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

LEGAL BEAT

By: Lawrence G. Walters

www.firstamendment.com

Copyright violations have always been a concern for participants in any entertainment industry. Recently, the issue of intellectual property theft has risen to the forefront of the adult Internet scene. On May 10, 2000, the front page of the New York Times predicted the death of copyright protection in the Digital Age. The ease with which text and graphics can be copied and re-posted or downloaded from the Internet provides intellectual property thieves with the incentive and tools required to violate Webmasters’ copyright on a global basis. “Pagejacking,” as it is commonly called, is the practice of completely copying a web site’s page and re-posting it somewhere else on the Internet, thereby obtaining any benefit associated with the page including traffic or payments. Pagejacking has become rampant on the Internet, yet traditional intellectual property laws have proved to be insufficient in protecting intellectual property.

The Adult webmasters are in the process of coming up with “community” rules, regulations and procedures for self regulation. It may be that, as predicted by the New York Times, we look back at the concept of copyright protection in twenty years, like we look at the concept of witch burning today.

On the other hand, a Federal judge ruled that the MP3.com web site violated major record labels’ intellectual property rights, and the site has voluntarily ceased operations to the utter disappointment of numerous web surfers who enjoy downloading free music. Bad news for the kids looking for free music, but good news for those seeking to protect intellectual property rights on the web. However with sites like Netfree.com and others which distribute information or software anonymously, protection of copyright and trademark rights will become increasingly difficult.

Meanwhile, on the lighter side, it looks like the would-be Millionaire bride, Darva, may get her wish yet, by posing nude for Playboy. My, how quickly the tables turn.

Rumor has it that a new hormone patch, undergoing clinical trials for FDA approval, can boost the sex drive of women whose uterus or ovaries have been removed. According to Dr. John Buster, Baylor University Professor of Gynecology, “it affects how you look at life, how you perceive colors, how you feel things.” Indeed.

On the home front, the State of Florida allowed a bill to die quietly which would have criminalized the transmission of indecent material on the Internet where the sender had reason to believe that minors could gain access to the materials. This is the latest in a long line of attempts to censor the Internet based on concerns about access to adult material by minors. Strangely, the bill also created the only known requirement of reporting criminal offenses, i.e. mandatory reporting of any individual whose computer is believed to contain child pornography.

The State House in Harrisburg also approved a new bill allegedly designed to protect children from pornographic email, which requires that any email containing pornographic images or advertisements for porn sites be labeled with the words “ADV Adult” in the subject line. The bill’s sponsor, Senator Melissa Hart, R-Bradford Woods, claims “My bill just makes exploring on the web a little safer for kids.” Ironically, the bill is not focused on web surfing, but rather email. Even our legislators making laws applicable to emerging technologies don’t know the difference between web surfing and email.

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

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

You can almost smell election season in the air. Sexual expression is a popular scapegoat for all of society’s ills as the political races heat up. Adult businesses which have operated quietly for years are being targeted for eradication by politicians to lock in the conservative voting block. I represent a business in Flagler Beach, Florida which has presented bikini dancing for over a year without a problem and which is not in violation of any ordinance. Recently, uniformed law enforcement officials and code inspectors burst into the business and threatened to take all of the dancers, and customers to jail if the dancing continued. When my client went before the City Commission meeting to deal with the issue, they told him they didn’t like the kind of dancing that went on and granted a license for entertainment, but included the word on the license certificate “no dancing”. This reminds me of the old movie Footloose. This is the only city in the United States where you must seek permission before dancing. Can you say political witch hunt?

A bookstore in the City of DeBary, Florida by the name of Cupid’s Corner is another casualty of election season. This clean, brightly-lit store which sells clothing, novelties, and some sexually-oriented video tapes, which has operated for years without a single complaint, is being asked to move to an industrial zone as elections near. It seems as though there should be more important issues addressed by political candidates than human sexuality. There appears to be a universal denial by politicians of the fact that the censorship attempts violate the First Amendment to the United States Constitution. Politicians are sworn to uphold the Constitution, but what kind of example do they set when they run on a platform of suppressing free speech. It seems as though real crime would be more deserving of their attention.

Speaking of real crime, it strikes me as unreal that Laura Barron, one of the firm’s clients, was criminally charged with displaying an “obscene bumper sticker” and faces 60 days in jail or a $500.00 fine. The obscene bumper sticker law, and it truly is an obscene law, was passed amid a cloud of controversy several years ago in response to the appearance of the “S–t Happens” stickers. My client’s sticker reads “F**k You, You F***ing F**k”. It is a small sticker measuring approximately 2×2, and can be only read by tailgators, for whom it is intended. This is the first prosecution under this ridiculous law, and so it will be a test case. The Supreme Court has said that the F word is not, itself, obscene, and the Florida obscenity definition requires that the article at issue by sexually-oriented. I may be wrong, but I don’t think my client intended anything sexual by the sticker.

Strangely enough, I find myself appearing on talk shows more than in court in recent weeks. Several of the firm’s cases have garnered national attention including the Arizona nurses fired for having an adult web site, the first obscenity prosecution against Internet materials, and a newspaper man being fired for downloading a clip of an Interracial love scene from the new movie, Black & White. So far the clients and I have appeared on Court TV numerous times, the Oprah Winfrey Show and the Leeza Show. Sexual expression on the Internet has been the focus of national attention recently and has prompted litigation on various fronts. The State of Michigan attempted to pass an Internet content law, which was quickly enjoined. The same fate is likely to befall Virginia’s Internet censorship law which was challenged on October 6. The Senate has passed an anti-cyber squadding bill which would prevent people from registering domain names “bad faith” hoping to profit from association with a trademark owned by someone else. Even Barbie has found her way into Internet litigation. Mattel, the maker of the Barbie doll, has sued to shut down barbiesplaypen.com, a web site owned by Internet Dimensions featuring x-rated photos of women.

There is some indication that the war on porn has even reached its way to the highest levels of government. Republican Congressman Joe Pitts (R-Pa) has criticized the Clinton administration for being soft on porn. He cited current statistics that show that obscenity prosecutions have fallen from 42 under the Reagan/Bush administration to 6 under Clinton. Administration officials responded that they are concentrating on child pornography which, in this writer’s opinion, is where the effort should go. Meanwhile, a House of Representatives subcommittee approved legislation that would increase its war against obscenity and pornography. 10 million dollars is ear-marked for the child pornography / child exploitation program, which has increased from 2.4 million in the current year. The bill passed 410-2 on May 25, 1999. Of course, the justification for the increased funds is to protect children. “As more kids go online everyday, we need to ensure their safety, and it is time to let online pedophiles know that they can no longer hide behind their computer screens,” said the bill’s sponsor Rep. Nancy Johnson (R.-Conn.) Important to note, this program is also charged with the responsibility of pursuing obscenity violations.

Even traditional, non-sexual art isn’t safe from the censors wrath during election season. The headlines are full of quotes from Mayor Rudolph Julienne who claims to take the moral high ground at the expense of First Amendment rights by pulling art funding for the Brooklyn Museum of Art in New York City. The art exhibit has been called “offensive” and “shocking,” and so Julienne saw fit to punish the museum by freezing government funds. The museum has filed suit and is represented by competent First Amendment attorney Floyd Abrahams. We look forward to a quick victory, and to giving Mayor Julienne a civics lesson in the process.

Maybe the politicians have their finger on the pulse of the voters, or at least their pollsters are accurate. A recent study conducted by the Freedom Forum’s First Amendment Center, in Nashville, conducted a survey yielding the following surprising results:

– More than half of the respondents believe the press has too much freedom;

– Half believe the Constitution should be amended to override the First Amendment’s protection of flag burning as political protests; and

– Nearly one third believed the First Amendment goes too far in the rights it guarantees. Maybe more of us who disagree should vote.

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

The legal climate for the adult entertainment industry is heating up, particularly in relation to adult web sites. There have been at least two more individuals who have lost their jobs simply because they were involved with adult Internet sites. Wendy Gesellschap and Herbert Robinson have both retained our firm to challenge their terminations in direct retaliation for their exercise of First Amendment rights. George and Tracy Miller, as reported in last month’s ASM article are still fighting with the Scottsdale, Arizona hospital who terminated them and destroyed their nursing careers. A final administrative decision upholding the termination was issued by the hospital this month clearing the way to the courthouse. Meanwhile, the City of Tampa, Florida voted to close down the infamous Voyer Dorm web site under the municipal zoning ordinance. Not surprisingly, Voyer Dorm is headed to court.

Does Whitehouse.com tarnish the image of applesauce? That is the bizarre question posed to a federal court in New York by the attorneys for Whitehouse.com, a sizeable porn site. The site drew complaints from, amongst obvious others, the National Fruit Product Co. who distributes White House brand applesauce. The fruit company claimed that the sex site “dilutes and tarnishes the distinctive quality of our client’s famous mark in violation of the Federal Trademark Acts.” In short, it wants the domain name.

Australia’s pathetic attempt at censoring the Internet drew criticism from Nadine Strossen, President of the ACLU who claims that the new laws are making Australia the world’s Internet “village idiot”. Australian communications minister Richard Alston counters: “Australians believe promotion of ‘individual freedoms’ must be bound by the wider social good.” Something is going down, down under: or is it? The newest Internet censorship act on the federal level is the “Neighborhood Children’s Internet Protection Act.” This bill, introduced by Senator Rick Santorum, R-Pa, would require public schools and libraries to either install blocking software on Internet – accessing computers “dedicated to student use”, or adopt an Internet use policy that would protect minors from “inappropriate material.” Who decides what is inappropriate? According to the bill, it is the “school board, library or other authority responsible for making the determination.” Of course, the bill does not define “inappropriate”.

At some point, this County, and the world for that matter, is going to have to come to grips with the fact that sexually explicit material is available on the Internet, and there is nothing they can do to stop it. Governments can pass all the knee jerk censorship legislation they want, but it is not going to prohibit the Red Light District in Amsterdam from doing live video feeds on the Internet. Punishing employees for viewing or participating in adult web sites on their off time will only further disenfranchise a large portion of the sexually-active segment of society resulting in, inevitably, more poverty and crime. Wake up Senator Santorum and Minister Alston! You can’t cram morality down peoples’ throat through censorship. Again, why is it always sex that you try to censor? Have you seen the violence and hate disseminated world wide on the Internet? Why is that speech okay, but it is the erotic speech that has got to go? Perhaps your efforts should be refocused.

I guess we should feel lucky that we have a First Amendment, at all. In Vancouver, BC, the Vancouver police and Canadian Mounties raided the offices of Starnet Communications, a publicly traded netporn and casino company searching for evidence of illicit porn trafficking and illegal betting. “The raid followed an 18 month investigation,” said police spokeswoman, Ann Drennan. No arrests have yet been made. Relatedly, in Salt Lake City, Utah, a magazine shop was fined $2,500.00 for distribution of pornographic material, a class A misdemeanor. The police report states that undercover police officers purchased videos that contained “sexually graphic material” from the magazine store on at least 14 different occasions. Now that is efficient use of tax dollars! Needless to say, attorneys for the magazine shop filed suit in the United States District Court against the police and prosecutors for violating its constitutional rights. The lawsuit seeks 1.1 million dollars in damages.

All this government action hasn’t stopped the adult Internet industry from its expansive growth. The Interactive 2000 adult webmaster convention, scheduled for October 1, 1999 in Miami, Florida, promises to be the biggest ever. We keep watching, because we know the government does too.

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

I guess adult entertainment can be hazardous to your job. You may have heard about George and Tracy Miller, the Arizona couple who were fired from their jobs as nurses with a Scottsdale, Arizona hospital, because they ran an adult web site. The Millers have become clients of our firm and we intend to get them their job back or, at least teach the Hospital a lesson by hitting them in their bank account. To see what all the fuss is about, access their site at www.touchable.com. Or consider the case of the teachers who attended a sex club in South Florida and were later fired from their teaching positions because of their extra-curricular activities. Are we getting to the point where our choice of entertainment activities on our off time has a direct impact on our job security? Will employers begin requiring us to reveal which movies we have watched or magazines we have read? Historically, the First Amendment has protected free expression of a sexual nature, and the right to privacy has protected adult, consensual, sexual activity, but these protections are continually ignored in the employment context. An individual’s choice of what to view or broadcast on the Internet in his or her off time represents fertile new battle ground in the censorship war. Like most other Internet issues, the law is either minimal or nonexistent. The Miller case will likely set a precedent to be followed by employers across the nation when dealing with private Internet usage by employees.

Even though the U.S. Government’s attempt to censor the Internet under the guise of protecting children has so far failed in the courts, the Michigan Legislature, in its infinite wisdom decided to pass a similar law targeting people who distribute sexually explicit materials to minors over the Internet. U.S. District Court Judge Arthur Tarnow ruled that the law, set to take effect August 1, would have violated the right to free speech because of the anonimity of the Internet and the difficulty of checking the age of users. “Even under the guise of protecting minors, the government may not justify the complete suppression of constitutionally protected speech”, the Judge wrote. The Michigan law would likely have penalized even a doctor who posted sex information on the web or who answered a sexually explicit question in a chat room.

The City of Tampa, Florida has decided that the “Voyeur Dorm” which broadcasts images of female college students 24 hours a day living in their home, is an adult business. The City’s variance review board ruled recently that the house is not a home, but a business just the same as an adult bookstore or strip club. Web surfers pay $34.00 a month to view the site which provides images from more than 30 cameras. One can only guess how many other Internet businesses exist in the same neighborhood as the Voyeur Dorm. But, as usual, the City has singled out the sexually- oriented business for a hyper-technical enforcement of its codes. Voyeur Dorm’s attorney plans to appeal.

The ground-breaking World Pornography Conference sponsored by Cal State’s Center for Sex Research last summer, is now being investigated by California’s Joint Legislative Audit Committee. The conference, which I attended, focused on various legal, sociological and economic issues relating to pornography. The seminars were extremely academic in nature and the conference was lauded by those who attended. Yet Senator Ray Haynes, R-Riverside, had the audacity to say: “State tax dollars were used to promote child pornography.” I didn’t see Senator Haynes at the conference.

The courts have dealt adult entertainment businesses several setbacks in the last month. In Wisconsin, the Seventh Circuit Court of Appeals upheld a law which required an adult bookstore to close at certain hours because of harmful secondary effects that adult businesses allegedly caused. In upholding the law, the court acknowledged that the ordinance singled out adult-oriented establishments for different treatment based on the content of the materials they sell or display. But, since the content was sexually-explicit, the law was okay. The bookstore’s attorney said that the decision was dangerous for First Amendment jurisprudence. That’s putting it mildly! In another case, the Supreme Court of New Jersey decided that an adult entertainment club owner violated a local sign ordinance by erecting 20 displays of scantily clad women inside the windows of his clubs. The owner contended that the displays were not signs. The New Jersey Supreme Court found that the displays were devices used for visual communication, display, identification and publicity and thus upheld the fines imposed against the club owner. Does Sak’s Fifth Avenue have sign permits for its mannequins in the window?

One final item: The ultraconservative Morality in Media group has launched a nationwide campaign to urge supermarket chains to stop displaying magazines with sexually blatant cover headlines at checkout counters. Among the objectionable headlines to be censored from Cosmopolitan is: “Sex – Clusives! 1000 Men Confess the Squeezes, Licks & Teases They Long for and the Most Important Inch on a Man’s Body.” Morality in Media President, Robert W. Peters stated: “We believe strongly that such material should not be in your stores at checkout counters where innocent children and vulnerable adolescents see it…I hope you agree.” I guess Mr. Peters wasn’t among the 1000 men polled.

What a month!

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

The recent Adult Entertainment Expo put on by AVN in Los Angeles last month gave me a chance to reflect on just how vast the adult entertainment industry has become. Instead of some stepchild of the “mainstream” video show, the industry can now support its own Expo. The “Night of the Stars” awards show was well-attended and as outrageous as ever. Congratulations to Christi Lake, Lenny Friedlander and all the other winners for their tireless efforts to protect free expression in the face of organized censorship.

The legal news from around the country presents a mixed bag of decisions. First, the House wisely rejected the pathetic attempt by Rep. Henry Hyde to censor violent video games. But now, the President is asking the media to “evaluate” violent content in movies and TV. The V Chip is available in half of the televisions sold today. Are we going to see an X Chip next to censor sexual expression? Itsoundslikeelectionseasonisjustaroundthecornerandthecensorshipbandwagon is filling up.

Although the government continues to explore new ways to stifle free expression in the adult dancing industry, our firm scored a victory against Seminole County, Florida last month. In their relentless attacks against several nude clubs in the City of Casselberry, Florida, located within Seminole County, the County passed a law banning nudity in any public place (including back yards!). The pre-existing city law, however, expressly allowed nudity in adult entertainment establishments, and even sold licenses for this behavior. The County’s Charter treated city laws as superior to county laws. When the law was passed, we sued Seminole County asking the court for an injunction against the county law since the city law trumped the county law. Of course, the elected trial court judge denied the injunction and gave no reasons for her decision. The real reason was that an injunction would have allowed nude dancing, which would have been a political catastrophe.

We immediately appealed the decision and won in the appellate court. The higher court said that the injunction should issue if, in fact, the City allowed nudity. This case is a lesson in never giving up hope. You may have to keep fighting, but sometimes justice prevails.

On the Internet front, the attempt to censor adult materials from public libraries continues. Now, the federal government is getting into the act by trying to impose restrictions on any library that receives federal funding. The State of Michigan is trying to pass a law restricting adult materials on the Internet. All these efforts reflect a frustration by the moral conservatives in trying to deal with this new medium. The first attempt to charge anyone with obscenity on the Internet is at a standstill in Polk County, Florida, while the Defendant continues to raise money for her defense. See: www.dreamnet.com/becka.

In a landmark ruling, a British court held that U.S. adult web sites could be prosecuted in the U.K. This is an important ruling for the future of the web. This ruling comes hot on the heals of Australia’s decision to censor the web. What if all web sites were required to be acceptable to the unique moral standards of each country?

On the humorous side, the term “oral copulation” was recently upheld by the courts even though it did not appear in the dictionary. I guess, the judges thought that we could figure it out. Speaking of such things, it has been reported that oral sex has now become a fad in our Junior High and High Schools. Teens have used this method as a way to combat the spread of AIDS and prevent pregnancy. PTA meetings have even been called. Is this what Nancy Reagan meant when she said “Just say no.”?

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

Plenty of news on the First Amendment front. In a blatant disregard for his sworn oath to uphold the Constitution to the United States of America, Representative Henry Hyde is pushing legislation designed to censor violent content from movies and video games. The proponents of this legislation have expressed concerns that current obscenity laws do not provide a vehicle to prosecute violent content. Duh! A long time ago we decided that the only exception that we are willing to make to free speech is sex, not violence. After all, if violence is to be censored, we will have to stop selling the local newspaper and maybe replace the evening news with Disney cartoons. Yet there is actually some chance that this idiotic law will make it through to a House vote. Speaking of violence, the publisher of the book “Hitman”, Paladin Press, has agreed to a multimillion dollar settlement of the lawsuit brought against it by the relatives of an individual murdered whose killer allegedly followed the instructions contained in Hitman. This was a big loss for the First Amendment and sends the message to other crime victims that you can successfully sue the media for the mere dissemination of ideas. The same techniques described in Hitman can be seen in any Sylvester Stallone or Clint Eastwood thriller. Perhaps Universal Studios will be the next defendant and the issue will be taken more seriously.

In the battle against adult entertainment, the news is equally disturbing. The New York adult bars and bookstores hit the end of the road in their legal battle when the United States Supreme Court refused to grant review of the decision forcing closure of most of the adult businesses. This was the most significant adult entertainment zoning battle in recent history and represents and unfortunate loss for the industry. The South Carolina Supreme Court upheld a similar restrictive zoning ordinance which was challenged by the Thee Dollhouse, unsuccessfully.

In my area of Central Florida, the Brevard County Commission has recently voted to hire the American Center for Law and Justice to rewrite its adult entertainment laws. The ACLJ is a fundamentalist Christian group founded by televangelist Pat Robertson. I am sure they will be objective and unbiased when they write the rules for the topless bar industry, though. Whatever happened to the separation between church and state? As observed by the local paper, it’s like having the NRA write gun legislation. Interesting, their lawyer, David Cortman, Esquire, who proposed to write the new laws and defend them for free in the Florida courts, is not even admitted to practice law in the State of Florida.

In the first Internet obscenity case to be filed in the United States, the Defendant, Tammy Robinson, whom we represent, has turned this new medium against the prosecution. She has set up a legal defense fund whereby fans can join with a credit card to see her naked, with all proceeds going to her legal defense. Her site can be found at www.dreamnet.com/becka.

One piece of good news on the legal front, the City of Jacksonville, Florida was recently dealt a significant loss when the United States Court of Appeals for the Eleventh Circuit in Atlanta declared Jacksonville’s Adult Entertainment Ordinance unconstitutional for failure to provide a sufficient opportunity for adult businesses to open and operate. The Appeals court also threw out other parts of the law; for instance the ability to jail owners of adult establishments simply for being owners without showing any participation in wrongful conduct. Back to the drawing board for Jacksonville.

The adult film and Internet industry has continued to flourish despite intense opposition, however. According to Forbes Magazine, 8,948 hard core videos were released in the United States, in 1998, up from 1,275 in 1990. Americans rented 686 million adult tapes in 1998. The profits generated from the x-rated video industry have doubled over the last five years, generating some 5 billion dollars in sales last year. The adult Internet industry generates nearly a billion dollars and is forecasted to reach 3.21 billion in 2003 according to Reuters. With numbers like these, the industry should be able to put together a sizable legal defense fund to fight the modern censorship efforts. Such preparations are necessary to win the looming censorship battle.