only adults could not be accomplished without violating the

Bill of Rights. The compromise reached in Miller gave us the “basic guidelines” that the trier of fact must apply in cases involving allegedly obscene materials:

1. [W]hether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;

2. [W]hether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

²⁸ Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); Ashcroft v. American

Civil Liberties Union, 532 U.S. 1037, 121 S.Ct 1997, 149 L.Ed.2d 1001 (2001); Ashcroft v. American Civil

Liberties Union, _ U.S. _, 124 S.Ct 2783, 159 L.Ed.2d 690 (2004)

²⁹ Reno, 521 U.S. at 873-74.

³⁰ Id. at 873 (internal quotation marks and citations omitted).

³¹ Id.

³² Miller, 413 U.S. 15.

3. [W]hether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.³³

The federal statutes governing obscenity, including a part of the CDA not at issue in Reno, incorporate that definition in an effort to separate unprotected criminal speech from expression protected by the First Amendment. The concept of “local community standards” applies only to the first two prongs of the test involving prurient interest and patent offensiveness.³⁴ A jury applies its understanding of the standards of the local community from which it comes to decide whether that community accepts, or at least tolerates, the erotic materials at issue. Therefore, the specific geography chosen for prosecution is inextricably linked to the determination of whether the material is sufficiently “sexual” and “offensive” enough to constitute obscenity.³⁵

3. Miller as an Anachronism

The primary justification for the community standards test is to ensure jurors view the material from the perspective of the average adult, rather than from that of the most sensitive or susceptible member of the community.³⁶ Secondarily, the community standards test purportedly attempts to preserve the rights of states and their respective communities to define, for themselves, what level of erotic speech is to be tolerated within a specific geographic area.³⁷

However, little guidance has been provided by the courts as to the proper geographic contours of the “community” to be used in evaluating allegedly obscene works. In Hamling v.

³³ Miller, 413 U.S. at 24 (internal quotation marks and citations omitted).

³⁴ Smith v. United States, 431 U.S. 291, 301 (1977) (indicating that community standards tests should be used to judge patent offensiveness).

³⁵ Nitke v. Ashcroft, 253 F.Supp.2d 587, 601 (S.D.N.Y. 2003).

³⁶ Ashcroft v. ACLU, 535 U.S. 564, 575 (2002) (Plurality opinion). See generally Pinkus v. United States, 436 U.S.

293 (1978).

³⁷ Miller, 413 U.S. at 32; Jacobellis v. State of Ohio, 378 U.S. 184, 197-98 (1964) (Warren, C.J., dissenting)

(although decided before Miller approved the societal value prong, Miller quoted with approval Chief Justice Warren’s observations in this case).

United States³⁸ and elsewhere,³⁹ the High Court has indicated trial courts may actually define the relevant community for the jury, or allow jurors to determine for themselves where the geographic boundaries of the community lie. This stunning lack of guidance on such an important element of the Miller Test has resulted in widely varying “communities” being used by various courts at different times. For example, the Supreme Court in Miller v. California⁴⁰

approved an area comprising the entire State of California as an acceptable community from

which jurors could draw inferences as to the proper standards in an obscenity case. In other cases, lesser geographic areas have been approved, as small as a single county within a state⁴¹ or a tri-county area.⁴² Using this approach, the community standards test simply results in the application of “local” attitudes as a result of a limited geographic area, typically that from which the jury is drawn, but there is no requirement that the “community” be made up of any specific geographic space.⁴³

The nature of the test therefore contemplates that material encompassed within its definition may be found criminally obscene in one jurisdiction, whereas the very same material may be found to constitute protected speech in another.⁴⁴ However, this result was not found to be problematic by the Supreme Court, which held that the existence of a federal statute incorporating varying community standards did not chill speech to such an extent so as to render

³⁸ Hamling v. United States, 418 U.S. 87, 104-06 (1974).

³⁹ Jenkins v. Georgia, 418 U.S. 153, 157 (1974).

⁴⁰ Miller, 413 U.S. at 30-31.

⁴¹ Davison v. State, 288 So.2d 483, 487 (Fla. 1973) (rejecting consideration of the community standards of the entire state).

⁴² Skywalker Records, Inc. v. Navarro, 739 F.Supp. 578, 587-88 (S.D. Fla. 1990) (holding that the appropriate community to be considered was the geographic area comprising Broward, Palm Beach and Dade Counties).

⁴³ Hamling, 418 U.S. at 104-05.

⁴⁴ Miller, 413 U.S. at 32. In fact, there have been instances where the same motion picture has been found obscene

by one jury and not obscene by another – in the same city, same courthouse and before the same judge, with the two trials occurring within weeks of each other.

the statute unconstitutional.⁴⁵ Thus, publishers and speakers are left with little guidance as to which geographic community’s standards will be applied in determining whether the speaker’s expression is protected by the First Amendment or treated as criminal conduct.

Enter the World Wide Web. The Internet has been called “the most participatory form of mass speech yet developed.”⁴⁶ According to the Court, the Web is a “unique and wholly new medium of worldwide human communication.”⁴⁷ Significant distinctions exist with regard to online communications as opposed to more typical broadcast or print media. “[T]he vast democratic [forums] of the Internet” have not historically been subject to the type of governmental regulation and supervision that has been upheld in relation to the broadcast and print industry.⁴⁸ One of the primary reasons for this difference in degree of regulation is the fact that the Internet is not as intrusive on the viewer or listener as is radio or television.⁴⁹ It has been specifically held that “communications over the Internet do not ‘invade’ an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter [Internet] content ‘by accident.’”⁵⁰

Importantly, it has been held that each medium of expression must be analyzed in terms of its own unique elements, and may present its own problems.⁵¹ For example, certain justifications for regulation of the broadcast media have been held to be not applicable to other speakers.⁵² In earlier cases, courts have relied on the history of extensive governmental

⁴⁵ Hamling, 418 U.S. at 106.

⁴⁶ Reno v. ACLU, 521 U.S. 844, 863 (1997) (quoting ACLU v. Reno, 929 F.Supp 824, 883 (E.D. Pa. 1996)).

⁴⁷ Reno v. ACLU, 521 U.S. at 850.

⁴⁸ Id. at 869 n.33.

⁴⁹ Id. at 869.

⁵⁰ Id. (citing ACLU v. Reno, 929 F.Supp at 844 (E.D. Pa. 1996)).

⁵¹ Southeast Promotions, LTD. v. Conrad, 420 U.S. 546, 557 (1975); ACLU v. Reno, 217 F.3d 162 (3^rd Cir. 2000),

cert. granted by, Ashcroft v. ACLU, 532 U.S. 1037 (2001), vacated by, Ashcroft v. ACLU, 535 U.S. 564 (2002), remanded to, ACLU v. Ashcroft, 322 F.3d 240 (3^rd Cir. 2003), cert. granted by, Ashcroft v. ACLU, 124 S.Ct. 399 (2003), aff’d and remanded to, Ashcroft v. ACLU, 124 S.Ct. 2783 (June 29, 2004).

⁵² Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

regulation of the broadcast media, the scarcity of available frequencies, and the invasive nature of radio and television as a basis for regulation of content.⁵³ In other cases, dealing with obscene telephone messages, the Court has noted that placing a telephone call is not the same as turning on a radio and being taken by surprise by an indecent message.⁵⁴ Those distinctions alone warrant a fresh approach when it comes to application of community standards to online media.

Notably, the community standards test was developed at a time when obscenity prosecutions were primarily localized in nature and distributors intentionally chose the geographic areas in which they distributed or displayed their material.⁵⁵ Purveyors of adult materials could at least theoretically evaluate the particular community standards applicable in a given jurisdiction, and make a considered, intelligent decision whether to disseminate those

materials in a given locality, based on the results of their investigation. The presence of multiple retail outlets where comparable materials may be rented or purchased by the public may heavily impact a distributor’s decision to make certain erotic materials available in a given community, for example. The existence of a particularly conservative jurisdiction had no impact on the print

media distributor’s ability to sell or display erotic materials in more liberal jurisdictions, given this ability to pick and choose distribution points.⁵⁶ This theoretical ability to “geotarget” distribution of traditional adult materials formed the rational foundation for the earlier federal obscenity cases.⁵⁷

⁵³ Red Lion, 395 U.S. at 399-400; Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638, (1994); Sable

Communications of California v. FCC, 492 U.S. 115, 128 (1989).

⁵⁴ Sable Communications, 492 U.S. at 128.

⁵⁵ E.g., Paris Adult Theatre No. I v. Slaton, 413 U.S. 49, 58, (1973).

⁵⁶ Nitke, 253 F.Supp.2d at 603.

⁵⁷ Id.; Hamling, 418 U.S. at 106.

Where online speech is involved, distributors have no reliable means of limiting the geographic distribution of erotic materials on the Internet.⁵⁸ The Internet does not function in relation to the physical, geographic world, and these crucial differences between the “brick and mortar” and cyber dimensions affect the First Amendment analysis. “The Internet is wholly insensitive to geographic distinctions, and Internet protocols were designed to ignore rather than document geographic location.”⁵⁹ Those considerations require a dramatically different First Amendment analysis in the context of application of a community standards test to online media. As observed by the Third Circuit Court of Appeals, “the unique factors that affect communication in the new and technology-laden medium of the Web [create] crucial differences between a brick and mortar outlet, and the online Web that dramatically affect a First Amendment analysis.”⁶⁰ Unlike traditional retail outlets for erotica, the Web is not “geographically constrained,” rendering geography a virtually meaningless concept when it comes to the Internet.⁶¹

The United States Department of Justice (“DOJ”) currently takes the position that

Internet content can be prosecuted in any jurisdiction from where it is sent, through which it

⁵⁸ ACLU v. Reno, 217 F.3d 162, 175 (3^rd Cir. 2000) (“Web publishers are without any means to limit access to their sites based on geographic location of particular Internet users.”); Ashcroft v. ACLU, 535 U.S. 564, 575 (2002) (Plurality opinion); Nitke, 253 F.Supp.2d at 603. Although various geotargeting software devices have been made available in recent times, none have proved effective at blocking a geographic area as small as a county, as would be required to avoid exposure to obscenity prosecutions based on a particular county’s conservative community standards.

⁵⁹ Cyberspace Communications, Inc., v. Engler, 55 F.Supp.2d 737, 744 (E.D. Mich. 1999), aff’d., 238 F.3d 420 (6^th

Cir. 2000), summ. judg. granted same grounds, 142 F.Supp.2d. 827 (E.D. Mich. 2001).

⁶⁰ ACLU v. Reno, 217 F.3d 162, 174-175 (3^rd Cir. 2000) (quoting Reno v. ACLU, 31 F.Supp.2d 473, 495 (E.D. Pa.

1999)) (internal quotation marks omitted).

⁶¹ That is not to say the community-standards test did not wreck havoc on national distributors of traditional erotic

media. Where distribution was national, the distributor was effectively responsible for learning the community standards of hundreds of divisions of the 93 federal judicial districts, the statewide standards of such diverse states as Illinois, Texas, and California, which all embrace standards of the entire state, and the various counties of states such as Florida and Indiana, where county standards apply. As difficult as it is to predict the standards of one’s own community, expecting anyone to predict the standards of hundreds of other communities is totally unrealistic. Worse, there is no way to judicially learn the standards in advance. Adult Video Ass’n. v. United States Dept. of Justice, 71 F.3d 563 (6^th Cir 1995) (upholding the trial court’s refusal to issue a declaratory judgment as to whether a particular motion picture was obscene.).

passes, or where it is received.⁶² For example, in one of the most recent federal obscenity prosecutions against an adult Web site operator, the defendants were prosecuted in the Western District of Pennsylvania, despite the fact that they operate their website from, reside in, and, with respect to the relevant transactions, never left the State of California.⁶³ One of the counts against the defendants in that case involved transmitting allegedly obscene video clips to computers in

the Western District of Pennsylvania, where the materials were downloaded by government agents.⁶⁴ Therefore, this concern is real, not conjectural. People will go to jail or be set free depending on the ultimate resolution of the “community standards” issue. Historically, the DOJ has ordinarily prosecuted obscenity cases in the place of receipt, which is almost always more conservative than the place from where the material was sent.⁶⁵

The government’s position on local community prosecution raises a significant constitutional concern, often called a “heckler’s veto.” Purveyors of adult material online cannot comply with the CDA, which prohibits distribution of obscene materials online, or any other law premised on application of local community standards, by tailoring their speech to each individual community’s standard. In order to offer erotic materials online, those materials must

⁶² United States v. Thomas, 74 F.3d 701 (6^th Cir. 1996), cert. den. 519 U.S. 820 (1996) (holding venue proper in district from which viewer accessed defendant’s bulletin board files); Memorandum of Law in Support of Motion to Dismiss, filed in Nitke v. Ashcroft, et. al., Case No. 01-Civ-11476 (S.D.N.Y. 2002) (noting that a prosecution for sending obscene material from one place to another is appropriate in the district from which it was sent, the district in which it is received, or any district through which it passes). See also Ashcroft v. ACLU, 535 U.S. at 601 (“[P]rosecution may be proper ‘in any district in which [an] offense was begun, continued, or completed.’” (quoting 18 U.S.C. §3237(a))). Thus, “it seems likely that venue would be proper where the material originates or where it is viewed.” Ashcroft v. ACLU, 535 U.S. at 602.

⁶³ United States v. Extreme Associates, Inc., et. al., 2005 W.L. 121749 (W.D. Pa. January 20, 2005).

⁶⁴ Id. The trial court in the above-referenced case ultimately dismissed all of the counts, finding that the federal obscenity law is unconstitutional. The court reasoned that the government failed to meet its burden of demonstrating

the existence of a compelling governmental interest to justify the restrictions on speech in light of the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), which, as interpreted by this Court, prevented the government from using the establishment of a “moral code” as a justification for obscenity laws. That decision is likely to be appealed by the government, and the issue of which community’s standards to apply was never resolved. ⁶⁵ In a spate of obscenity prosecutions in the late 1980s and early 1990s targeting adult video manufactures in Los Angeles, prosecutions materially all were brought in the conservative jurisdiction to which the materials were shipped, including Oklahoma City, Dallas, Tallahassee, Memphis and Flagstaff, Arizona.

be compliant with the lowest common denominator – the most conservative community’s standards – given that all online materials are contemporaneously available in every community.⁶⁶ That is so because the Internet publisher cannot avoid distributing to more restrictive areas.⁶⁷ Publishing materials for viewing by any community makes them available for all. In order to avoid liability under a law based on local community standards, the Internet publisher would need to severely censor its publications to comply with the most conservative of communities.⁶⁸

Sent back to the drawing board by the Supreme Court when it rejected the CDA, Congress made a second attempt to “clean up the internet” by drafting the Child Online Protection Act (COPA). Before the ink was dry on President Clinton’s signature, the same groups that challenged the CDA filed suit seeking an injunction enjoining enforcement of the

COPA, on the grounds that it was overbroad and restricted adult access to constitutionally protected material.⁶⁹

In the district court opinion granting injunctive relief against COPA, the court found that the act created an “impermissible risk of suppression of ideas.” As an example, the court used the site of Mitchell Steven Tepper, operator of the Sexual Health Network, which provides information about sexuality to the disabled for profit. Tepper’s site is clearly beyond what Congress sought to prohibit, but was just as clearly in violation of COPA.⁷⁰

⁶⁶ Nitke, 253 F.Supp.2d at 604.

⁶⁷ ACLU v. Reno, 217 F.3d 162, 169-170 (3^rd Cir. 2000), rev’d on other grounds, Ashcroft v. ACLU, 532 U.S. 1037

(2001), vacated by, Ashcroft v. ACLU, 535 U.S. 564 (2002), remanded to, ACLU v. Ashcroft, 322 F.3d 240 (3^rd Cir. 2003), cert. granted by, Ashcroft v. ACLU, 124 S.Ct. 399 (2003), aff’d and remanded to, Ashcroft v. ACLU, 124 S.Ct. 2783 (June 29, 2004).

⁶⁸ Id. at 174

⁶⁹ See Kelly M. Doherty, www.obscenity .com: An Analysis of Obscenity and Indecency Regulation on the Internet, 32 AKRON L. REV. 259, 280 (1999).

⁷⁰ See Reno II at 485.

Despite Congressional intent to limit only minor access to commercial pornography, nothing in the text of COPA did so, and the term “commercial pornographers” never appeared in the statute.⁷¹ Just as its parent, the CDA “burned down the house to roast the pig,” COPA had identical pyromaniac tendencies.

The concern with the “heckler’s veto” caused the Third Circuit Court of Appeals to invalidate COPA, which also incorporated the community standards test to determine which online materials must be accompanied by some form of age-verification device.⁷² While the United States Supreme Court ultimately determined that this constitutional concern, by itself, did not render the statute substantially overbroad for purposes of the First Amendment, it did

generate a significant degree of concern among at least six United States Supreme Court Justices as to how local community standards could be applied to Internet communications.⁷³ For example, Justice O’Connor, in her concurrence, stated:

I agree with Justice Kennedy that, given Internet speakers’ inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable, may be entirely too much to ask, and would potentially suppress an inordinate amount

of expression.⁷⁴

Justice O’Connor further opined that adoption of “national standards” may indeed be appropriate in cases involving online media.⁷⁵ Although noting that Supreme Court precedent does not forbid adoption of a national standard, she also observed that Miller called such standards potentially “unascertainable,”⁷⁶ and “unrealistic.”⁷⁷ If generalizations about the standards applicable to the people of a state of the size and diversity of California were

⁷¹ See Reno II at 480.

⁷² ACLU v. Reno, 217 F.3d 162 (3^rd Cir. 2002).

⁷³ Ashcroft v. ACLU, 535 U.S. at 585-86.

⁷⁴ Ashcroft v. ACLU, 535 U.S. at 587 (O’Connor, J., concurring).

⁷⁵ Id. at 588.

⁷⁶ Miller, 413 U.S. at 31.

⁷⁷ Id. at 32.

discernable in 1973, why would similar generalizations not be possible for the nation as a whole, in an era of instantaneous, nationwide (and indeed worldwide) communication?⁷⁸

Although Justice O’Connor was the only Justice in that case to specifically call for adoption of national standards for Internet speech, five other Justices expressed varying degrees of concern about the application of local community standards to online media. For example, Justice Breyer observed:

To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s Internet veto affecting the rest of the nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious.⁷⁹

Justice Breyer ultimately concluded that COPA intended to use the standards of the adult community as a whole, in the United States, as opposed to some specific geographic standard, and thereby avoided invalidating the law on those grounds.

Justice Kennedy, joined by Justices Souter and Ginsberg, expressed concern about subjecting Internet speakers to the standards of the most puritanical community in the United States, through application of local community standards.⁸⁰ That concern, alone, was not sufficient to invalidate the law under consideration, but the Justices did reaffirm the important requirement that each mode of expression has its own unique characteristics, and therefore must be accessed for First Amendment purposes by the standards best suited to it.⁸¹ Justice Stevens found significant distinction between online communications and those sent through the mail, as

⁷⁸ Ashcroft v. ACLU, 535 U.S. at 588-89.

⁷⁹ Ashcroft v. ACLU, 535 U.S. at 590 (Breyer, J., concurring).

⁸⁰ Ashcroft v. ACLU, 535 U.S. at 590-91 (Kennedy, J., concurring).

⁸¹ Id. (citing Southeast Promotions Ltd., v. Conrad, 420 U.S. 546, 557 (1975); Id. (“Indeed, when Congress purports to abridge the freedom of a new medium, we must be particularly attentive to its distinct attributes, for ‘differences

in the characteristics of new media justify…differences in the First Amendment standards applied to them.’” (quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969))). [WE’RE NOT SURE IF WE CAN USE TWO IDS]

in Hamling, or over the telephone lines, as in Sable, because the sender could avoid destinations with the most restrictive senders.⁸² In previous cases, he noted, local community standards were upheld based on the sender’s ability to tailor his messages to the communities it chose to serve, thus creating a permissible burden on the speaker to comply.⁸³ However, the sender of Internet transmissions must necessarily display his message to all of the millions of Americans who have access to the Internet if he chooses to display that message to one; accordingly this “fundamental difference in technologies,” requires a difference in the rules applicable to that particular medium.⁸⁴ Even after a second visit to the United States Supreme Court, the case involving application of community standards to the Internet has not yet been resolved, and the High Court has once again remanded the matter for additional fact-finding in light of advances in filtering technology since the original rulings.⁸⁵

3. Problems with Defining “the Community” in Obscenity Cases

1. Standardization of Geographic Boundaries

Despite substantial litigation regarding the proper community standard to be applied in resolving obscenity cases since the advent of the Internet, the issue remains an open question. While the question is certainly a difficult one, and subject to a variety of different analyses, the changes in technology, and society in general, militate for a reconsideration of the concept of community standards in obscenity cases. While the standards of a nation as a whole may have been inherently unknowable or indiscernible at the time Miller was decided in 1973, that is not necessarily the case thirty years later. For better or worse, our nation has adopted commonalities from coast to coast, and is much more homogenized than it once was in the pre-Miller culture.

⁸² Ashcroft v. ACLU, 535 U.S. at 602 (Stevens, J., dissenting).

⁸³ Id. at 605.

⁸⁴ Id. at 606.

⁸⁵ Ashcroft v. ACLU, 124 S.Ct. 2783 (2004).

Instead of fifty unique states with their own identifying characteristics and cultures, Americans now eat the same McDonalds^TM hamburgers, drink the same Starbucks^TM coffee, and wear the same GAP^TM clothes. While many mourn the loss of uniqueness and distinction that was once pervasive throughout our nation, the reality is inescapable. Whereas differences existed as a matter of course a few decades ago, cultures such as the Amish must now go to great lengths to sequester themselves from the mind-numbing sameness that has taken over the United States like a plague. No county is an island in this day of worldwide media and entertainment, where we have as much in common with acquaintances across the country as we do with our next door neighbor.

It is not only the Internet that requires reevaluation of the concept of local community standards; it is the progress of mankind itself. The standardization of information brought about by the Internet is merely a symptom of an ever-increasing wave of uniformity that tends to average out all people, of all nations and cultures. The absurdities resulting from attempts to judge online media by the standards of some local city, county, or state is merely one example of how technological progress and convergence of all media distribution mandates a reevaluation of the standards by which we judge protected speech from illegal obscenity.

2. Technological Advances Allow Greater Monitoring of Standards

Interestingly, whatever standards that might exist in this country are becoming easier to quantify and determine, from a technological standpoint. In prior cases, evidence of community standards often came from introduction of “comparables,” i.e., other similar erotic materials that are accepted or tolerated within the ideal community. Often, this evidence took the form of retail sales information generated from nearby adult media outlets that were willing to cooperate and provide such information.

As one can imagine, such proprietary revenue information was often difficult to extract from competitors, or those local businesses that simply chose not to get involved in a criminal prosecution. With the advent of Internet traffic monitoring technology, detailed statistics can be generated, identifying the level of consumption (and therefore acceptance) of various types of adult material in the United States. Current traffic monitoring programs allow for the detailed analysis of consumption of a particular adult website, or even specific pages within an adult website, by number of hits, page views, bandwidth and various other categories. Web traffic from the United States can be readily excised from foreign traffic, to provide immediate, real time, accurate information as to the desirability or acceptance of a particular website in the United States. Never before has such accurate information been available in regards to comparable material, or even the allegedly obscene material itself. For better or worse, the standards that do exist are becoming easier to prove, and more capable of dissection and analysis on various relevant levels, given advances in technology.

3. Reduced Presence of Adult Materials in the Community

While the concept of community standards is undergoing a radical shift, it is also becoming less relevant as the presence of the materials in the community is becoming more and more intangible. The existence of modern adult media is barely felt by the community as compared to when Miller was decided. For example, Internet images do not have any real presence in the potentially offended community, since they only exist on the server from which they are requested by the user, and on the computer on which they are received. With filters, children or particularly sensitive adults will not accidentally pass by or encounter materials that violate a particularly conservative community’s standards as they might have in the ‘70’s or ‘80’s when the vast majority of adult materials were obtained from retail outlets or theaters.

Unlike the physical presence of an X-rated movie in a rundown cinema with a suggestive marquis bearing the title for all passersby to see, online materials only exist for a brief nanosecond on the community’s telephone lines, coaxial cable or satellite waves that bring them into the requester’s personal computer. Pay-per-view satellite and cable television have little, if any, physical presence in a given community, and should likewise be amenable to a national

standards analysis. Given the right to possess even obscene materials in the privacy of one’s home,⁸⁶ and the developing right to personal sexual autonomy,⁸⁷ the community can hardly object to this manner of “presence” within the geographic community. Most modern media share these transmission characteristics, and thus should not implicate the same concerns that

were addressed in Miller and its progeny, relating to each community’s right to regulate the type of erotic material whose presence is tolerated within the confines of the local community.

4. Development of Cultural Communities

While the community standards of the nation as a whole have tended to ‘average out’ and eliminate the differences in communities based on geography, other distinguishing factors have created unique ‘communities’ defined by non-geographical factors. Perhaps the beginning of this analysis must be from a sociological perspective, rather than a legal one. In 1973 Chief Justice Burger proclaimed, “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of

conduct found tolerable in Las Vegas, or New York City.”⁸⁸ The fundamental principle

overlooked by that statement that is truer now than it was then is that a good many New Yorkers moved there from Mississippi and vice versa. And, realistically, the notion of “community” has evolved, as well. For a dramatic example, given the proliferation of national, Spanish-language

⁸⁶ Stanley v. Georgia, 394 U.S. 557 (1969).

⁸⁷ Lawrence v. Texas, 539 U.S. 558 (2003).

⁸⁸ Miller, 413 U.S. at 32.

television networks, the values of an American who is Spanish-speaking is more likely to be influenced by the national viewing audience of those networks than the average resident of his county, judicial district or state. The same is true of members of the National Rifle Association, Republicans, Democrats, gays, African-Americans, sports fans, and so on.

In 1973, people watched ABC, CBS, NBC, PBS and a smattering of local independents in larger markets; they read their local newspapers and Newsweek. Now, they are more likely to read magazines focusing on their particular area of interest or the particular group into which they fall, watch cable or satellite television with the hundreds of available specialty channels, and “bookmark” Web pages that they check regularly for their particular interests – whether it be Notre Dame football or growing roses. And they go to the local Notre Dame Football organization or attend the Rose Convention. Indeed, with the shrunken world, “communities” are defined not by neighborhoods, but rather by station in life and interests. A Baby Boomer is profoundly more likely to share the view of the average Baby Boomer across the country than of the average Generation X’r in his or her own county or state.

A particular problem with the concept of community standards in states like Texas, California and Illinois arises from the fact that people are more likely to agree with those in the same station in life than those in the same state; people from Chicago are more likely to have values consistent with people from Los Angeles than with people from Downstate Illinois; and those people are more likely to have values consistent with people from the agricultural central valleys of California than Chicago.

Turning to the Internet, current notions of “community standards,” as noted, reduce speech to the lowest common denominator. Arguably, reducing Internet speech to that acceptable in the most conservative community is not unlike “reducing adult population to

reading only what is fit for children” – “to burn the house to roast the pig.”⁸⁹ It is time for the courts to recognize that those offended by materials that are not offensive to a substantial group of others will have to pay a price for living in a free society – switch to another channel, rent a different DVD or install Net Nanny on their computers.

Conclusions

If the obscenity test is to continue to embrace the concept of “community standards,” recognition must be given the modern definition of “community.” Where the test is applied to Internet transmissions accessible throughout the entire world, the courts must change the contours of the “community standards” test to recognize a mode of communication that nobody dreamed of when that concept was developed by the courts.

Ultimately, lawmakers and the courts will need to move to some form of regulation of the time, place, and manner of distribution of hard core erotic speech, as opposed to outright criminalization using obscenity laws based on the increasingly irrelevant concept of community standards. Restrictions that minimize the physical impact on the community, and the viewer’s ability to shield himself or herself from accidental exposure to erotic speech, will take precedence over the limited modern utility of obscenity laws. Tomorrow’s erotic content regulations will likely involve concepts such as labeling, filtering, warnings, and the like, instead of outright bans as have been used in the past. To the extent that state and federal governments have a legitimate interest in regulating the distribution of erotic materials in a given community, such regulation will only be successful in the Digital Age if it takes the form of valid time, place, and manner restrictions, as opposed to full content bans.

⁸⁹ Butler v. State of Mich., 352 U.S. 380, 383 (1957) (striking down a statute prohibiting speech “tending to the corruption of the morals of youth”).

(Lawrence Walters and Clyde DeWitt are partners in the Orlando and Los Angeles offices, respectively, of Weston, Garrou, DeWitt & Walters, www.FirstAmendment.com. Both, along with the other members of the firm, have extensively litigated, lectured and written on issues arising from governmental attempts to regulate erotic speech over the Internet, as well as more traditional media such as motion pictures, print media and live performances.)

FOR IMMEDIATE RELEASE CRM

THURSDAY, MAY 5, 2005 (202) 514-2008

WWW.USDOJ.GOV TDD (202) 514-1888

OBSCENITY PROSECUTION TASK FORCE ESTABLISHED TO INVESTIGATE, PROSECUTE PURVEYORS OF OBSCENE MATERIALS

WASHINGTON, D.C. – Assistant Attorney General Christopher A. Wray announced today that the Criminal Division is establishing an Obscenity Prosecution Task Force dedicated exclusively to the investigation and prosecution of obscenity cases.

The Director of the Task Force and will work closely with Bruce Taylor, Senior Counsel to the Criminal Division’s Assistant Attorney General, who will provide guidance in his capacity as Counsel to the Task Force.

In addition to trial attorneys from the Child Exploitation and Obscenity Section of the Criminal Division, the Task Force will draw upon the expertise of several other Criminal Division sections: the Organized Crime and Racketeering Section, which will contribute strategic guidance in prosecuting complex criminal cases; the Asset Forfeiture and Money Laundering Section, which will bring experience in seizing assets obtained through criminal activity; and the Computer Crime and Intellectual Property Section, which will assist in investigations focused on the Internet and other high-tech methods of distributing obscenity. The Task Force also will be supported by CEOS’s High-Tech Investigative Unit, which consists of computer and forensic experts with knowledge of the Internet and other interactive computer systems such as peer-to-peer networks.

The Task Force will be dedicated to the investigation and prosecution of the distributors of hard-core pornography that meets the test for obscenity, as defined by the United States Supreme Court. Although the Task Force will create a singular focus for the prosecution of obscenity cases, CEOS will continue to prosecute obscenity cases in addition to child pornography, child exploitation and trafficking crimes. As in past obscenity cases, Justice Department prosecutors will continue to work in coordination with U.S. Attorneys’ Offices, the FBI, the Department of Homeland Security, the U.S. Postal Inspection Service and other federal and local law enforcement partners.

“The Justice Department is committed to respecting and protecting the First Amendment rights of all individuals. However, the welfare of America’s families and children demands that we enforce the laws on the books, and that is what this Task Force is designed to do,” said Assistant Attorney General Wray. “With the creation of this Task Force, our commitment to law enforcement in this vital area is taken one step further.

“Advances in technology and mass marketing, particularly over the past decade, have enabled the traffic in obscenity to take on a more national and even global reach,” Wray added. “The special challenges that obscenity cases pose in the computer age require an equally specialized response. A coordinated Task Force of prosecutorial expertise is the best way to meet those challenges.”

Transcript of Hearing of the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Property Rights, held March 16, 2005

NOTE: THE FOLLOWING IS NOT AN OFFICIAL TRANSCRIPT

SEN. SAM BROWNBACK: Welcome to this first meeting of the Subcommittee on the Constitution, Civil Rights and Property Rights of the

U.S. Senate Committee on Judiciary of this session of Congress. I hope to be holding a number of different hearings on various topics; this is the first one we’re kicking off with. We appreciate all of you joining us. I would note my colleague, ranking member Senator Feingold, I believe his amendment is actually up on the floor, is what I’ve been told, so he may be late coming back and forth for this. Now, that situation may change, and if we hear differently, we’ll adjust. We may have to break into some of your testimony if he comes here at a particular time and he has to get back to the floor; we’ll accommodate the opening statement that he would make.

The editor and publisher of Adult Video News, the journal of the pornography trade, stated recently that ‘It’s scary how much money is made on porn,’ and of this, there can be little debate. The porn industry has grown rapidly in the last decade. Part of the reason for this growth is that the nature of and access to sexually explicit material in the marketplace has been radically transformed and expanded. According to many legal scholars, another reason for the industry’s growth is a legal regime that has undermined the whole notion that illegal obscenity can be prosecuted.

Indeed, just last month, federal judge Gary Lancaster of the Western District of Pennsylvania threw out a 10-count Justice Department indictment against Extreme Associates, purveyors of the most vile sort of pornography.

Defendants were in the business of producing films that, according to one report, ‘even porn veterans find disturbing.’ A co-owner of Extreme Associates even boasted that the films which depict rape, torture and murder represent ‘the depths of human depravity.’ He [ph.] also found they admitted the films covered by the indictment met the legal definition of obscenity.

Judge Lancaster not only dismissed the indictment but also took the case as an opportunity to rule all federal statutes regulating obscenity unconstitutional as applied to these admittedly infringing defendants. In order to achieve this result, Judge Lancaster cobbled together hand-picked strands of 14th Amendment substantive due process, decisions from Roe, Lawrence and others and ruled that the statutes at issue violated an unwritten constitutional right to sexual privacy. Amazingly, even if such a right existed, it would not apply to the defendants since they were producers and not consumers of the material.

There was a reason why Judge Lancaster had to bypass First Amendment jurisprudence in reaching the results he wanted. Numerous First Amendment precedents distinguish between protected speech and illegal obscenity. For example, the Supreme Court held almost half a century ago that ‘implicit in the history of the First Amendment is the rejection of obscenity as thoroughly without redeeming social importance.’ Thirty years ago, the Court rejected the notion that ‘obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only.’ Rather, the Court specifically held that there are legitimate state interests at stake in stemming the tide of commercialized obscenity. It also been held – it was – it also has held it to be categorically settled that obscene material is unprotected by the First Amendment. If the Extreme Associates decision stands, we will have gone from the flat statement of former justice William Brennan, who advocated perhaps the most expansive vision of constitutional liberty of any justice in Supreme Court history, that obscenity ‘was outside the protection intended for speech and press,’ and we will be going to the notion that obscenity cannot constitutionally be prosecuted at all. Many constitutional scholars believe that blatant judicial activism, as exemplified in the Extreme Associates decision, has been responsible in large part for creating a climate in which the porn industry has flourished. I was pleased to learn that the Department of Justice is appealing Judge Lancaster’s ruling; such a ruling effectively would gut decades of precedent. I also have been encouraged by recent statements by Attorney General Gonzales that he would make it a top priority to vigorously prosecute those who violate federal obscenity statutes. In a recent speech to the Hoover Institute, the attorney general stated, ‘Another area where I will continue to advance the cause of justice and human dignity is in the aggressive prosecution of purveyors of obscene materials.’ This renewed effort is particularly important since mainstream American companies seem increasingly willing to associate themselves with pornography, even hardcore pornography. Over half of all pay-per-view movies in hotels across the country are now pornographic. According to recent studies – recent reports, Adelphia Communications, reversing a long- standing policy, just became the first leading cable operator to offer the most explicitly – explicit category of hardcore porn. Los Angeles Times writes that, ‘Adelphia joins a marketplace already teeming with ways to procure hardcore sexual content. The Internet has become a carnalcopia of graphic images, videos and cartoons. Echostar Communications Corporation, the nation’s second ranking satellite TV provider, has offered XXX programming for several years on its Dish Network. Satellite leader DirecTV Group, Incorporated, peddles fare that falls just shy of XXX.’

The explosion of sexually explicit material is not a problem that exists in the vacuum of constitutional theory. Government has a compelling and real-life interest in the matter because of porn’s adverse effects on individuals, families and communities in the forms of criminality, in addiction and family break-up.

Several months ago, I chaired a hearing where scientists and psychologists testified about the growing problem of addiction to sexually explicit material which is destroying individuals and their families, adversely affecting productivity at work and negatively impacting healthy child development.

Four years ago, a scientific survey found that six percent of respondents met the criteria for a full-fledged pornography addiction. Other estimates of the percentage of the population suffering from an addiction to porn are considerably higher. Seventy-two million Internet users visit pornographic Websites per year. One expert in cyber-addiction asserts that 15 percent of online porn addicts develop sexual behavior that disrupts their lives. She writes that, ‘the Internet is the crack cocaine of sexual addiction.’

The expanded reach and pervasiveness of pornography also affects our families and our children. According to recent reports, one in five children ages 10 to 17 has received a sexual solicitation over the Internet, and nine out of 10 children ages 8 to 16 who have Internet access have viewed porn Websites usually in the course of looking up information for homework.

There is strong evidence that marriages are also adversely affected by addiction to pornography. At a recent meeting of the American Academy of Matrimonial Lawyers, two-thirds of the divorce lawyers who attended said that excessive interest in online pornography played a significant role in divorces in the past year. Pornography by itself, not as part of an accusation of adultery, has begun to arise with alarming frequency in divorce and custody proceedings, according to divorce experts. Pornography had an almost non-existent role in divorce just seven or eight years ago. Roughly 65 percent of the people who visit the Center for Online Addiction do so because of marital problems created by pornography, according to the founder of the Center. Now, just recently, we have in Southern California examples of human trafficking, of individuals trafficked into the porn industry for use by the porn industry.

These and others demonstrate effects providing – provide an important real- life backdrop to this hearing, which will emphasize two well-established legal principles. First is that the Supreme Court has clearly and repeatedly held that obscenity does not merit First Amendment protection. The second is that the government has a legitimate and constitutionally valid interest in regulating obscenity through, among other things, enforcement of relevant federal and state statutes. We also will hear the opposing view, that the First – and for the first time, 14th – Amendment protects – protections applied to obscene material that has traditionally been seen as harm outside of those protections.

We have a distinguished panel to speak today. First is Professor Robert Destro, Catholic University of America’s Columbus School of Law. Professor Destro is co-director and founder of the Interdisciplinary Program in Law and Religion, and he previously served as Commissioner on the U.S. Commission on Civil Rights.

Second is Patrick Trueman, senior legal counsel of Family Research Council. Mr. Trueman previously has served as the chief of the Child Exploitation and Obscenity Sections of the Criminal Division at the U.S. Department of Justice.

Our final panelist is Professor Frederick Schauer – did I say it right? – Schauer of Harvard University’s Kennedy School of Government. Professor Schauer is a former professor of law at the University of Michigan, chair of the section on constitutional law of the Association of American Law Schools, and Vice-President of the American Society for Political and Legal Philosophy. It’s an excellent panel on a current and tough topic.

Gentlemen, thank you very much for being here today. As I mentioned, if Senator Feingold comes in, we may have to break into your testimony to hear his opening statement. We’ll just play that as it goes along. We’ll run the time clock at seven minutes; you’re entitled to – if you need to go a little longer, that’s fine; we just have the one panel here today, and if you want to put your full statement in the record and then just summarize, that’s acceptable as well. And your full statements will be placed in the record.

Professor Destro, thank you for joining us.

PROF. ROBERT DESTRO: Thank you, Senator. Thank you for having me today.

And I would, with your permission, put my statement into the record without objection.

All right. Let me – I’m just going to do a little bit of summarizing of the testimony. I think there’s nothing more boring than just reading it into the – into the record. Let me start out with something that – I’m going to use a kind of a common name, but you know, the importance of name-calling in constitutional law, and in this area, when you’re talking about the regulation of the sex industry, you know, if you call it pornography, it’s not protected, you know, but if you call it speech, it is protected. Now, in constitutional law, we have a name for that name-calling. It’s called characterization, and in constitutional law, it’s – he or she who controls the initial characterization usually wins the case. And what my testimony is about today is the perspective with which I think this committee should look at the – look at the issue of regulation of this topic.

Now, you can start by looking at this as a question of market regulation, and focus on the pornography industry. That has certain advantages to it, in that, you know, what you’re really talking about is business transactions and lots of money and lots of – lots of illegal behavior. And if you focus on it from that perspective, you never really even get to the First Amendment unless you are of the view that Justice Douglas was, that sex acts between consenting adults were a form of free speech, and he talked about that in Griswold v. Connecticut. But setting that aside, nobody else really takes that view.

Or you could look at it as a perspective of, we’re going to be regulating content. That then gets you into the content and the perspective of speech, and in really almost an endless morass of First Amendment analysis where you get into the question of how much redeeming social value is there in this particular movie or videotape or Website or virtual reality, and you get into kind of almost unanswerable questions about just how – you know, how much, you know, under the Court’s decisions, does this really appeal to someone’s prurient interest? I suppose the easy answer to the question is that if they’re willing to pay for it, it must appeal to them.

And so that’s why I think that a case like Extreme Associates is such an interesting case, because it quite properly, in my view, ignores the First Amendment. The judge, I think, took great pains not to mention the First Amendment. The problem is that as he did so, he ignored the rest of the Constitution at the same time, and that he forgot John Marshall’s, you know, oft-quoted comment that ‘it’s a Constitution we’re expounding’, and he focused only on the rights side and not on the regulatory pieces of this puzzle.

He creates a right to privacy that, if taken to its logical conclusion, would legalize outcall prostitution, because if indeed you have a right to sexually explicit material that’s made by others out in Hollywood or wherever they make it, I suppose you could make the same argument that under Griswold and Lawrence, you would have a right to have it made right in your living room. At least, under the judge’s reading of the – of those 14th Amendment cases, the Congress’s power to regulate the economy and the industry just drops out of the equation altogether.

So what – you know, what I’d like to suggest is – is an initial question, which is, as this committee opens its deliberations, whether its goal is to score easy symbolic points, you know, which brings me back to that question of whether or not you’re going to be in this to do some finger- pointing or name-calling, or whether or not you want to regulate certain very specific behaviors that are both easily defined and not constitutionally protected.

So if you – let me give you some examples. The sale of sex as a commodity is against the law in almost all the states. A few years ago, our law review published a – published an interview, so it’s a couple of law professors sit down with Larry Flynt, and as many of you know, Larry Flynt has always been held up as the paragon of the defenders of First Amendment values.

And the article I didn’t think was very good – I mean, the writing around Larry Flynt’s interview was not very good – but Larry Flynt’s interview was actually quite fascinating, because, you know, they asked him about the First Amendment; he says, ‘Well, no, that wasn’t really the point.’ He said that his goal really was to open up – and I’m putting words in his mouth, but it’s the rough equivalent – he wanted to have a chain of sex stores, you know, that in the end, he thought that there should be a freedom to buy and sell sex just like you did any other commodity. I thought, well, finally, you know, he’s

actually – you know, when you get the Larry Flynt unvarnished, he’s a salesman, and that’s what I would suggest that we’re looking at here, is that we’re looking at the sale of sex as a commodity; we’re looking at sex slavery and trafficking, which is a serious problem not only here in the United States but around the world.

In the case of Extreme Associates, you’re looking at exploitation, at battery and at all kinds of other behaviors that certainly can be regulated under the criminal law, and it seems to me that if you were – even if you take Professor Schauer’s view that the primary focus should be on the regulation of child pornography, that’s simply another example of exploitation, and I would say, yes, let’s go ahead, and we’ve already started with that; we’ve all gotten quite [ph.] agreement on that; now let’s look at the other kinds of exploitation that need to be regulated as well. So my suggestion to the committee is that, you know, you too, like the judge in Pennsylvania, Judge Lancaster, you too can avoid the First Amendment. You can do it if you’re clear and if you focus on the commercial aspects of what’s going on.

Thank you.

SEN. BROWNBACK: Thank you very much. Mr. Trueman.

PATRICK A. TRUEMAN: Thank you very much, Chairman Brownback, and thank you for your leadership on this issue of obscenity.

I, as you mentioned, served as the chief of the Child Exploitation and Obscenity Section of the U.S. Department of Justice at the end of the Reagan administration, through the entire administration of President George Herbert Walker Bush. I worked under three attorneys general and they had – those three attorneys general Meese, Thornburgh and Barr had a very active effort under way to prosecute producers and distributors of obscenity. We brought many cases all across the country.

The nature of obscenity with respect to its constitutional status had been clear for decades before this, but the Justice Department prior to the term of Attorney General Meese for 20 years had not prosecuted obscenity hardly at all. Then the Justice Department reversed course because of the Attorney General’s Commission on Pornography, when it issued its findings, it called

for a strike force or task force of attorneys at the Justice Department to lead the effort against the producers and distributors of obscenity. That is something that Mr. Meese established. It later became what’s called the Child Exploitation and Obscenity Section of the Criminal Division.

It goes without saying that the leadership of the attorney general, the nation’s chief law enforcement official, is critical in defeating crime, and that was certainly the case with General Meese and his two successors in the Bush administration, General Thornburgh and General Barr. Each took a strong hand in making sure that U.S. attorneys across the country as well as federal investigative agencies pursued obscenity cases.

During my several years at CEOS, we found that obscenity law was quite workable, and moreover well understood by jurors who had to make decisions on the guilt or innocence of fellow citizens. To those who argue that the prosecution of obscenity crimes is a waste of time or an unwise use of resources, I’d like to point out that during the time that I was chief of CEOS, we received more than $24 million in fines and forfeitures as a result of our aggressive prosecution efforts. That is more than the budget of CEOS during those years. And I would point out that the public expects the Justice Department to enforce the law. Some want to say that if you enforce obscenity laws, you will necessarily reduce the number of prosecution of child exploitation laws. However, I don’t believe that’s true, that one can be pitted against the other. Sure, there’s finite resources, but I think when the public looks at the lack of enforcement on obscenity, they may say, Why is the Justice Department spending tens of thousands of dollars prosecuting Martha Stewart and incarcerating her, whereas the pornographer who is spamming illegal pornography into my son’s e-mail account goes free?

There were two large-scale obscenity prosecution projects undertaken by the Department of Justice when I worked for CEOS. One was Project PostPorn, which targeted mail-order distributors of illegal pornography, obscenity, who advertised their material by buying up mailing lists of – indiscriminately of people across the country, including children, and would send sexually explicit advertisements. Advertisements themselves were found to be obscene in many of our cases. In that case, Project PostPorn, we had 24 individual – excuse me, 50 individual or corporate convictions in 24 cases spread across 20 federal districts, U.S. attorney districts. That prosecution effort effectively ended the practice of sending pornographic advertisements through the mail by these companies.

For the second large-scale prosecution project, we targeted the major producers and suppliers of obscene material in the United States. With the cooperation of the Los Angeles Police Department Vice Squad, we assembled a list of the top violators of federal obscenity laws, which was about 50 companies at the time. Most of them were located in the Los Angeles area. We brought then all the United States Attorneys who had an interest in prosecuting obscenity together in a Los Angeles conference, outlined who these distributors were and these producers, with the help of the Los Angeles Police Department, and divided up the cases in about 30 United States Attorneys’ districts, and then we vigorously prosecuted these companies, about 20 of which were convicted, and I think there were at the time, probably of those 20 companies, something in the neighborhood of 75 to 100 individual convictions.

Our prosecution strategy in this project was ultimately to bring cases against all the major producers and distributors, and against a wide variety of material. We didn’t just select the hardest of the hardcore material; we wanted juries to decide what they found to be obscene in their district, and that’s the nature of what Miller v. California, the seminal obscenity case by the Supreme Court, allows. We believed it was important to let juries decide what was obscene, and we found that juries, looking at a variety of materials, from the hardest to the most mild of what we considered to be obscene, regularly said that the material was obscene and were willing to convict. I’ve done several grand juries myself, where we asked the people in the jury to decide whether the material is obscene, and my own experience has been that people who regularly watch movies that are obscene, will ask questions in the grand jury about – saying that they didn’t know it was obscene; are they doing something illegal? But yet those people, when told that yes, in fact it may be obscene, will also vote for an indictment on obscenity against a pornographer.

By the end of the administration of President Bush, we were successful not only in gaining convictions throughout the country but in actually changing the nature of hardcore material that was produced in the United States.

Themes of rape, incest, bestiality, pseudo-child pornography, all common themes prior to our prosecution efforts, disappeared from store shelves in many cities, and were no longer produced at all by the major producers of obscene material. Many of the distributors of hardcore pornography that had

not been prosecuted refused to ship products into states where we brought prosecutions.

I will end here just by saying that I am encouraged by the attorney general’s recent statement that he will vigorously prosecute obscenity. I think that you’ll find that he has the public’s support in doing so, and that the juries across America will convict. I encourage the Department to prosecute on a wide variety of material; don’t be afraid to prosecute anywhere in the country. We got convictions in Las Vegas, so-called sin city; in Los Angeles, Minneapolis, Florida – wherever we brought cases, we got convictions.

I would ask, Mr. Chairman, that my full statement be introduced into the record.

SEN. BROWNBACK: Without objection, thank you very much. I know you’re getting over the flu, so thanks for hanging in there. And if he starts to motivate [ph.] the witnesses, I would move too. But thanks for making it.

Professor Schauer.

PROF. FREDERICK SCHAUER: Thank you. And I would like to enter my statement in the record, and in addition, before I start, I would like to thank you for starting this hearing somewhat later than hearings normally start in this city; this was done as an accommodation to me because of my class schedule, and I very much appreciate it.

I should mention at the outset, I have been writing about the law of obscenity for about 30 years now, including a book entitled ‘The Law of Obscenity.’ I also served in 1985 and 1986 as a commissioner of the Attorney General’s Commission on Pornography. I was the principal draftsman of the commission’s findings and recommendations.

But I should say that although there are many people who believe that obscenity law as it now exists is unconstitutional and violates the First Amendment, I am not one. I have long believed that obscenity as strictly defined by the 1973 case of Miller v. California lies outside of the coverage of the First Amendment. I still believe that. But that obscenity prosecutions as defined according to Miller v. California and seven other cases decided on that day and a number of cases decided thereafter, remains

constitutionally permissible under the First Amendment, that does not as you know end the inquiry. The inquiry then moves to the question of, under what circumstances would the constitutionally-permissible-under-the First- Amendment prosecution of obscenity be desirable? In addressing that question, I ask the committee and I ask you to at least take into account three considerations.

The first of those considerations is guided, Mr. Chairman, by your own statement in the article you wrote with Senator Hatch about the Extreme Associates case, that judges should not ignore the law in favor of their own agenda. I one hundred percent agree with that. I also believe, however, and I would hope that you would agree, that ignoring the law in favor of their own agenda is not only a judicial vice, but is also potentially a prosecutorial vice. I raise this issue because I believe the same applies to prosecutors, and I raise the issue against the background of two specific and possibly some number of other examples.

I am troubled by Professor Destro’s statement in his written statement that obscenity law is a mess and that we need legislative redefinition and legislative resuscitation along different lines in light of the fact that obscenity law is now a mess. Somewhat more troubling to me are the continuing statements from 1986 until the present, most recently last spring in an event at which I was present, by Mr. Bruce Taylor, now senior counsel at the Department of Justice and with principal responsibility for obscenity prosecution, that there ought to be a per se rule about what is or is not obscene, and that – and here I quote from him – ‘penetration clearly visible,’ the important component of the standard for determining what is or what is not obscene.

These and other efforts to move or change or adjust or modify the existing and in my view constitutionally permissible Miller v. California standards from 1973 are a cause of some concern to me, and I would ask you, Mr.

Chairman, in investigating this issue, to seek assurance on behalf of the committee the prosecution will be in accordance with the Miller standards strictly defined rather than be used as a way of modifying, expanding, changing, redefining, resuscitating or in some other way changing the existing, and as I said, in my view constitutionally-permissible-under-the- First-Amendment law of obscenity.

I also believe that priorities are a genuine issue. I agree with Mr. Trueman that one cannot say that there is one thing that is top priority and everything else ought to be eliminated simultaneously. No sensible policy analyst, and I am now surrounded by many of at my institution, would believe that.

Nevertheless, as long as we divide up the prosecution, as long as we divide up the agenda, as long as we divide up the structure of the Department of Justice the way we do, that unless there is a substantial infusion of new funds, there is a high risk that an increase in obscenity prosecutions will be at the expense in the short term, the intermediate term of child pornography prosecutions. To do so, to substitute obscenity prosecutions for child pornography prosecutions, would in my view be an unfortunate reallocation of scarce governmental resources away from what in the view of myself and many others is the most pressing issue.

Finally, if I may make reference back to the Report of the Attorney General’s Commission on Pornography, it has been mentioned a number of times in this hearing – I don’t want to play [ph.] too much pride or place here – it can be read by everybody – nevertheless, if we are to go back to the report and draw guidance from that report, in my view, one of its central teachings was that it divided the category of Miller-defined legal obscenity into the categories of material that endorsed and promoted explicitly violence against women, material that endorsed and promoted explicitly the degradation of women, and material that was neither endorsing of violence against women nor that was endorsing the degrading of women. In light of those three categories, the Attorney General’s Commission recommended prosecution of legal obscenity in the first category and in the second category, but as to the third category, the commission made no recommendation.

I am troubled here in part by the attempt to use the report of the commission as endorsement for the prosecution of legally obscene materials that neither promote nor endorse explicitly the violence against women, but I am much more concerned, Mr. Chairman, by the fact that the issues of violence against women, the issues of degradation of women, the issues that frame the Report of the Attorney General’s Commission on Pornography, seem to have so significantly dropped off the agenda of these hearings. The agenda – the issues have been dramatically transformed from the issues as they were understood by the Attorney General’s Commission, and I would very much hope, in thinking about what to prosecute, or whether to prosecute, the enormously pressing issue of violence against women and what might foster it, and the evidence about that, not be removed from center stage.

Thank you.

SEN. BROWNBACK: Thank you. It’s an excellent discussion, and for me, a great tutorial calling on the hearing we had last fall about the addictiveness of pornography and the impact on families, so we get to – the factual basis of what we’re having and the legal arguments taking place here are very useful, to put those side by side.

I want to enter into the record an article from the Los Angeles Times dated March 5th of this year, about a probe into human trafficking to the sex slave trade, and I want to get – I want to draw your attention to this, if I could, particularly, I think Professor Schauer on this one, if I could. And I met with a city councilman just yesterday, Councilman Cardenas, about this topic. I don’t know – have you seen this article?

PROF. SCHAUER: I have not seen it, no.

SEN. BROWNBACK: Okay. I hope we’re finding – I worked with Senator Wellstone and his wife on sex trafficking before his – their untimely deaths, and it’s a topic that – it’s one of the lead slavery issues in the world today, and what we’re finding in this, apparently, we’re seeing people trafficked into the pornography industry for porn. This is just a quote here from the article: ‘A lot of people are promised jobs once they come here, but when they get here, they’re forced into labor or the sex trade.’ That’s a lawyer with the Department of Health and Human Services, and apparently this is a lucrative business to move people into.

I take it from your statement, Professor Schauer – pardon me on that – this would clearly fall in the category, what you think we should be prosecuting, because it is violence against women.

PROF. SCHAUER: I think there is – there is an issue here that we need to address, that distinguishes obscenity from child pornography. I have absolutely no doubt that the underlying conduct that you have just described ought to be prosecuted with the greatest vigor that the law has available. The underlying conduct is conduct that undeniably exists. It existed in 1985 and 1986. It is recounted in great detail in the Report of the Attorney General’s Commission. However, it is an existing and pretty well settled across the spectrum of the First Amendment and across the spectrum of First

Amendment authorities that the fact that the underlying conduct is itself illegal and appropriately prosecutable does not necessarily mean that photographs of it, films of it or descriptions of it can themselves be prosecuted. Child pornography is a notable exception to that, and when the Supreme Court, in New York v. Ferber in 1982, allowed the prosecution of child pornography on the theory that the underlying conduct was illegal and exploitative, it made clear to reaffirm that this was a principle that applied to child pornography and that it was not at the time changing its underlying views about whether that principle applied to obscenity.

On the existing state of the law, the illegality or appalling exploitation of the underlying conduct justifies drying up the market for photographs and films of that conduct – for child pornography, yes, but on the existing state of the law, for adult obscenity, no. That is to some extent consistent with a wide arrange of cases including the Pentagon Papers case, Landmark Communications v. Virginia, Bartnicki v. Vopper and others, in which the illegality of the underlying conduct does not affect the question of First Amendment protection. The less obscenity is moved into the child –

SEN. BROWNBACK: Let me – let me just narrow [ph.] my question on that then, because I’ve been working on this for some period of time and this is really an awful trade, and I’ve met with girls who’ve been trafficked in Nepal and Israel and Thailand and America, and that’s where this is taking place, and we’re even finding reports – we haven’t verified this, but people doing the pornography filming in a foreign country, developing country, and then shooting it in here – because then you don’t have to traffic somebody in; you just traffic the film in. But if you don’t address that marketplace basket here, aren’t you just continuing to ask for more that – as I understand, you’re saying, prosecute the crime that’s being conducted but don’t prosecute the distribution of material, and yet this has been okay overseas that we’ve started seeing this being brought in or people going over to film in places, central Asia, and shooting it in – aren’t you going to have to get at the product to be able to truly address this?

PROF. SCHAUER: In order – All I’m suggesting is that in order to get at the product, existing law would have to be changed dramatically. I don’t deny the economics of the fact that when one dries up the product, one makes it harder to engage in the underlying conduct. That’s what the Supreme Court said in Ferber, the economics of that relationship exists. I am here in part consistent with the earlier things that I’ve said, to warn against, for pragmatic

reasons as well as constitutional ones, of pressing too hard against existing and well-settled law, and in this area, the law is pretty well settled. I would enthusiastically support redoubled prosecution of the underlying conduct and the fact that the underlying conduct is itself aimed at potentially being part of the film is no First Amendment defense whatsoever. I would agree with you entirely, the underlying conduct is something we should deal with. I would like to deal with it within the boundaries of existing law, because attempts to change the existing law are always fraught with danger.

SEN. BROWNBACK: Professor Destro, you talked about regulating on this. What about regulate the filming of somebody that’s trafficked into here, or let me draw the example we did – or I did earlier about overseas, the filming of this by – then the movement of the product into this marketplace. How would you regulate or deal with that?

PROF. DESTRO: Well, I agree with Professor Schauer. The reason that I say that the law is a mess is that if you’re trying to get at it in terms of what is the effect of the film on the viewer, then you’re gonna run into all these – the well-settled law that he described, and I don’t disagree with the description of that at all. My suggestion is that, you know, what you do is that you focus on the underlying behavior that’s going on here, and when what you have is trafficking in – I mean, these people are accessories to prostitution, and the – you’re going to have to, just like you do in trying to interdict the drug trade, to figure out where the important pressure points are going to be, and so if you can – you can easily prosecute someone for the – not so much under a pornography theory but under an accessory to prostitution theory.

SEN. BROWNBACK: Overseas? Overseas? Let’s say this filming takes place somewhere overseas in a developing country.

PROF. DESTRO: Well, you could make the – you could make the importation, you know, of that kind of material, focusing on the underlying behavior, illegal, too. Congress does control the borders, and it can do it, but if you are an accessory to prostitution in another country and you’re bringing in your wares, whether they’re the people or they’re the products of their labors in those countries, I think if you keep the focus on that behavior, you’re gonna be on much stronger grounds.

SEN. BROWNBACK: Mr. Trueman, if the Extreme Associates case is allowed to stand, upheld, will we be able to prosecute any obscenity cases in the future?

MR. TRUEMAN: No, I can’t imagine that you would. I think that Extreme Associates – the ruling itself is so extreme that obscenity prosecution would go by the wayside.

Can I add something on this – about something that was said here today? SEN. BROWNBACK: Yes, certainly.

MR. TRUEMAN: I just want to take issue with something that Professor Schauer said here with respect to him. He mentions that the Attorney General’s Commission divided up the nature of pornography into material that’s violent or in the second category degrading to women, should be prosecuted; other pornography, the commission didn’t form an opinion on, and I think he has argued that just those two categories should be prosecuted.

I think there’s a real danger in the Justice Department drawing these lines. Communities should draw the lines. The Supreme Court has outlined what may be found to be obscene. Now, at the Justice Department when I was there, we would bring prosecutions for a variety of material. We wouldn’t just go after the pornographer and pick the worst film, which we would likely get a conviction on, because then the community standard becomes that that material – you know, that worst film – meets the community – it’s out of bounds for that community. But if you bring a prosecution across the range of material a pornographer is selling or distributing in the beginning, and the jury convicts on all of it as obscene, then you’ve established a community standard, and pornographers are thinking, We’ve got to stay out of that state or that community because a variety of material has been found to be obscene. I think that’s wise, to let your community decide rather than the Justice Department.

SEN. BROWNBACK: This is just as a layman question, and as somebody who runs for public office and then meets people all the time: The people are just fed up with getting hit with this stuff in their face all the time, and their kids on the Internet and at the grocery store when they exit or on a billboard or – and it wasn’t that long ago it wasn’t this way, and this industry is a very

large industry now. I don’t know how many billions; I’ve seen different numbers on it, but it is a substantial business. Is it because of the lack of prosecution that we see the pervasiveness of pornographic material in America today?

MR. TRUEMAN: Yes, I certainly think it is. And by the way, we have a witness who turned in one of our biggest cases, a prominent man, who told us that there’s as much money under the table in the pornography industry as there is above, and we certainly think that’s true, and did at the time in the Justice Department. But the – when there’s a lack of prosecution, the people don’t have a voice. The prosecutor substitutes his judgment for the judgment of people, the juries who decide these questions. If the prosecutor ignores the law and refuses to prosecute, as we’re seeing across the country, and then the pornographers have free rein of the community.

You’re also seeing, as a result of this lack of prosecution, mainstream companies, as you pointed out in your opening statement, thinking, What’s the down side? Now, you mentioned Adelphi [sic] Communications, the cable company – just one of the cable companies that’s distributing potentially obscene material. There’s also many hotel chains that are distributing potentially obscene material. By the way, we opened an investigation of hotel chain distribution of obscenity when I was at the Justice Department. Apparently that was closed in the next administration. But these corporations would not venture into this area if they knew the Justice Department was serious about enforcing obscenity law. When I was at the Justice Department, we prosecuted what was at the time the only satellite distributor of obscene material. I mentioned it in my testimony. That company was distributing material via a GTE satellite. We prosecuted them in Utah, where we had a complaint. Utah, under the GTE –

[Tape change; approx. 10 seconds lost]

MR. TRUEMAN: (continuing) – Sullivan, a prominent Washington attorney, to Utah to tell the U.S. Attorney’s office that GTE didn’t realize until the grand jury began that they could be indicted for distributing obscenity even though they were only a conduit for the obscenity. They cut that company off and refused to allow it.

Again, I think things have changed now, so what I’m saying is, if you begin prosecuting these mainstream companies, Dow-traded or NASDAQ-traded

companies are not going to continue distributing obscene material for fear of losing shareholder value.

SEN. BROWNBACK: Thank you. We’ve just gotten a vote call, so I’m going to turn to Senator Feingold for any statement he might want to make before we have to go over and vote.

SEN. RUSSELL FEINGOLD: Well, Mr. Chairman, I want to apologize – in fact, the vote is on the Feingold amendment and that’s the reason why I wasn’t here, and I certainly would not have chosen this time to offer my PAYCO [ph.] amendment but I was not given a choice by – I want to apologize to you, Mr. Chairman, for not being here, and also to thank you.

You wanted to hold this hearing a few weeks ago and because of not getting certain testimony at that time, you were kind enough to postpone the hearing, and I really appreciate that. I look forward to working with you as the chairman of this committee. I will simply put my statement in the record, and I want to thank the witnesses for coming and I also will review the record, perhaps submit some questions on Friday, if that would be acceptable.

SEN. BROWNBACK: It is so.

SEN. FEINGOLD: I thank you, Mr. Chairman. SEN. BROWNBACK: Thank you.

If I could, Mr. Trueman – I’ve had some attorneys say to me that they would prosecute these form of cases but they’re local prosecutors and they will come up against national lawyers on the other side of the case, and they need information and assistance; they don’t know how to prosecute, on a local basis or a state basis, an obscenity case. Do you offer any – is there any help for them in prosecuting these cases?

MR. TRUEMAN: Well, the pornography defense bar is very small. There’s about nine or 10 attorneys who defend the – these cases when they are brought [ph.] around the country, whether it’s a federal prosecution or a local prosecution. A local county prosecutor will be overwhelmed with pre-trial motions and find that their office is spending a huge percentage of their budget on one obscenity prosecution, and win or lose, they usually don’t give [ph.] a second one. That is the intent, I think, of the pornography industry.

Reuben Sturman, when he was alive, and identified by the way by the Attorney General’s Commission on Pornography as the top pornographer, offered to provide defense counsel to any pornography shop carrying his material, and – so local prosecutors have a difficult time; I’ll acknowledge that. They can get help from the Justice Department in terms of pre-trial motions. Bruce Taylor at the Justice Department, as mentioned here earlier, has participated in more cases than anyone; he’s got a brief bang [ph.] that’s, I think, available to anyone. Justice Department also has them. But this is the reason why I always advocated, when I was at the Justice Department, and still do, that prosecutions should primarily be done by the U.S. Department of Justice, because they can match, shot for shot, the defense bar in these – in these cases. The Justice Department won’t be overwhelmed, they won’t stop [ph.] to take a case just because it’s been drawn out and expensive to do, so I think it’s vital that the Justice Department gets back to a point of vigorously prosecuting.

SEN. BROWNBACK: I have to say, gentlemen, I’m very pleased with your testimony and information on this. This is very a troubling topic to me today in our society because I have intel [ph.] previously on this, its impact on families, expansion taking place, trafficking now into it, an extremely lucrative business, and it’s something that spans the political spectrum. This is something that the councilman I’m working with in Southern California is a Democrat; remember, Paul Wellstone and I worked on the trafficking issue

• it is really hurting this society today, and I’m hopeful that we can get some vigor in constitutionally prosecuting cases of this nature because of its impact on the overall society and culture, and it must be done constitutionally and it must be done wisely in us moving forward, but I also believe it must be done, and if you don’t do these sort of issues, your society continues to further and further engage and to allow and you just continue to, as Senator Moynihan would say, define deviancy downward. He, I got to work with on cultural issues before, and I consider him a great tutor before he left the Senate and passed away, would always view culture as one of the central issues, and in many cases, more important than government. But here you have government kind of allowing the culture to move in a way that’s not there in the law, that if you don’t enforce it, nothing particular happens.

I would appreciate any further thoughts any of you might have on this, because if we are looking at an increased prosecution in this area, it needs to be, must be constitutionally, must be done wisely, and hopefully effectively so that what is constitutional is allowed; what isn’t, isn’t, and we don’t

further harm our families. I get more complaints from people than anything about, ‘Look, I just don’t want the culture to attack my family anymore. I just

• I’d rather have a culture that buttresses, builds it up,’ and then when cases come along where you effectively eliminate all prosecution of obscenities if they’re moving forward, I can hear those same families saying to me, ‘Now what do I do?’ in the society, so I do hope you can help us as we move forward on this.

Appreciate the panel, of your work. Many of you have worked a great deal in your professional lives on this particular topic.

I will keep the record open for seven days should other members wish to submit their statements or other materials for the record.

Thank you very much. Hearing’s adjourned.

WHAT IS A WEBSITE REVIEW?

By: Lawrence G. Walters, Esq.

Weston, Garrou, DeWitt & Walters

www.FirstAmendment.com

1. INTRODUCTION

A substantial percentage of adult webmasters are still operating without having had their website reviewed by an attorney. Various reasons are offered for this, including: “I know the law,” “I stick to soft-core content,” “My friend told me what his lawyer said,” or, “What is a website review?” None of those excuses justify the unacceptable risk of publishing online content that has not passed legal clearance; however, this article will attempt to address the last excuse which focuses on the webmaster’s fundamental lack of familiarity with the legal review process. Mainstream publishers have utilized attorneys for pre-publication content review for decades, and publishers of erotic print and film media are typically diligent about legal clearance; however the culture of the adult Internet community often bypasses this most basic industry standard.

2. SCOPE OF REVIEW

Many webmasters believe that a website review consists largely of an attorney getting paid to look at a bunch of erotic content for compliance with obscenity standards, only to render an opinion that the laws are too vague for any kind of concrete advice, and that the content might be found obscene by somebody, somewhere in the country, at some time. While obscenity laws are by far the most difficult and complex issue that is considered in connection with a website review, the scope of such a review involves substantially broader issues. Typically, our firm breaks down a website evaluation into the following general categories:

1. Corporate Formation/Structuring;

2. Online Agreements;

3. Intellectual Property Concerns;

4. Infringement on the Rights of Others;

5. Age Verification/2257 Issues;

6. Obscenity/Content Issues.

Certain business models may implicate additional, specialized legal concerns, such as public filming, unique fetish issues, intoxication, spam/marketing concerns, or sweepstakes matters, however the above-referenced categories will apply to the vast majority of adult websites published on the Web.

1. Corporate Formation/Structuring

One of the first, most basic issues to be addressed is the form of corporate entity being used to operate the website, if any. Many webmasters still operate as sole proprietors, despite the many benefits and “cheap insurance” a corporation provides, particularly as an asset protection device. A website review should include an inquiry as to the current status of the operator’s corporation, and a confirmation that all applicable corporate documents have been prepared, including notices, waivers, minutes, bylaws, and stock certificates, necessary to comply with the formalities of incorporation. Some clients have come to our firm after having filed articles of incorporation for their corporate entity several years ago, and never having paid any more attention to the corporation since that time. Typically, a corporation must conduct annual corporate meetings, generate organizational minutes, Bylaws and written actions, in order to legally maintain itself as a valid corporate entity. The specific formalities differ from state to state, but failure to observe these technical requirements could result in a creditor “piercing the corporate veil” and holding the shareholders of the corporation liable for corporate debts. Therefore, it is essential to confirm that the corporate house is in order, and all relevant documents are contained in the Corporate Book. A more complex issue that should be addressed in the corporate review is the potential for foreign incorporation and operation of the website from an offshore location. Websites can be run from virtually any location, given Internet technology, and this opens up a world of possibilities, in terms of offshore incorporation. The benefits can be substantial in terms of tax savings and asset protection, and thus all options should be considered in the course of the corporate review.

2. Online Agreements

Many adult websites are severely lacking in the area of online agreements. Given the E-SIGN legislation, electronically signed into law by President Clinton in 2000, webmasters can often form binding electronic contracts with their users, affiliates, or content providers, by posting the agreements to the website in the proper manner. At the very least, typical adult website should incorporate the following online documents:

1. Warning Page/Disclaimer, including Age Verification;

2. User Terms & Conditions;

3. A Privacy Policy;

4. An Affiliate Agreement

5. A Spam Policy; and,

6. A DMCA Designation.

Each of these agreements provides different legal protections, and should be incorporated to assist in reducing the webmaster’s exposure to liability. Many issues can be addressed by proper online agreements, such as the procedure for dispute resolution, venue, choice of law, arbitration, attorney’s fees, digital rights transfer, risk of loss, indemnification, payment terms, etc. In the absence of these terms, a court may impose a variety of “reasonable” terms that the webmaster may not like, or worse yet, may determine that no contract exists. Certain information, like DMCA Designation, is required in order to take advantage of certain ‘safe harbors’ under federal law. Online agreements are a fairly easy and inexpensive way to significantly reduce potential liability from a variety of sources, including users, affiliates, and the government.

3. Intellectual Property Concerns

Websites can be copyrighted, ideas can be patented, and brand names can be trademarked. Webmasters, overall, do a poor job of protecting their own intellectual property and securing the bundle of available IP rights associated with their site. Software coding can ordinarily receive copyright protection, as can graphics, images, video, and the overall “look and feel” of a website.

If a webmaster has come up with a unique business model or online invention, he or she can obtain patent protection to prevent others from copying that idea or invention. Many online patents have issued, and while some are controversial, the industry is only in the beginning stages of patent right protection. While patent lawyers are a specialized breed, and are specially licensed to practice before the United States Patent & Trademark Office, (“USPTO”), your adult website attorney should be able to identify ideas, concepts, or business models that may qualify for patent protection, and refer you to an appropriate specialist to prosecute patent registration, if desired.

As the online industry matures, the focus is moving away from domain names in favor of online brand names. Online branding is certainly the wave of the future, and the best way to protect infringement on, or dilution of, your unique brand is to register a trademark or service mark with the USPTO. The process is not terribly complex or costly, while the end result, i.e. a registered trademark, is a valuable business asset that should be seen as a welcome addition to your company’s portfolio. A webmaster’s leverage in dealing with competitors using the same or similar trade names is greatly enhanced if the webmaster owns a registered trademark. Much has been written on the benefits of copyright protection, but it is important to remember that copyrights cannot be enforced without a valid copyright registration. The availability of all these means of IP protection should be carefully evaluated and considered, in the course of a website review.

4. Infringement on the Rights of Others

This category involves a two way street: Are you infringing on anyone else’s rights, and is anyone else infringing on your rights? While webmasters often review their own content from an obscenity compliance viewpoint, that same content must be reviewed with an eye towards potential infringement actions. Displaying another company’s trademarked logo and brand name in the context of an adult video or image is generally asking for trouble, and can lead to an expensive claim. Mainstream companies do not see this exposure as “free advertising,” but instead consider it to be trademark dilution or disparagement, since it portrays the company in a bad light, as having some involvement with the adult entertainment industry. Many costly lawsuits could have been avoided by a content review focused on intellectual property issues. Often, an attorney can identify potentially infringing content that the average person would fail to identify as problematic. Saving one trademark infringement claim can pay for a website review many times over.

Websites should likewise be reviewed for potential copyright infringement concerns. For example, instant member post areas, where users are allowed to post their own images, can provide a forum for widespread copyright abuse. Somebody owns the rights to every image, and those rights must be transferred to the website in order for a legal publication to occur. Remember, just because an image has been floating around the Internet for many years does not mean it is in the “public domain” or that reproducing that image is protected by any form of “fair use.” The potential applicability of any such legal defenses must be carefully evaluated by an attorney trained in copyright law. Certain warnings or disclaimers can help reduce potential exposure in these areas.

Patent infringement is an issue with which the adult Internet industry has become quite familiar, in recent years, thanks to Acacia Media. Many processes on the Internet have been patented, in whole or in part, in the same way that Acacia patented (or bought the patents for) the digital media transfer technology that forms the subject matter of its claims. In the course of a website review, potential patent infringement claims can be identified, and referred to special patent counsel, if necessary.

Other, more esoteric, infringement issues should also be considered, including, if applicable, violations of the Right of Publicity, Right to Privacy, and/or unfair competition. Occasionally, a website may display content under a valid copyright license; however, the photographer may not have obtained a valid transfer of the commercial exploitation/publicity rights, from the models depicted in the image(s). That may entitle the model to pursue the website operator for a variety of claims relating to his/her right to profit from his/her image or likeness, even if a valid copyright license exists. Some websites, particularly those publishing “voyeur” or public filming content need to consider potential claims for invasion of privacy, or “false light” publicity claims, wherein the persons depicted in the content might claim that their privacy rights were violated by the display of private information about them, or the manner in which they were depicted on the website. These concerns are particularly appropriate to the celebrity genre websites or those depicting even ordinary citizens in a less than flattering manner.

Finally, due consideration should be given to potential unfair competition claims under the Lanham Act, or similar state laws, which prohibits competition in such a way that may be deemed “unfair.” The scope of such laws is not well defined and can potentially apply to any marketing plan or scheme that the average person may conclude is “fishy,” or just does not sound right. An attorney who has developed trained instincts for spotting such concerns can provide invaluable advice for the webmaster who tries to push the envelope in regards to marketing and promotion efforts.

5. Age Verification/2257 Issues

This review category is critically important and may be worth the cost of the entire evaluation. In an effort to smear the industry and prey upon the protective instincts that most parents possess, the government has historically tried to mix the concepts of child pornography and adult erotica. It is critically important that a website strictly avoid involvement by minors as audience or participants. Thus, a careful review of the website’s model release, age verification, and 2257 compliance procedures is essential. The penalties for involvement with child pornography are staggering, and Section 2257 violations are no picnic either.¹ The unfortunate reality is that the vast majority of adult websites are not 100% compliant with Section 2257.

Although much has been written about this subject, significant misunderstandings as to the precise requirements of the law still remain. The fact that portions of the original statute have been modified or invalidated by case law, coupled with the fact that substantial amendments to the regulations implementing Section 2257 have been proposed, contribute to the confused state of affairs and misunderstandings amongst webmasters. Legal advice is critical on these issues given the harsh penalties for noncompliance, and the complexity of the law in this area.

Remember, Section 2257 is the webmaster’s friend, since compliance will virtually guarantee that child pornography will not become a problem. Many unsettled issues and nuances exist in this regard, and competent counsel can help guide the average webmaster through issues such as model release indexing, document separation, inspection requirements, acceptable identification papers, requirements for foreign models, live streaming content compliance, model privacy concerns, records custodian duties, and 2257 disclosure statements.

The Attorney General is required, by law, to advise Congress as to how many 2257 inspections it conducts, and how many prosecutions have occurred for noncompliance.² Therefore, it is widely believed that the Justice Department, acting through the Attorney General, Alberto Gonzalez, who has publicly announced making enforcement of obscenity laws a priority, will initiate a crackdown on 2257 violators in the very near future. Typically, such regulatory violations would be brought as an ancillary and additional count in a multi-count indictment, alleging violations of the obscenity laws, money laundering, forfeiture, conspiracy, and potentially racketeering statutes. By shoring up the 2257 compliance matters, this potential claim is taken away from the government and can no longer be used as a leverage tool against the indicted webmaster.

Finally, on the issue of user age verification, a website review should include an analysis of the options for keeping children away from sexually-explicit content. These options can range from credit card firewalls, to database checks, sworn statements such as the author’s BirthDateVerifier.com program, or even a simple 18 + age statement. Each website will have different needs, and each webmaster’s risk tolerance level varies. However, all the options should be considered in the course of the review, and a final decision made based on a thorough review of the legal implications.

6. Obscenity/Content Issues

The obscenity issues are likely the most familiar to the average webmaster, and perhaps best understood as part of a typical website review. While no honest attorney will claim to have the psychic ability to identify obscene content on sight, legal guidance in this area is invaluable. Initially, attorneys trained in obscenity law can help webmaster clients understand the types of content that have been historically prosecuted more often than other types of content. The manner in which certain activities are displayed will also have an impact on the obscenity issues. By way of a brief example, a film depicting a woman urinating into a cup in connection with an explanation about female urology issues will likely contain sufficient “scientific value” to prevent a finding of obscenity in any jurisdiction. However, that same activity performed as part of “sex play” for a watersports film, may well be deemed obscene by some jury, somewhere in the country. An understanding of the unique nuances of obscenity law, obtained through the website review, will be invaluable to the webmaster concerned about managing the legal risks in the industry. Display of certain non-explicit content, on the website itself, which is integrated into, and relevant to, the sexually-explicit material may also be useful in hedging one’s bet against an obscenity determination. However, any effort to integrate so-called ‘valuable content’ is extremely tricky, and, if done incorrectly, can be useless – or worse yet – increase one’s legal risk. We are reminded in this regard of what the United States Supreme Court held in another context when it said, “A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication….”³

Hundreds of reported obscenity cases exist, and attorneys who practice in this field will be familiar with most, if not all of them. Unique arguments are being developed on a regular basis to defend against obscenity prosecutions, and it takes constant, continuing legal education to remain current on the state of the law in this area. Webmasters can gain access to the knowledge base acquired by an adult industry specialist by conducting a website review, and that knowledge translates into power for the webmaster. Aside from any potential defenses or proactive moves that can be considered by the webmaster in the obscenity category, merely gaining some insight into how these cases are prosecuted, and what kind of content has been successfully declared obscene, will allow the typical website owner to sleep better at night.

3. CONCLUSION

The fear of the unknown causes stress, and stress interferes with level-headed decision making in business. With a detached, objective evaluation of the real risks associated with sexually-explicit websites, the webmaster can make appropriate adjustments to reduce legal exposure on a variety of issues, once that knowledge has been obtained. A competent website review will provide this valuable information and allow the website operator to focus on profitability and success, once the legal concerns have been addressed.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, DeWitt & Walters, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”

¹ Under Title 18, U.S.C. § 2257, and in particular, the recent amendments imposed by the PROTECT Act, each violation of 2257 obligations is a separate five (5) year federal felony, and repeat offenders qualify for a maximum ten (10) year sentence.

² The Child Abduction Prevention Act of 2003, H.R. 1104 at §12. 108^th Congress – First Session.

---

 

Legal Checklist for Operating an Online Dating Site

By: Lawrence G. Walters, Esq.

The following checklist is intended as a starting point for legal compliance pertaining to the operation of an online dating site. This checklist is not intended to substitute for competent legal advice, and the operator is strongly encouraged to consult with the site’s business attorney when utilizing this checklist in any way.

While operating an online dating site does not generate the same high degree of legal risk as, for example, an adult website, online gaming site or online pharmaceutical sales site, an online dating site can create its own unique set of legal concerns. Some of these concerns are common to all Internet businesses while other items pertain specifically to the online dating industry itself.

Therefore, the online dating webmaster should be aware of the following:

1. Corporate Structure. The starting point for any business is its skeleton, or corporate structure. Operating as a sole proprietorship is strongly discouraged, and some form of corporate entity must be utilized when operating the online dating site. The type of corporate entity will vary, depending on a number of factors, including tax considerations, local legal climate, anticipated revenues and asset protection concerns. In some cases, the owners should consider offshore incorporation, given the potential for reduction of legal liability and tax exposure. Various options exist for incorporation, including Subchapter “S” or “C” Corporations, Limited Liability Companies (LLC’s), Limited Liability Partnerships (LLP’s), trusts, etc. Sometimes, more than one corporate entity is necessary to accomplish the goals and objectives. In consultation with your CPA and general counsel, the proper corporate structure should be discussed an implemented.

2. Business Plan. Unfortunately, many Internet entrepreneurs begin without some form of organized business plan. The days of being able to throw together a website and hope for the best are long since over. Various online resources exist to assist in creating a formal business plan, which should consider elements such as the operating budget, promotional tools, target market, niche, website structure, legal concerns, investment capital, growth and development of the site. Many times, the creation of a business plan will help identify the strengths and weaknesses of the business model, and may result in critical alterations before the site is launched. The single greatest reason why most Internet businesses fail is the lack of a coherent business plan, along with insufficient capitalization.

3. Online Agreements. Implementation of well-drafted online legal agreements is critically important for the protection of your business investment. Users and members should be required to adhere to a set of Terms and Conditions which outline the relationship between the site and the user/member, and address such issues as disclaimers, waivers, limitations of liability, assumption of risk, dispute resolution, attorneys’ fees, intellectual property, and a host of other legal and practical issues. Online dating sites, in particular, should include a comprehensive waiver of claims resulting from inappropriate and/or illegal behavior by and between individuals who met through the online dating site. One jury verdict can destroy a successful business, however, a comprehensive set of Terms and Conditions, implemented in a legal manner, can save the site operator significant grief in the event of a claim. Other online agreements should be considered including privacy policies (now required for all websites doing business in California), spam policies (necessary if promoted by bulk email or affiliate marketing), affiliate agreements, DMCA designation, warning page, etc. With proper online agreements, an ounce of prevention of prevention is truly better than a pound of cure.

4. Age Verification. Online dating sites are generally only appropriate for individuals over the age of 18. The Child Online Privacy Protection Act (“COPPA”) also restricts the manner in which certain websites can interact with children. Therefore, some form of age verification should be implemented to screen minors prior to accessing the site. This author’s BirthDateVerifer.com™ technology or some other form of age verification should be considered to avoid use of the site by children.

5. Copyright Protection. Your text, graphics, design and images, along with overall look and feel of your website, are all capable of protection under copyright law. Generally, computer programs can also be copyrighted. Therefore, online dating site operators are encouraged to protect their business assets by registering all available copyrights with the United States Copyright Office. A relatively new procedure exists for registering copyrights, which allows the registration to include changes made to the site on an ongoing basis. You should familiarize yourself with the ways in which copyright laws can help protect your business, and prevent competitors from infringing on your intellectual property.

6. Protect Your Trade Name. Your trade name, generally your chosen domain name, is also your business brand, and the name by which you will be known in the industry. As your business grows more successful, that brand name increases in value, given the goodwill associated with it over time. Popular businesses are often imitated, and you can expect competitors to attempt to trade off of your established business name. In the event you select a distinctive brand name, any competing use that causes consumer confusion may be a violation of our trade name or trademark rights. You should consult with an attorney early in the process, to choose a business name that is capable of trademark protection so that you can prevent competitors from using similar brad names. Due consideration should be given to state and/or federal trademark registration and continued zealous enforcement of trade name rights, including protection against cybersquatters or typosquatters.

7. Promotional Liability. The Federal Trade Commission (“FTC”) is the federal agency with jurisdiction to enforce laws pertaining to unfair competition and/or deceptive trade practices by websites. The scope of what might be considered an “unfair” trade practice is broad, indeed, and websites have been a favorite target of FTC enforcement actions. Information pertaining to such enforcement activity can be found on the FTC’s website www.FTC.gov. Special consideration should be given to “free” products or services, along with any consumer transaction where the user is surprised by some activity or charge. Experienced advertising counsel can help identify concerns for promotional activities and your marketing plan in general. In the event that any promotional activity occurs using unsolicited bulk email, advice should be obtained regarding compliance with the CAN-SPAM Act regulating such activity.

8. Obscenity/ Indecency/ Free Speech Concerns. Many dating sites allow users to post risqué, or sexually explicit images in connection with their profiles, and some tend to appeal to more erotic view points. Any image depicting nudity or sexual activity that appears on an Internet dating site will implicate various legal concerns pertaining to obscenity, indecency, and the Records Keeping and Labeling Law, Title 18 U.S.C. § 2257. This is an extremely complex area of the law, and one to be evaluated only by a specialist in the area. Under current federal law, all images depicting sexual activity posted on a commercial website need to be accompanied by a disclosure identifying the custodian of age records pertaining to the model depicted in the image. Failure to comply constitutes a five year federal felony with no potential for sentence reductions by federal judge upon conviction. Any image that can be categorized as obscene, can result in a variety of charges under state and federal law; some with significant penalties, fines and forfeitures. Careful consideration should be given to any system that allows users to instantly post images of themselves (or others), particularly sexually-explicit images. Use of the Communications Decency Act, Section 230 Immunity, and the DMCA Safe Harbor should be considered in this instance, as well.

9. Employees, Wages, and Taxation. An online dating business is the same as any other business, in various respects. Those employed to perform services for the business must be properly categorized as employees, when appropriate, and paid wages with proper income tax withholdings performed. Careful considerations should be given to such matters as employee handbook creation, overtime, vacation and benefits policies, confidentiality and non-compete agreements and other typical employment matters. Sexual harassment concerns occasionally arise in any business focusing on intimate relationships between human beings. Therefore, a specific policy pertaining to workplace environment and sexual harassment complaints should be considered and implemented.

10. Website Development Issues. Another area of particular concern relates to the development of the online dating site itself. If an independent website development company is chosen to create and maintain the website, appropriate legally binding contracts should be executed dealing with issues such as who owns the copyright to the website content, how the developer will be paid, whose obligation it is to maintain/repair the site, or defects therein, dispute resolution, and what happens if the relationship is terminated.

11. Shareholder Issues. The final consideration on this legal checklist involves the relationship between the owners of the business. If one person is the sole owner of the business, this last consideration may not apply. However, to the extent that various individuals are operating as mutual owners, shareholders, or partners in a particular business venture, their relationship between each other must be clearly set forth and agreed to in an operating agreement or a shareholder agreement. Inevitably, disputes will arise, and some method must be set forth in writing to address how those disputes will be resolved. The worst scenario is a corporation equally owned by an even number of shareholders, which allows for a deadlock in decision making to occur. In the event of a deadlock, the corporation or business entity may be thrown into receivership, whereby a receiver takes over the operation and decision making functions, so that the business can continue to operate despite the deadlock between shareholders or owners. This is all expensive, time consuming, and emotionally draining on the owners, and should be avoided at all costs. The development of an operating agreement between the owners is a critical part of the creation of the business venture, and the best time address difficult issues between business partners is at the beginning, when there are no disputes. Many issues typically addressed in the shareholder agreement are not often considered or anticipated by the owners, such as the event of death or disability of one or more of the shareholders, the desire to sell shares to a third-party, rights of a divorced spouse to all or part of the business, and other such uncomfortable matters. Many of these concerns can be addressed by simple legal tools like insurance, trusts or incorporation of rights of survivorship into the ownership structure. All of these issues should be considered and addressed before any disputes arise to allow for the smooth functioning of the business and the efficient resolution of disputes or major decision making.

Conclusion

The above checklist represents some of the typical legal matters commonly encountered by online sites. Of course, many others are possible, and your general counsel can explore these numerous legal concerns in-depth. The best time to address of these legal matters is before a legal concern arises, forcing the business into “emergency mode.” Many legal emergencies can be avoiding with minimal preparatory activity, whereas failing to address important legal concerns can result in major disruption, or even destruction of, your online dating business venture.

Coming Soon… www.OnlineDatingLaw.com, by Lawrence G. Walters, Esq.

(©Lawrence G. Walters, PA 2005). Noting contained in the forgoing article constitutes legal advice, and all specific legal questions should be directed to your personal attorney. Lawrence Walters practices in the areas of online dating, media and advertising law. The law firm of Weston, Garrou & DeWitt has existed for over 40 years, and has litigated media cases throughout the country, including 7 cases at the Untied States Supreme Court. Mr. Walters can be reached at Larry@LawrenceWalters.com, www.FirstAmendment.com, or via AOL screen name “Webattorney.”

Think you would never cop a plea?

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

THINK AGAIN

The Realities and Delimmas of Federal Sentencing Guidelines for Obscenity Prosecutions

Analysis by LAWRENCE G. WALTERS & JEROME MOONEY

Weston, Garrou & DeWitt www.FirstAmendment.com

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

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

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

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

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

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

ASSUMED FACTS

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

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

$30,000.

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

The Company created a portion of its content.

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

All depictions are of adults.

The Company principals do not have prior criminal records.

FIRST SCENARIO

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

1. Base offense level +10

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

for the company over the two years. +14

3. No enhancement for organizer or leadership 0

4. Maximum acceptance of responsibility – 3

5. Total offense level. 21

With no criminal history 37-46 months in prison.

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

for organizer or leadership: +2

7. New total offense level. 23

With no criminal history 46-57 months in prison.

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

this Guideline groups behavior and would include

all adult material sold whether the subject of conviction

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

9. New total offense level. +27

With no criminal history 70-87 months in prison.

SECOND SCENARIO

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

1. Base offense level +10

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

for the company over the two years. +14

3. Enhancement for organizer or leadership +2

4. Total offense level 26

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

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

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

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

Enhancement for sadomasochistic material: + 4

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

to the two specified above: +2

7. New total offense level: 32

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

THIRD SCENARIO

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

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

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

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

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

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

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

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

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

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

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

2. It is better to follow than to lead. The USSG impose enhanced penalties upon those individuals who can be fairly categorized as the “leader” or “organizer” of

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

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

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

Conclusion

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

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

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

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

Endnotes

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

[2] Id.

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

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

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

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

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

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

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

[10] Id.

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40

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

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

ADULT INDUSTRY UPDATE™

November 2004

By: Lawrence G. Walters

www.FirstAmendment.com

 

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

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

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

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

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

Ashcroft Out, Gonzales In

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

2257 Regulations . . . Where are you?

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

Obscenity Update

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

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

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

At Least it’s not China

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

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”

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

² Kernes, Mark. “U.S. Senate Committee Hears Bad Science,” AVN.com (November 22, 2004), found at: http://www.avn.com/index.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=206762.

³ Notes from hearing, supra.

⁴ Id.

⁵ Collar, Jim. “Many factors create sex abusers: Reasons behind deviant sexual behavior complicated,”

theNorthwestern.com (November 15, 2004).

⁶ Id.

⁷ Id.

⁸ Id.

⁹ Id.

¹⁰ Notes from hearing, supra.

¹¹ Ross, Scott. “Senate Subcommittee Holds Hearing on Porn Additction,” AVN.com (November 18, 2004), found at: http://www.avn.com/index.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=206620.

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

¹³ Walsh, Jim. “Prosecutors: Crime shows blur reality,” AZCentral.com (August 29, 2004); found at: http://www.azcentral.com/specials/special21/articles/0829csieffect28.html

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

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

¹⁶ Kernes, Mark and Scott Ross. “Incoming Attorney General Supported Abu Graib Torture, Government Secrecy About 9/11,” AVN.com (November 10, 2004), found at: http://www.avn.com/index.php?Primary_Navigation

=Articles&Action=View_Article&Content_ID=204944

¹⁷ Id.

¹⁸ Ross, Scott. “Sirkin Argues Obscenity Laws Unconstitutional in Extreme Associates Case,” AVN.com (November 2, 2004), found at: http://www.avn.com/index.php?Primary_Navigation=Articles&Action=View_Article &Content_ID=203405

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