ADULT INDUSTRY UPDATE September 2002 Lawrence G. Walters, Esq.
www.FreeSpeechLaw.com
Michigan Throws The First Punch
The Michigan Attorney General, Jennifer M. Granholm, has appointed herself as
the official ?locomotive? for the slow motion train wreck predicted in last
month's Update. As most readers already know, the Attorney General issued
notice letters to the industry's largest third party billing processors,
instructing these companies to immediately disable services to numerous sites
that ?may? contain child pornography, and further disable all ?similar?
Websites. The billing companies reacted in a variety of ways, including
immediate termination of services to the named sites, requests for further
information, or no response at all. While some Webmasters in the industry
reacted with indifference or support for the Attorney General's actions, given
the universal disdain for child pornography, others realized the dangerous
precedent that will be set if her actions are successful.
When this author first learned of the warning letters, he was hearkened back to
the earlier days of his practice, in the 1980's, when the State Attorney in
Daytona Beach, Florida, delivered similar warning letters to the Mom & Pop
video stores, demanding that various ?unsuitable,? ?immoral? and possibly
obscene videotapes immediately be removed from the shelves; unless the owners
wanted to be the target of a Grand Jury investigation. One of the tapes
identified was Pink Floyd's The Wall.
There is nothing new about this procedure: Some of the elder (and past)
partners in the author's firm have been through this battle, in various
incarnations, even dating back to the Nixon Administration. It happened again
in the Regan years, starring the infamous Attorney General Edwin Meese.
Throughout history, censors have been acutely aware of the efficiency of the
so-called ?chilling effect.? When protected speech is involved, the threat of
prosecution can have a devastating effect on other individuals, who are not
targets of the investigation. Such threats encourage self-censorship out of
fear of potential prosecution in the future. Thus, government has learned that
it need only threaten a small number of individuals to realize substantial,
immediate results from the chilling effect. That is precisely what is going on
with the Michigan Attorney General's Office. It becomes irrelevant whether a
particular billing company actually complies with the AG's demands, since many
Webmasters have already run for cover, and the third party processors likely
will be much more conservative in their policies and criteria concerning client
Website content. Yes, Virginia, censorship works.
However, not all targets have consistently buckled under the threat of
government censorship. Over the years, many adult media freedom fighters have
challenged this unconstitutional form of censorship, which threatens
prosecution in the absence of any judicial determination of the legality of the
content. Those challenges have not been in vain. The courts have generally
taken a dim view of this type of governmental action, and have often concluded
that threats of prosecution that are designed to result in self-censorship
constitute an illegal prior restraint on protected speech. So, it will be
interesting to see what the adult Internet industry does about the fact that
the first punch has been thrown by the Michigan Attorney Genera. Will it wait
to see if the next one is worse, or if more Webmasters are affected next time?
Perhaps the industry will erroneously conclude that this is an isolated
incident, and that none of the other 49 Attorney Generals across the country
are watching and waiting in the wings.
Now is the time when the adult Internet industry must ban together and assist
those unfortunate souls who happen to be in the government's cross hairs this
week. Solidarity is critical at this juncture, particularly given the fact that
the Michigan Attorney General has played the child porn card, attempting the
smear the targets with a despicable label, in the hopes that the industry will
step aside and clear the way for unhampered intimidation.
Virtually everyone in the legitimate adult Internet industry will agree that
processing memberships for sites involved in actual child pornography is
unacceptable, and should be terminated. However, what should concern this
industry more is the perceived ability for a state government to allege that
certain Web site content is illegal, without any specific proof or judicial
determination that it is, and demand that access to the material cease. In this
country, speech is presumed to be protected unless and until a judicial
determination to the contrary has been made. This author recommends that each
and every concerned webmaster express his or her concern with the actions of
the Michigan Attorney General by sending an email to her office, which can be
found here: miag@michigan.gov, Further, these actions illustrate the need to
join organizations such as the Internet Freedom Association the Free Speech
Coalition. If a small percentage of Webmasters joined or took an active role
in these organizations, the membership numbers, resources, and negotiating
strength of this industry could be overwhelming.
Good News From Ohio
Although overshadowed by the news from Michigan, other events of interest to
adult webmasters occurred throughout the world this month. Yet another victory
was realized for First Amendment principles through a decision by District
Judge Walter Herbert Rice, in Dayton, Ohio, who permanently prohibited the
state government from enforcing its new Internet pornography law, designed to
prohibit distribution of harmful materials to juveniles. The law prohibited
communications portraying or describing sex acts, repeated use of foul
language, lurid details of violence, and the glorifying of criminal activity,
over the Internet and elsewhere. Like similar laws that have been struck down
on First Amendment and Commerce Clause grounds, the Ohio law was broad enough
to criminalize Websites that answered sexual health questions or which depicted
images of indigenous women naked from the waist up, such as are commonly found
in National Geographic. The Judge noted that the law's prohibitions on extreme
violence could even prohibit teaching about the Holocaust.
Online Gambling Losses
The online gambling industry also took some hits this month, with the
withdrawal of major payment processors such as Pay Pal, Citibank and Bank of
America, along with a written opinion from the Department of Justice concluding
that online gambling violates the Wire Act if United States betters are
involved. Financial analysts, who once predicted that Internet gambling would
become a 6.2 billion dollar annual enterprise by next year, have now reduced
their prediction to 4.2 billion. That is less than half of what the Nevada
casinos take in.
Cleaning Up Brothel Websites
Webmasters in the United States will no doubt find it amusing that houses of
prostitution in Victoria, Australia, can no longer include nudity on the
businesses' Websites under regulations that took effect on September 2, 2002.
Oddly, such a restriction on Website content would likely be illegal in the
United States, although regulations completely banning prostitution are
universally upheld. Conversely, it appears that the folks down under will
tolerate censorship of the Internet, but allow prostitution services to operate
openly.
WalMart Erotica
This month also saw the censors crawl out of the woodwork and into the WalMart,
which bore the brunt of a national campaign by The Timothy Plan, the nation's
leading mutual fund group offering funds based on moral responsibility. The
Group accused WalMart of ?anti-family promotion of pornography.? All of this
was over WalMart's refusal to either remove or partially cover the covers of
Cosmopolitan Magazine, which the plan's president describes as one of the most
?blatantly aggressive soft core pornographic magazines in America.? That
probably answers your question if you're wondering whether any erotic Website
would ever be acceptable to the ?family values groups.?
Obscene Performance
Even comedy performances were on the censorship chopping block this month, with
Steve-o (star of MTV's Jackass), being charged with felony obscenity for
misusing a staple gun on himself in ways too graphic to describe here. Steve-o
is facing obscenity charges in the notably progressive part of the country
known as Terrebonne Parish, Louisiana. His original bond was $1.12 million,
until his attorney successfully convinced the court that the Comedian was not a
flight risk, resulting in bond reduction to $35,000. Interestingly, a
Terrebonne Parish Corrections Officer was disciplined for ?participating? in
the performance. Apparently the masochist fetish has not yet taken hold in
Terrebonne Parish.
Mobile Erotica
Count High Point, North Carolina, out on the voyeurism fetish as well: Four men
were charged with obscenity violations after a local police officer observed
them watching an adult film in a large SUV. One of the men argued that the
charges were inappropriate because the film was being shown in the privacy of
their personal car and was just ?a bit of getting it on.? They face up to six
months in prison if convicted. There's nothing like getting your erotica fix
on the run.
Ashcroft On Our Side?
Webmasters who wish that Attorney General John Ashcroft would turn his
attention away from adult materials and to protecting Web sites from copyright
theft might be in good company. Some 19 lawmakers from both sides of the isle
asked Ashcroft to begin prosecuting ?peer to peer? networks like Kaaza and
Morpheus and their users, who swap digital songs, video clips and other files
without permission from artists or their record labels. One can only wonder
whether Ashcroft will maintain a sufficient level of commitment to the project
once somebody lets the cat out of the bag that the majority of these file swaps
involve erotic images or movies.
Video Games Not To Blame
One voice of reason has stood out this month amongst the clamor of censorship:
The Sixth Circuit Court of Appeals issued a decision which upheld the dismissal
of the $33 million lawsuit which sought to blame video game makers, a
pornographic Website and a movie studio, for a deadly 1997 school shooting
massacre at Heath High School. Judge Danny Boggs, writing for the three judge
panel, summed it up in the court's written decision: ?We find that it is simply
too far a leap from shooting characters on a video screen (an activity
undertaken by millions) to shooting people in a classroom (an activity
undertaken by a handful, at most).? The suit was one of several filed against
the lucrative video game industry seeking to hold interactive software
developers responsible for the actions of consumers. All such suits have been
uniformly rejected by the courts.
Send Me Your SPAM?
California Attorney General, Bill Lockyer, surprised many in the online
community this month by asking for SPAM email. The request was actually a part
of an investigation by the California AG's Office into the legality of
unsolicited emails. California law imposes stringent requirements upon
unsolicited emails directed at California residents. For example, the subject
line of each message must include the letters ?ADV.? SPAM advertising for
adult materials must also include the designation ?ADLT.? The adult industry
is carefully watching the California AG's actions because of the level of
marketing it does using unsolicited email. Some industry leaders are concerned
that California will go after the adult industry first, even though other
industries such as the online gambling industry, make more frequent use of
SPAM. Currently, only sixteen states have anti-SPAM legislation. At the
federal level, Congress has been toying with anti-SPAM legislation for some
time now, but with no results.
Clean Up Your (Hotel) Room
Hotels buckled under pressure from family values groups by removing adult film
viewing options from their entertainment packages. The Citizens for Community
Values (?CCV?) helped convince Warren County, Cincinnati prosecutors pressure
Cincinnati hotel chains to stop offering pay-per-view adult movies to guests.
The Marriott chain was the first to remove the option, with Comfort Inn and
others quickly following suit. The decision was made after Warren County
prosecutors threatened that obscenity charges could be brought against the
hotel chains. ?I'm very pleased with the Marriott and their response,? said
Bill Burress, the president of the CCV. ?We're ecstatic,? he added. The ACLU
of Ohio, on the other hand, referred to the group as ?fundamentalist wackos,?
calling the actions a ?pressure tactic and anti-First Amendment.? The CCV
promises to expand its efforts, despite the criticism.
Feds: Dirty Laundry Violates Federal Law
The bizarre story this moth comes from Anderson, South Carolina, where a woman
has been charged with ?mailing indecent and filthy substances? for selling her
dirty panties to customers over the Internet. The common practice for amateur
adult Websites can result in penalties ranging up to five years in prison
and/or a $250,000 fine, according to federal law. South Carolina U.S. Attorney
Srom Thurman, Jr., filed the charges against the women under the rarely used
federal statute. What's next? Panty raids by the Department of Justice?
First Amendment Second To Security
Even the general public may not be as supportive of the First Amendment as they
were before 9-11. A recent poll indicates that half of us think that the First
Amendment goes too far and protects too much speech. That is up from only 39%
at this time last year. This is particularly discouraging when you consider
that these same people will ultimately decide the fate of any Webmaster
prosecuted based on content appearing on the Website. Polls like these
highlight the critical importance of educating the general public about the
policies underlying First Amendment protections. While many Americans support
the government's right to fight the war on terrorism using covert information
kept from the press, those same individuals react poorly when told what they
can or can't read, write or view.
Lawrence G. Walters, Esquire is a partner with the law firm of Weston,
Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr.
Walters represents clients involved in all aspects of adult media. The firm
handles First Amendment cases nationwide, and has been involved in significant
Free Speech litigation before the United States Supreme Court. All statements
made in the above article are matters of opinion only, and should not be
considered legal advice. Please consult your own attorney on specific legal
matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com,
www.FreeSpeechLaw.com or AOL Screen Name: ?Webattorney.?
Attorney General Press Release (August 27, 2002).
K. Brewer, T. Hymes, & E. Black, ?Granholm Throws Down Gauntlet,? AVN Online
(August 28, 2002).
See: Playboy Enterprises, Inc., v. Meese, 746 F.Supp 154 (D.D.Cir. 1990)
[detailing the actions of the Meese Commission]
See: Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584
(1963); Luke Records v. Navarro, 960 F.2d 134 (11th Cir. 1992).
C. Seper, ?Federal Judge Bars New Pornography,? The Plain Dealer (August 31,
2002)
Id.
Id.
Id.
D. Colker, ?Net Casinos Find They Can't Bet on Plastic,? LATimes.com,
(September 1, 2002); ?Reactions to 'That Letter' Are In,? Online Casino
News.com, (September 2002).
?Net Casinos,? supra.
Id.
J. Szego, ?Brothers Loose Web Nudity Rights,? SMH.com.au (September 2, 2002).
?Timothy Plan Mutual Fund Group Denounces WalMart For 'Promotion of
Pornography,'? Press Release, The Timothy Plan, Yahoo.com, (August 15, 2002)
Id.
J.Vineyard, ?Steve-o Out on Bond After Turning Self In,?
MTV.com:MTVNews:Headlines, (August 14, 2002).
Id.
Id.
H. Cassubhai, ?Four charged for watching porn in a car,? Court TV (August 15,
2002).
Id.
A. Sullivan, ?Ashcroft Asked to Target Online Song Swappers,? (August 9, 2002).
Id.
?Judge Won't Reinstate Lawsuit Blaming Video Games For School Shooting,?
CNN.com (August 14, 2002).
Id.
E. Black, ?Calif. AG: 'Send us your SPAM,'? AVN Online (August 7, 2002).
Id.
Id.
N. Clark, ?Adult Movies In Hotels Targeted,? The Cincinnati Enquirer (August 5,
2002).
Id.
Id.
Id., quoting Scott Greenwood, General Council for the American Civil Liberties
Union of Ohio.
Id.
A.P. (July 25, 2002).
Id.
Mark Lane, ?Survey suggests scary longing for a First Amendment lite,? The
Daytona Beach News Journal, (September 6, 2002).