ADULT INDUSTRY UPDATE

By: Lawrence G. Walters

FreeSpeechLaw.com

First Amendment attorneys may be watching a bunch of adult films in the upcoming months. Several of the larger adult video companies are hoping to make sure that their products are defensible against obscenity prosecutions by having their lawyers review all movies before distribution. “We do our own editing. Then we send them to our First Amendment attorneys,” says the president of Vivid Entertainment Group, according to AVN Online. “The legal time alone is expensive as you can imagine” he added. This may be money well spent, however, given the dramatic change in the political climate surrounding the adult entertainment industry. Attorney General John Ashcroft is certainly no friend of adult media, and already has blamed recent school shootings on violence in the media.

Gone are the days when adult videos were sold out of the back of a van, wrapped in brown paper packages. Now even Yahoo! has gotten into the act. Yahoo! is the first Internet giant to jump into the online erotica market. This decision illustrates the desperation facing many mainstream Internet companies seeking new sources of advertising dollars in the slowing economy. While many online ventures have gone bust, including recently Kazoo.com, adult Websites have continued to flourish. Some analysts believe that entering into this market will hurt Yahoo’s business reputation; long term. But there is no denying the old adage: Sex sells.

At the same time, the FCC recently issued new “indecency guidelines” attempting to tighten up the rules on what will be tolerated over the airwaves by the new Administration. “Understandably, the public is outraged by the increasingly coarse content aired on radio and television at all hours of the day, including times when children are most likely to be listening or watching,” said FCC Commissioner Suzan Ness, who further referred to today’s media as “an onslaught of on-air smut.” The new factors that the FCC will consider when processing indecency complaints is the explicitness and graphic nature of the broadcast, the extent to which sexual innuendo is repeated and the extent to which the broadcast panders, titillates or possesses intentional shock value. Whether these new guidelines are constitutional, or not, is another matter.

One thing is clear: the government does not want the execution of Tim McVeigh broadcast over the World Wide Web. The Feds will broadcast the death over closed circuit television to a select audience of victims. Recently however, Entertainment Network, Inc., which operates VoyeurDorm.com and DudeDorm.com, filed suit in the U.S. District Court, for the Southern District of Indiana, trying to obtain permission to show the execution live over the Internet. The company argued that it had a constitutional right to place a Web cam in the execution chamber in the federal pen, which is located in Indiana. Perhaps Justice officials believe that the execution would be “indecent.”

Elsewhere, government officials empanelled by Congress, will be taking a tour of the country to receive open testimony regarding Internet porn. The National Research Counsel will be holding public hearings in Austin, Kansas City, Salt Lake City, Miami and San Diego to discuss approaches to protecting children from pornography and other “inappropriate” Internet content. The Committee will make recommendations to Congress regarding anti-porn legislation. This is your chance to be heard.

In the latest ruling on the “linking” issue, a court in India ordered a number of business leaders from www.Rediff.com to stand trial for “giving access to pornographic material.” This is the latest in a growing number of cases worldwide where Websites are being held responsible for content found on linked sites. Rediff.com is a portal that allows users to conduct essentially free-form searches. Although this portal does not create directory listings of adult materials, users can locate such content using its search engine. Rulings such as this- and others in both the United States and elsewhere- are resulting in increasing concern amongst Adult Webmasters. It’s one thing to be held responsible for content on a Website; but it’s quite another to be prosecuted for content found on only one of many links.

Local governments cannot turn a blind eye to the fact that adult entertainment does not cause increases in crime and decreases in property values. At least that’s what a federal court of appeals held in the recent case, Flanigan’s Enterprises, Inc. of Georgia v. Fulton County, Georgia, 2001 WL 166375 (11th Cir. 2001). For many years, First Amendment lawyers have battled the so-called “Secondary Effects Doctrine,” by virtue of which cities and counties regulate topless bars and adult bookstores They presume that such establishments cause sufficient problems to justify their intense regulation, pretending that adult entertainment is essentially the root of all evil in the community, but without any real empirical proof. Many courts even allowed local governments to ignore contrary evidence showing that property values increased in areas surrounding adult entertainment, or that patrons were better behaved in topless bars than in the local corner pub. This problem came to an end with the Flanigan’s decision, where the court ruled that Fulton County must consider the results of its own study of adult entertainment when enacting such restrictive laws.

Looming over all of this is another case, Alameda Books v. City of Los Angeles, that stands to decide just how much proof is needed to support adoption of regulations affecting expressive adult businesses. In that case, which will be argued by our firm’s senior partner, John Weston, the United States Supreme Court will address the fate of the Secondary Effects Doctrine. The Justices may clarify this issue, once and for all, for First Amendment practitioners. Arguments before the High Court are expected to occur in October or November, 2001.

On a lighter note, Las Vegas police recently told lawmakers that they could not prosecute a stagehand who secretly videotaped showgirls in various states of undress in a casino dressing room. In Las Vegas, there is no law against secretly photographing people for sexual gratification. Apparently, the stagehand had videotaped showgirls through a camera he had placed in a box in their dressing room. States and locales across America have been busily enacting anti-voyeurism laws which, for the first time, criminalize acts of videotaping individuals against their will. Could it be that Las Vegas is behind the times?

Local government has set its sights on another “Voyeur House.” The City of Tarpon Springs, near St. Petersburg, Florida, has scheduled a hearing to determine whether the voyeur house depicted at www.ucanwatch.com violates the City’s prohibitions on adult use businesses. Adult Webmasters are closely watching this case, as it may strongly impact the fate of thousands of such voyeur houses across the country that typically do not obtain adult use permits prior to going live on the World Wide Web. If my instincts are right, the site may soon be called: ucan’twatch.com.

Lawrence G. Walters, Esquire, formerly of Wasserman & Walters, is a partner with the law firm of Weston, Garrou & DeWitt, based in Los Angeles. Mr. Walters continues to practice in Central Florida, and represents clients involved in all aspects of adult media. Weston, Garrou & DeWitt handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. 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 or www.FreeSpeechLaw.com

ADULT INDUSTRY UPDATE

By: Lawrence G. Walters

FreeSpeechLaw.com

The first anti-pornography crusaders are crawling out of their caves, now that it’s become safe for censorship under the Bush Administration. General Ashcroft sailed through his confirmation hearings without a single question about the adult entertainment industry, or his position on pornography and obscenity prosecutions. Inside sources say that the Justice Department is “cleaning its guns” in preparation for an attack on the industry.

Utah has appointed its first full time anti-porn warrior; Paula Houston. Her official title is the “Obscenity and Pornography Complaints Ombudsman.” During her introduction, Utah Attorney General Mark Shurtlerff said: “There’s absolutely no redeeming value to pornography…and I, for one, will not allow pornographers to hide behind the First Amendment.” Her first task will be to draft a comprehensive state “Moral Nuisance Law” designed to discourage obscenity and pornography.

In fact, it looks like the first round of arrests has already occurred. On March 3, 2001, the owner of a Salt Lake City magazine shop was charged with 51 felonies for selling pornographic videos to an undercover officer. Undercover officers went into the store, Bob’s Magazine and Video, and purchased over a hundred videos that were seized when the police executed a search warrant at the store on February 18. Prosecutors are looking for over two million dollars in fines against the owner.

For the first time, an Internet Service Provider has been found guilty of a child pornography offense. A Buffalo area ISP, named BuffNet, plead guilty, before the State Supreme Court in New York, of providing access to child pornography. It faces a five thousand ($5000.00) dollar fine at sentencing. An investigation determined that BuffNet failed to take any action after it was notified that one of its newsgroups was distributing child pornography. This case sets an interesting precedent when it comes to ISP liability for content found on its servers. Under the Communications Decency Act of 1996, ISPs have immunity from prosecution for many types of communications, but not for child pornography or obscenity. If ISPs are to be charged with the responsibility of making sure no illegal images exist on their servers, many ISPs will simply get out of the business. Given the sheer volume of communications that pass through a typical ISP, it would be nearly impossible to police content on a daily basis. So far, we have received no reports of an ISP being held liable for obscene materials, but time will tell.

“Sex” still remains the number one Internet search term despite the government’s attempt to impose a new morality. In a study involving some 9.1 million users, “sex” was the most popular search word, it being submitted one out of every three hundred terms. “Porn” along with “pornography” was the fourth most popular term, with “nude” “xxx” and “playboy,” also in the top ten.

Recently, the Federal Trade Commission stepped up their crusade against “dialers;” adult Internet sites providing access to their content using telephone bills instead of credit cards. Since the initiation of their campaign in October, 2000, most dialers have been chased off the Internet. For now: no credit card; no porn.

Yet another Internet censorship law has drawn the attention of the ACLU, who recently sued Vermont over its Internet child porn restrictions. The ACLU joined with the American Booksellers Association, and others, in filing suit in the United States District Court on February 7, 2001. According to the ACLU, the challenged legislation is a “broad censorship law that imposes severe content-based restrictions based on the availability, display and dissemination of constitutionally-protected speech.” Essentially, the law gives the State of Vermont jurisdiction in fifty states to prosecute people anywhere that material has been accessed which is offensive to minors. The Senate Judiciary Committee originally removed the child pornography ban because of concerns over constitutional free speech, however the House lawmakers ultimately reinstated the ban in the version of the law that passed. We will keep you posted on developments in this litigation.

In another Internet porn case, The First District Court of Appeal in California recently held that libraries can not be held liable for minors who get access to obscene images posted on the Net by third parties. The case of Kathleen R. v. City of Livermore, stemmed from a 12 year old boy’s use of his local library’s computer to download hardcore pornography to a disk. When his relatives later discovered the material, his family sued the library. Ultimately the Court concluded that simply providing minors access to the Internet does not affirmatively place them in danger, and therefore dismissed the suit.

Another large-scale obscenity prosecution has come down; this time in South Bend, Indiana. Several retail video stores were hit with incitements from the Grand Jury in early February, 2001. One of the stores, Pleasureland, faces four felony counts of racketeering, money laundering, conspiracy, and fifteen misdemeanor counts of pandering obscenity. Similar charges were brought against Little Denmark, and its owner Robert Henderson. All charges stem from sale or rental of adult videotapes. The Grand Jury returned indictments, but of course only heard the prosecutor’s version of the arguments. Recently, at least one First Amendment lawyer has sprung into action and is representing one of the video stores charged. This case promises to turn into a Free Speech versus morality debate that may set the tone for obscenity prosecutions in the new millennium. In the words of one of the Defendants, Ed Ballanow: “You’re not guilty until you go to court.”

One final note; it looks like the U.S. Supreme Court is about to tackle the issue of adult entertainment once again. On March 5, 2001, the Court announced that it would review the Ninth Circuit Court of Appeals’ decision in Alameda Books, Inc. v. City of Los Angeles, which invalidated an adult use ordinance which prohibited business that both sold adult products and contained facilities for viewing of adult movies or videos. Randy Garrou, Esq., of our firm represented the Plaintiffs in that case, and is now preparing to brief these issues in the United States Supreme Court. John Weston, Esq., will argue the case before the Justices, his Seventh argument before the U.S. Supreme Court on issues of censorship of erotica. We will keep you posted on the status of this important litigation.

Lawrence G. Walters, Esquire, formerly of Wasserman & Walters, is now a partner with Weston, Garrou & DeWitt, based in Los Angeles. Mr. Walters continues to practice in Central Florida, and represents clients involved in all aspects of adult media. Weston, Garrou & DeWitt handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. 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 or www.FreeSpeechLaw.com

LEGAL BEAT

By: Lawrence G. Walters

www.firstamendment.com

Vulgar website names are not protected by the First Amendment. At least that’s what U.S. District Court Judge Steven McAuliffe ruled in an adult website case recently. The case questioned whether Network Solutions could legally refuse to register names which it deemed “profane” or “vulgar.” The court ruled that domain names are more akin to signposts, and have little or no communicative value to justify First Amendment protections. This is a dangerous precedent for the Internet, which depends on Free Speech protections for its survival. This ruling may also prove problematic for companies attempting to protect intellectual property associated with their domain names like trademarks or tradenames.

Meanwhile, the battle raged over who has rights to the sex.com domain name. In the lawsuit filed in federal court, Gary Kremen alleges that his cyberspace nemesis, Steph Cohen, unlawfully deprived him of the legal rights to the valuable URL by committing fraud. The Web portal tied to the name generates tens of millions of dollars by directing online users to adult material, and has become somewhat of a “Yellow Pages” for the adult industry. Kremen’s lawyers are attempting to freeze $25 million in sex.com related assets to make sure Cohen doesn’t hide his money in offshore accounts in the event judgment is entered against him. This case also raises thorny legal issues regarding how intellectual property laws are to be applied to domain names like sex.com. Earlier, the judge assigned to the case dismissed Network Solutions as a defendant, ruling that traditional property rights do not apply to a domain name since it is not considered tangible property. This case could have far-reaching implications to any owner of a domain name.

The U.S. Supreme Court, in the middle of sorting out the election mess, took time to hear arguments on a landmark Free Speech case involving an adult bookstore in Wisconsin. The City News And Novelty, Inc. v. City of Waukesha case will decide whether adult businesses are entitled to the protection of “procedural safeguards” when applying for licenses to operate from local governments. At issue is whether the City of Waukesha was required to allow the bookstore to remain in business while the courts considered legal challenges to the license renewal procedure. These procedural safeguards have been the subject of significant litigation by First Amendment lawyers on behalf of the adult entertainment industry. In 1990, the U.S. Supreme Court decided, in the case of FW/PBS v. City of Dallas, that local governments must issue a decision on license applications by adult businesses within a specified, brief time period, and must provide for prompt judicial review of a license denial. Without these safeguards, cities and counties could tie up a decision in the administrative review process indefinitely, and keep the business closed while the courts considered the challenge to the process. Most businesses would give up the fight if prohibited from opening during this process. This produced censorship by delay. First Amendment lawyers are watching the City News case very closely to see if the current Court reaffirms or takes away these important Free Speech protections.

The couple who provided links to websites containing child pornography has been found guilty of promoting child porn in federal court. After deliberating for 6 1/2 hours, the federal jury convicted Thomas Reedy on 89 counts of distributing child porn and sexual exploitation of minors. His wife, Janice Reedy, was only convicted on 87 counts. While not directly providing any images themselves, the Reedys were accused of giving subscribers access and passwords to other Internet sites displaying child pornography. Those sites were maintained by foreign webmasters. The prosecutors hope to put other similar Internet companies on notice. “I hope this verdict might scare other companies into stopping what they’re doing,” said Assistant U.S. Attorney Terri Moore. The Reedys’ lawyer defended on the grounds that his clients should not be responsible for material provided by other webmasters. Now he’ll have to make that argument on appeal, and his clients are looking at a long prison term. This case may provide precedent in cases where the government tries to hold webmasters accountable for information found on linked websites. As our firm has warned from the beginning: Watch your links!

Two brief updates on the obscenity front: The Ohio obscenity statute was held constitutional by the Twelfth District Court of Appeals, in a challenge by Millville Video, Inc. The case involved two videos, declared obscene, even though neither video depicted sexual intercourse, fellatio or cunnilingus. The court concluded that “sadomasochism, sexual bondage and sexual discipline” fell under the Miller test’s definition of “sexual contact.” Relatedly, the owner of another Ohio video store, the Video Barn in Union Township, pled guilty to a misdemeanor count of attempted pandering of obscenity. As a term of the plea, the store can no longer advertise the words “adult” and “X-Rated.” Ohio still appears to be a hotbed of obscenity prosecutions. However, with the Bush team getting ready to take the helm, we predict widespread use of the obscenity laws on a federal level, as a crack down on the explosive growth of the adult industry under the Clinton administration.

Good news from Malaysia: That government will not censor the Internet. “The freedom of the net is assured,” said Deputy Energy, Communications and Multimedia Minister Datuk Tan Chai Ho. Sex sites topped the list of favorites among Malaysian surfers, according to a report from www.catcha.com. Now, if only the freest nation in the world would follow suit.

Lawrence G. Walters, Esquire, is a partner in the law firm of Wasserman & Walters in Winter Park, Florida. His practice concentrates in First Amendment and Internet law. He represents clients involved in all aspects of adult media. All statements made in the above article are expressions of opinion only, and should not be considered specific legal advice. You should always consult your own lawyer regarding any legal issue. You can access the firm’s web site at: www.firstamendment.com

ADULT INDUSTRY UPDATE

By: Lawrence G. Walters

www.FirstAmendment.com

By this time, I would have predicted that the adult entertainment industry would either be rejoicing in a Gore victory, or cringing in fear in anticipation of a Bush administration. Instead, the industry, along with the rest of the country, is on pins and needles awaiting the outcome of several recounts and lawsuits challenging the electoral process. Time will tell whether the new millennium will be ushered in under a reign of censorship or freedom.

In the meantime, there is big news out of the State of Florida: The renowned Voyeur Dorm has been ordered to shut down by a federal Judge in Tampa. The Voyeur Dorm Website offered 24 hour viewing of five unrelated women “in the most intimate acts of youthful indiscretion.” The Judge determined that the house in which the women lived was an “adult use” within the meaning of Tampa’s Adult Entertainment Code. The Court also found that this Code was constitutional as applied to the Internet. The Court rejected arguments made by Voyeur Dorm that these local Adult Entertainment Codes should be looked at differently when applied to businesses that are available only on the World Wide Web. The Voyeur Dorm house created no parking problems, traffic problems, prostitution, drugs, or other so-called “adverse secondary effects” typically associated with adult businesses. The Court rejected all of Voyeur Dorm’s arguments in their totality, and upheld Tampa’s adult entertainment ordinance as applied to Voyeur Dorm. Voyeur Dorm was also ordered to shut down its adult entertainment operations. This case will likely have significant impact on other “voyeur houses” scattered throughout the United States and elsewhere. If these houses can be required to become licensed and zoned as adult businesses, simply by virtue of the fact that Websites provide 24-hour observation of the residents, very few of these houses will continue to exist. By definition, most houses are located in a residential zone. Adult entertainment licenses are not issued for businesses within residential zones. Local governments will now probably attempt to model their legislation after the City of Tampa’s which has now been upheld. It is likely that this case will be appealed to the 11^th Circuit Court of Appeals in Atlanta, where the Voyeur Dorm will ask for a reversal of the judgment based on the constitutional issues raised. I will continue to keep you posted on this groundbreaking case.

The 4^th Circuit Court of Appeal recently upheld the Child Pornography Prevention Act of 1996, which had been declared unconstitutional by the 9^th Circuit Court of Appeal, but which had been upheld by other Circuits. This law punishes, as child pornography, computer images that do not involve the use of real children in their production or dissemination. It also punishes images of individuals who “appear to be” under the age of 18, even if the model is an adult. It is likely that these cases will be appealed to the United States Supreme Court to resolve a conflict in the various circuits.

On the obscenity front, we can strike up one win and one loss for the First Amendment. In Nebraska, John Halton, owner of Dr. John’s Novelty and Boutique was found guilty of selling obscene videos. He was sentenced to nine months in jail and required to pay a $1,000.00 fine. The prosecutor also petitioned to close down his adult video store on the basis that it constituted a nuisance. However, in St. Charles County, the owner of Family Video was prosecuted for selling obscene videotapes, but was acquitted. His defense counsel argued that removing the videotapes from the shelves would limit the choice and freedom of normal people wanting to “add spice” to their relationship. The defense expert said that the movies help people who may feel intimidated in the bedroom. The prosecutor argued that residents were entitled to decide what they want in their neighborhood, and that this material attracts the “wrong” kind of people. Apparently, the jury disagreed.

In a disappointing decision, the Louisiana Supreme Court upheld its ancient sodomy law prohibiting the “solicitation by a human being of another with the intent to engage in any unnatural carnal copulation…” The Louisiana Court found that the constitution does not prohibit states from enacting laws that prohibit private acts of consensual sodomy between adults. Only in Louisiana!

On the Internet front, the 3^rd Circuit Court of Appeals denied rehearing in the Child Online Protection Act (COPA). In that case, the Appeals Court affirmed a Preliminary Injunction against the enforcement of the Act which prohibited the transmission of material which is considered to be harmful to minors over the Internet. The Court recognized that the concept of local community standards as applied to the Internet is unworkable since Internet sites cannot be blocked from specific geographic locations. The government can now file a petition for review in the Supreme Court or prepare for trial on the merits in the District Court. In a stray decision, the 1^st Appellate District Court of California affirmed convictions for attempting to distribute lewd material to a minor over the Internet. This decision goes against every other reported case holding such laws to be unconstitutional either in violation of the First Amendment, or the Commerce Clause, or both. Finally, the 4^th Circuit Court of Appeals recently upheld Virginia’s prohibition against state employees’ access to sexually explicit material on government computers. The Appeals Court held that the statute only limited the speech of employees in their capacity as State employees, which the Court believed was acceptable.

These cases demonstrate the continued erosion of First Amendment rights whenever the free expression involves the issue of sex. For some time, the courts were hesitant to allow any censorship of speech over the Internet. However, we are starting to see the first wave of decisions upholding laws applicable to the Internet. This may be a dangerous trend, and stifle the greatest marketplace of ideas ever created. These issues will be dealt with by one of two administrations in the next four years. Which administration remains the crucial question.

ADULT INDUSTRY UPDATE

By: Lawrence G. Walters

www.FirstAmendment.com

The federal government is ready to take on the porn industry. The storm clouds are gathering on both the regulatory front as well as in the Legislature. Election time has arrived.

It was predictable that online porn would become somewhat of an election issue from the beginning. Even Al Gore, who is generally seen as the better candidate for the adult industry, has pledged to fight pornography on the Internet.

Recently, however, the issue of on-line porn has gotten more attention in light of the creation of the Commission on Child Online Protection, which was established to investigate options in regard to Internet pornography. While the Commission unanimously endorsed a largely hands-off approach to the Internet, it did call for increased enforcement of deceptive or unfair practices laws to punish Webmasters for enticing children to view obscene material, and contended the practices of “mouse trapping” and deceptive meta tagging. D. McCullagh, “Porn Panel: Nix ‘Mouse-trapping’” Wired News, October 6, 2000.

Shortly after the porn panel made its recommendations, the Federal Trade Commission took severe administrative action against Verity International, an online porn company located on the Island of Starke, in the English Channel, for allegedly billing more than 110 thousand United States consumers for hundreds of dollars each in false long distance charges incurred for dialing adult websites. The company offered a seemingly attractive alternative to credit card billing for adult websites by allowing the customer to have the charges placed on their long distance telephone bill. The FTC Complaint claims that Verity lured customers into obtaining their services by telling the users they were being charged $3.99 a minute for a call to an adult entertainment site in Madagascar, when the call actually was routed through London at a higher rate. The FTC estimates roughly 25 million dollars is in question in this case. That figure underscores the tremendous growth and popularity of adult Internet sites in recent times. The FTC Complaint also alleges that a subsidiary of Verity, a company called Crescent Communications, inappropriately billed users’ credit card numbers, which they were asked to provide only for age verification. Those charges allegedly added up to $188 million from 1997 to 1999. We can expect to see more and more aggressive action on behalf of federal agencies against online porn companies as election time draws nearer. Should the Republican administration take over, the morality groups will likely push the newly-appointed Attorney General into significant prosecution of adult webmasters based on the content of their sites.

Already, a Bill has been introduced into the House seeking five million dollars for the prosecution of obscenity cases at the federal level. Another Bill has been introduced by Congressman Duncan Hunter (R-Calif), HR 5045, which would allow a minor who alleges to have been “harmed” from the exposure to legal adult materials, to demand money damages from the producers or distributors of that material. This Bill, introduced in July, was quickly referred to the House Judiciary Committee and sent to the Subcommittee on Courts and Intellectual Property. Apparently, the thinking is: If fear of going to jail won’t force online porn distributors to run for cover, perhaps fear of frivolous lawsuits will. Our firm is closely monitoring the progress of this and other anti-porn bills through the legislative process. Internet porn is an easy political target, and one which candidates can use as a scapegoat to get votes in this extremely close election.

In other developments, the Internet Corporation for Assigned Names and Numbers (ICANN) accepted forty-seven proposals for new top-level domain name suffixes in a bidding process that ended October 2, 2000. It is expected that several new suffixes will soon become available such as .kids, .sex, .xxx, .info, .site, .web and .pro. Internet registration companies paid a non-refundable $50,000.00 application fee to submit their proposed suffix. ICANN is expected to announce the list of new suffixes by November 20, 2000. This would be the first major growth in top-level domain suffixes in more than a decade. Advocates on both sides of the censorship issue have called for clustering or grouping of adult entertainment sites into a cyber-Red Light zone, with a .sex or .xxx domain. Civil libertarians have largely criticized that proposal as the “ghettoizing” of erotic speech online. The Commission on Child Online Protection rejected such a proposal, instead calling for more “public education” and “responsible adult empowerment.”

On the adult nightclub scene, two clubs obtained at least partial victories in the courts this month. The first came out of the State of West Virginia which has a Statewide adult entertainment law, unlike most other states which regulate adult entertainment at the local level. This state law was ruled unconstitutional by the United States District Court. The judge found that the law targeted conduct protected under the First Amendment and was unconstitutionally vague. Of particular concern was the requirement that an applicant for an adult dance club license be of “good moral character.” Nobody really knows what that means, thus allowing state officials to deny adult entertainment licenses on an ad hoc basis. The second case came out of the City of Cumberland, Wisconsin, where City officials obtained substantial help from anti-sex religious groups including the National Family Legal Foundation to assist them in putting adult entertainment out of business in Cumberland. The City largely copied the NFLF’s model ordinance that it circulates throughout the country, and passed a restrictive anti-adult entertainment law even prohibiting “sensual erotic movements” by dancers. Although the Court upheld part of the law, it declared the prohibition on erotic movements unconstitutional, noting: “The dominant theme of nude dance is an emotional one; it is one of eroticism and sensuality…The dancer may use non-sexually explicit elements and semi-nudity to convey a certain degree of sensuality, but putting taste aside, more explicit and erotic content is commonly available on prime time television without being fairly regarded as adult entertainment”

Although these two victories for the First Amendment should be celebrated, such victories these days are few and far between, given the conservative nature of most federal judges in the U.S. However, as the restrictions on adult entertainment become more and more severe the courts will (hopefully) be left with no choice but to declare these laws unconstitutional. Our firm will continue to do its part by monitoring these decisions and providing regular updates. We may even win a few cases for good measure.

LEGAL BEAT

By: Lawrence G. Walters

www.firstamendment.com

Another Internet censorship law bites the dust this month. This time, the State of Virginia passed a law making it illegal to use the Internet to sell, rent or lend sexually explicit pictures or written narratives to juveniles. The suit was filed by the People for the American Way, along with other Internet businesses, claiming that the law violated the First Amendment. The Court agreed, and enjoined enforcement. Eliot Mineberg, Legal Director for People for the American Way said: “The effort by Virginia to restrict the Internet-making it so that it can have only materials fit for children-is presumptively illegal.” Of particular concern to the Plaintiffs were material such as sex education materials and art materials that might be proper for adults, but not for children. However the law could potentially apply to ban such items. The Virginia Attorney General’s Office recognized the changes in the law that the Internet has brought about by saying: “Laws that apply to the bricks-and-mortar world are having to be tailored to cyberspace, and with that comes various legal challenges.” This decision comes immediately after last month’s ruling by the Third Circuit Court of Appeals invalidating the federal Child Online Protection Act. We are seeing significant victories for the First Amendment with these Internet cases. While other forms of adult entertainment are successfully being censored by local and state governments, those censorship attempts have been unsuccessful when Internet content is involved. Accordingly, we may see a significant shift in the medium through which the public obtains its sexually oriented entertainment from traditional retail stores and bars, to the World Wide Web.

This concept is readily illustrated by the recent conviction of John Haltom, the owner of Dr. John’s Adult Video and Novelty Shop in Omaha, NE who was sentenced to nine months in jail and fined one thousand dollars upon being convicted of distributing obscene materials. Mr. Haltom was convicted even though his store sold 800 tapes a week. Even the prosecutor’s older brother was a customer, and testified for the defense. However, now that there has been a conviction, the City prosecutor is attempting to close the store under the State’s nuisance statute.

Topless dance bars have suffered similar setbacks in their attempts to challenge the new onslaught of local government laws designed to drive the adult entertainment industry out of business. For example, the Eleventh Circuit Court of Appeals recently affirmed a dismissal of a lawsuit upholding the constitutionality of an ordinance prohibiting exotic dancers from performing nude, but allowing nudity as part of a “bona fide life ‘communication.’” The Plaintiff in that case argued that the government cannot pick and choose what type of nude dancing and entertainment it will prohibit. Orange County allowed nudity at the play “Six Appalling People” but not in nude dancing establishments. Unfortunately for the First Amendment, the law was upheld.

We are likely to see a renewed effort to prosecute obscenity on all fronts in the near future, however. Our firm has learned that a bill has recently been passed in the House of Representatives which seeks appropriations in the amount of five million dollars for the prosecution of obscenity cases. The money would be used by the Department of Justice, Criminal Division, Child Exploitation and Obscenity Section, for the hiring and training of staff, travel and other necessary expenses to prosecute obscenity cases at the federal level. The bill is entitled the “Illegal Pornography Prosecution Act of 2000,” H.R. 4710. The Bill overwhelmingly passed in the House and is on its way to the Senate. Indeed, politicians will find it difficult in this election year to vote against prosecuting obscenity, however, the adult entertainment industry has not seen any serious obscenity prosecution during the eight years of the Clinton administration. During that time, video content has pushed the limits and has ventured into subjects previously considered taboo for commercial pornography. Many video stores, and mainstream adult video distributors could be sitting ducks for obscenity prosecutions in conservative communities if this bill passes the Senate.

The elections will also certainly have a profound effect on the continued viability of the adult entertainment industry in America. No matter what the outcome of the elections, however, the industry should brace itself for a potential crackdown on obscenity. The last time this happened under the Regan/Bush administration, the Justice Department intentionally filed numerous obscenity charges across the country at the same time in an effort to overwhelm the few skilled First Amendment attorneys representing the industry at that time. Currently, First Amendment attorneys nationwide are bracing for a repeat of history and preparing for battle.

On a lighter note, a “Planet of the Apes” movie is currently under way, making executives at 20th Century Fox squirm in their seats over an inter-species sex scene planned by director Tim Burton. Celebrity Actress Helena Bonham Carter will play a humanitarian ape princess who brings out the animal lover in former Calvin Klein poster boy Mark Wahlberg. Lets hope this one is released before the obscenity bill passes.

Lawrence G. Walters, Esquire, is a partner in the law firm of Wasserman & Walters in Winter Park, Florida. His practice concentrates in First Amendment and Internet law. He represents clients involved in all aspects of adult media. All statements made in the above article are expressions of opinion only, and should not be considered specific legal advice. You should always consult your own lawyer regarding any legal issue. You can access the firm’s web site at: www.firstamendment.com

LEGAL BEAT

By: Lawrence G. Walters

www.firstamendment.com

The big news this month is the unanimous decision issued by the Third Circuit Court of Appeals in Philadelphia invalidating the Child Online Protection Act (COPA). This law required that an Age Verification System (AVS) or credit card be provided before a consumer could access sexually explicit material on the Internet. The Third Circuit Court of Appeals identified a First Amendment concern with this type of Internet legislation that the parties to the suit, and even the trial court, had ignored. That is; the Internet has no geographical boundaries, and the physical location of either the website or the consumer cannot be geographically verified. Since the content regulated by the law was defined in terms of “local community standards,” the Court determined that it was impossible to establish a cyber community standard by which Internet speech could be governed. “Because of the peculiar geography-free nature of cyberspace, a community standards’ test would essentially require every Web communication to abide by the most restrictive community’s standards,” the Court said. Accordingly, the Appeals Court concluded that the law was likely unconstitutional.

Our firm has been arguing this cyber community standards issue in the Polk County, Florida case involving the now widely-known BeckaLynn a/k/a Tammy Robinson. In that case, the small community of Polk County, Florida, attempted to impose its community standards on the Internet by prosecuting Tammy Robinson for violation of Florida’s obscenity laws. The case has recently been the subject of a 48 Hours piece and a Barbara Walters interview. Certainly, the COPA decision will provide valuable ammunition in our fight to defeat the first obscenity prosecution on the Internet.

In a related ruling, the Supreme Court of the State of Wisconsin held that a law prohibiting persons from sending pornography to children does not apply to the Internet. The Court unanimously ruled that the State law is unconstitutional since it applies to the Internet and other situations which do not involve face-to-face contact between the child and the accused. These cases show how the expansion of the Internet has challenged existing laws. Fortunately, the court decisions seem to be coming down squarely in favor of First Amendment rights to free expression.

At the other end of the spectrum is the Louisiana Supreme Court which recently upheld the

State’s 195 year old sodomy law, under which consenting adults could receive up to five years in prison for engaging in oral or anal sex. The dissenting opinion argued that “two married persons should be able to chose how they conduct their non-public, voluntary sexual relations in the security of their own home; a law that takes that choice away from them is an intrusion by the legislative branch that is constitutionally intolerable.” However, the majority of Justices ruled that an immoral act, even if consensual and private, is an injury against society itself and upheld the ban on oral or anal sex.

In another case out of Louisiana, a State Trooper has been accused of sending nude photos of himself to sixteen year old girls on the Internet. He was charged with contributing to the delinquently of juveniles. Lt. Kelly Jarrison, 39, a sixteen year veteran supervisor in the Gambling Enforcement Division surrendered to the Internal Affairs Division earlier this month. He was freed on $20,000.00 bond. Too bad he didn’t live in Wisconsin.

Since it looks like the government has lost its most recent attempts to censor the Internet in the name of protecting children, it is back at the drawing board in Washington, D.C., where meetings are occurring of the Commission on Child Online Protection. There, a suggestion was debated that an Internet “Porn District” be created with a .xxx or .sex domain suffix. This proposal was blasted by civil libertarians and constitutional scholars claiming that such a move would ghettoize constitutionally protected speech. However, many adult webmasters have encouraged a red light domain to avoid the onslaught of censorship attempts. Time will tell.

All eyes are once again on the AVN Adult Entertainment Expo in Las Vegas, Nevada, July 8-10, 2000. Our firm will be represented by my partner, David Wasserman, Esquire, who will bring us a full report by the next issue of ASM.

As always, we will continue keep our ears to the ground and bring you the latest legal news affecting the adult entertainment industry.

Lawrence G. Walters, Esquire, is a partner in the law firm of Wasserman & Walters in Winter Park, Florida. His practice is limited to First Amendment and constitutional law. He represents clients involved in all aspects of adult media. You can access the firm’s web site at: www.firstamendment.com

LEGAL BEAT

By: Lawrence G. Walters

www.firstamendment.com

The big news this month is the unanimous decision issued by the Third Circuit Court of Appeals in Philadelphia invalidating the Child Online Protection Act (COPA). This law required that an Age Verification System (AVS) or credit card be provided before a consumer could access sexually explicit material on the Internet. The Third Circuit Court of Appeals identified a First Amendment concern with this type of Internet legislation that the parties to the suit, and even the trial court, had ignored. That is; the Internet has no geographical boundaries, and the physical location of either the website or the consumer cannot be geographically verified. Since the content regulated by the law was defined in terms of “local community standards,” the Court determined that it was impossible to establish a cyber community standard by which Internet speech could be governed. “Because of the peculiar geography-free nature of cyberspace, a community standards’ test would essentially require every Web communication to abide by the most restrictive community’s standards,” the Court said. Accordingly, the Appeals Court concluded that the law was likely unconstitutional.

Our firm has been arguing this cyber community standards issue in the Polk County, Florida case involving the now widely-known BeckaLynn a/k/a Tammy Robinson. In that case, the small community of Polk County, Florida, attempted to impose its community standards on the Internet by prosecuting Tammy Robinson for violation of Florida’s obscenity laws. The case has recently been the subject of a 48 Hours piece and a Barbara Walters interview. Certainly, the COPA decision will provide valuable ammunition in our fight to defeat the first obscenity prosecution on the Internet.

In a related ruling, the Supreme Court of the State of Wisconsin held that a law prohibiting persons from sending pornography to children does not apply to the Internet. The Court unanimously ruled that the State law is unconstitutional since it applies to the Internet and other situations which do not involve face-to-face contact between the child and the accused. These cases show how the expansion of the Internet has challenged existing laws. Fortunately, the court decisions seem to be coming down squarely in favor of First Amendment rights to free expression.

At the other end of the spectrum is the Louisiana Supreme Court which recently upheld the

State’s 195 year old sodomy law, under which consenting adults could receive up to five years in prison for engaging in oral or anal sex. The dissenting opinion argued that “two married persons should be able to chose how they conduct their non-public, voluntary sexual relations in the security of their own home; a law that takes that choice away from them is an intrusion by the legislative branch that is constitutionally intolerable.” However, the majority of Justices ruled that an immoral act, even if consensual and private, is an injury against society itself and upheld the ban on oral or anal sex.

In another case out of Louisiana, a State Trooper has been accused of sending nude photos of himself to sixteen year old girls on the Internet. He was charged with contributing to the delinquently of juveniles. Lt. Kelly Jarrison, 39, a sixteen year veteran supervisor in the Gambling Enforcement Division surrendered to the Internal Affairs Division earlier this month. He was freed on $20,000.00 bond. Too bad he didn’t live in Wisconsin.

Since it looks like the government has lost its most recent attempts to censor the Internet in the name of protecting children, it is back at the drawing board in Washington, D.C., where meetings are occurring of the Commission on Child Online Protection. There, a suggestion was debated that an Internet “Porn District” be created with a .xxx or .sex domain suffix. This proposal was blasted by civil libertarians and constitutional scholars claiming that such a move would ghettoize constitutionally protected speech. However, many adult webmasters have encouraged a red light domain to avoid the onslaught of censorship attempts. Time will tell.

All eyes are once again on the AVN Adult Entertainment Expo in Las Vegas, Nevada, July 8-10, 2000. Our firm will be represented by my partner, David Wasserman, Esquire, who will bring us a full report by the next issue of ASM.

As always, we will continue keep our ears to the ground and bring you the latest legal news affecting the adult entertainment industry.

Lawrence G. Walters, Esquire, is a partner in the law firm of Wasserman & Walters in Winter Park, Florida. His practice is limited to First Amendment and constitutional law. He represents clients involved in all aspects of adult media. You can access the firm’s web site at: www.firstamendment.com

LEGAL BEAT

By: Lawrence G. Walters

www.firstamendment.com

Just when we began to question whether the U.S. Supreme Court was still interested in upholding First Amendment freedoms, the Court announced a big win for Free Speech in the Playboy case. In late May, the Court announced a decision prohibiting the government from enforcing a federal law requiring erotic cable channels to scramble their signal, or prohibit viewing during daytime hours. In a well-reasoned decision, the Supreme Court held that Playboy’s programming is fully protected by the First Amendment, and that the law imposed a prior restraint on free speech.

The government’s concern was with what is known as “signal bleed,” which occasionally allows scrambled images to be discerned by viewers who have not subscribed to the channel. An occasional “moan” could also be heard by non-subscribers. Apparently this signal bleed issue prompted the government to pass legislation prohibiting explicit cable channels, including Playboy and the Spice channel (who were even mentioned in the legislative history) from operating during the daytime, or to completely scramble the signal. Since complete signal scrambling technology is currently not available, although it will be with the advent of digital signal transmission, most cable channels opted for “time channeling” which allowed the channels to operate only when children presumably would not be awake.

Despite the many years during which The Playboy Channel had operated throughout the litigation, the government could only document a handful of incidents where children were exposed to brief erotic clips or sounds. The court observed that if this was a real problem, the government should have been able to provide better evidence of it. The Court, therefore, struck down the regulation on free speech grounds, noting; “Speech that many citizens find shabby, offensive, even ugly” is protected. I debated a representative of Morality and Media on The Fox News Channel regarding the impact of this decision. The Morality and Media folks were outraged, and accused the Court of protecting the porn industry’s profits and not our children. What I pointed out, and what the “morality police” always forget, is that decisions like this protect the First Amendment rights of children who will soon grow up to inherit them. We must be careful not to take away these liberties, under the guise of protecting children, which will have the effect of eliminating the rights of children who will quickly grow up to be adults.

Protecting children is a favorite battle-cry of the censorship groups. Our firm has been retained to advocate on behalf of the adult Internet community during the upcoming hearings in Washington D.C. to discuss protection of children from offensive material on the Internet. The government’s first two attempts to censor Web content have failed, both being struck down by federal courts. Ultimately, the adult Internet industry will likely see the wisdom of setting up a red light cyberzone, using a .xxx address or something of that nature.

On another note, the amateur Webcam craze appears to be the new fad sweeping the nation. The cover stories of both AVN® and AVN Online® feature stories about the use of inexpensive Webcams by amateur models to provide erotic entertainment on the Internet. This craze is giving mainstream porn companies a run for their money, and has greatly increased the diversity of erotic content available for public consumption. This fad is not without its pitfalls, however. The Legal Beat column has detailed the plights of several employees who have lost their jobs as a result of their amateur erotic expression on the Internet, during their free time. Most recently, we have been retained by a client named Bill Owens, who, along with his wife, operated featuring erotic images of both he and his wife. Mr. Owens worked as a salesperson for Home Depot and, when word got out of his involvement in the website, his female co-workers went crazy! They began taking liberties with Mr. Owens’ body on the job, including inappropriate touching and constant lewd comments. Apparently, they believed that his involvement in the website made him fair game for sexual harassment. Our client was forced to resign from his job due to the hostile environment, and he is considering his legal options including a sexual harassment suit.

With the elections looming in November, all eyes in the adult entertainment industry are focused on the candidates’ platforms. It can be safely assumed that the Republican administration would take a completely different stance on the adult entertainment industry than has the current administration. As always, we encourage all readers to become politically active to protect their right to view erotic speech. Turning out the vote will be particularly important given a recent poll conducted by Republican pollster Ed Goeas and Democrat Celinda Lake on the votenet website. Surprisingly, most Americans polled felt that the country is going in the wrong direction, and are now decidedly pessimistic. This could spell trouble for the incumbents in November. Most undecided voters are pessimistic. When asked what was the most important issue for Congress to address, the number one response was “restoring moral values.” With poll results like this, a new administration would be virtually forced to take a hard line on pornography and adult entertainment.

The only known obscenity prosecution against a website model took a turn for the better, and then for the worst. The State Attorney in Polk County, Florida, agreed to dismiss the obscenity charges against Tammy Robinson, who appears using the pseudonym Becka Lynn at However, when the prosecutor heard a radio talk show host named “Bubba the Love Sponge” talk about the proposed dismissal, and insult the prosecutor in the process, the State Attorney’s office backed out of the deal and re-instituted the charges. All this occurred while a camera crew with 48 Hours filmed, to their horror. Welcome to Polk County, Florida.

On a lighter note, the Louisiana Supreme Court declared a New Orleans sex toy law unconstitutional. The fifteen year old law prohibited the sale of any “artificial device that resembles genitalia and is designed or marketed for the stimulation of the human genital organs.” The law was passed during the (almost forgotten) anti-pornography crusade of the mid-eighties, and was rarely enforced. The ruling has the Big Easy buzzing with excitement.

Across the pond, the British Board of Film Classification refused to ban numerous pornographic videos in the wake of a high court ruling on censorship in May, 2000. The Board has drawn up some guidelines for the video industry, and allowed numerous films to be released including, Horny Cat Babe, Nympho Nurse Nancy, TV Sex, Office Tart and the Miss Nude International continental version. The Brits used to be known for keeping a stiff upper lip; apparently that’s not all these days.

Lawrence G. Walters, Esquire, is a partner in the law firm of Wasserman & Walters in Winter Park, Florida. His practice is limited to First Amendment and constitutional law. He represents clients involved in all aspects of adult media. You can access the firm’s web site at: www.firstamendment.com