June 1999 Update


During a recent layover at Miami International Airport on the way to Cancun, Mexico for an adult video industry retreat sponsored by Adult Video News, I read that the Miami International Airport had banned the sale of Cigar Officianado Magazine because the cover story was flattering to Cuba. I searched far and wide for a copy of the magazine at the airport, only to be told that it was not for sale and it had been censored. Ironically, Cuba, itself, had banned previous issues of the magazine for their own reasons. This is, of course, allowed in a communist society. What surprised me is that there was no mention in the newspaper article of any First Amendment implications to the airport’s action, and the word censorship never appeared in the article. Several days later, after the civil rights violation became obvious, the Airport Administrator reversed her ban. She was quoted as saying that she did not consider such “lofty concerns” as the First Amendment and Free Expression when she decided to ban the magazine from the airport.

This knee jerk censorship reaction when it comes to communist sympathizers is similar to the way sexually-oriented materials are treated. The government often does not consider such “lofty concerns” as the First Amendment when censoring sexually-oriented speech. Even officials in the City of Miami, while recognizing its First Amendment violation at the airport, have continued their efforts at stifling sexually-oriented speech by passing a new ordinance seeking to restrict zoning for adult businesses, even after their last ordinance was struck down as unconstitutional. There is a move a foot to try to make pornography the exception to the First Amendment, just as drugs were made the exception to the Fourth Amendment in the late 80’s and early 90’s. Courts have been more and more willing to say that sexually-oriented speech is “low grade” speech entitled to less protection and other types of “important” speech. Once we start assigning values to types of speech, we have lost all sight of our founding fathers’ intent in writing the First Amendment which states that Congress shall make no law abridging the freedom of speech. The Fourth Amendment’s protections against unreasonable search and seizure have become virtually a faded memory with all of the terrible decisions in the recent past eroding the Fourth Amendment’s protections whenever suspected drugs are involved. Miranda warnings, under the Fifth and Sixth Amendment, have been nullified by a recent Circuit Court of Appeals decision stating that the warnings are no longer required. A decision carving out an exception from First Amendment protections for pornography would be devastating, but entirely possible given the current political climate.

A Republican administration is virtually guaranteed in the year 2000, with George W. Bush leading in the polls over Al Gore, and at least fourteen million dollars ahead in financing. Gore is already feeling the political heat generated by his administration’s laziee faire stand on pornography, prompting him recently to blame teen pregnancy rates on sex in the media. Whether caused by Gore trying to get ahead in the polls, or the new Republican administration’s stance on moral issues, a censorship crackdown is coming. With the vast majority of the federal judges appointed during the Reagan/Bush administration, all strict conservatives, the courts will likely be unavailing when this new legislation is challenged. Clinton’s attempt to appoint federal judges have largely been blocked by the Republican-controlled congress. While the U.S. Supreme Court has demonstrated that it is friendly to First Amendment principles by striking down the Communications Decency Act of 1996, a lot of damage can be done to Free Speech before the Supremes ever hear a case.

All is not doom and gloom, however. As my last article pointed out, several major First Amendment victory’s have been scored in the last year or two. There will always be some intellectually honest judges willing to uphold fundamental constitutional rights, even in the face of intense political pressure. Those on the front lines in the adult entertainment industry, must remain strong in the face of the inevitable government censorship actions. Morever, those who enjoy adult entertainment need make their views known in the political process, and express their opinions at the ballot box.

May 1999 Update

ADULT INDUSTRY UPDATE By Lawrence G. Walters www.FirstAmendment.com

In this era of governmental hostility toward the adult entertainment industry, the censors are suffering some high profile setbacks in the courts. First, it was the United States Supreme Court that unanimously rejected the Government’s first Internet censorship attempt called the Communications Decency Act, which sought to prohibit all “indecent” material from the Internet. The Feds responded with the Child Online Protection Act, which tried to prohibit minors from gaining access to adult material on the Web by requiring credit cards or age verification systems. This law was immediately challenged and enjoined based on the same free speech concerns expressed by the United States Supreme Court in the Decency Act case. We have recently learned that the Government has appealed this decision to the Circuit Court of Appeals. This case should be closely monitored by anyone wishing to continue unrestricted access to adult materials on the web.

The next victory came from Montgomery, Alabama where U.S. District Judge Lynwood Smith threw out an Alabama law which banned “sex toys” such as vibrators and dildos. Any person selling or distributing such devices faced up to a year in jail or a $10,000.00 fine. The law was challenged by six women who either wanted to sell the devices or claimed that vibrators are necessary for sexual gratification which they could not obtain otherwise. The Court found that the devices are not obscene under the traditional definition, and that the law would deny “therapy for, among other things, sexual dysfunction.” Great news for the women of Alabama!

In another Internet case, a U.S. Court of Appeals in Boston ruled that nudity itself is not sufficient to make a picture “pornographic”. In this case, a man downloaded a nude picture of a young girl standing on the beach from the Internet. The man was charged with trafficking in child pornography and received a five year prison sentence. The appeals court threw out the conviction and sentence, ruling that just because a person may find a nude picture erotic is insufficient to turn the photo into child pornography. “If [the defendant’s] subjective reaction were relevant, a sexual deviant’s quirks could turn a Sears catalog into pornography.” Be careful with those bathtub photos of your kids, folks.

Finally, an adult video store owner in Utah County, UT, breathed a sigh of relief with his acquittal on charges of distributing obscenity. Larry Peterman, the owner of the Movie Buffs video chain in Utah, embarrassed prosecutors by obtaining “not guilty” verdicts on all 15 charges. The process of vindicating his rights was not painless, however. During his 2 1⁄2 year ordeal, Peterman lost his business, his wife, and his reputation after police raided 2 Movie Buffs video stores in 1996 and seized nearly one thousand tapes from the adults-only rooms. Lets hope a civil rights suit will follow and really teach these guys a lesson.

While the courts have not been overwhelmingly friendly to adult entertainment issues during the past couple of years, it is refreshing to see that there are some boundaries to the Government’s censorship efforts. Unrestrained, groups like Morality in Media will pressure politicians and prosecutors to punish individuals who choose to exercise their right to free speech by disseminating sexually oriented materials to the point where supply dries up because no one is willing to take the risk. Numerous free speech heroes from the adult video industry have fallen on the sword for constitutional rights by enduring countless prosecutions and even jail terms for their involvement with sexually explicit materials. If it were not for free speech warriors such as Larry Flint, Al Goldstein and Bob Guccioni the puritanical censors would have had their way a long time ago and cleansed mainstream media for the rest of us.

Several free speech heroes are about to be made on the Internet, although some unintentionally. While the government has largely ignored the proliferation of sexual materials on the web, it cannot do so for long and some webmasters will have the guts to stand up and fight. Two of those heroes are Tammy and Herbert Robinson who have retained our services to fight the first Internet obscenity prosecutions in America, arising out of Polk County, Florida. We have asked the court to dismiss this case based on the Right of Privacy since all actions taken by the Robertsons occurred in the sanctity of their own private residence. We haven’t even started with the free speech issues, yet.

Perhaps these positive judicial decisions reflect a recognition by the courts that the censorship groups are testing the boundaries of the First Amendment with their efforts. That’s good news for the next round of soldiers preparing to go to battle to protect all of our rights.

April 1999 Update

ADULT INDUSTRY UPDATE By Lawrence G. Walters www.FirstAmendment.com

Well, it finally happened – amateur adult stars have been arrested for allegedly promoting obscene material on the Internet. Right here in Central Florida, where I practice, on March 2, 1999, the Polk County Sheriff’s Office “Computer Crimes Unit” arrested two couples alleging that these individuals broke Florida’s obscenity laws by providing amateur adult content to various web sites from their homes. It looks like the web site owners will ultimately be charged as well. According to the Polk County Sheriff’s Office spokesperson: “these charges will become more common as computer growth continues and more people have access to the computer.” Thus begins what was the inevitable battle over what is and is not obscene on the Web. Polk County has drawn a battle line in the cultural war which will be of significant importance. Our firm is honored to represent two of the defendants in the Polk County obscenity cases and we are committed to providing an aggressive First Amendment based defense. These charges come as no surprise to us since we had first predicted at the IA 2000 show in February of this year that while the federal government does not appear to be actively prosecuting obscenity cases, it will probably be some zealous state prosecutor in a place like Polk County, Florida that would begin obscenity prosecutions against Internet material. While the specific accuracy of the prediction is somewhat alarming, the concept is not unusual. Prosecutors and law enforcement see this as an opportunity to do the will of the people in this small community, and make a few headlines for themselves along the way. If a jury acquits the defendants at trial, blame the jury for sanctioning the corruption of the community’s morals as the prosecutors did several years ago in connection with the acquittals of several video store operators in Tallahassee, Florida. If a Judge throws the case out on First Amendment grounds, blame the liberal Judges for not upholding our community values. It is a no lose deal for the prosecution. In the meantime, numerous web site owners, operators and performers are anxious and downright frightened. With good reason – maybe: Should a prosecutor be able to prove that an individual was involved in any organization profiting from at least two obscene photographs or videos, he could charge that person with Racketeering as has been the case in numerous other Polk County, Florida prosecutions. A conviction for Racketeering can mean thirty years in jail, a six figure fine and forfeiture of all your assets. And, by the way, you never need to have set foot in Polk County, Florida – your materials just need to be available there. Obviously, all sites on the Internet are accessible from Polk County, Florida.

Of course, obscenity is the lynchpin for any punishment. What will Polk County jurors think of the kind of adult material that can typically be found on the Web? What kind of material should be tolerated in cyberspace? How does anyone know whether their material is obscene? These inevitable questions will only likely be answered by a judge or jury in Polk County, Florida. In the meantime, it would not be surprising if other zealous prosecutors get the idea that they too want some headlines and begin instituting additional Internet obscenity charges. While it is regrettable that any charges were filed at all, these cases were probably long over due. The adult movie industry and the adult video industry were both hit with obscenity charges rather quickly after each industry begin to flourish. For the last several years, web masters have taken pretty much an “anything goes” approach to their content so long as it did not involve children, animals or actual violence. Any obscenity prosecutions will likely result in a certain amount of self censorship now by webmasters to avoid becoming the next target. The consuming public will become the victims having less choice and there being less competition. On the other hand, a few obscenity prosecutions are not going to shut down a multi-billion dollar industry nor curb the public’s demand for consumption of these materials. These prosecutions will remind us all that the censors are watching and that if you close your eyes for just a second, they may just take away some of your freedoms.

March 1999 Update

ADULT INDUSTRY UPDATE By Lawrence G. Walters www.FirstAmendment.com

As largely predicted by legal scholars and the adult industry, U.S. District Judge J. Lowell Reed, Jr. blocked the latest anti-cyber porn law called the Child Online Protection Act (COPA), by issuing a preliminary injunction on February 1, 1999. The law attempted to require any web site presenting sexually oriented materials to verify the age of any person accessing the site by way of a credit card or age verification service (AVS). While the ruling may be bad news for businesses such as Adult Check ®, who would have profited from the verification requirement, the decision is hailed by the ACLU and web site operators as a victory for the First Amendment and for the free flow of information on the web. In his decision, Judge Reed wrote “Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.” If the law had not been blocked, it would likely have required a credit card to access information regarding breast cancer and even abortion. Certainly Adult Stars Magazine might no longer be legally accessible without a credit card or AVS. The Court’s injunction is effective until the case is tried. Alternatively, the Government may choose to appeal the Order directly to the United States Supreme Court as is allowed in this type of constitutional case.

Perhaps anticipating this ruling against the COPA, Senator John McCain and Senator Ernest Hollings have already introduced the Children’s Internet Protection Act, S. 97 (CIPA) which would require that blocking and filtering software be used by any school or library receiving E-rate discounts. The bill requires that libraries use a filtering system on one or more of their computers so that at least one computer would be “appropriate for minors’ use”. This new proposal goes to show that the Government will not stop its censorship efforts until it comes up with a constitutional law. After all, it took Congress seven attempts to finally come up with a valid FCC decency law regulating broadcast radio and television.

At the other end of the spectrum is a federal appeals court ruling which upholds the Child Pornography Protection Act of 1996. This law drastically changes the definition of what constitutes “child pornography” and severely punishes the distribution of any images of persons who “appear to be” a minor, even if the performer is over the age of 18. Similarly, the law punishes as child pornography any depiction which tends to appeal to an interest in sexual activities of minors. In other words, films or web pages which contain actresses who are all of legal age, but who appear to be minors are now considered to be child pornography. More disturbingly, works which have titles such as “Highschool Girls” will now ostensibly fall under this new definition of child pornography. The lower court ruled that the law was unconstitutionally vague and discriminated against young-looking adults. The First Circuit Court of Appeals in Portland, Maine overturned the lower court’ ruling and declared the law to be constitutional. This manifestly unfair law is also being challenged by the Free Speech Coalition in the Ninth Circuit Court of Appeals located in California, however no decision has been rendered by that Court. If ultimately upheld by the U.S. Supreme Court, this law could radically change the look of many films and web sites, and put young-looking adult performers out of work.

These diametrically opposed court decisions, along with the high approval rate and recent acquittal of President Clinton, are further evidence of the vicious cultural war being waged across America. The puritanical censors will keep devising ways to control the country’s information intake. At the same time, mainstream America appears to insist upon their right to private sexual activities and entertainment.

Interestingly, while the Government is trying to design new and better tools for the Thought Police, pornography is becoming more mainstream. For instance, two adult industry documentaries appeared at this year’s Sun Dance Film Festival: “American Pimp” and “Sex: The Anabel Chong Story.” As acceptance of sexually oriented materials continues to pervade mainstream society, the government, allied with pro-censorship groups, will be forced into a position of attack on this industry. Fortunately, at least in some courts, the First Amendment still protects the free flow of information in the market place of ideas.

February 1999 Update

ADULT INDUSTRY UPDATE By Lawrence G. Walters www.FirstAmendment.com

With the end of the century being counted in months, the adult industry appears to have a bright economic future, but one frought with constant battle. 1998 was another record year for adult video tapes, with the number approaching almost 10,000 new releases. I was fortunate enough to witness first hand the growing popularity of the adult video section at the Consumer Electronics Show (CES) in Las Vegas, Nevada, last month. Also notable was the nearly doubling in size of Interactive 2000, a trade show devoted to adult Internet sites, immediately following the CES show. Adult stars such as Ron Jeremy were also in attendance at the Internet convention for the first time. This phenomena confirms that although the video tape medium is growing to meet consumption, the heir apparent is clearly the World Wide Web. The rapid development of the online adult culture presents many challenges to those entrusted with creating laws applicable to this new medium, as well as those charged with interpreting and implementing new laws: the judges.

Legislating and judging controversial issues such as adult entertainment on the Internet will require the abandonment of old ideas of isolationism, and the acceptance of a global culture. The development of this new medium is too important to be stifled by the puritan notions of those who would censor an adult’s right to choose his or her own form of entertainment.

Unfortunately, with the conspicuous exception of the unanimous Supreme Court’s ruling on the Communications Decency Act (CDA), striking down that pitiful attempt at censorship, the track record of the courts nationwide when confronted with adult entertainment issues is abysmal. Virtually every decision published by the courts in the last two years has been against the parties seeking to present any form of adult entertainment. In New York, the Supreme Court has rubber stamped Mayor Giuliani’s anti-smut campaign and held that the City was justified in eliminating virtually all of the preexisting adult businesses near Times Square. Numerous other courts have upheld similar eradication through zoning laws, severely restricted the hours of operation upon simple retail stores selling adult videos, imposed distance requirements between exotic dancers and patrons, upheld burdensome licensing processes, and approved of bad faith law enforcement actions against those who dare to exercise their First Amendment right to provide erotic entertainment.

Using these traditional laws to regulate adult Internet sites out of existence will pose a significant problem for the censors, however. Hours of operation restrictions will become irrelevant in a global environment where it is always two o’clock in the afternoon somewhere. Geographic zoning laws are likewise useless since web sites are not located in a geographic “zone”, but exist only in the world wide cyber-zone. Distance restrictions are of no value to the censors since the government cannot legislate how close a private individual can get to his computer screen. The traditional type of harassment by law enforcement against adult entertainment establishments such as raids and intimidation, will be likewise ineffective against a computer server sitting alone in a dark office.

The immediate temptation will be to use such existing concepts as obscenity and child pornography laws to censor the Internet. And while we know that such prosecutions are being put together as we speak, these efforts will likewise be unsuccessful in altering the content available on the Internet given the ability to disseminate this information from global locations unregulated by vintage sex laws. Outdated concepts such as “obscenity” must give way to the free flow of information and right to free expression cherished in our country. Such lofty goals may, however, be too much for our sitting judges who are, more often than not, out of step with changing social mores and the advent of new technology. As one federal judge recently noted in a sexual harassment case, federal judges are ill-suited to make decisions as to what is or is not appropriate sexual interaction between the genders. So we turn to our legislators in the (hopefully not vain) attempt to protect free speech, including erotic speech. Currently, the legislative branch of government is largely in the control of right wing conservatives who stand ready to react to complaints by fundamentalist groups about immorality in modern media. These knee jerk reactions have produced such legal gems as the doomed CDA, and the current hotbed of litigation, the Child Online Protection Act. As one lawmaker put it: “Sure it might be unconstitutional, but we have to do something about children’s access to pornography on the web.” With such blatant disregard for the oath of office,…it is no wonder then that groups such as Free Speech, EFF, the ACLU and others have their hands full in fighting censorship attempts across the country. It is only a matter of time until adult Internet providers form their own trade association to protect the interests unique to that industry. ASM readers should be acutely aware of the activities of such watchdog groups, and support them whenever possible. The continued viability of the industry depends on it.

December 1998 Article


By: Lawrence G. Walters

The First Amendment is alive and well; in Philadelphia at least. As most of ASMs readership has probably already learned, U.S. District Court Judge Reed granted a Temporary Restraining Order prohibiting the enforcement of the Child Online Protection Act which is designed to censor materials harmful to minors on the Internet. The law will likely be blocked until a final decision is reached by the courts as to its constitutionality. (Do I hear a sigh of relief from the tens of thousands of adult webmasters?). Individuals worldwide are now able to access free information about breast cancer and condoms without giving a credit card number. Thanks Judge Reed. This ruling is of particular importance to Adult Stars Magazine which provides its constitutionally protected speech free of charge and can, for now, continue to do so without violating this federal law.

State laws have also been used to punish online service providers (such as America Online) who merely facilitate sexually explicit Achat@ or exchange of photographs. In Florida, AOL was sued by the parents of a minor who alleged that the child suffered emotional injuries as a result of participating in chat rooms where other males lured the minor into sexual activity, videotaped the acts and sold the videotape to a man in Arizona. The parents sued AOL under Florida=s obscenity law making it illegal to sell, distribute or offer to sell, etc., photographs or videotapes containing images of a minor which are unlawful or obscene. As a service provider, AOL claimed that it fell within the Asafe harbor@ provision of the federal Communications Decency Act. It is important to note that a good portion of the Communications Decency Act was left in tact despite the challenge by the ACLU in 1996. It is still unlawful to sell or transmit obscene material through the Internet under the remaining portion of the Act. The Florida appellate court found in the case against AOL that federal law preempted Florida=s obscenity law and dismissed all claims against AOL. Ironically, the federal obscenity law saved AOL from the state law claims. However, the Florida appellate court asked the state supreme court to take a look at the issue so this might not be the last word on that issue.

Anyone transmitting or receiving obscene material online should be legitimately concerned about imminent obscenity prosecutions by the federal government based on the remaining portions of the Communications Decency Act. This concern begs the eternal question:

What is obscene? The legal definition used in most prosecutions comes from a 1973 case called Miller v. California, which defines obscenity as material which the average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interests; depicts or describes, in a patently offensive way, sexual conduct; and taken as a whole, lacks serious literary, artistic, political or scientific value. A more realistic definition of obscenity, according to a former Supreme Court Justice is: I can’t define it, I know it when I see it. Ultimately, the determination whether any material is obscene will come down to the conclusion drawn by any particular jury, and if I may be so bold, the skill of the lawyers involved.

The true injustice involved in online obscenity prosecution is the definition of Acommunity standards@ that are applied. Ordinarily, if a video store is being prosecuted for selling an obscene video tape, the Court will take into consideration the type of material tolerated within the relevant geographic community in which the video store is located. In other words, a store in New York could safely sell material which would likely be considered obscene in Montgomery, Alabama. In fact, one appellate court ruled that the New York community standards were so tolerant that virtually nothing could be found obscene!

The rub in Internet obscenity cases is that under the case of U.S. v. Thomas, the material is to be evaluated based on either the community standards of the location of downloading or transmission. That is, a web site operated out of Los Angeles (or Amsterdam for that matter) could be prosecuted in the smallest community in the United States which tolerates no adult material, if a government agent merely accesses the site and downloads the information in that small town. Under this line of thinking, the entire Internet must conform to the most conservative, small town standards in the United States in order to be safe from obscenity prosecutions.

This writer firmly believes that materials found on the Internet should be judged not by the standards of any geographic community, but by what is tolerated in the cyber community of the Internet. This is a fair standard for a number of reasons. First, web masters have no ability to block distribution of material to select areas of the country or the world. Accordingly, they could not keep certain materials out of computer terminals in specific geographic locations even if they tried. Secondly, the adult material at issue never enters the stream of commerce in the geographical location of downloading. No truck drives up to the store, and no videotape sits on the shelf for sale. The material is transmitted directly into the privacy of one=s own home. The community need never know of the material=s existence unless someone chooses to seek it out. Finally, web site operators can access the other material available in cyberspace to educate themselves as to what is tolerated. Such a task would be impossible with regard to the material available in every geographic community in the United States.

While we should all applaud the legal victory scored against the Child Online Protection Act, we cannot be lulled into a false sense of security given the twisted manner in which federal obscenity laws can be interpreted. Fortunately for us all, there are free speech groups willing to stand up for the right to sexual expression, judges brave enough to uphold constitutional principles and, of course, lawyers to assist in the fight.

November 1998

ADULT INDUSTRY UPDATE By: Lawrence G. Walters www.FirstAmendment.com

The voters have spoken and for the first time in many years, the political party out of power during the mid term elections, i.e. the Republicans, have lost several seats in Congress. Most political analysts attribute this unusual occurrence to the pubic’s disgust with the politicizing of the Lewinsky probe. Perhaps our elected officials are beginning to get the message: “Stay out of our sex lives!”

Some areas of the country were not so fortunate, however. In central Florida, where I practice, the right wing fundamentalists have taken over two local governments, with less than half the electorate voting. These same voters also approved, by referenda, two significant restrictions on adult entertainment in central Florida. Apparently, it has become, in some areas, more important to restrict erotic communication behind closed doors than to preserve cherished First Amendment rights.

At the same time, the political losses by the conservatives nationwide did not deter Attorney General Janet Reno from pushing enforcement of the Child Online Protection Act seeking to block access by children to any “harmful” matters on the Internet. As this article is written, a hearing is currently being conducted in Philadelphia, Pennsylvania in the lawsuit brought by various free speech groups seeking to challenge the law. Currently, the government is trying to keep any references to the Starr Report, which is itself potentially harmful to minors, out of Court.

The Act is scheduled to go into effect on November 20, 1998, unless the federal court blocks its enforcement. If enforceable, the law will require that any free information accessible on the Internet that may be considered harmful to minors, be moved behind a “firewall” (age verification system). Notably, one of the Plaintiff’s challenging the law is Art Net World Wide Corporation, the leading fine art vender on the web. Another is OB/GYN.net, a comprehensive international online resource center for professionals in obstetrics and gynecology. These entities obviously fear prosecution under the law despite that fact that they have no connection with the adult entertainment industry. These concerns illustrates the well-known “chilling effect” that vague censorship laws have on free expression. Although one’s speech may not fall within the definition of material prohibited by the law, the fear of prosecution is significant enough to cause the individual to censor their speech to avoid any potential prosecution. This is, of course, the most disastrous effect of any censorship law since it blocks information from being disseminated into the marketplace of ideas. We can only hope that the Judges considering the validity Child Online Protection Act have similar courage to those courts striking down the doomed Communications Decency Act of 1996. Otherwise, we will be left with a dummied down medium, suitable only for the youngest children. With any luck, the Internet will not go the same way of broadcast television which industry executives will reluctantly admit is intentionally geared for the 14 year old mentality. Perhaps next month I will have the privilege of writing that the Internet remains free and that the Act has been enjoined.

Meanwhile, adult entertainment is becoming a staple in the media world. Adult video tapes consistently occupy a significant percentage of the market share, while adult DVD is just catching fire. Life is also getting better for the adult talent industry. Adult stars are now represented by lobbyists, have formed trade organizations and finally have health insurance. Try as they might, the censors are fighting a losing battle in their attempt to stifle the healthy human interest in sexual expression.

October 1998 Update

ADULT INDUSTRY UPDATE BY: Lawrence G. Walters www.FirstAmendment.com

This being the first of a new regular legal column, some introductory remarks are appropriate. Our firm is privileged to contribute to the legal knowledge of the industry and I hope that the readership will find my column informative as well as entertaining. Legal issues are inevitably intertwined with the adult industry and several emerging issues threaten the continued viability of both the online and traditional adult media. In this and future columns, I will attempt to alert readers to the legal hot buttons in the industry and give you my insights as an attorney representing clients involved in all facets of the adult industry; from feature entertainers to adult web site owners, video distributors to bookstore operators.

While the adult industry is flourishing in many respects and millionaires have been made overnight on the Web, those who would seek to impose their morality on the rest of us are also gaining strength. Groups such as the Christian Coalition and Morality in Media have gained the ear of those in government with the ability to make life miserable for both the industry and those who enjoy adult entertainment. Our research has uncovered that the now infamous government memo by the Attorney General’s Office instructing prosecutors nationwide to begin cracking down on obscenity on adult web sites was prompted directly by a request from Morality in Media. The current administration’s apparent willingness to appease the moral concerns of such right wing groups bodes ill for the industry in general. The hypocrisy involved in such prosecutions is only underscored by the fact that on the same day that the Starr Report was posted on the Internet and its lured details made public to the globe, a House Committee recommended approval of the Online Child Protection Act known colloquially as the CDA II seeking to prohibit material considered harmful to minors from the Internet if accessible to children. Of course the Starr Report itself would be censored under this legislation. On October 21, 1998, President Clinton allowed this Bill to become law, giving the Thought Police a powerful tool to further their censorship efforts. The next day, various First Amendment groups challenged the law in court.

Unfortunately, such legal challenges are not sufficient. A successful campaign against the current censorship effort requires use of the same tactics utilized by the fundamentalist groups to further their own ends. These groups are well-organized and politically powerful since they are active and they vote. I would venture to guess that the average consumers of adult materials do not become active in fighting censorship until they are directly affected and they can no longer access their favorite adult material. By then it is, of course, too late. Those who value their First Amendment right to receive or disseminate materials dealing with sexual expression need recognize that their right to do so is slowly being eroded. The Christian Coalition has gained strong footholds in various local governments and are slowly chipping away at First Amendment rights from the ground up. This effort is amply demonstrated by the nationwide effort by local governments to “zone out” adult entertainment establishments through the use of overly restrictive licensing and zoning ordinances. I have always considered it a privilege to represent clients in the adult industry and advocate on behalf of their First Amendment rights. However legal battles are never enough and courts are increasingly reluctant to afford relief to those seeking to express an erotic message. The political process may be the court of last resort.

We are a country made up largely of individuals who value their First Amendment freedoms. One of those freedoms is to disseminate and receive information or ideas that many people do not like. These rights must be jealously guarded and vigorously defended. Election season is upon us and the censors must be exposed and voted out. With the support of the troops at the polls, those of us on the front lines have a real chance to succeed.