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.