Do I Need a DMCA Agent?

By: Lawrence G. Walters, Esq.

 

Introduction:

Our law firm is often asked by clients, and potential clients, whether they should designate a DMCA Agent for their site, and how to go about doing so. While that is an important first question to ask, particularly for any site that contains material provided by third parties, it is only the beginning of a somewhat complicated analysis leading to a determination of whether a particular website can avail itself of the “safe harbor” protections against copyright infringement claims, as provided by federal law. Regardless of the geographic location of the website involved, compliance with U.S. DMCA safe harbor obligations is becoming essential for global online service providers.

1. The Development of the DMCA:

In 1998, in an attempt to curtail copyright infringement occurring via the Internet and harmonize international law, Congress passed the Digital Millennium Copyright Act (“DMCA”).¹ One of the most controversial and litigated elements of the DMCA is its “safe harbor” protection for “service providers.” Copyright holders tend to hate it, while website operators that allow posting of third party content view it as essential to survival of their business model. Given the recent wave of copyright infringement litigation being asserted against tube sites and other service providers, DMCA safe harbor is becoming an essential tool for website operators.

The DMCA’s safe harbor provisions allow certain online service providers (“OSPs”) who comply with specified statutory prerequisites to take advantage of significant limitations on monetary liability for copyright claims based on material posted by third party users on the service provider’s network. Simple enough, right? Post some legal‐sounding takedown policies, file some forms, and you’re good to go. Not exactly… There are several important requirements, and even preconditions to those requirements, that an OSP must fulfill in order to even be considered for safe harbor protections. The following is a roadmap of sorts, designed to inform service providers of the hazards in navigating one of the Web’s most crucial and complicated pieces of legislation. However, this article is no substitute for legal advice, and if anything referenced in this post appears to affect your operation, a talk with your lawyer about DMCA issues is in order.

2. Who is a Service Provider?

Although a seemingly simple question, many providers of online services to end users on the Internet do not realize that the type of service they provide affects their obligations and potential protections under the DMCA. The DMCA defines a “service provider” as an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received, or, a provider of online services or network access, or the operator of facilities thereof.² Given its expansive definition, essentially any entity that provides end users with web space, bandwidth or access to the Internet could be considered a service provider under the DMCA. The types of business models covered by this definition range from ISP’s, to online dating sites, to adult tube sites. The statute goes on to identify four categories of conduct that enable an OSP to determine which type of service provider they are under the DMCA:

1. – Transitory Communication Systems: Network services that simply provide transitory access to the Internet, this includes basically any broadband Internet provider (i.e. – AT&T and other DSL/cable/satellite Internet access providers);³

2. – Caching Systems: Network services still providing simple conduit access to the Internet, but that also may store or copy transmitted data temporarily;⁴

3. – Web Hosts: Online services that host content at the direction of a user (i.e. – traditional hosting websites or almost any website/network that contains content uploaded or generated by the network’s users);⁵ or

4. – Information Location Tools: Search engines (i.e. – Google®)⁶.

Given the latest cyber litigation “target du jour”; user‐generated content (“UGC”) websites, this article will only concentrate on potential limitation of liability for OSPs that host their users’ files (i.e., #3 above). The legislative intent behind the file hosting safe harbor provision is to protect OSPs from liability based on the content posted by its users – whether in the form of online dating profiles or comments to a blog piece like this. For example, if UGC sites were responsible for each and every piece of infringing material uploaded by its users to the provider’s network, such liability would likely bring much of today’s Internet traffic to a screeching halt. OSPs that are required to monitor the content and/or conduct of their users would quickly find that the manpower necessary to accomplish that task would eat up any potential revenue to be generated, thus resulting in de facto censorship of an entire venue for online speech.

3. Acquiring Potential Safe Harbor Protection?

Notably, the safe harbor from liability is not a blanket grant of protection or immunity from suit. Even with full compliance with all aspects of DMCA safe harbor obligations, an OSP could still get sued by an aggressive plaintiff, and be forced to ‘prove up’ its safe harbor compliance regime. Importantly, an OSP may only qualify for the DMCA’s limitation on liability if it fulfills the threshold conditions of the statute by agreeing to do the following:

1. – Identify and Designate a DMCA Agent⁷

2. – Accommodate technical measures to protect copyrighted works⁸

3. – Adopt and Implement a Repeat Infringer Policy⁹

In order to facilitate the notification process required for safe harbor, OSPs must designate the name and contact information of an agent who will be responsible for receiving any infringement notices from copyright owners (i.e., a “DMCA Agent.”) Take down notices sent to the DMCA Agent must include specific elements, but they essentially must state that the OSP’s network contains content that is infringing upon the owners’ intellectual property rights and is therefore on the network illegally. Upon appointing the DMCA Agent, the OSP must file a notice of designation of agent with the U.S. Copyright Office, along with the required fee; effectually providing public notice of the relationship between the OSP and the agent.¹⁰ Unfortunately, this is a step that many OSPs tend to forgo, and the failure to properly designate the agency relationship with the Copyright Office may result in total loss of safe harbor protection. The information disclosed to the Copyright Office; i.e., name, address, phone number, and email address, must also be made readily available to the public through the OSP’s service or website.¹¹

The DMCA defines “standard technical measures,” referenced in #2 above, as attempts by intellectual property owners used to identify or protect their copyrighted works; for example, a watermark embedded on an image. An OSP accommodates, or does not interfere with, standard technical measures so long as it does not disable any such efforts by the copyright owner. Implementation of fingerprinting technology for identifying infringing videos or images may someday be considered a “standard technical measure” as such technology becomes more readily available and used by OSPs such as tube sites.

Another critical element must be met in order for an OSP to claim safe harbor: The OSP must adopt a policy that provides for terminating the accounts of users who repeatedly infringe on another’s copyright under “appropriate circumstances.” This is known in the industry as a “Repeat Infringer Policy” or “RIP.” The OSP must inform its customers of the RIP and “reasonably implement” it as well.¹² There are often two sources of confusion that correspond with the RIP requirement: Who is a “repeat infringer” and how do I “reasonably implement” a repeat infringer policy? Unfortunately for OSPs, the DMCA does not provide any guidance to resolve these ambiguities. For example, the statute does not specify whether the repetition requirement for a “repeat infringer” refers to the total number of works infringed, the number of times a single work has been infringed, or the number of times a particular user has been identified as an infringer. Nor does the statute discuss the time span within which the repeat infringements are to be calculated. Further, the DMCA does not identify particular actions that can be taken by an OSP to satisfy the statute’s requirement that it “reasonably implement” the RIP.

Ultimately, it is up to the OSP to decide exactly how it wishes to implement its RIP. Each business model may require its own type of RIP considerations, and there is no “magic number” of infringements that must result in termination of a user. Because of this lack of clarity in the statutory language, it has only been through OSPs being sued, and legal decisions being issued, that the public has gained some insight on the proper protocol in implementing an RIP. While no court has definitively described how a legally‐ compliant RIP should look, courts have discussed the importance of a consistent RIP to overall safe harbor protection.¹³

It should be noted that the law does not require OSPs to adopt an RIP, or to comply with any of the safe harbor provisions of the DMCA. OSPs can tolerate obvious repeat infringers, but they do so at their own peril. Compliance with DMCA safe harbor provisions is completely optional, but the benefits of compliance cannot be ignored, as a practical matter. Improper implementation of an RIP could result in the total loss of safe harbor protection, rendering OSPs completely vulnerable to traditional copyright claims based on direct, contributory and/or vicarious copyright infringement liability theories. Therefore, DMCA compliance comes down to a business decision – one that can be very important if the OSP is ever sued for copyright infringement based on UGC.

4. Loss of Safe Harbor Protection

Not only must an OSP fulfill the conditions referenced in the above section, but it must also meet the following constant obligations relating to its knowledge of specific infringing materials and its reaction to the knowledge of such materials. The DMCA specifically states that an OSP does not have a duty to monitor its network or actively seek out infringing activity in order to maintain its safe harbor status.

However, if the OSP is put on notice of infringement within its network, this then triggers the OSP’s duty to act. An OSP may lose safe harbor protection if it:

1. – Has actual knowledge of the infringement;¹⁴ or,

2. – Is aware of facts or circumstances from which the infringing activity is apparent;¹⁵

and,

3. – Upon obtaining such knowledge or awareness, does not act expeditiously to remove, or disable access to, the infringing material.¹⁶

This means that safe harbor protection is available to OSPs only to the extent that the OSP has not been put on notice of particular infringing activity, or if it has, then it is obligated to remove the infringing content from its network. This also means that if certain “red flags” exist, suggesting rampant copyright infringement is apparent on the site, the OSP has a duty to act to take appropriate action to protect the copyright owners. Actual knowledge of alleged infringement is satisfied by receipt of a proper notice and takedown request from the copyright owner of the infringed upon material. The takedown notification must be in writing and must substantially contain the following information:

1. – The name, address, and electronic signature of the complaining party;¹⁷

2. – Identification of the infringing materials and their Internet location;¹⁸

3. – Identification of the copyrighted works that are being infringed upon;¹⁹

4. – A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of;²⁰

5. – A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner.²¹

So long as the DMCA notice is processed by the OSP, meaning, the notice is acknowledged by removal of the infringing material, it cannot be used as “actual notice” against the OSP in a subsequent secondary infringement claim.²²

DMCA Notices have become relatively commonplace in today’s online marketplace. Unfortunately, the recent trend has been to abuse the quick and easy content removal system put in place through the DMCA, by competitors seeking to get the upper hand by submitting false infringement reports about competing content. This sort of activity often occurs in the online escort site and online dating site industries. DMCA abuse can be punished by anyone suffering damages as a result, but often identifying the abuser can prove difficult, since the contact information provided in the Notice is often false. The OSP has no obligation to ensure that the contact information in DMCA Notice is valid or accurate – they are merely required to act when they receive a Notice containing the necessary elements.

Given the burden on the OSP to remove infringing content the moment it gains actual knowledge of infringement, or constructive knowledge through ‘red flags,’ the statute prevents such knowledge to be used against the OSP so long as it discharges its removal obligations. In other words, the DMCA allows OSPs to remain within the realm of safe harbor protection, even after acquiring knowledge (whether actual or apparent) of infringing content, so long as the OSP “acts expeditiously to remove, or disable access to, the material.”²³

5. Consequences of Safe Harbor Loss

The primary consequence of losing DMCA safe harbor protection is exposure to monetary damages (i.e.

• “all damages, costs, attorneys’ fees, and any other form of monetary payment,”) however it is within a court’s discretion to issue injunctive relief against them as well. Such injunctions may mandate any actions that the court considers necessary to prevent subsequent infringement of the material in question.²⁴ Loss of safe harbor protection does not mean that the OSP is automatically responsible for infringing content posted by third parties; it simply means that the OSP cannot assert the safe harbor defense. A copyright claimant would still need to prove the standard elements of copyright infringement before the OSP could be held liable.

In the event that an OSP attempts half‐hearted DMCA compliance, whether intentional or not, it may not be able to rely on the statute to come to its rescue if it is ultimately sued for copyright infringement based on infringing UGC on its network. Thus, merely posting the name of a person who has agreed to serve as your DMCA agent on your ‘Contact Us’ page does not grant an OSP any safe harbor protection. Yet, many OSP’s – particularly those located overseas who are not conversant in U.S. legal requirements

• tend to assume that listing a DMCA agent constitutes a ‘magic shield’ that will protect them from any

U.S. claimants seeking to impose monetary liability for third party generated content.²⁵ As demonstrated above, full DMCA safe harbor protection is much more complicated to achieve.

6. Conclusion

Although acquiring DMCA safe harbor can be a burden, any compliance regime should be developed in consultation with legal counsel. The benefits of proper DMCA compliance are substantial. Few federal statutes provide a complete release of liability for a category of intellectual property infringement, and thus all OSPs that allow any UGC should strongly consider developing strict DMCA safe harbor compliance policies. DMCA safe harbor is one of the greatest shields provided to OSPs, but like most armor, if it not properly applied, it can turn the wearer into nothing more than a target.

Lawrence G. Walters, Esq., heads up Walters Law Group, a law firm which represents clients involved in all facets of the adult industry. The firm handles First Amendment cases nationwide, and has been involved in Free Speech litigation at all levels, including the United States Supreme Court. All statements made in the above article are intended for general informational purposes only and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at larry@firstamendment.com. More information about Walters Law Group can be found at www.FirstAmendment.com.

⁷ 17 U.S.C. § 512(2010) et seq.

² 17 U.S.C. § 512 (k)(1).

³ 17 U.S.C. § 512(a).

⁴ 17 U.S.C. § 512(b).

⁵ 17 U.S.C. § 512(c).

⁶ 17 U.S.C. § 512(d).

⁷ 17 U.S.C. § 512(c)(2). Identification occurs by posting information about how to send DMCA notices to the agent on the website (i.e. – via a Notice and Takedown Policy), and Designation occurs by filing a Designation of Agent with the U.S. Copyright Office, and payment of the required fee. See United States Copyright Office website; available at: http://www.copyright.gov/onlinesp/.

⁸ 17 U.S.C. § 512(i)(1)(B).

⁹ 17 U.S.C. § 512(i)(1)(A).

¹⁰ See United States Copyright Office website; available at: http://www.copyright.gov/onlinesp.

¹¹ 17 U.S.C. § 512(c)(2). This is accomplished through posting a proper Notice and Takedown Policy.

¹² 17 U.S.C. § 512(i)(1)(A).

¹³ See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007); IO Group, Inc. v. Veoh Networks, Inc., 586 F.Supp.2d 1132 (N.D. Cal. 2008)(The DMCA does not define “reasonably implement.” Nonetheless, the Ninth Circuit has held that a “service provider ‘implements’ a policy if it has a working notification system, a procedure for dealing with DMCA – compliant notifications, and it does not actively prevent copyright owners from collecting information needed to issue such notifications.” CCBill, 488 F.3d at 1109. “The statute permits service providers to implement a variety of procedures, but an implementation is reasonable if, under ‘appropriate circumstances,’ the service provider terminates users who repeatedly or blatantly infringe copyright.” Id.)

¹⁴ 17 U.S.C. § 512(c)(1)(A)(i).

¹⁵ 17 U.S.C. § 512(c)(1)(A)(ii).

¹⁶ 17 U.S.C. § 512(c)(1)(C).

¹⁷ 17 U.S.C. § 512(c)(3)(A)(i).

¹⁸ 17 U.S.C. §§ 512(c)(3)(A)(ii‐iii).

¹⁹ 17 U.S.C. § 512(c)(3)(A)(iv).

²⁰ 17 U.S.C. § 512(c)(3)(A)(v).

²¹ 17 U.S.C. § 512(c)(3)(A)(vi).

²² 17 U.S.C. § 512(c)(1)(A)(iii).

²³ Id.

²⁴ 17 U.S.C. § 512(j)(1)(iii).

²⁵ Not only is this factually inaccurate, but as discussed above, the DMCA has no applicability to certain claims like trademark or cybersquatting claims, which could still be asserted against OSPs that are in full compliance with the DMCA.

 

 

Moving Upstream With a Large Paddle

By: Lawrence G. Walters & Kevin W. Wimberly

Walters Law Group

www.FirstAmendment.com

The adult industry often finds itself at the center of precedent‐setting legal battles. Some of these cases have clarified or even changed the law. For example, the Hustler cases created precedent in the defamation and copyright fields; Victor’s Little Secret brought about the Trademark Dilution Revision Act; the Perfect 10 cases have defined the contours of DMCA safe harbor protection; and Playboy has established First Amendment principles in attempts to regulate decency in telecommunications.¹

Recently, the adult industry has been making increased appearances in mainstream technology & law media such as TechDirt, ars technica, and the Electronic Frontier Foundation (“EFF”) website.² In fact, as reported by XBIZ, the EFF was recently appointed to represent various Doe defendants in one of the many bittorrent/Doe copyright infringement cases brought by adult content producers.³ While the “massive Doe” litigation strategy is beyond the scope of this article, one cannot help but note that this strategy is receiving much the same criticism that the RIAA MP3‐sharing strategy received near the turn of the century.⁴ (The strategy was recently analyzed by respected adult Internet attorney Greg Piccionelli, Esq., in “Bittorrent Legal Mania.”)⁵ In addition to its lack of effectiveness, the recording industry abandoned that strategy after receiving backlash from traditional media publications, such as Rolling Stone, and by legal scholars, who were concerned by the lack of due process and extortion‐like qualities that make up certain flavors of the mass‐Doe model.⁶ Regardless of one’s opinion of the mass‐Doe strategy, one thing is generally accepted by all sides: Those who infringe copyrights (or other intellectual property rights) must be held accountable.

However, punishing infringers is not the only piece of the equation. To a certain extent, the adult industry has become overly‐dependent on traditional DVD and full‐length film distribution, charging hefty retail purchase prices, or imposing recurring monthly billing in exchange for access to extensive libraries of content. To some extent, the customer’s tastes and expectations changed, but many content producers failed to follow suit. Thus, in addition to pursuing infringers, adult producers need to develop some form of content‐protection technology, and – like the music industry ‐ recognize the consumer’s desire for micropayments and a per‐song vs. a per‐album business model. One can only wonder whether the industry would be experiencing the same level of rampant piracy of its content, if end users were provided the opportunity to pay a reasonable fee for the specific content they want, as opposed to the prevailing monthly billing model. At least one company has envisioned the future, and reacted, as evidenced by Pink Visual’s new PVLocker.com platform, the release of which has recently been hailed by XBIZ as “redefining” content distribution.⁷ Admittedly, even if such distribution and protection mechanisms are developed and implemented, there will still be infringement on the Internet. There will always be people unwilling to pay for content for whatever reason. But, as many reformed Napster.com music file infringers now use iTunes at 99 cents a pop, those companies turning to micropayments for specified clips may see the same kind of results.

The Problem

Internet‐based infringement typically occurs in one of two ways: (1) distributed infringement via bittorrent; and, (2) client/server infringement via cyberlockers or other Web‐based locations. Each has legal and technological hurdles that copyright owners must overcome in order to bring infringers to justice – or at least make them pay up.

Infringement via bittorrent

Bittorrent is a technology that gained popularity as the “‐ster” (Napster, Aimster, Grokster) peer‐to‐peer applications were either judicially shut down or were otherwise forced to “go legit” in the face of being shut down. From a functionality perspective, rather than a user connecting to another user’s computer to download an entire file (as in the “‐ster” P2P apps), bittorrent drastically increases the efficiency and speed of downloads by allowing a downloader to receive “pieces” of a file from multiple other users who either possess the entire file or pieces of it.⁸ In the time it used to take to download a single MP3, for example, bittorrent allows an entire album to be downloaded. From a legal perspective, this provides a massive list of potential unauthorized distributors and downloaders.

The torrent infringement model lends itself to massive amounts of anonymous defendants based on the basic architecture of the bittorrent protocol. While this is somewhat of an oversimplification, there are no real culpable intermediaries in the bittorrent protocol. Other than a bittorrent user’s Internet service provider (Comcast, Bellsouth, Roadrunner, etc.), there are essentially no upstream intermediaries to contact, such as a discussion forum and/or cyberlocker’s actual host. (An example of a cyberlocker is Rapidshare.) While bittorrent does rely on a “tracker” server to initiate communication among downloaders, the tracker server does not need to contain any copyrightable material to operate, and the tracker is not necessary after the downloaders, or “peers,” have been “introduced.” As a result, there are no gatekeepers capable of removing actual content or otherwise available to receive other legal methods attempting to stop the conduct – the only persons or entities possessing the infringing content are the downloaders. The content owner seeking to stop infringement via bittorent thus has limited options – try to shut down the tracker server, which will just reappear under a new name and at a new location, or sue the individual sharers and stealers of the content and rely on deterrence of future user‐based infringement. ⁹

Bittorrent software clients enable the user (and others) to see the Internet Protocol addresses (“IP address”) of the machines providing and downloading the pieces of the files, and it is those IP addresses that presumably match up with the Does in the mass‐Doe lawsuits. As recent procedural hurdles have shown, however, courts are reluctant to allow plaintiffs to lump hundreds of Does into the same lawsuit when such Does may reside in multiple jurisdictions and have unique defenses (such as “My wireless network isn’t secure; a virus took over my machine; it must have been my neighbor…”).¹⁰

However difficult it may be to litigate against multiple bittorrent users at once, these plaintiffs, many of which are adult content producers, are generally seeking out the appropriate targets – those who are infringing copyrights with knowledge of doing so. Nobody can reasonably dispute that those who make the conscious efforts and decisions to either rip, share, and/or download content without authorization should be held legally accountable.

What *is* subject to legitimate debate among e‐commerce scholars and attorneys is how far the law does and should go when determining intermediary liability for infringement based on more traditional server/client models.¹¹ Such intermediaries include discussion forums, cyberlockers, tube sites, and even hosts or billing processors.

Infringement via discussion forums and cyberlockers

The typical example of this type of infringement is as follows: Someone sets up a discussion forum that allows users to register and post links or other content on the forum. Users often upload content to a cyberlocker and then post the link to the file (which is hosted by the cyberlocker) on the discussion forum. Presuming that the file is a video, the user may also post a screenshot, thumbnail, or description of the video file on the discussion forum. Other users of the forum can then click the link to the cyberlocker and begin downloading the file. Some forums even allow users to upload content to the forum itself, thereby eliminating the need for a cyberlocker. This is typically the case when the content being illegally distributed is limited to still images or text.

At first glance, the traditional client/server model therefore provides plaintiffs with easily‐ identifiable targets that don’t exist in the bittorrent model. For the sake of argument, potential defendants include the user who posted the content or links to the cyberlocker, the cyberlocker itself, the cyberlocker’s host, the operator of the discussion forum, and the discussion forum’s host. Upon researching the status of these people and entities, however, it is often the case that the discussion forum operator is based overseas, has provided misinformation in the WHOIS database when registering its domain, provides no contact information on the site, and/or is generally unreachable absent great expense. The same goes for the user that uploaded the content or provided the links to the cyberlocker. The user is often identified only by a nickname, and without cooperation from the forum operator it is therefore difficult if not impossible, to uncover the user’s IP address. All the content owner wants to do is send a DMCA Notice, but there is no readily available recipient.

At this point, plaintiffs start looking upstream. If they cannot easily find the direct infringers and those who really induced the infringement, then why not send DMCA Notices to the people hosting the forum and/or cyberlocker? These hosts are often based in the United States and provide hosting services to thousands of other customers unrelated to the infringing activity. They are easy targets and often have deep pockets. By moving upstream, the content owner is typically focused on two interests – removal of its content and/or squeezing out settlement money.

While the authors contend that a host providing hosting services to a website or forum that offers user‐generated content should not be required to process DMCA Notices based on its customers’ users’ conduct and content, that very scenario is becoming commonplace. In 2009, Microsoft sent a DMCA notice to Network Solutions concerning one document found on the Cryptome website, which Network Solutions hosted.¹² Networks Solutions asked its customer to remove the file, and the customer refused, citing fair use. Since Network Solutions did not have the means to remove that single document from its customer’s site, it shut down the entire site, taking with it thousands of lawful documents and speech. Similarly, in 2009 the U.S. Chamber of Commerce sent a DMCA Notice to an upstream ISP concerning a parody site hosted by the ISP. When the ISP contacted its customer about the site, the customer explained that the site was a parody. Rather than spend the time and money to stand up for its customer – or at least evaluate the defense – the ISP terminated the customer’s account and thereby shut down many other websites that the customer operated in addition to the parody site.¹³

Countless other examples exist where upstream service providers are getting dragged into disputes between content owners and alleged infringers. Our firm has represented hosts and other service providers named in litigation where they had only a remote, contractual relationship with the real wrongdoer. The effect on free speech is obvious. While this may just seem like the case of a spineless ISP, such lack of spine is understandable in typical circumstances. Faced with being dragged into litigation to defend itself from a claim of secondary liability based on its customers’ material, it is easier and more economical for the host to just comply with the DMCA Notice and deny continued hosting services to the entire account, even though the host is a neutral intermediary.

To the content owner, this is of no concern. The content was removed. To believers in free speech and the rule of law, the concerns are troubling. Irrespective of one’s stake in the game, the practice of holding intermediaries responsible for the actions of its customers’ end users should alarm all involved. If the host (or billing company or other intermediary) has DMCA safe harbor protection – or even if it does not have DMCA safe harbor but could still successfully mount a “no secondary liability” defense – then why wouldn’t it assert those protections and defenses to allow the online communications to continue? The answer is simple: economics. For a host, the cost of defending itself in a secondary liability infringement case in federal court is almost guaranteed to exceed the hosting fees that the customer pays. While the DMCA allows the end user to serve a “counter‐notification,” the intermediary’s direct customer (i.e. the actual site hosting the content) may not have actual knowledge of the facts relating to the infringement sufficient to allow it to serve a counter with the required certification under the penalties of perjury.¹⁴ Moreover, by serving several DMCA notices on an intermediary, relating to customers’ end users’ activity, the specter of “repeat infringer” rears its head. The intermediary may need to terminate the customer, who may operate a plethora of sites unrelated to the infringing content ‐ even if counter‐notifications are served to some of the DMCA infringement notifications – depending on the Repeat Infringer Policy adopted by the host. However, by terminating the customer’s account or otherwise not giving the customer the opportunity to dispute the alleged infringement, the host saves enormous amounts of time and money dealing with notices, counter‐notifications, and related communications. Many of these communications need to be reviewed by legal counsel, thus increasing the cost of compliance and maintaining the customer’s account.

Once terminated, the customer is forced to find a new host, and it may seek hosting services overseas in the hopes to avoid future DMCA‐related terminations. This would ultimately frustrate any future infringement pursuits by content owners. Also, by imposing increasing monitoring and compliance obligations on hosts, the costs of hosting naturally increases, and the hosts pass along the mounting legal costs, operational costs and insurance premiums to their customers. As more hosts are dragged into costly litigation for the misdeeds of their customers – or even their customers’ customers – there is less incentive to provide the services to begin with. Regrettably, this is a textbook example of the chilling effect on speech. This also creates an incentive for an underground (or overseas) market for hosting risky user‐generated content. Not surprisingly, these hosts simply ignore DMCA obligations, and can therefore provide the services at a lower cost. Content owners may therefore end up in a much worse position by blindly naming domestic intermediaries as defendants, as opposed to working with these companies in a cooperative fashion.

Conclusion

The mass‐Doe litigation model is still in its infancy. Some plaintiffs are having success, and some are failing in a very public manner. It is too early to tell what effect these cases will have on the law or the rules of procedure that govern the law. Regardless of that outcome or the ultimate strategy used in these bittorrent cases, it is wise to consider the ultimate practical and economic impact on these intermediary service providers prior to giving in to the temptation to name the “deep pocket” in litigation. Ease of identification and financial wherewithal should not be the primary motivating factors for naming a defendant. What may seem like a quick and easy payoff has lasting First Amendment and economic effects that will reverberate long after content is removed (and undoubtedly replaced the next day by a different user, on a different forum, with a different host.) This is a time of opportunity for content owners. New piracy protection measures, micro‐payment systems, personalized content “locker” distribution– all of these can be implemented as realistic responses to the torrents of infringement. But, seeking to impose liability on easy targets with remote involvement in any infringing activity threatens to impose crushing financial burdens on an already ailing industry while also pushing the law in a direction that threatens the true expression of ideas in the online marketplace.

Lawrence G. Walters, Esq., heads up Walters Law Group, a law firm which represents clients involved in all facets of the adult industry. Kevin Wimberly, Esq., is an associate with the firm, and concentrates on intellectual property matters and new media law. The firm handles First Amendment cases nationwide, and has been involved in Free Speech litigation at all levels, including the United States Supreme Court. All statements made in the above article are intended for general informational purposes only and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at larry@firstamendment.com or Kevin Wimberly at kevin@firstamendment.com. More information about Walters Law Group can be found at www.FirstAmendment.com.

¹ Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003);

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007); Perfect 10, Inc. v. CCBILL LLC, 488 F. 3d 1102 (9th Cir. 2007); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000).

² Nate Anderson, “Judge eviscerates P2P lawyer: ‘I accepted you at your word,’” Ars Technica, n.d. Available at:

http://arstechnica.com/tech‐policy/news/2011/03/judge‐eviscerates‐p2p‐lawyer‐i‐accepted‐you‐at‐your‐word.ars; Mike Masnick, “More Mass Porn Copyright Infringement Lawsuits Get Dumped,” TechDirt.com, January 3, 2011.

Available at: http://www.techdirt.com/articles/20110101/21182712478/more‐mass‐porn‐copyright‐infringement‐ lawsuits‐get‐dumped.shtml; Mike Masnick, “Unicorns And Leprechauns Aren’t Real… But Trolls Are (And They Have Lawyers),” TechDirt.com, March 11, 2011. Available at: http://www.techdirt.com/articles/20110311/12332513464/unicorns‐leprechauns‐arent‐real‐trolls‐are‐they‐have‐ lawyers.shtml; “Copyright Trolls,” Electronic Frontier Foundation, n.d. Available at: http://www.eff.org/issues/copyright‐trolls.

³ See http://www.xbiz.com/news/news_piece.php?id=130171.

⁴Grant Gross, “Congress Scrutinizes RIAA Tactics,” PCWorld, September 17, 2003. Available at: http://www.pcworld.com/article/112535/congress_scrutinizes_riaa_tactics.html; John Schwartz, “She Says She’s No Music Pirate. No Snoop Fan, Either.” The New York Times, September 25, 2003. Available at: http://www.nytimes.com/2003/09/25/business/media/25TUNE.html?ex=1098849600&en=6960e362c873ed2e&ei

=5070; “Not‐so‐Jolly Rogers,” Economist.com Global Agenda, September 10, 2003. Available at: http://www.economist.com/agenda/PrinterFriendly.cfm?Story_ID=2050467.

⁵ See http://www.xbiz.com/articles/legal/131701.

⁶ Sarah McBride and Ethan Smith, “Music Industry to Abandon Mass Suits,” The Wall Street Journal, December 19, 2009. Available at: http://online.wsj.com/article/SB122966038836021137.html?mod=rss_whats_news_technology.

⁷ See http://www.xbiz.com/news/news_piece.php?id=130211.

⁸ “What is BitTorrent?” Bittorrent.com. Available at: http://www.bittorrent.com/btusers/what‐is‐bittorrent.

⁹ John Borland, “Feds shut down BitTorrent hub,” Cnet News, May 25, 2005. Available at: http://news.cnet.com/Feds‐shut‐down‐BitTorrent‐hub/2100‐1028_3‐5720541.html; Michael Ingram, “LokiTorrent caves to MPAA,” Slyck.com, February 10, 2005. Available at: http://www.slyck.com/news.php?story=661

¹⁰ Lawrence G. Walters, “Beggars Can’t Be Forum Choosers,” Xbiz.com, March 22, 2011. Available at:

http://www.xbiz.com/blogs/larrywalters.

¹¹ “Secondary and Intermediary Liability on the Internet,” Stanford Technology Law Review 2011 Symposium, March 3, 2011. Information available at: http://stlr.stanford.edu/symposia/2011‐secondary‐liability‐online/; Robert D. Atkinson, et al., “The Next Digital Decade: Essays on the Future of the Internet,” TechFreedom, 2010. Available at: http://nextdigitaldecade.com/contents.

¹² Corynne McSherry, “The Weakest Link Redux,” Electronic Frontier Foundation, March 4, 2010. Available at: http://www.eff.org/deeplinks/2010/03/weakest‐link‐redux.

¹³ “Chamber of Commerce Takes Aim at Yes Men: Business Group Tries to Take Down Parody Site After

Embarrassing Prank,” Electronic Frontier Foundation, October 22, 2009. Available at: http://www.eff.org/press/archives/2009/10/22.

¹⁴ See, 17 U.S.C. § 512(g)(2)&(3).

Legal Issues Surrounding Mobile Apps

Why apps are different than websites?

By: Lawrence G. Walters, Esq.

Walters Law Group

www.FirstAmendment.com

Providing a mobile application for customers and potential customers has become as ubiquitous as having a website. Whether the app is used as a simple marketing tool (i.e. a trivia app that features the images of stars in an upcoming film), or a feature‐packed version of an adult dating website, consumers are beginning to expect ‐ if not demand ‐ that their favorite online destinations have accompanying mobile applications. In fact, a leading Morgan Stanley Internet analyst recently released an “Internet Trends” report which predicts that within the next four years “more users will connect to the Internet over mobile devices than desktop PCs.”¹ This statistic isn’t surprising considering the popularity of the iPhone/iPad, Android‐based phones, and the slew of other pad‐type devices slated for imminent release.

What has resulted is an opportunity‐filled time for businesses that are positioned to offer such apps. Webmasters and content providers can now literally be in their consumers’ pockets and purses. The metaphorical analog to that statement is just as exciting: To put it bluntly, apps offer a perpetual method for revenue generation. In the office, on the couch, at a restaurant, in the bathroom – a direct line from the customers’ pockets to the provider’s bank account.

But WAIT! Before you start searching the Internet for code‐jockeys who promise to build an app for you on the cheap, careful consideration should be paid to the myriad of complicated legal issues that releasing an app creates. Just as apps can generate positive new opportunities, releasing an app without careful planning can also generate new financial and legal liabilities, given the relatively uncharted waters in which they operate.

As always, content is king. As reported by XBIZ recently, the notoriously‐fickle Apple made its App Store Review Guidelines public. Dipping its toes in the jurisprudence pool, Apple’s guidelines quote the U.S. Supreme Court’s 1964 Jacobellis v. Ohio obscenity case in which Justice Potter Stewart, referring to hard‐core pornography, stated: “I know it when I see it.”² Apple thinks that app developers will likewise know when they have gone “over the line” with their content.³ The company does provide a slightly more concrete definition in the guidelines by indicating that apps containing pornography will be rejected, where “pornography” is defined by reference to Webster’s Dictionary. Interestingly, that definition requires that content be “explicit” to be pornographic. While Apple has been getting the bulk of negative press concerning banning “adult” apps in its App Store, Google’s Android Market content policy may be even more restrictive than Apple’s in that it prohibits “nudity” along with “pornography, obscenity, or sexual activity.”⁴ Of course, Google’s lack of an app approval process allows developers to essentially publish whatever app they desire in the Android Market. Google may then retroactively remove apps from the Market for content violations, which may be discovered via community‐policing and the “flagging” efforts of users. It is important to be aware of the distinction between publishing an app in the Android Market vs. publishing an Android app elsewhere. Unlike users of Apple’s products, who must resort to “jailbreaking” their devices in order to use third‐party app marketplaces, Android users have many different marketplaces from which to download and install apps, and each marketplace may have its own regulations. For example, as discussed in this article, Android’s “official” Market has restrictions on nudity, yet a third‐party marketplace exists primarily for adult content.⁵

Content is therefore important because it may be what keeps an app out of a marketplace (or the marketplace when referring to Apple apps). Perhaps more important, however, is what happens if an app is accepted. Are there trademark concerns generated based on the name of the app? Do copyright and/or trademark considerations exist with respect to the app’s icon? Importantly, the legal terms and conditions imposed by the app’s specific marketplace significantly impact the relationship between the developer and its customers.

Some of these terms may be found in the developer agreement for the specific platform and marketplace.⁶ Apple’s is called the “iPhone Developer Program License Agreement,” and Android’s is the “Android Market Developer Distribution Agreement.”⁷ While they share similarities, they also have important differences and varying degrees of detail. Apple requires that developers provide specific provisions in the terms that govern the app. These requirements can depend on the technology the app uses. For example, if a given app uses certain GPS functions (popular in dating apps), the associated terms must contain specified language. However, Apple also states that developers are not required to include any terms for the app. But if such terms are omitted, then Apple’s own terms will govern the use of the app. Deferring to Apple’s one‐size‐fits‐all terms may not be in the best interests of the individual developer, so careful consideration should be given to this issue.

Similarly, Google’s Android Market Developer Distribution Agreement places requirements on app developers, including required privacy disclaimers and notices, support obligations (which continue even if the app is removed from the market), restrictions on free vs. paid apps, and a protocol (which includes mandatory refund provisions) that must be followed should the app be alleged to be in violation of various intellectual property rights and/or publicity/privacy rights, or should it include defamatory material.

An experienced new media attorney can help developers take advantage of important legal protections by properly drafting and implementing legal terms, disclosures and disclaimers governing the use of mobile applications. Issues such as Section 230 protection, DMCA Safe Harbor, age verification and

§2257 exemptions can all be addressed in a mobile app’s terms. Merely including such terms in the existing website terms may not be sufficient to bind users of the mobile app. Moreover, mobile apps generate different legal concerns for developers relating to access by minors to age‐restricted content – especially given the ready access that minors have to purchasing services via mobile devices, as compared to their restricted access to credit cards necessary to purchase similar services on a traditional website. Accordingly, mobile apps require a renewed emphasis on user age verification, in addition to a host of other issues.

Some webmasters still remember the Golden Age of the Internet when throwing up some content on a website and creating a membership page made it rain money. While releasing mobile apps in today’s sophisticated marketplace may not result in the same kind of easy money, it does provide a new and profitable revenue source. However, as with any cutting edge technology, the legal issues are likewise novel and sometimes complex. The release of any mobile app should only be done after evaluating the important legal concerns generated by this new business model.

Date of Release: 9/28/10

Lawrence G. Walters, Esq., heads up Walters Law Group, a law firm which represents clients involved in all facets of the adult industry. Kevin Wimberly, Esq., is an associate with the firm, and concentrates on intellectual property matters and new media law. The firm handles First Amendment cases nationwide, and has been involved in Free Speech litigation at all levels, including the United States Supreme Court. All statements made in the above article are intended for general informational purposes only and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at larry@firstamendment.com or Kevin Wimberly at Kevin@firstamendment.com. More information about Walters Law Group can be found at www.FirstAmendment.com.

¹http://gigaom.com/2010/04/12/mary‐meeker‐mobile‐internet‐will‐soon‐overtake‐fixed‐internet/ (full report available here: http://www.morganstanley.com/institutional/techresearch/pdfs/Internet_Trends_041210.pdf)

² See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, P., concurring).

³ In attempting to explain the apparent double standard between allowable content in songs, books, and apps, all of which are available in the iTunes App Store, the guidelines say that “If you want to describe sex, write a book or a song, or create a medical app” (emphasis added). So, apparently you can describe sex without limitation via songs and/or books, but descriptions of sex must be medically‐related for apps. Apple admits “It can get complicated.” No kidding!

⁴ Google is the developer of the Android mobile operating system.

⁵ See MiKandi at www.mikandi.com.

⁶ This article focuses on apps developed for Apple devices and apps developed for the Android platform (i.e. the

Motorola Droid and HTC Evo), but there are others out there, and each has its own set of conditions which must be accepted when developing an app for that platform and/or marketplace.

⁷ Not surprisingly, Apple makes it very difficult to find its Agreement. In fact, it took a Freedom of Information Act

request from the Electronic Freedom Frontier concerning an app that NASA released in order for the Agreement to become public. See http://www.eff.org/deeplinks/2010/03/iphone‐developer‐program‐license‐agreement‐all.

 

Whip Me, Beat Me…Now Go to Jail?

By: Lawrence G. Walters, Esq.

The increase in both frequency and popularity of erotic content depicting fetish activity such as bondage, discipline, sadomasochism and sadism (“BDSM”) warrants some exploration from the legal side. For years, industry producers repeated the urban legend warning against the creation of any material that includes both BDSM and any form of penetration. One or the other may be ok, but mixing the two could get one prosecuted for obscenity, or worse.

Of course, educated erotic content producers know that no such ‘bright line’ distinctions exist in the law of adult entertainment. Instead, the legality of erotic material is determined by application of the Miller Test for obscenity. So long as the material is not obscene, it is legal to create and publish, right? Unfortunately, the rules are not quite that simple – especially when it comes to production of BDSM material. Leaving aside the complicated question of whether paying performers to engage in sexually-explicit behavior constitutes solicitation, pandering, assignation or prostitution,¹ the infliction of physical (or possibly even emotional) injury on a performer consenting to a BDSM filming session may result in difficult legal repercussions should the performer have a change of heart – or even if not!

The law generally distinguishes between two different types of ‘injuries’ or invasion of bodily rights: 1) physical injury; and, 2) emotional or ‘trifling’ injury. The latter is generally waived by an effective model release covering claims like intentional infliction of emotional distress. The former type of injury is more difficult to address with a mere model release. Generally, one cannot consent in advance to intentional infliction of physical injury – either verbally or through a contract. The policy reason for this legal principle lies in the concept that crimes like ‘battery’² are not only crimes against a particular individual, but are also crimes against the ‘state’ or the ‘people,’ and therefore even if the individual ‘victim’ consented to the battery, the state still has an obligation to protect that person from their own poor decision-making and punish the perpetrator of the crime.³ This drama often plays out in domestic violence cases, where the victim initially summons the police during the incident but later wants to ‘drop the charges.’ The prosecutors still pursue criminal prosecution against the perpetrator, often forcing the reporting victim to testify against the defendant, unwillingly under subpoena.

Ok, what about boxing, martial arts or even cosmetic surgery? They all involve some consent to ‘injury’ or harm, right? That would seem to be the logical responsive argument to this legal concern. However, the courts have determined, from a public policy standpoint, that consent to battery will be recognized only when it involves some socially desirable activity. “On the other hand, assault involving aberrant behavior or conduct with no apparent social utility is often held to be criminal without regard to the consent of the victim if the force used has as its probable result bodily injury.”⁴ This kind of policy-based decision-making, on a case-by-case basis, almost certainly leads to the infection of concepts like morality and decency in what should be a pure legal determination of which activities will be covered by the defense of consent, and which will not.⁵ The BDSM lifestyle is only at the infancy stages of being understood by the general public. Most still assume it is a dangerous, bizarre fetish, or even psychotic personality defect, engaged in solely for the purpose of causing injury to another human being. The more basic, human needs associated with BDSM sex play, like surrender, control, power, and trust, are slowly beginning to be understood; potentially leading to some eventual level of social tolerance.⁶ According to renown author and well-respected sex therapist, Dr. Marty Klein, “[m]illions and millions of people engage in these sorts of erotic activities (“erotic powerplay”) on a regular basis. It’s been documented that those practicing SM have, on average, better sexual communication than people who do so- called ‘vanilla’ sex.”⁷ Slowly but surely, BDSM concepts are working themselves into the mainstream, where prime time television viewers do not seem to be phased by a commercial showing a dominatrix in full leather gear cracking a pistachio with a whip.⁸

Unfortunately, many prosecutors and law enforcement officials seem to be lagging in their understanding of the BDSM lifestyle; especially the unique nature of the relationships engaged in by the participants.⁹ Raids and other governmental hostility directed to BDSM clubs or ‘dungeons’ are fairly common, although actual prosecution for criminal activity is less successful.¹⁰ One recent case, however, resulted in serious criminal charges where an underground Hungarian film production studio was raided by authorities after a participant in a BDSM film claimed the producers committed sexual battery by going too far with their beatings and failed to honor her ‘safe word’ letting them know when to stop.¹¹ At the same time, Paul Little’s (a/k/a Max Hardcore) federal obscenity convictions were upheld by the appellate court, reaffirming the legally obscene nature of the videos and web content charged in that case, which involved (apparently consensual) dominance and humiliation of women.¹² Publicity surrounding cases like this contribute to the overall remaining societal prejudice, and thus, the producers of BDSM content are far more likely to have their activity deemed ‘dangerous’ or ‘immoral’ as opposed to ‘socially desirable,’ when evaluating whether the participants can legally consent to spankings, beatings and other potential physical damage during the filming of an erotic work.

This conclusion is supported by existing court decisions addressing the issue. Numerous cases involving various forms of BDSM activity have come out against the ‘dominant’ defendant and in favor of the ‘submissive’ victim. The earliest case holding that the victim’s consent is no defense to S&M assault appears to be People v. Samuels.¹³ The California Supreme Court affirmed the conviction for aggravated assault and held that a consent defense was inapplicable. The court believed the S&M beating “was no less violative of a penal statute obviously designed to prohibit one human being from severely or mortally injuring another.” In Samuels, Dr. Samuels produced films depicting S&M behaviors, specifically whipping a naked man who was gagged and suspended from the ceiling with a riding crop. There was no breaking of the skin, and there was evidence that cosmetics were used to enhance this S&M depiction. Dr. Samuels intended to donate these films to Dr. Gebhardt of the Kinsey Institute, who had expressed an interest in obtaining S&M films, and there was no discussion of making these films available to the general public. ¹⁴ Despite this early California case, a substantial amount of BDSM content continues to be produced in that state.

Subsequent cases have likewise rejected the consent defense to a charge of S&M assault. In Commonwealth v. Appleby, the Supreme Judicial Court of Massachusetts sentenced the defendant to ten years in jail for beating his homosexual partner with a riding crop.¹⁵ The court reasoned that the state’s ability to proscribe violent behaviors includes brutality occurring in private, consensual sexual relationships. The fact that the activity was sexual in nature did not appear to impact the outcome of the case. The court held that because assault is a general intent crime (in Massachusetts), the only intent required to violate the law is an intent to do the act causing the injury; a showing of hostile purpose or motive is not required. Moreover, given the claimed ‘vicious nature’ of this sexual act; “[a]ny right to sexual privacy that citizens enjoy would be outweighed in the constitutional balancing scheme by the States’ interest in preventing violence by the use of dangerous weapons upon its citizens under the claimed cloak of privacy in sexual relations.”¹⁶ Similar decisions upholding battery convictions in the S&M context have come from other courts including in Iowa.¹⁷

Accordingly, the law across the country is not particularly favorable should a BDSM participant or producer be targeted for civil claims by the participant, or criminal prosecution by the state. Under accomplice theories like conspiracy, or ‘aiding and abetting,’ others involved in setting up the production, arranging for the talent, or even paying the models, may be dragged into a civil or criminal proceeding along with the actual producer or performer engaging in the offending, violent activity. Relying on ‘consents’ obtained in standard model releases typically used by adult industry producers before an erotic film shoot may not be sufficient to address the unique concerns identified in this article.¹⁸ Since this issue varies from state to state, the particular statutes and court decisions in the state where the production is to occur should be considered before shooting begins, and legal counsel should be consulted if necessary. Modifications to either the terms of the model release, or the entire rights-acquisition procedure might be desirable, as ways to reduce potential liability. Alternate locations might also be considered, depending on existing local law and enforcement policies.

As traditional legal concepts are forced to give way to the reality of human affairs, some unfortunate individuals will unwittingly become trapped in the process of change. Criminal battery or assault prosecutions against those involved with the production of BDSM material may result in a change in the law, but someone may be forced to go through the process, or even spend time in jail to move the law in a certain direction. These freedom fighters have always earned the respect of our firm and First Amendment lawyers throughout the country. However, for the time being, legal risks may be minimized with some advance planning and careful attention to details such as the release procedure and evaluation of local battery laws. In the mean time, continued progression in societal attitudes toward unconventional sexual expression is expected to occur, potentially rendering those laws outmoded, unenforceable, and outright silly to any prosecutor, judge or jury considering such a case.

About the Author:

Lawrence G. Walters, Esq., heads up Walters Law Group, a firm concentrating on First Amendment and Internet law. Walters has represented clients involved in all aspects of adult media, on a national basis, for over 20 years. All statements made in the above article are to be considered general information and expression of informal opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at

larry@firstamendment.com or via the firm’s website: www.FirstAmendment.com.

¹ See, People v. Freeman 250 Cal.Rptr. 589 (Cal. 1988); New Hampshire v. Theriault, No. 2007-601 (N.H. Sup. Ct. Dec. 4, 2008), and the author’s previous article on the subject, which can be found at: http://www.firstamendment.com/site-articles/content-outside-california/.

² Battery is generally defined as a harmful or non-consensual touching of a human being. Some states impose an injury requirement, and others distinguish between degrees of battery depending on the harm

resulting from the touching.

³ This concept has its underpinnings in the government’s perceived need to protect the continued health and viability of its able-bodied soldiers. See also, People v. Samuels, 58 Cal.Rptr. 439, 448 (1967).

⁴ “Assault and Battery – Consent of Masochist to Beating By Sadist Is No Defense To Prosecution For Aggravated Assault,” 81 Harv. L. Rev. 1339, 1339 (1968).

⁵ British Law Commission Report (‘BLCR’) 134 (comparable to a congressional report, often used when Parliament considers changing a law); Report of the European Commission of Human Rights on the

Spanner Appeal, available at http://www.spannertrust.org/documents/eurodissent.asp (last visited Feb. 9, 2010) (Loucaides, dissenting) (On October 15, 1985 two professional boxers died as a result of a boxing match. “It appears that the treatment of activities that may cause physical injury by the legal system of the respondent State is not consistent. Apart from the example of boxing one may refer also to cosmetic surgery and tattooing where consent is sufficient to preclude offences [sic] being brought.”).

⁶ See, “Understanding BDSM,” http://www.articlesbase.com/sexuality-articles/understanding-bdsm-

745518.html; “General BDSM & Sex Information,” http://www.leathernroses.com/generalbdsm/ generalbdsm.htm; “BDSM?,” http://www.xeromag.com/fvbdsm.html; and, “BDSM Powertronics,” http://www.powerotics.com/bdsm-lifestyle.htm.

⁷ Dr. Klein published several books including America’s War on Sex, www.WaronSex.com, and publishes a popular newsletter dealing with sexual issues at www.sexualintelligence.org.

⁸ The full commercial, using the slogan “Dominatrix do it on command,” can be seen here: http://www.youtube.com/watch?v=mdsAD-sSM4Y.

⁹ That is not to say that some law enforcement types do not enjoy, and regularly participate in BDSM

activity. Quite the opposite appears to be true based solely on anecdotal evidence.

¹⁰ E.g., “Raid finds alleged ‘sex dungeon,’ Tampa Tribune (Feb 19, 2005); http://www.sptimes.com/2005/02/19/Hillsborough/Raid_finds_alleged s.shtml; “Town Looks to Shut

Down Club in West Babylon,” The Beacon (NY) (Sept. 11, 2008); http://www.babylonbeacon.com/ news/2008-09-11/Front_Page/Town_looks_to_shut_down_adult_club_in_West_Babylon.html; “Atlanta Eagle Raided By Cops; Why?” The Bilerico Project (Sept. 16, 2009) http://www.bilerico.com/2009/09/atlanta_eagle_raided_by_cops_why.php.

¹¹ “Bizarre Hungarian Movie Company Ends in Sexual Battery Arrests,” Wizbang Pop! (Feb. 1, 2010), http://wizbangpop.com/2010/02/01/bizarre-hungarian-movie-company-ends-in-sexual-battery-arrests.php

¹² Little v. United States, 2010 WL 357993 (11^th Cir, Feb. 2, 2010) (unpublished). Note, the author does

not concede that the material depicted in this case is, in fact, obscene, and the appellate court concedes that no determination has been made whether it would be obscene in any district outside the location where the defendant was tried and convicted.

¹³ 58 Cal. Rptr. 439, 448 (1967).

¹⁴ Id.

¹⁵ Commonwealth v. Appleby, 402 N.E.2d 1051, 1056 (1980).

¹⁶ Note, however, that the continued viability of this line of reasoning may be in question after the U.S. Supreme Court case of Lawrence v. Texas, 539 U.S. 558 (2003), which found a constitutional right of privacy in intimate human relations.

¹⁷ E.g., State v. Collier, 372 N.W. 2d 303, 307 (Iowa Ct. App. 1985).

¹⁸ For an interesting discussion of the current legal issues associated with BDSM play, and the various

“stages” of consent, see, L. Marborough, “The Legal Dangers of Rough Sex,” The Daily Beast (Dec. 13, 2009); http://www.thedailybeast.com/blogs-and-stories/2009-12-13/the-legal-dangers-of-rough-sex/full/.

 

Craigslist Case Implicates Important Legal Issues for User Generated Content Sites

By: Lawrence G. Walters, Esq.

Weston, Garrou, Walters & Mooney www.FirstAmendment.com

Introduction

Operators of user generated content websites, including social networks, ‘tube’ sites, and online adult classified operations, may be substantially implicated by the outcome of the litigation involving Craigslist.com. This case implicates everything from the scope of Section 230 immunity for user-posted material, to the constitutional prohibition on prior restraint of speech. Whether intentionally or otherwise, Craigslist has taken on a battle that may shape the user generated content business model for decades to come.

Craigslist, of course, has become the best known online classified site of our time. Its (generally) free classified ad posting service attracts over 50 million users per month – both buyers and sellers.¹ Well before the recent dustup involving the state attorneys general – in November, 2008 – Craigslist became concerned with its own “erotic services” ads, and began requiring users to submit personally-identifying information, including phone numbers and credit card numbers prior to placing ads.² This allowed the company to identify the posters of these ads, and provide better cooperation with law enforcement, if necessary. Not satisfied with this adjustment to company policy, a few months later, a Chicago-area sheriff sued Craigslist for facilitating prostitution.³ Unfortunately for Craigslist, things really heated up the following month, when a Boston man utilized the website to meet a masseuse in a local hotel, where he later allegedly murdered her.⁴ His arrest on April 20, 2009, caused a public outcry against the widespread availability of thinly-veiled ads for prostitution on Craigslist.com.

In response to mounting public pressure, Attorney Generals from several states demanded the closure of the “erotic services” section of Craigslist the following month.⁵ Ultimately, Craigslist agreed to close the controversial section on May 13, 2009, and to replace it with a closely-monitored “adult” section.⁶ However, that substantial concession was not enough for South Carolina Attorney General Henry McMaster, who demanded that Craigslist block all of the ads relating to prostitution or pornography from South Carolina resident’s view.⁷ In that regard, he publicly stated: “The only agreement we could have is they block everything (sexually explicit) in South Carolina.” McMaster then penned a letter, which was prominently displayed on the Attorney General’s website, threatening the filing of criminal charges in the event Craigslist did not remove all offending material by 5:00 pm Friday, May 15, 2009.⁸

That no-so-subtle threat turned out to be “a bridge too far” for McMaster in his battle with Craigslist. The ultimatum provided Craigslist with the opportunity to sue South Carolina law enforcement officials, and seek a federal injunction preventing McMaster from carrying out his threat.⁹ Craigslist’s lawsuit resulted in substantial negative publicity for South Carolina’s Attorney General, as the press began to pick up on the critical First Amendment concerns generated by law enforcement’s demand for censorship of Craigslist.com. The flap also generated some important public discussion of the protections afforded to user generated content websites under federal law; specifically Section 230 of the Communications Decency Act, which provides a safe harbor for websites that allow third party postings. Had McMaster done even the slightest bit of homework on the issue, he would have undoubtedly concluded that his demand – requiring a complete ban on access to constitutionally-protected, erotic material – was actionable under the First Amendment. The aggressive litigation response by the site required some fancy backpedaling by McMaster, as he tried to spin this as a victory for South Carolina, and take credit for the elimination of the erotic services category from Craigslist. Unfortunately for McMaster, Craigslist had removed the disputed classified section even before he submitted the ultimatum, and that point was not lost on the local and national media covering the dispute.¹⁰

Shortly after filing the lawsuit, McMaster’s legal team wisely consented to the issuance of a temporary restraining order, preventing his office from initiating any criminal charges as a result of Craigslist’s classified ads.¹¹ In the end, McMaster agreed not to file the threatened criminal charges against Craigslist, thereby resolving that issue in the lawsuit.¹² Had McMaster not backed down, the court would have almost certainly enjoined the threatened criminal prosecution on its own.

The legal arguments advanced by Craigslist in this lawsuit are of significant importance to adult webmasters operating any type of user generated content site or community forum. Given the widespread popularity of this business model, and its many permutations, an analysis of the legal issues raised by the Craigslist case is important to the industry as a whole.

First Amendment – Prior Restraint Issues

The most compelling argument that can be advanced by Craigslist in this case is premised on the First Amendment’s protection of free expression. Not only does Craigslist have the right to publish its ads, its users have a right to receive the information found on the website.¹³ Important in the First Amendment analysis is the fact that Craigslist does not (and from a practical standpoint, cannot) review or approve each advertisement before it is published on the website. Given the sheer number of ads appearing throughout this classified mega-site, any review or approval requirement would likely put the Company out of business. Accordingly, even if McMaster is correct about the legality of the advertisements at issue, Craigslist is not in control of the content of its classified ads, and therefore would not likely possess the requisite scienter or criminal intent to violate either prostitution or obscenity laws.

With respect to obscenity, it must be noted that all sexually-explicit materials appearing on the Internet are presumed to be protected by the First Amendment, unless and until they are found obscene by the trier of fact.¹⁴ Accordingly, law enforcement cannot constitutionally issue a blanket demand that Craigslist prevent any obscene material from appearing on the website, since Craigslist cannot know, in advance, which materials might be found obscene by a judge or jury at some place and time in the future.¹⁵

McMaster is not the first law enforcement official to use the heavy hand of possible obscenity prosecution as a tool to accomplish censorship of erotic materials. In the 1970’s, law enforcement would routinely harass retailers selling erotic publications such as Penthouse magazine, with the intent to force the magazine off the shelves.¹⁶ The Fifth Circuit Court of Appeal affirmed the issuance of an injunction prohibiting this sort of bad faith harassment and prosecution of the retailers, finding the activity to be an unconstitutional prior restraint on speech. In a similar case, an anti-pornography campaign was put to an end by the Ninth Circuit Court of Appeal which found the effort to be unconstitutional.¹⁷ There, the Mayor of Phoenix, Arizona even went so far as to suggest that the owners and clerks working in newsstands and bookstores selling sexually-explicit material were involved in the Mafia.¹⁸ As the court explained: “[This sort of activity] can put the plaintiffs out of business without ever convicting any of them of anything.”¹⁹ Numerous other bad faith prosecutions, in retaliation for the exercise of First Amendment rights, have been enjoined by the courts, over the years.²⁰

McMaster appears to be particularly concerned about the availability of “pornography” to South Carolina residents.²¹ However, the only way to ensure that this state’s residents will not be exposed to such material would be to block the entire website, including all its categories, from the State of South Carolina. Again, Craigslist cannot control the nature of the content appearing in its classified ads, and therefore complete censorship is the only way to comply with South Carolina’s demands. Needless to say, the demand to block pornography from South Carolina is, itself, blatantly unconstitutional, given the First Amendment protections afforded to sexually-explicit speech.²² Accordingly, it appears that Craigslist would be successful in its claim that compliance with McMaster’s ultimatum constitutes an illegal prior restraint on protected speech.

Section 230 Issues

Sites like Craigslist are protected not only by the First Amendment, but also by specific provisions of federal law. When enacting the Communications Decency Act,²³ Congress wisely recognized the practical problems that would result from any attempt to impose liability on website operators for the speech or communications of third parties. If such liability were permitted, Internet service providers could be held responsible for the content of each and every website hosted on their servers, and search engines could be held responsible for the content of all of the search results provided by their services. To alleviate this concern, Congress included

Section 230 in the Communications Decency Act, which provides: “No provider…of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”²⁴ This “safe harbor” language has been given broad scope and effect by the courts.²⁵ Websites that allow third party content have been found to be immune from a wide variety of civil claims ranging from housing discrimination suits, to negligence, to civil rights.²⁶ Federal intellectual property claims are excluded from the scope of Section 230 immunity; however another federal statute, the Digital Millennium Copyright Act,²⁷ provides its own similar safe harbor for copyright claims, if certain conditions are met.²⁸

So what about criminal prosecution? That is the big, unanswered question in this area of law. Thus far, a website service provider has never been found to be immune from criminal prosecution as a result of Section 230 immunity. While all of the reported cases interpreting this section have arisen in the context of a civil claim, the statute, itself, does not appear to be limited to civil liability protection. Instead, the law broadly states: “…no liability may be imposed under any state or local law that is inconsistent with this section.”²⁹ South Carolina obscenity and prostitution laws may well be inconsistent with Section 230 immunity if they are imposed against a website operator, and based on the communications posted by third parties. Accordingly, the Craigslist case may be the first to squarely confront the scope of Section 230 immunity, in the context of criminal prosecution.

A ruling in favor of Craigslist would be a game changer for user generated content websites, as it would open the door for extremely broad legal protections to be afforded to these websites. It may be, however, that in order for the state or local law to be considered “inconsistent” with Section 230 that it would have to deal with a substantive criminal offense that is similar to conduct addressed in the Communications Decency Act (“CDA”). The CDA imposes criminal liability on individuals who transmit obscene materials via the Internet.³⁰

Under the more narrow interpretation, only state level obscenity laws would be preempted by Section 230. This would still benefit Craigslist, since at least a portion of McMaster’s threats were premised upon prosecution for pornographic and/or obscene images. However, the prostitution charges may survive the safe harbor, under this analysis.

The only case, of which this author is aware, where the argument regarding Section 230’s applicability to criminal prosecution was raised, was in the highly-publicized obscenity prosecution by Polk County, Florida against Christopher M. Wilson.³¹ There, the Defendant argued in his pretrial Motion to Dismiss that Florida’s obscenity law was preempted by Section 230, since the images forming the basis for the obscenity allegations were posted by third parties on his user generated content site, over which he exercised no content control. Fortunately for Wilson, a higher court intervened in the case, issuing a writ of habeas corpus, finding the Defendant’s pretrial detention to be illegal, thereby clearing the way for a favorable resolution of the case involving no felony conviction and no jail time.³² As a result, a decision was never issued on the merits of the argument, so the issue has yet to be addressed by the courts.

User generated content sites of all makes and models will be carefully watching the outcome of the Craigslist litigation, given the important Section 230 issues at stake.

Commerce Clause Issues

Craigslist also raises the important question of whether McMaster’s threatened state law prosecution triggers potential Commerce Clause concerns. While issues surrounding the dormant Commerce Clause of the United States Constitution are somewhat esoteric for the average adult webmaster, they may prove to be critically important for Craigslist and user generated content sites throughout the nation.

In its most basic form, the argument goes like this: The individual states should not be permitted to impose a hodgepodge of inconsistent state laws on national (or international) commercial activities. Such activities can only be regulated at the federal level. This makes good sense, since little issues like the mandatory width of railroad tracks need to be uniform throughout the fifty states so trains can stay on the tracks when crossing state lines. Similarly, restrictions on commercial airlines, importation of foreign goods, and telecommunication systems all need to be regulated at the federal level, for our country to successfully function as a cohesive collection of individual states.

This Commerce Clause argument has been accepted in the context of Internet commerce on numerous occasions, where the states have attempted to impose restrictions on the transmission of sexually explicit materials via the Internet.³³ In every case where that issue has been raised, the state statute was declared unconstitutional in violation of the dormant Commerce Clause. Any attempt to impose state obscenity or prostitution laws on websites implicates similar commerce clause concerns. Each statute, and each case is different, and legitimate distinctions may exist with respect to regulation of targeted classified ads focusing on specific geographic areas. Moreover, the Commerce Clause analysis is nuanced and complex, often making the outcome unpredictable. But Craigslist has raised a legitimate and important issue of constitutional law in response to South Carolina’s attempt to impose state law restrictions on Internet communications. Even if the dormant Commerce Clause is found to be inapplicable to geo-targeted online classified ads, other user generated sites may have more compelling and successful arguments in future cases.

The Court of Public Opinion

McMaster has taken quite a bit of heat for his ham-fisted approach to law enforcement against such a popular and widely used website as Craigslist. But the Internet industry should be thankful for his bumbling, in some respects. Because he went too far in demanding censorship of Craigslist.com, the public discourse has turned away from prostitution, pornography, and decency, to First Amendment censorship and Section 230 protection. Many law enforcement officials, who might have made the same freshman mistake as McMaster, have now been educated regarding the unique protections afforded to user generated content sites, and may be more hesitant to take action if they see something questionable on one of these websites. If the target of the investigation had been a fetish tube site, the public discussion of the issue may have been quite different and more supportive of the Attorney General’s tactics. But since the target was Craigslist, which is used by employers, friends, and family throughout the nation, the public was decidedly more sympathetic. If law is to be made in this area, it is better that Craigslist bring the case to court as opposed to some other plaintiff with less public acceptance. While Lady Justice is blind, she has been known to have x-ray vision on occasion, with legal decisions sometimes being influenced by the identities of the parties.

Without a doubt, McMaster stepped in a large pile of excrement with his overzealous bullying tactics. But the rest of us can sit back and enjoy the show as the courts of law and public opinion sort out just how much protection user generated content websites should enjoy when the next bully with a badge decides to impose an agenda of Internet censorship.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, Walters & Mooney, with offices in Orlando, Los Angeles, Salt Lake City, and San Diego. Mr. Walters

represents clients involved in all aspects of the adult industry and has practiced law for two decades. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 45 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@FirstAmendment.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”

¹ S. Kirshner, “Craigslist CEO Needs Help on His Soundbites,” Boston.com (April 27, 2009), found at: http://www.boston.com/business/technology/articles/2009/04/27/craigslist_ceo_needs_help_on_his_sound_bites/.

² J. Skillings, “Craigslist sues So. Carolina attorney general,” CNET News (May 20, 2009), found at: http://news.cnet.com/8301-1023_3-10245380-93.html.

³ “Sheriff sues Craigslist as ‘largest source’ of prostitution,” Chicago Breaking News Center (March 5, 2009), found at: http://www.chicagobreakingnews.com/2009/03/sheriffs-lawsuit-says-craiglist-largest-source-of-prostitution.html.

⁴ “Med Student Arrested In Craigslist Murder,” CBS News (April 20, 2009), found at: http://www.cbsnews.com/stories/2009/04/20/national/main4958272.shtml.

⁵ A. Johnson, “Authorities seek to crack down on Craigslist,” NBC Washington (May 6, 2009), found at: http://www.nbcwashington.com/around_town/the_scene/Authorities_seek_to_crack_down_on_Craigslist.html.

⁶ G. Sandoval, “Craigslist to remove ‘erotic services’ section,” CNet News (May 13, 2009), found at: http://news.cnet.com/8301-1023_3-10239610-93.html?part=rss&subj=news&tag=2547-1023_3-0-5.

⁷ C. LeBlanc, “McMaster says no to Craigslist deal,” The State (May 14, 2009), found at:

http://www.thestate.com/local/story/785877.html.

⁸ Read McMaster’s letter to Craigslist here: http://www.scag.gov/newsroom/pdf/2009/craigslist_letter.pdf.

⁹ “Craigslist sues So. Carolina attorney general,” supra.

¹⁰ E.g., M. Arrington, Stand firm, Craig (and Jim), Washington Post (May 18, 2009), found at: http://www.washingtonpost.com/wp-dyn/content/article/2009/05/18/AR2009051800628.html; Bad Publicity May Backfire, The Independent Mail (May 19, 2009), found at: http://www.independentmail.com/news/2009/may/19/bad-publicity-might-backfire/

¹¹ Craigslist, Inc. v. Henry D. McMaster, et. al., Civil Action No. 2:09-1308-CWH (May 22, 2009) (Consent Order, Honorable Weston Houck).

¹² “McMaster says no to Craigslist deal,” supra.

¹³Griswold v. Connecticut, 381 U.S. 479, 482 (1965).

¹⁴ Reno v. ACLU, 521 U.S. 844 (1997); Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

¹⁵ Of course, the inability to know, in advance, what materials are illegal should render all obscenity laws unconstitutional, in violation of Due Process rights, in this author’s view, however obscenity laws have inexplicably withstood such challenges over the years.

¹⁶ Penthouse Int’l Ltd. v. McAuliff, 610 F.2d 1353 (5th Cir. 1980), cert. dismissed 447 U.S. 931 (1980).

¹⁷ Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972).

¹⁸ Id. at 705-06.

¹⁹ Id.

²⁰ E.g. Weston v. McDaniel, 760 F.Supp. 1363, 1371 (N.D. Ga. 1991) (grand jury proceeding against criminal defense attorney enjoined as retaliatory against Plaintiff exercising his right to Freedom of Speech); Entertainment

Ventures, Inc. v. Brewer, 306 F.Supp. 802, 822 (N.D. Ala. 1969) (enjoining all state criminal obscenity prosecutions); Daughterty v. City of Eastpoint, 447 F.Supp. 290, 296 (N.D. Ga. 1978) (prosecution under sign ordinance enjoined not withstanding pendency of appeal of criminal action); The Video Store, Inc. v. Holcumb, 729 F.Supp 579 (S.D. Ohio 1990) (state court criminal prosecutions against video store owner enjoined because of bad faith harassment); Empire News, Inc., v. Soloman, 818 F.Supp. 307 (D.Nev. 1993) (adult bookstore licensing law prosecutions against owners of adult bookstore enjoined on First Amendment grounds).

²¹ S. Gaudin, “State AG ultimatum to Craigslist: Pull racy ads or face prosecution,” Computerworld (May 6, 2009), found at: http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9132631.

²² Reno, supra.

²³ 47 U.S.C. § 230(c)(1).

²⁴ Id., see also Section 230(e)(3): “No cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section.”

²⁵ Chicago Lawyers’ Committee for Civil Rights Under Law, Inc., v. Craigslist, Inc. 519 F.3d 666 (7^th Cir. 2008);

Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003); Doe v. AOL, 783 So.2d 1010 (Fla. 2001)

cert. den. 534 U.S. 891 (2001)

²⁶Chicago Lawyers’ Committee for Civil Rights Under Law, Inc., v. Craigslist, Inc. 519 F.3d 666 (7^th Cir. 2008)(fair housing claims) Doe v. AOL, 783 So.2d 1010 (Fla. 2001) cert. den. 534 U.S. 891 (2001)(negligence); Noah v. AOL Time-Warner, Inc., 261 F.Supp.2d 532, 538 (E.D. Va. 2003)(civil rights).

²⁷ 17 U.S.C. § 512.

²⁸ Id.

²⁹ 47 U.S.C. § 230(e)(3) (emphasis added).

³⁰ The original CDA also included a broad prohibition on any indecent material on the Internet; however those provisions were invalidated by the United States Supreme Court in Reno, supra on First Amendment grounds.

³¹ State of Florida v. Christopher M. Wilson; Case No. CF-05-7738 (Fla. 10th Cir. 2006).

³² See, J. Geary, “Wilson Avoids Jail,” The Ledger (April 22, 2006), found at:

http://www.theledger.com/article/20060422/NEWS/604220360?Title=Owner-of-Controversial-Web-Site-Gets-5- years-Probation-.

³³ American Book Sellers Foundation for Free Expression v. Dean, 202 F.Supp.2d 300 (D. Vt. 2002); PSI Net, Inc.

v. Chapman, 167 F.Supp. 878 (W.D. Pa. 2001), question certified, 317 F.3d 413 (4th Cir. 2003); Cyberspace Communications, Inc. v. Engler, 142 F.Supp.2d 827 (E.D. Mich. 2001); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997); Center for Democracy & Technology v. Pappert, 337 F.Supp.2d 2006 (E.D. PA 2004); Southeast Booksellers Ass’n v. McMaster, 371 F.Supp.2d 773 (D.S.C. 2005).

 

Lessons Learned from the Recent Round of Obscenity Prosecutions

By: Lawrence G. Walters, Esq.

Weston, Garrou, Walters & Mooney www.FirstAmendment.com

1. Introduction

The recent round of obscenity indictments, trials, and resolutions has left some webmasters anxious, and other confused. Few are encouraged by the latest developments. But what should be taken away from this flurry of activity? This article is intended to help sort out fact from fantasy, and identify the lessons that might be learned from the Government’s actions in these recent cases.

2. Obscene Paranoia

Being indicted on obscenity-related charges ranks among the top fears for any adult webmaster. Depending on the specific statute supporting the charge, and whether the prosecution is filed in the state or federal system, an obscenity conviction may result in a consequence as minor as fines and probation, or as catastrophic as decades in jail and forfeiture of all business assets. While the risks associated with obscenity have been on adult webmasters’ radar for many years, they have been brought back into focus by the recent indictments of Evil Angel/Stagliano in Washington, D.C.; AmateurAction.net/Thomas in San José, California, along with the conviction of Max Hardcore in Tampa, Florida, and the guilty pleas accepted by Karen Fletcher in Pittsburgh, Pennsylvania, and Ray Guhn in Pensacola, Florida. Has the Government turned up the heat in the waning months of the Bush Administration? Will Justice Department officials take a “parting shot” at the industry before their tenure expires? These concerns are a

hot topic of discussion in industry circles, and not without good cause. A number of lawyers and other industry leaders have opined that the current Justice Department will unleash a substantial number of new indictments before the next Administration takes over – particularly if Sen. Barak Obama wins the election in November. This effort is seen as potentially the last opportunity to cause damage to the adult industry, at the federal level, before a more sympathetic Attorney General takes the helm – potentially flushing all further federal obscenity prosecutions as was done during the Clinton era. This may also be the final opportunity for the current Administration to pay back the Religious Right for its unwavering support of President Bush during the last two election cycles.

3. Why Now?

While the above-described theories may justify a growing fear over a new onslaught of obscenity indictments, this author believes that an avalanche of new cases is unlikely – regardless of who prevails at the polls in November, 2008. Instead, the Justice Department is probably closing out the remaining investigations that were accepted by various U.S. Attorneys, after prodding by the Obscenity Task Force during the last few years. As had been widely reported, several U.S. Attorneys refused to take on obscenity cases that were presented by the Washington Office, given concerns over the viability of the prosecutions and the inability to prove guilt of the targeted defendants beyond a reasonable doubt.¹ But a few of these cases did go forward, as evidenced by the recent high profile indictments. These cases often take a year or more to assemble, and the industry is just now seeing the culmination of those investigations that were initiated during the Gonzales Administration.

Similarly, the three cases that recently reached conclusion; Max Hardcore, Ray Guhn, and Karen Fletcher, were all pending for many months before the recent resolutions. The Ray Guhn case – a state-level prosecution – had been pending since July, 2006. The raid on Karen Fletcher’s home occurred about the same time. Accordingly, while it might appear that a bunch of action is happening all at once on the obscenity front, this is all largely the result of a confluence of events resulting in a spike of activity in a one or two month period. While any level of obscenity prosecution is unacceptable from a First Amendment standpoint, the recent spurt of news stories and discussion should not be over-emphasized, or result in any greater degree of concern than is warranted. In other words, there does not appear to be a concerted effort to “turn up the heat” on the industry, at this particular point in time, using obscenity prosecutions; instead, a variety of activity in pending obscenity cases all happened to occur during the summer of 2008.

4. What Does This All Mean?

1. Recent Punishments

Notwithstanding the above admonitions, the industry cannot overlook the fact that one adult content producer has recently been jailed on charges stemming from his adult website operation,² and another will almost certainly follow next month.³ A small time Internet content producer in Orlando, Florida was incarcerated for almost a year during his prosecution for federal obscenity violations until he was sentenced to ‘time served’ and deported pursuant to a plea agreement in September, 2007.⁴ While the writer of erotic stories, Karen Fletcher, avoided jail completely with her plea bargain, the case against her resulted in a de facto closure of her website forever.⁵ As a result of these recent judicial activities, the perception by some in the industry is that the legal risks relating to obscenity have increased. However, a nuanced evaluation is required to more carefully evaluate these concerns.

2. Plea vs. Conviction

First, a significant distinction should be made between guilty pleas and convictions. The conviction of Paul Little, a/k/a Max Hardcore, based on various movies and website clips, operates as a determination on the merits that the subject video content is obscene. The same can be said of the material forming the basis of the corporate conviction in the Five Star Video case.⁶ This content no longer enjoys the presumption of protection it formerly received under the First

Amendment, prior to conviction. The Government can now legitimately label the content at issue in the Max Hardcore case, and the one video convicted in the Five Star Video case, illegal contraband. Assuming that a given conviction is not reversed on appeal, this finding of obscenity will be permanent.⁷ While a defendant might argue that he or she did not know whether certain content was obscene when first arrested, no such claim can be made with respect to materials determined to be obscene, on the merits, by a judge or jury at trial.

By way of illustration, the material alleged to be obscene in the Karen Fletcher case has not been determined to be obscene by the fact finder, as a result of her plea bargain. Ms. Fletcher simply agreed to resolve the case by entry of a guilty plea, and accepted the punishment of temporary home confinement. While the Government may claim some sort of victory in exacting a guilty plea from Karen Fletcher, due largely to her documented agoraphobia (i.e., fear of public places) the written material at issue has not been adjudicated obscene. Notably in the Ray Guhn case, the Defendant entered a plea to illegal financial transactions (i.e., “money laundering,”) under § 896.101, Fla. Stat. (2006), and not to obscenity or racketeering. As a result, the issue of obscenity was not a major facet of the Plea Agreement, and the material at issue was not judged to be obscene.⁸ However, where an actual conviction results from a trial, the material loses its presumption of protection.

3. Legally Obscene Material

While the Government undoubtedly hopes to strike fear into the hearts of adult content producers and adult webmasters through obscenity prosecution, a very small number of titles have actually been adjudicated obscene by the fact finder at trial, in recent times. Our research has demonstrated that only the following list of movies and video clips have been found obscene in the more recent cases:⁹

Max Hardcore Content:

(Video Clips:) me20europromo.wmv, px19europromo.wmv, ffo4promo.wmv, pm16europromo001.wmv.

(Movie Titles:) MAX HARDCORE EXTREME Volume Number 20 – Euro Edition, Pure Max 19 – Euro Edition, MAX HARDCORE Golden Guzzlers 7 – Euro Edition, Fists of Fury 4 – Euro Edition, PLANET MAX 16 – Euro Edition.

Croce Content: Toilet Man 6, Bukkake 3, Scat Pleasures, Scat Fist Fucking 2.

Gartman/McDowell/Ragsdale Content: Real Rape 1, Brutally Raped 5, www.forbiddenvideos.com.

Five Star Video Content: Gag Factor 18.

Given the huge amount of content produced by the adult video and Internet industries each year, the above-referenced material can be viewed as the proverbial “drop in the bucket.” Moreover, the vast majority of this content involves “fringe” fetish behavior, which is not within the mainstream of current erotic fare. While Max Hardcore is a well known name in the adult industry, his material is designed for a very specific viewing audience. The impact of a conviction in his case appears to be minimal, as few adult content producers veer into the fetishes and topics addressed in Hardcore’s videos. Those who do produce such content, have by and large not been deterred by the prosecution and conviction, as of yet. Accordingly, the few titles that have been found obscene in recent times may be dismissed as ‘extreme’ material, which does not translate into a widespread threat to the industry’s well-being.

4. Pending Cases

More disturbing than the recent cases that have been concluded, however, are those that have been recently initiated. In particular, the prosecution of John Stagliano of Evil Angel carries the potential to set the most important precedent of any obscenity case litigated in modern times. The reasons for this are three-fold: One, Stagliano’s material is more closely associated with the mainstream of adult product currently available to the public.¹⁰ While some of the topics like squirting and fisting are still taboo for many companies, they have become familiar

fare in most adult films. A conviction on the merits pertaining to any of these films will impact the industry in ways not yet experienced from any other recent case. Secondarily, the case is important since it is being brought in Washington, D.C., which is not particularly known for its conservative population and jury pool. Mixing mainstream content with an open-minded jury may be a disaster for the prosecution if the defendant is acquitted, but could also set a tremendously adverse precedent if a conviction results. The final important facet of the Stagliano case is the charge relating to the exposure of allegedly-obscene material available for minors to view on the web, in Count VII of the indictment. This charge stems from the 1989 “Dial-A-Porn” law which was intended to prevent children from accessing phone sex lines, but which has never been used in connection with online pornography. If successful, it could resurrect the age verification concerns that have not been at the forefront of the industry since the passage of COPA in 1998. These issues make the Stagliano case of significant importance to the industry in general, and to the future of free expression, itself.

The Ira Isaacs case exploded in the face of the government, as the presiding judge was found in possession of some interesting erotica on his personal computer web page. He immediately declared a mistrial, and the defendant is seeking to prevent a retrial on double jeopardy grounds. The content involved in that prosecution primarily involves scat fetish material.¹¹ What makes this case important is that is was filed in the heart of the industry’s

production jurisdiction – Los Angeles.

The case against amateuraction.net¹² is in its formative stages, still, but will also prove to be interesting. The defendant in that case, Robert Allan Thomas, is the same individual whom the government prosecuted in the U.S. v. Thomas¹³ case involving obscene material distributed via a Bulletin Board System, during the formative days of the Internet. That case was significant as it approved the government’s strategy of downloading allegedly obscene material in a conservative jurisdiction, on the opposite end of the country from where the defendant resided, and using the place of downloading as the forum for the prosecution. The appellate decision was later criticized for its failure to consider the inability of a website operator to block receipt of Internet content by particular geographic locations, thus preventing downloading in communities determined to be too conservative for the content available on the system. Apparently, the Department of Justice is back for round two with the recent Indictment. Although details regarding the actual content forming the basis for the charges are sketchy, at this time, the site

appears to focus on “Pissing, Fisting, Peeing, Golden Showers, BDSM, Extreme Insertions & Sex Fetish DVD Videos.”¹⁴ Such topics have been on the government’s obscenity radar for decades, although watersports content has become so pervasive online that its former status as ‘taboo’ or off limits has been diluted in the last decade. Importantly, the government has chosen

one of the most open-minded, progressive areas of the country for this prosecution; San Jose, California. It could be argued that the Department of Justice is seeking to establish a track record of prevailing in more ‘liberal’ jurisdictions, thus sending the message that it can win anywhere.

5. Conclusion

The crime of obscenity is, by its very nature, amorphous and not subject to much certainty. It is therefore difficult to grasp the practical impact of a given indictment, prosecution, conviction or acquittal. Usually, one case means very little, on its own, unless it is appealed to a higher court which renders an appellate opinion that becomes binding in a certain jurisdiction. The outcome of trial court cases have, frankly, very minimal impact on the industry as a whole – but certainly have a tremendous impact on the individual defendant(s). In the early days of obscenity prosecution against the adult industry (1970’s), adult theaters would routinely plead out cases and accept the resultant fines as a ‘cost of doing business.’ But today, with instant access to information about every obscenity case, and the industry’s intense interest in the topic (partially fueled by the industry attorneys’ fixation on it) each case is followed through its every twist and turn. The good news is that no adverse precedent has been set by any of the recent obscenity cases. No critical issue has been ruled on to the detriment of the industry, although a few evidentiary rulings could have come out better in certain cases. The appellate courts have

not gotten hold of any of these cases, yet, and have been unable to harm or help the development of First Amendment law. The one exception is the U.S. v. McDowell¹⁵ case, which established some good law on the issue of scienter or criminal intent to violate obscenity laws by a minor participant in a criminal scheme. But otherwise, obscenity law has remained as it was since 1973, when it was first ‘invented’ by the Court in Miller v. California. Since then, the U.S.

Supreme Court and various Circuit Courts of Appeal have reaffirmed Miller’s validity and applicability – even to digital content. The next appeal to the Supreme Court in the COPA litigation may finally give the industry some clarity on issues such as the applicability of local community standards to online material, and the scope of Internet material to be considered as the ‘whole work’ under the Miller Test, but that decision is a year or two away, in all likelihood.

Until then, the obscenity issues remain about as clear as mud for the average adult webmaster seeking to operate his or her business in full compliance with the law. If you happen to be selected for prosecution, you are in for months and possibly years of an expensive, difficult time – even if you ultimately win your case. The government often throws in a host of other charges (or threatened charges) unrelated to the obscenity issues, and offers to dismiss those in exchange for a guilty plea to obscenity. Our attorneys have seen the Department of Justice drop offenses relating to income tax fraud, money laundering, automatic weapons and other serious charges in exchange for a plea to the lesser crime of obscenity, given the political considerations involved in landing a conviction in these cases. As a result, much plays out behind the scenes in obscenity prosecutions, just like most other criminal cases. While much has been said of the recent round of obscenity cases, the truth is that the climate is much the same as it has been for the last 8 years. Fetish material is being randomly prosecuted, often based on circumstances having little to do with the content, but more to do with the defendant. The most important developments are the willingness of the government to prosecute more mainstream content, and its desire to initiate charges in more progressive jurisdictions. Those cases have not come to fruition yet, but many eyes are on the cases.

Adult webmasters should investigate all the details of any given obscenity case before assigning it any substantial degree of concern. In addition, the industry should be more focused on trends and patterns rather than the results in particular cases. By heeding this advice, you will remain informed while avoiding undue alarm.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, Walters & Mooney, with offices in Orlando, Los Angeles, Salt Lake City, and San Diego. Mr. Walters represents clients involved in all aspects of the adult industry and has practiced law for two decades. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 45 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@FirstAmendment.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”

¹ M. Hayes, “White House May Have Tried to Purge All U.S. Attorneys, Obscenity an Issue,” Xbiz.com, (March 14, 2007), found at: http://xbiz.com/news_piece.php?id=20082.

² State v. McCowen, Case No. 07-823-CFA (Santa Rosa Cir. Ct.), Plea Agreement resulting in 48 months incarceration.

³ U.S. v. Paul Little, Case No. Case No: 8:07-cr-00170-SCB-MSS (M.D. Fla), Guidelines Sentence expected to result in approximately 3 years incarceration with a maximum penalty of 50 years incarceration.

⁴ U.S. v. Croce, et al, Case No.: 6:06-cr-00182-GAP-DAB (M.D. Fla. August 29, 2007)

⁵ On August 31, 2008, FBI agents raided Ms. Fletcher’s home and seized the computer equipment she used to run her erotic stories website, www.Red-RoseStories.com. Despite numerous requests, the Government refused to return her property, resulting in the closure of the website at issue.

⁶ U.S. v. Five Star Video, L.C., CR-06-515-PHX-ROS (D. Ariz. 2007) (conviction as to Count VII).

⁷ It should be noted, however, that a different court, in a different jurisdiction, could determine that some or all of the subject content is not obscene, depending on how the jurors vote in any future cases. Case in point: The movie Deep Throat has been both convicted and acquitted in various courts throughout the country.

⁸ Importantly, however, the State argued that the financial transactions at issue were illegal because they involved transactions relating to material that was alleged to be obscene under federal law. It is an open question whether the state courts would be empowered to make a determination whether erotic material violated federal obscenity statutes; however the guilty plea obviated the need for the court to rule on this legal issue.

⁹ Not included in the list below is any material involved in cases that were resolved by plea, dismissal or acquittal, as such has not been adjudicated obscene. Other material from state level prosecutions not followed by the media may also have been omitted, although the impact of any such convictions is considered de minimis.

¹⁰ The movies named are Milk Nymphos, Storm Squirters 2, and Fetish Fanatic 5.

¹¹ Gang Bang Horse, Pony Sex Game, Mako’s First Time Scat, Hollywood Scat Amateurs 7, Laurie’s Toilet Show,

and Bae 20.

¹² See DOJ press release at: http://www.usdoj.gov/opa/pr/2008/July/08-crm-650.html.

¹³ 74 F.3d 701 (6th Cir. 1996).

¹⁴ See, www.AmateurAction.net.

¹⁵ Case No.: No. 06-10818 (5^th Cir. 2007).

 

The Whole Truth:

Evaluating the ‘As a Whole’ Requirement of the Miller Test

By: Lawrence G. Walters, Esq.

Weston, Garrou, Walters & Mooney www.FirstAmendment.com

1. INTRODUCTION

In the old days, applying the ‘taken as a whole’ requirement in obscenity cases¹ was simple: The book must be read from cover to cover, the movie must be watched from beginning to end, and the magazine must include both the pictures and the articles. But the advent of modern technology has complicated the ‘taken as a whole’ element, and presents some difficult challenges for both the courts and litigants in obscenity prosecutions.

Modern digital media is presented in a variety of forms and formats. Films can be chopped, ripped and edited in infinite ways with simple media software. Website users are now permitted to download portions of feature-length films and combine clips together to create their own favorite compilation set from a variety of different producers. Hardcore internet television services allow the same kind of content manipulation and display.² Websites present perhaps the most difficult challenge since their content changes on a routine basis, imposing both a temporal and a spatial component of the ‘whole’ work. It is also often difficult to determine where one site leaves off and another begins with the increased use of linking and framing technology, coupled with the sharing of traffic, content and members by and between competitors. The practice of “hot-linking” creates yet another set of concerns as to whose content the user is actually viewing when accessing a particular image or video clip.

2. LEGAL ANALYSIS

1. The Cases

It should be no surprise, then, that the courts have struggled with the ‘as a whole’ requirement, and are poised to render some problematic decisions. This whole issue is complicated by the fact that state and federal prosecutors are intentionally parsing out individual sections of media from larger works, and alleging those discrete portions to be obscene. For example, in the case of U.S. v. Extreme Associates,³ the Government downloaded a number of individual video clips from the ExtremeAssociates.com website, and indicted each clip as a

separate obscene work. The ‘as a whole’ legal challenges in that case remain pending after years of litigation, and probably will not be resolved until the case actually goes to trial. In the Red Rose federal obscenity case,⁴ the Government identified six (6) individual written stories from the Defendant’s erotic text site, and charged each story as a separate obscene work. That case was resolved by plea agreement before the ‘as a whole’ issues could be litigated. Judge Susan Bucklew, presiding in the U.S. v. Paul Little, et. al.⁵ (Max Hardcore) case, permitted the Government to show only portions of the allegedly-obscene videos at issue, because the jurors seemed to be getting uncomfortable when viewing the material in open court.⁶ The defense was forced to introduce the remainder of the movies at issue, allowing prosecutors to blame the defense for forcing the jury to sit thorough hours and hours of extreme erotica.⁷ Some of the counts on which the defendant was indicted arose from portions of his website, and not the site as a whole. Ultimately, the jury convicted Mr. Little on every count, including those associated with online content.

At the state level, prosecutors in Polk County, Florida, have, on at least two occasions, selected separate pictures and/or video clips from larger websites, and charged those distinct segments as obscene.⁸ In one of those cases, prosecutors identified 100 images, out of hundreds of thousands residing on a user-generated content website – none of which had been produced or even seen by the Defendant – as the basis for the obscenity prosecution.⁹ The trial judge used a few pictures isolated from the remainder of the content on the web pages as a basis for revoking the Defendant’s bond – finding probable cause that the images were obscene. Fortunately, the appellate court rendered an emergency ruling reversing the bond revocation order, and freeing him from this illegal incarceration.¹⁰ Both of the Polk County cases were resolved by favorable plea agreement before the court had an opportunity to rule on the ‘as a whole’ issues, so the question remains open.

2. The Legal Decisions

The existing law on the ‘as a whole’ issue does not completely answer the question with regard to digital media forms, but does support a favorable interpretation for the adult industry. By way of review, the Miller Test for obscenity is as follows:

“Obscene” means the status of material which:

1. the average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

2. depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and,

3. taken as a whole lacks serious literary, artistic, political, or scientific value. ¹¹

It is well-established that the courts must apply all of the prongs of the Miller Test when evaluating allegedly-obscene material, and the omission of any part of the Miller analysis constitutes reversible error by the court.¹² Put another way, the failure to strictly apply all elements of the Miller Test, including the ‘as a whole’ requirement, constitutes a fundamental denial of constitutional rights of the Defendant.¹³ Since the adoption of the Miller Test in 1973, the courts have uniformly required that materials be evaluated in their entirety, instead of in isolation, before they can be declared obscene.¹⁴

The requirement that materials be evaluated as a whole is critical when applying the ‘serious value’ prong. It is often the case that serious value can be found in the parts of the work that the Government overlooks or fails to present to the jury. The ‘value’ prong was formulated in the Supreme Court case of Roth v. United States,¹⁵ wherein the Court rejected the segmented review approach of earlier cases, instead adopting the requirement that: “the books, pictures, and circulars, must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion.¹⁶

Later, the Fifth Circuit Court of Appeal, in Penthouse v. McAluiffe,¹⁷ reaffirmed the importance of the ‘as a whole’ requirement, and ruled that magazines must be considered in their entirety, and not as a volume of separate “works” in the form of individual pictures.¹⁸ That court concluded that Supreme Court precedent requires that magazines must be considered as whole works, even though made up of individual articles and pictures.¹⁹ The only conceivable exception would be where valuable material is inserted as a “sham” such as where hardcore images are interspersed throughout the Bible.²⁰ In this regard, another court observed that “[t]he inclusion of serious literary matter in significant proportions may preclude a finding that a magazine is obscene, even though the magazine contains items; photographs for example, which standing alone would be found obscene under the Miller Test.”²¹ Other courts have issued similar rulings.²²

The ‘as a whole’ requirement also comes up in the context of evaluating probable cause to issue search warrants. The United States Supreme Court ruled that the magistrate considering issuance of a search warrant must either review, or consider descriptions of, the entire movie or magazine to allow for the required determination of obscenity which, in this context, must be made with “scrupulous exactitude.”²³

The Florida Supreme Court had an opportunity to evaluate the importance of the ‘as a whole’ requirement in Ladoga Canning Corporation v. McKenzie,²⁴ wherein the court considered the propriety of injunctions issued by the lower court, prohibiting future distribution of certain identified obscene material, along with “other printed materials which violate the provisions of Florida Statute Section 847.011(1)(a).” The problem was, that these “other printed materials,” were not specifically identified by the court’s orders, and had never been found obscene. Instead, the lower court merely recited the Miller Test, and enjoined the sale of materials which depicted eleven (11) specific actions or poses, apparently finding that the materials depicting this sexual conduct were automatically obscene under the Miller standards. The Appellants challenged the injunctions as a prior restraint on First Amendment-protected expression. The Florida Supreme Court agreed, and noted the following:

The Miller Court made it clear that the portrayal of sexual conduct, without more, does not render a publication obscene. The determination of obscenity must be based on an examination of the work as a whole, rather than isolated passages.²⁵

The court found, in invalidating the injunctions, that publications may not be suppressed merely because they contain certain poses or actions, since materials must be considered as a whole work, instead of in isolated parts.²⁶

Most recently, the United States Supreme Court considered the ‘as a whole’ requirement as it pertains to website content, when discussing the constitutionality of the Child Online Protection Act, (COPA).²⁷ Initially, it should be noted that COPA requires speech to be considered ‘as a whole.’²⁸ However, on the Internet, speech by different content providers, on different computers around the world, is seamlessly linked together, making such determinations unwieldy. Justice Kennedy noted in his concurrence in the COPA case, “It is unclear…what constitutes the denominator – that is, the material to be taken as a whole – in the context of the World Wide Web.”²⁹ Justice Kennedy went on to note that “it is unclear whether what is to be judged as a whole is a single image on a Web page, a whole Web page, an entire multiple Web site, or an interlocking set of Web sites.”³⁰ Although information on the Web is contained in individual computers, the fact that each of these computers is connected to the Internet through World Wide Web protocols allows all of the information to become part of a single body of knowledge and may appear to be a single integrated system. ACLU v. Reno, 31 F. Supp. 2d 473-

74. Justice Kennedy further suggested that the lower courts would need to answer “the vexing question of what it means to evaluate Internet material ‘as a whole,’ when everything on the Web is connected to everything else.”³¹

In light of the above, it appears that the existing law on the subject favors an interpretation of the Miller Test requiring consideration of an expansive amount of interrelated material when evaluating the obscenity, vel non, of a work. Parsing a single image, or set of images, from a larger website fails to include the required context of the material in the obscenity consideration, therefore possibly violating the First Amendment.

3. ANALYSIS

The Government will likely continue its efforts in ‘cherry picking’ extreme content from larger works, in the hopes of convincing juries that these individual segments are obscene, without regard to the remainder of the work. This is often problematic, since it is the remainder

²⁹ Ashcroft v. ACLU, 535 U.S. at 601; see also ACLU v. Reno, 31 F.Supp.2d at 484, ¶ 17 (E.D. Pa. 1999) (“From a user’s perspective [the Web] may appear to be a single, integrated system.”).

³⁰ Ashcroft v. ACLU, 535 U.S. at 593 (Kennedy, J. Concurring).

³¹ Id. at 600.

of many works that give the graphic portions context and meaning. If the courts allow a larger work to be branded ‘obscene’ based on a select image or passage, publishers and content producers will need to become increasingly concerned as to whether they will be prosecuted on obscenity grounds for portions of their works. If even a small segment of the material is considered shocking or objectionable by a potential jury, the publishers and producers may be found guilty without regard to the greater meaning provided by the remainder of the work at issue. For a user-generated content site, the liability concerns resulting from such legal theory will likely scare off many future operators, since webmasters of such sites cannot control the nature of the content posted without personally reviewing each image or video before it is posted to the site – a task that is impractical for a typical user-post site.

The ‘as a whole’ requirement provides an important safeguard against overzealous prosecutors seeking to capitalize on the worst aspects of a production or a work in order to obtain an obscenity conviction. Prosecutors should not be allowed to claim that digital media should be treated any differently when it comes to the application of the ‘as a whole’ requirement of the Miller Test. While the interconnectedness of media on the Internet, for example, may complicate the application of the Miller Test – including its ‘as a whole’ requirement – neither prosecutors nor the courts should be permitted to disregard the sound policy considerations supporting this critical element of the legal evaluation. The First Amendment mandates that serious value be judged by considering the work as a whole.

For many works, it is the non-explicit portions that give the graphic depictions context and meaning. For example, in the State v. Wilson prosecution referenced above, the very graphic images and video clips posted by users had a much different impact on the viewer when considered on their own, in isolation, as compared to the impact on the viewer when considered

in conjunction with the often humorous and insightful comments posted by the creator or other viewers. These comments were carefully excised by the prosecution from the pictorial content, to avoid any appearance of ‘value’ when shown to the judge. This sort of contextual manipulation should be patently rejected by the courts as an affront to the constitutional protection afforded erotic media under the First Amendment. To the extent that prosecutors are allowed to alter the meaning and impact of sexually-explicit works by changing the manner and context in which they were intended to be presented, it is the government that should be accused of creating any ‘obscene’ works that result from such manipulation.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, Walters & Mooney, with offices in Orlando, Los Angeles, Salt Lake City, and San Diego. Mr. Walters represents clients involved in all aspects of the adult industry and has practiced law for two decades. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 45 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@FirstAmendment.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”

¹ The well-known Miller Test requires that allegedly-obscene materials be taken as a whole when considering the prurience and serious value prongs of the Miller Test. See Miller v. California, 413 U.S. 15 (1973).

² For an example of such a service, see www.FireTv.com.

³ U.S. v. Extreme Associates Inc., 352 F.Supp.2d 578 (W.D. Pa. 2005), rev’d 431 F.3d 150 (3d Cir. 2005), cert. den.

547 U.S. 1143 (2006), remanded to Case No. 05-1306 (W.D. Pa.)

⁴ U.S. v. Karen Fletcher, Case No. 2:06-cr-00329-JFC (W.D. Pa.).

⁵ Case No: 8:07-cr-00170-SCB-MSS (M.D. Fla).

⁶ K. Graham, “Juror Asks to View Less Porn in Court,” St. Petersburg Times (May 30, 2008), which can be viewed at: http://www.tampabay.com/news/courts/criminal/article537208.ece.

⁷ M. Kernes, “Closing Arguments In Max Trial Reveal Prosecution’s True Agenda,” AVN.com (June 6, 2008), found at: http://www.avn.com/law/articles/30592.html.

⁸ State of Florida v. Tammy Robinson and Herbert Robinson, Case Nos. CF-99-01463-A-XX & CF-99-01465-A-XX (Fla. 10th Cir. 2001); State of Florida v. Christopher M. Wilson; Case No. CF-05-7738 (Fla. 10th Cir. 2006).

⁹ Wilson, supra.

¹⁰ Wilson v. Judd, Case No.: 2D05-6073 (Fla. 2d DCA 2005).

¹¹ This definition is taken from § 847.001(10), Fla.Stat. (2007) [Emphasis Added] but is representative of the test applied by the courts throughout the nation.

¹² See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (Where the Court struck down portions of the Child Pornography Prevention Act due to its failure to include certain elements of the Miller Test.

¹³ Id.

¹⁴ See, e.g., Penthouse International, Ltd. v. McAulzfe, 610 F.2d 1353, 1367 (5th Cir. 1980) (rejecting the state solicitor general’s argument “that each article and pictorial presentation is a ‘work’ and a magazine is merely a

conglomeration of these works resulting in a ‘volume’”); United States v. One Book Entitled Ulysses, 72 F.2d 705 (2d Cir. 1934) (requiring Government to look at entirety of book “Ulysses” and not individual excerpts taken therefrom); United States v. Miscellaneous Pornographic Magazines, etc., 526 F.2d Supp. 460 (N.D. Ill. 1981) (agreeing that obscenity determination cannot be based solely on pictures in a publication, and that relevant text in same publication must be translated first in order to assess whether, “taken as a whole,” material is obscene); Moses

v. County of Kenosha, 649 F.Supp. 451, 456-457 (E.D. Wis. 1986) (holding that “taken as a whole” requirement applies to “prurient interest” test and “serious value” test, but not to “patent offensiveness” test); State v. Walden Book Co., 386 So.2d 342 (La. 1980) (agreeing that “taken as a whole” requirement applied to entirety of a magazine); People v. New Horizons, Inc., 616 P.2d. 106, 109-110 (Colo. 1980) (tracing historical derivation of “taken as a whole” requirement to Regina v. Hicklin, L.R. 3 Q.B. 360 (1868), and striking obscenity statute for allowing possibility that obscenity of a magazine could be determined solely based on its photos without taking into account any accompanying text); and Leech v. American Booksellers Assn., Inc., 582 S.W. 2d 738, 749 (Tenn. 1979) (striking Tennessee obscenity statute’s definition of “taken as a whole” because it allowed the possibility that newspapers and other periodicals could be found obscene based on separate pieces of writing or photographs within such newspapers or other periodicals)

¹⁵ 354 U.S. 476 (1957).

¹⁶ Id. at 490 [Emphasis Added].

¹⁷ 610 F.2d 1353 (5th Cir. 1980).

¹⁸ Id. at 1367.

¹⁹ Id. at 1368.

²⁰ Id.

²¹ City of Urbana v. Downing, 539 N.E.2d 140, 148 (Ohio 1989).

²² U.S. v. Thevis, 484 F.2d 1149, 1155, 1157 (5th Cir. 1973); U.S. v. Toushin, 714 F.Supp. 1452, 1460-61 (M.D.

Tenn. 1989)

²³ Standford v. Texas, 379 U.S. 476, 481-85 (1965), see also Roadan v. Kentucky, 413 U.S. 496, 504 (1973).

²⁴ 370 So.2d 1137, 1141 (Fla. 1979).

²⁵ Id. at 1141 [Citations omitted].

²⁶ Id.

²⁷ Ashcroft v. ACLU, 535 U.S. 564.

²⁸ 47 U.S.C. § 231(e)(6)(C).

 

Three Alternate Futures:

Evaluating the State of the Adult Industry under Each Presidential Candidate

By: Lawrence G. Walters, Esq.

Weston, Garrou, Walters & Mooney www.FirstAmendment.com

As the Democratic Party wrestles with its knock-down, drag-out primary contest between Senator Barack Obama (D-IL) and Senator Hillary Clinton (D-NY), desperately seeking a solution for unity, the adult industry is no doubt wrestling with its own concerns regarding how it will fare under the potential presidency of the three remaining major candidates. The choice of the voters in November 2008, will dramatically impact the way in which the adult industry will fare – potentially for many years to come. Therefore, an objective, informed evaluation of each candidate’s stance on erotic entertainment, and First Amendment issues in general, is critically important to determining the potential impacts on the industry.

This article is not intended as a political endorsement, or as a recommendation on how to cast your vote. That personal decision will likely be influenced by a variety of factors beyond First Amendment issues. It should also be noted that the author is not affiliated with any political party, and is not employed by any candidate’s election campaign.

Hillary Clinton

Senator Clinton is a complicated political persona. Her views on First Amendment issues tend to fluctuate with the political objective at hand, and do not appear to be significantly influenced by any strongly-held moral or philosophical beliefs. Interestingly, when Senator Clinton became First Lady in January 1993, one of her first official acts was to order an end to the routine access to the West Wing that the media covering the White House had taken for granted for decades.¹ She even tried to get the press corps removed from the White House, altogether, and banished to a detached structure called the “Old Executive Office Building.”²

While such a sweeping policy change never came to pass, it does demonstrate a degree of antipathy toward fundamental notions of a free press. The distrust of the press carried over into recent times, as Senator Clinton has continued to block access to important documents housed in the Clinton Presidential Library, relating to her White House work.³ While this Candidate’s attitude toward media access and open government may not directly impact the free expression issues relevant to the adult industry, they do reveal a certain degree of casualness when it comes to upholding core First Amendment values.

During her tenure as a Senator from New York, Clinton has shown a willingness to impose government regulation on violent or sexually-oriented media. For example, she was one of the first to jump on the bandwagon criticizing the videogame, Grand Theft Auto: San Andreas, which contained un-lockable content that some deemed “pornographic” but which would not have earned a Hollywood movie more than a PG-13 rating, by today’s standards.⁴ As the instructions for unlocking the graphic content become widely available on the Internet, Clinton responded by saying: “The disturbing material in Grand Theft Auto and other games like it is stealing the innocence of our children and is making the difficult job of being a parent even harder.”⁵

In response to this incident, Clinton proposed what became known as the Family Entertainment Protection Act (FEPA), cosponsored by several Senators, including Joe Lieberman.⁶ The Bill called for mandatory, federal enforcement of the (currently) voluntary Entertainment Software Rating Board (ESRB) rating system for videogames, purportedly for the purpose of protecting children from inappropriate content.⁷ The FEPA sought to impose fines of $1000.00, or 100 hours of community service, for first-time offenses of selling videogames labeled “Mature” (M) or “Adult Only” (AO) to a minor. The Bill also called for an investigation by the FTC into the ESRB, to determine whether games have been properly rated in the first place. Clinton introduced the measure because of her purported belief “that the ability of our children to access pornographic and outrageously violent material on videogames rated for adults is spiraling out of control.”⁸

Clinton has also apparently bought into the largely discredited studies allegedly demonstrating a link between exposure to violent videogames and aggressive behavior of children, conducted by researchers at the Indiana University School of Medicine, and others.⁹ Thus far, none of these purported studies have been accepted as evidence of “harm” caused to minors playing violent videogames, in any court of law.¹⁰ The FEPA subsequently died in Committee and has not been reintroduced.¹¹

This aggressive approach toward regulating erotic and violent videogame content provides some insight into Senator Clinton’s views on adult-oriented media in general. While the focus of her efforts in connection with the Grand Theft Auto matter was on protecting children, such justification is universally cited for censorship of the adult industry. Accordingly, while Democrats, as a whole, have been traditionally less hostile to the interests of the adult industry than Republicans, Senator Clinton appears to jump on the “protect the children” bandwagon when necessary to satisfy political objectives.

Senator Clinton did show some promise in regard to Free Speech issues, during the dispute over an art display at the Brooklyn Museum of Art, which was described as “offensive to Catholics.”¹² At the time, then-Mayor, Rudolph W. Giuliani threatened to cut City financing to the museum if the display, which depicted the Virgin Mary adorned with elephant dung and sexually-explicit photos, was not removed.¹³ Giuliani characterized the debate as an effort to use public funds to bash the Catholic religion.¹⁴ Despite the potential political fallout from alienating the Catholic voters in New York, Clinton supported the free expression rights of the museum to display the art. Carefully tempering her remarks, Clinton summed up her position by stating: “I would not go to see this exhibit [but] it is not appropriate to penalize and punish an institution such as the Brooklyn Museum.”¹⁵ Whether Clinton was attempting to appeal to the highbrow New York art crowd, or simply standing on principle, cannot be known. However, a glimmer of First Amendment purism can be seen by her stance in this dispute.

John McCain

As noted above, the Republicans, as a group, have historically been substantially more aggressive against the interests of the adult entertainment industry, over the last several decades. From Nixon to Reagan to Bush I and II, Republican administrations have pursued criminal charges against the industry, and blamed erotic material for the moral decline of society and dissipation of family values. Nixon ordered the preparation of the Meese Commission Report,¹⁶ which was designed to “find’ a causal link between pornography and sex crime, after the first presidential report on pornography (under President Johnson)¹⁷ failed to uncover any statistically significant correlation.

Under President Reagan, the Justice Department began to pursue adult video producers aggressively, for the first time using the nation’s racketeering laws, which were amended up to include obscenity violations as “predicate offenses.”¹⁸ This move increased the potential jail terms and fines for obscenity offenses, exponentially. George H. W. Bush continued the War on Pornography until President William J. Clinton took the reins, bringing additional obscenity cases to a screeching halt – instead devoting Justice Department resources to the prosecution of child pornography. The adult industry – which now included the adult Internet – proliferated in the 1990s under Clinton, despite his signing of one of the worst pieces of censorship legislation to ever be passed by Congress. This law, called the Communications Decency Act of 1996, made virtually all erotic media on the Internet a federal felony.¹⁹ Of course, in 1997, a unanimous Supreme Court quickly invalidated the law prior to occurrence of any enforcement.²⁰

George W. Bush reignited the obscenity debate by appointing an ultra-conservative, Religious Right, Attorney General – John Ashcroft. Ashcroft’s appointment resulted in the initiation of a new round of obscenity cases.²¹ Ashcroft’s successor, Alberto Gonzales, then wielded the baton, and actually (and more relentlessly) pursued a greater number of obscenity prosecutions than Ashcroft. Further, Gonzalez, upon confirmation, committed to prosecuting “the distributors of hardcore pornography that meets the test for obscenity.”²² Gonzales was forced to resign in disgrace, as a result of the U.S. Attorney firing scandal, and is now succeeded by Michael B. Mukasey. While the new AG has not been particularly vocal on adult industry issues, the obscenity cases continue, with a new prosecution against Evil Angel’s John Stagliano, occurring in April 2008, under his watch.

It is against the foregoing backdrop that a potential McCain presidency must be evaluated. Irrespective of Senator McCain’s individual views on obscenity or the First Amendment, it must be assumed that his Republican Administration will be filled with substantially more conservative prosecutors²³ and appointed officials. Consequently, this translates into comparatively worse news for the adult industry than either of the Democrats.

That being said, John McCain has often been viewed as a “maverick” and an independent- minded Republican, often bucking the system and rejecting the counsel of the more conservative wing of the party.²⁴ Notwithstanding, for McCain to clinch the election, he must sew up the conservative block’s vote. That means promises will be made, and those promises might be kept. Conservatives have been demanding the obscenity prosecutions they were “promised” since they first helped elect Bush in 2000.²⁵

It may be possible to overlook some of this negative predisposition by Republican candidates if it were not for the fact that Senator McCain appears to have bought into the whole concept of blaming media for criminal activity by viewers. When asked about violence in movies and television, McCain voiced support for legislation requiring warning labels on violent media products similar to cigarette warning labels.²⁶ He calls for a close look at the “entertainment media and the violent images … with which they are bombarding our children.”²⁷ Moreover, McCain does not appear to have much general respect for First Amendment principles. When confronted by talk show host Don Imus about the claim that his campaign finance legislation²⁸ violated the First Amendment, McCain responded by stating: “I would rather have a clean government than one where quote ‘First Amendment rights’ are being respected that has become corrupt … If I had my choice, I’d rather have the clean government.”²⁹ McCain has routinely relegated the First Amendment to second place in political debates, even supporting prohibitions on burning the American Flag; a patently unconstitutional effort.³⁰ McCain’s other anti-First Amendment blemishes include sponsoring the library filtering law; dubbed the Children’s Internet Protection Act (CIPA),³¹ requiring that schools and libraries receiving federal funds install filters to block material that is deemed obscene or harmful to minors. He also recently sponsored the Stop the Online Exploitation of Children Act, which proposed expansion of penalties for obscene content to bloggers and other web hosts, in order to protect children. McCain, one of the drafters of the legislation, stated in a speech on the Senate floor: “Technology has contributed to the greater distribution and availability, and some believe, desire for child pornography.”³² To date, the bill has failed to pass.

McCain’s consistent, anti-First Amendment stance has earned him a lifetime rating of 26%, relating to his votes on civil liberties legislation, as determined by the American Civil Liberties Union.³³ This poor record may be partially explained by his views on the relationship between religion and government. Interestingly, when asked whether he thinks the United States Constitution established a Christian nation, McCain responded that “I would probably have to say yes, that the Constitution established the United States of America as a Christian nation.”³⁴ So much for First Amendment principles of separation of church and state.³⁵

As is evident from the above, McCain appears, from his public comments, voting record, and political party’s lengthy history, to be the worst choice for the adult industry’s interests. While questionable notions of a purported, independent-leaning mentality may hold some margin of hope in less open hostility to the adult industry than that which has been exhibited by the current Administration, some new legislation, and criminal prosecution is virtually guaranteed, using the hack-kneed justification of protecting children. Those in the adult industry still supporting Senator McCain for President should carefully consider the potential consequences of such a decision on their business interests, for years to come.

Barack Obama

One source names Barack Obama the most liberal member of the United States Senate.³⁶ However, “liberal” does not always equate to “civil libertarian,” as evidenced by the many feminists who view themselves as socially liberal, yet are vehemently opposed to pornography, which is seen as a means to victimize women.³⁷ Indeed, while Senator Obama may ultimately be viewed as the candidate who is least hostile against adult industry, he has a varied record when it comes to First Amendment issues. Certainly, Obama has been schooled in constitutional law, as he serves as a Senior Lecturer at the University of Chicago, where he specialized in due process issues.³⁸ While employed as an attorney with Miner, Barnhill, and Gallard, PC, Obama litigated civil rights cases, but focused on issues involving voting rights and employment, not free speech cases.

There is something to be said for electing a civil rights attorney as President of the United States, generally, as an individual with such qualifications would presumably be much more sensitive to constitutional obligations and restraints than, for example, the current Administration, which has viewed the Bill of Rights as more of a hindrance to its objectives than a set of guiding principles. Obama has demonstrated some sensitivity to religious freedom in his speeches and public presentations. However his commitment to separation of church and state is questionable, given statements like: “Secularists are wrong when they ask believers to leave their religion at the door before entering into the public square.”³⁹

Senator Obama does appear to be committed to the concept of freedom of information and open government. As a state senator in Illinois, Obama cosponsored the Verbatim Record Bill, SB1586, adopted into law in August 2003. This law requires public bodies to make video or audio recordings of any meetings behind closed doors, and was the first of its kind.⁴⁰ His commitment to open government carried over to his U.S. Senate position, where he has advocated similar transparency in government, cosponsoring the Federal Funding Accountability and Transparency Act of 2006. The bill created an online database to track approximately one trillion dollars in government on grants and contracts. Subsequently, it was signed into law effective January 1, 2008. Moreover, Obama has pledged to increase public access to government information if he is elected President by, for example, posting non-emergency bills for five days online to give the public a chance to provide feedback before he signs them into law.⁴¹

Although his record on open government and religious freedom may be impressive, Obama appears to be less committed to free expression as a cultural value. For example, when Obama was a state senator in Illinois, the State sought to issue “Choose Life” license plates. Obama was critical of the plates, and believed that their issuance resulted in an unfair promotion of an anti-abortion position.⁴² Ultimately, an advocacy group sued, and a District Court Judge ordered the State to start offering the plates, observing that the First Amendment protects unpopular and even some hateful speech.⁴³ Obama’s position in this dispute could, however, arguably be considered a pro-First Amendment stance, as preventing the issuance of license plates with a traditionally pro-Christian, anti-abortion message, may be seen as preventing an Establishment Clause violation.

Obama has also been critical of misogynistic and violent lyrics in rap music, opining that the rappers were “degrading their sisters” with their slang terms for women.⁴⁴ Obama has also supported more indecency regulation of broadcasters and cable companies. However, this often involves a difficult balancing act. In a November 2005, speech to the Kiser Family Foundation, Obama described the difficulty in balancing First Amendment liberties with cultural values in the context of regulating sex and violence on television.⁴⁵

However, Obama does see a role for the government in regulating the videogame industry. In that regard, he said: “I would call upon the videogame industry to give parents better information about programs and videogames by improving the voluntary rating system we currently have … and even if the industry does do some responsible self-policing, there is still a role for the federal government to play.”⁴⁶ In another comment, Obama ominously threatened to get the FTC involved if videogame ratings did not become clear: “If the industry doesn’t, then my administration would.”⁴⁷

Turning specifically to the Internet, Obama’s comments regarding a particularly offensive website raised some eyebrows. That incident occurred when Lindsay Ashford, an American expatriate living in Europe, and a self-professed pedophile, posted pictures of the presidential candidates’ children, evaluating their “cuteness.” Obama’s attorney, Robert Bauer, sent a cease and desist letter to Ashford, calling the use of the photos and the comments “a criminal act.” Obama’s representative demanded immediate removal of the photos, as well as any references to Obama and his family.⁴⁸ Various Free Speech organizations and advocates expressed surprise at this demand, as Free Speech principles clearly covered the display of a presidential candidate’s family on a website – irrespective of the disturbing context.⁴⁹ After a brief First Amendment backlash, the issue died down, and Obama did not further pursue the demand for removal.

Aside from these few points of diversion from core First Amendment principles, Obama’s background and training in civil rights issues, and his overall approach to open government and free expression suggest that his administration would be the least likely to pursue a campaign of open hostility and criminal prosecution against the adult entertainment industry, as exemplified by the current Administration’s efforts.

Conclusion

As in most presidential elections, there is no perfect candidate. The same holds true for the adult entertainment industry in the upcoming 2008 election. Each of the candidates has particular strengths and weaknesses. The two Democrats have a limited experience scorecard, thus making it difficult to predict exactly how they would approach certain cultural issues of importance to the adult entertainment industry. McCain has a long track record, but has been fairly consistent in his hostility toward First Amendment interests.

After enduring eight years of a Republican-influenced law enforcement policy, and appointment of two ultra-conservative Supreme Court Justices, voting for McCain appears to be the most detrimental from the standpoint of the adult industry’s interests. Alone, his ability to appoint more conservative judges at all levels of the judiciary presents a serious concern.

Of the two Democrats, Hillary Clinton has evidenced a willingness to propose and support legislation adverse to media interests, based on a purported desire to protect the children. This mentality can result in tremendously detrimental legislation for the adult industry. Although Obama has delivered some troubling public comments on issues impacting freedom of speech, his track record, education, and overall civil rights mindset suggest that his administration would be the least hostile to the livelihood of those involved in the adult industry.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, Walters & Mooney, with offices in Orlando, Los Angeles, Salt Lake City, and San Diego. Mr. Walters represents clients involved in all aspects of the adult industry. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 45 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”

¹ T. Mauro, “Hillary Clinton: Wariness of the Press,” FirstAmendmentCenter.org (October 30, 2007).

² Id. This building is, however, connected by tunnels, and serves as the Vice President’s primary office building.

³ Id.

⁴ Staff, “Senator Clinton announces legislation to keep inappropriate videogames out of the hands of children,”

www.Senate.gov (July 14, 2005).

⁵ Id.

⁶ Wikipedia.com – Family Entertainment Protection Act.

⁷ Id.

⁸ Senate.gov, supra.

⁹ Id.

¹⁰ See, e.g., Entertainment Software Association v. Blagojevich, 404 F. Supp. 2d 1051 (N.D. Ill. 2005); Videogame

Software Dealers Ass’n v. Schwarzenegger, 401 F. Supp. 2d. 1034 (ND Cal. 2005); Interactive Digital Software Association v. St. Louis County, 329 F.3d 954, 958 (8th Cir. 2003).

¹¹ Wikipedia.com – Family Entertainment Protection Act.

¹² A. Nagourney, “First Lady Assails Mayor Over Threats to Museum,” New York Times (September 28, 1999).

¹³ Id.

¹⁴ Id.

¹⁵ Id.

¹⁶ Attorney General’s Commission on Pornography, Final Report, July 1986, Vol. I, 225, 903.

¹⁷ Report of the Commission on Obscenity and Pornography, September 1970, U.S. Government Printing Office. (This Report was commissioned by President Lyndon B. Johnson, near the end of his administration. The Pornography Commission found that the government “should not seek to interfere with the right of adults who wish to do so to read, obtain, or view explicit sexual materials.”)

¹⁸ 18 U.S.C. § 1961.

¹⁹ Title 47 U.S.C.A. § 223 (1994 ed., Supp. II).

²⁰ Reno v. ACLU, 521 U.S. 844 (1997).

²¹ D. McCullagh, “Ashcroft’s hard line on hard-core,” Wired News (June 9, 2001).

²² J. Kay, “U.S. Attorney’s porn fight gets bad reviews,” Law.com (August 30, 2005).

²³ Moreover, any President normally appoints numerous federal judges during his tenure. That power, itself, should figure carefully into the analysis, since judges will ultimately be deciding the Constitution.

²⁴ Mathews, Blitzer call McCain a “Maverick”, Media Matters (August 31, 2007).

²⁵ T. Chris, “Gonzales’ strange priorities,” TalkLeft.com (September 19, 2005).

²⁶ OnTheIssues.org, citing: Press Release: “Violent Labeling Bill” Jun 16, 1999.

²⁷ OnTheIssues.org, citing: CNN AllPolitics Apr 30, 1999.

²⁸ Bipartisan Campaign Reform Act of 2002 (BCRA), Public Law No. 107-155.

²⁹ T.Mauro, “For McCain, First Amendment runs 2nd to campaign reform,” FirstAmendmentCenter.com (September 4, 2007)

³⁰ “Where does McCain stand on the flag burning amendment?” Yahoo.com (April 8, 2008).

³¹ Pub. L. 106-554.

³² D. McCullagh, “Senator: Illegal images must be reported,” CNetNews.com (December 11, 2006).

³³ “For McCain, First Amendment runs 2nd to campaign reform,” supra.

³⁴ Id.

³⁵ This concept is derived from the “Establishment Clause” of the First Amendment, which has been interpreted by the courts as prohibiting any excessive entanglement between the government and religion.

³⁶ B. Friel, R. E. Cohen & K. Victor, “Obama: Most Liberal Senator In 2007,” National Journal (January 31, 2008).

³⁷ “Anti-pornography movement,” Wikipedia.com; Feminists Against the First Amendment, The Atlantic; http://www.theatlantic.com/doc/199211/feminism-censorship/2.

³⁸ C. Holliday, “Obama’s First Amendment shows varied views,” FirstAmendmentCenter.org (August 9, 2007).

³⁹ Id.

⁴⁰ Id.

⁴⁶ B. Crecente, “Presidential Candidates Talk Video Game Censorship,” Kotaku.com, citing

www.commonsensemedia.org.

⁴⁷ P. Haas, “Candidates Weigh In On Video Game Regulation,” Cinemablend.com (December 12, 2007).

⁴⁸ Obama’s First Amendment shows varied views,” supra.

⁴⁹ Id.