LEGAL BRIEFS

It’s always my pleasure to cover any of the various legal discussions that occur at adult industry tradeshows. It’s comforting to know that our industry attracts bright, capable attorneys committed to the defense of the First Amendment.LEGAL BRIEFS

It’s always my pleasure to cover any of the various legal discussions that occur at adult industry tradeshows. It’s comforting to know that our industry attracts bright, capable attorneys committed to the defense of the First Amendment. While the legal scenarios that attorneys paint in these seminars are often disturbing, it’s good to know that when the conservative forces of America go on their next offensive, we’ll be waiting for them with our own arsenal of defense specialists; occasionally, we’ll even go on the offensive.

The InterNext seminar titled “Brave New World: What’s In Store for 2002” featured several attorneys from various legal firms that represent our industry. Greg Piccionelli, Larry Walters and John Wirenius all took turns speaking for their perspective firms. The result was an educational look at current legal trends and upcoming legal battles that will impact the online pornography business.

First up was Greg Picconelli, who discussed a plethora of legal topics. Starting out by drawing attention to his past predictions that have come to pass, Picconelli went on to talk about his vision for the Internet of tomorrow. Predicting a “second wave of e-commerce,” Picconelli said that the slowed rate on growth in the online porn sector will result in the maturation of the industry and continued consolidation.

Turning to government, Picconelli compared government to a glacier – taking a long time to get started, but being practically unstoppable once it gets going. In this regard, he urged those in attendance to pay special close attention to the ongoing case involving the Child Online Protection Act (COPA), which he said should be resolved within a couple of months. Offering measures Webmasters can take to help protect themselves from legal problems, Picconelli recommended participation in voluntary ratings systems, and further suggested that Webmasters might want to consider placing all explicit materials behind an age verification screen. He went on to urge Webmasters to comply with 18 U.S.C. 2257, and recommended that anyone who was uncertain about 18 U.S.C. 2257 should seek legal counsel immediately.

Turning briefly to “The Patriot Act,” which was passed by Congress in response to the terror attacks of September 11th, Picconelli argued that the act created an enormous bureaucracy that will be looking for ways to justify its existence once the war on terrorism subsides. That could be bad news for Webmasters, he argued, since the act leaves open all kinds of avenues for government monitoring and harassment of adult sites.

Moving on to legal issues involving celebrity images, Picconelli cautioned Webmasters against promoting sites that contain illegal celebrity materials. Claiming that lawyers for celebrities have found a lucrative market suing adult Web sites, Picconelli indicated that even being associated with a celebrity site could expose a Webmaster to legal troubles. The same, he said, holds true for “cybersquatters”; lawyers have found that there is a lot of money to be made by suing holders of domain names that may infringe upon a corporate trademark.

Picconelli also warned against sending unsolicited email, saying that the penalties for sending spam are high, and could involve criminal charges as well as civil charges. He recommended that email list owners provide a toll-free number in the initial mailing where subscribers can call to be removed from future mailings, and urged Webmasters to be certain to remove individuals from future mailings should they request to be removed. Webmasters should include “ADV:” in the start of the subject line for any mass mailing, and furthermore mailings advertising adult content should include “ADLT” or “ADULT” somewhere in the subject line as well.

Picconelli closed with a discussion on peer-to-peer (P2P) file sharing networks by distinguishing between what he termed “Napsterizable” content and “Non-Napsterizable” content. Since images, video clips, stories and similar content could be traded through P2P networks like Napster, these are examples of “Napsterizable” content which will be hard to protect as P2P networks expand. Live shows, on the other hand, could not be traded via P2P networks, and this type of “Non-Napsterizable” content might prove to be the bread and butter of an adult industry struggling to control free porn in cyberspace.

The next speaker was an attorney named John Wirenius, a First Amendment specialist and representative for the National Coalition for Sexual Freedom (NCSF). It was a pleasure to hear John speak about the NCSF’s current challenge to the remaining portions of the Communications Decency Act (CDA). Although the portions of CDA involving “indecent” materials was ruled unconstitutional by the United States Supreme Court, all portions dealing with “obscenity” were left intact, leaving Webmasters vulnerable to an obscenity prosecution based on the local community standards of the least tolerant community in America. NCSF is suing the federal government in an effort to invalidate the “community standards” test as applied to the Internet, a global medium.

Refuting the popular notion that Ashcroft and the Justice Department will be too busy to prosecute adult sites for obscenity, Wirenius reminded the audience that Ashcroft has stated on several occasions that he plans to tackle the obscenity issue. This lead into a lengthy discussion about the legal definition of obscenity, and Wirenius pointed out that there’s no way to know if Net obscenity battles would be fought in the locale of the Webmaster’s server, the locale of the Webmaster’s work place, or the locale where the Web site was accessed. Wirenius argued that even if the NCSF’s legal challenges were rejected, at least Webmasters would know where they stood in terms of the “local community standards” issue.

Interesting was Wirenius’ explanation for why the NCSF chose to tackle this issue now. Pointing out that the average Supreme Court justice leads a rather sheltered and exclusive life, Wirenius argued that Ashcroft would have eventually forced the “obscenity on the Net” issue anyhow, and that he would have done so by prosecuting the nastiest hardcore site he could find… thus ensuring plenty of images with high shock value to use in persuading the Supreme Court to uphold obscenity statutes. By going on the offensive now, the NCSF was able to choose its primary plaintiff. In this case, they chose a well-respected fetish photographer whose works will be used as the center of an argument against current obscenity statutes.

[Editor’s Note: Read the YNOT News interview with John Wirenius here.]

The final speaker was Larry Walters of FreeSpeechLaw.com. Walters spoke primarily about the Patriot Act, and the potential threat it poses to adult Webmasters. Starting off by calling the adult industry today’s “freedom fighters,” Walters argued that the First Amendment would not survive without speech that is considered “objectionable” by many. Confirming earlier comments about the importance of COPA, Walters said that he believed federal prosecutors were holding off on obscenity prosecutions barring the outcome of the COPA case.

After announcing that the FBI recently was awarded 379 million to upgrade its technological capability to respond to cyber crimes, Walters claimed that the anti-terror measures created by The Patriot Act could be used not only against suspected terrorists, but also against anyone who engages in “controversial” speech. As examples of what justification the FBI would have to investigate adult Webmasters, Walters pointed to the practice of stenography, a method used by terrorists to conceal secret messages into seemingly innocent images. Since terrorists have previously used adult Web sites as a means for delivering secret messages over the Internet, this gives federal agents all the incentive they need to start investigating adult Webmasters.

In a somewhat different view than John Wirenius, Walters pointed out that the elimination of the community standards test for obscenity (the “Miller” test) could result in more restrictive legislation against adult content. Arguing that the Miller test is not friendly to prosecutors, Walters warned that should the Miller test be eliminated, the Supreme Court might replace it with something as generic and restrictive as “no penetration,” or worse.

Before taking questions, Walters finished by saying that adult Webmasters have been lulled into a false sense of security by the Clinton Administration. Pointing out that our industry has matured in an environment basically void of the obscenity prosecutions that were so common during the nineteen eighties and early nineties, Walters warned that we must continue to keep an ever watchful eye on government while making efforts to legally protect ourselves right now.

Connor Young is Editor-In-Chief of TheAdultWebmaster.com.

LEGAL BRIEFS

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