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Adult Industry Update: March 2004 (Part 1 of 2)
Posted On 18 Mar 2004
The Adult Industry Update comes to us courtesy of First Amendment attorney Larry Walters of FirstAmendment.com, keeping Webmasters up to date on the latest legal news that is impacting the adult entertainment industry.The Adult Industry Update comes to us courtesy of First Amendment attorney Larry Walters of FirstAmendment.com, keeping Webmasters up to date on the latest legal news that is impacting the adult entertainment industry. In the first part of this two-part Update, Walters talks about the latest moves by the DOJ on the obscenity war front, and the government’s crackdown on “indecency” on the airwaves.
BRUCE TAYLOR REHIRED BY DOJ
Bruce Taylor, a Department of Justice (“DOJ”) Special Attorney from 1989 to 1994, was recently rehired as part of a renewed effort by the government to prosecute obscenity cases against the adult industry. Taylor was an attorney for the DOJ during the heyday of its Reagan-Bush Sr. anti-porn effort, which reinforces the current commitment to escalate its war against adult erotica. As DOJ spokesman Bryan Sierra stated, “Bruce has vast experience, both at the federal and state level, prosecuting those kinds of cases. It is all part of our overall effort to kick-start obscenity prosecutions after a long absence.”1 The DOJ has also assigned an elite FBI team to focus exclusively on the DOJ’s newly invigorated assault on adult erotica. Additionally, President Bush is seeking an increased budget to fight adult entertainment companies using obscenity laws, as evidenced by his fiscal 2005 budget proposal released in February.2 Given the groundswell of support from Congress for the concept of obscenity prosecutions, this effort should receive all the funding requested by Bush and Attorney General John Ashcroft. Now that the training sessions have been completed, the funds set aside, a leader picked and the gumshoes in place, all signs point to a significant effort coming down the pipe against the adult industry. The time for legal evaluation and compliance is now. ‘Nuff said.
SUPREME COURT REVISITS COPA
On March 2, 2004, the United States Supreme Court heard oral arguments in Ashcroft v. ACLU, which was the government’s third attempt to have the Child Online Protection Act (“COPA”) declared constitutional. The Court must decide whether COPA protects children from adult online content without stifling adults’ free speech rights. The Third Circuit Court of Appeal struck down COPA because it allowed the Internet to be judged by “contemporary community standards” which is difficult to enforce due to the Internet’s breadth, and the Philadelphia-based federal appeals court struck down COPA on broader free speech grounds. The ACLU argued that “COPA’s bludgeon suppresses an enormous amount of speech protected for adults and is unnecessary and ill-tailored to address the government’s interest in protecting children from sexually explicit images.”3 COPA, which has been on hold pending the Court’s decision, may impose $50,000 fines and six-months of jail time for first-time offenders, with increased fines for repeat COPA offenders. The Court is expected to render a decision within this term, which closes this summer.
The pending decision in that case reinforces the need for some form of age verification protecting the free areas of adult websites, or free sites themselves. Various options are available, and the author’s firm allows its clients to use the method described on www.BirthDateVerifier.com. Regardless of the method chosen, age verification is becoming a critical issue both in terms of compliance with COPA (if upheld) and to prevent the government from accusing Webmasters of providing erotica to children during the expected wave of obscenity prosecutions on the horizon. Despite the possibility that COPA may be struck down, compliance is universally recommended by Industry attorneys.
OBSCENITY PROSECUTIONS
In one of the first federal obscenity cases in almost a decade, Garry Ragsdale was sentenced to serve 33 months and his wife, Tamara, was sentenced to serve 30 months for conspiracy to mail obscene material, transporting obscene material, and aiding and abetting.4 The material at issue included videos entitled Brutally Raped. The two are currently out on bail, pending appeal. Others are also facing federal obscenity charges, including Jon Coil, Rob Black, and Extreme Video.
A federal grand jury indicted Harold Foote Hoffman II on March 10, 2004, for transporting allegedly obscene videos depicting bestiality via Federal Express to an address in Alabama. If convicted, the indictment orders Hoffman to forfeit all money and property gained from transporting the material. United States Attorney Kasey Warner said, “Our strategy is to focus on cases involving the online distribution of obscenity for commercial gain and obscenity involving children.”5 This is the first time that this author has seen an indictment where a private commercial courier, Federal Express, as opposed to the United States Mail, was used in a case involving the transportation of allegedly obscene materials, although such prosecutions have been statutorily authorized for decades.
In Canada, Steve Sweet, the head of Sweet Entertainment Group, is currently being tried for allegedly making and distributing obscene material. The materials at issue include videos depicting urination, bondage, and sadomasochism. Sweet will offer evidence regarding consensual acts displayed in the videos, the popularity of bondage, the unlikelihood of harm from the videos, and the widespread nature of bondage sites on the Internet. This case will raise issues regarding “contemporary Canadian community standards.”6 This case is also important as a glimpse into what the future may hold for Webmasters indicted for obscenity offenses here in the United States. This trial may last as long as six weeks. Until then, Sweet Entertainment is continuing to provide adult entertainment via its site, www.sweetentertainment.com.
FEDERAL CRACKDOWN ON INDECENCY
Culminating with the now infamous Janet Jackson exposure, the federal government has decided that it has had enough of Americans deciding what they want to watch and listen to and is set to come down with new regulations aimed at accomplishing just that goal. Never mind the fact that the event at the Super Bowl has been the most-searched in the history of the Internet, receiving more than three times the number of hits as the 2000 election received on the day after voting and five times as many searches as the day the Space Shuttle Columbia exploded.7
Parent groups and the Moral Majority are pushing Congress and the Federal Communications Commission (“FCC”) to come down on broadcasters over indecency law violations and the revocation of licenses.8 The House of Representatives overwhelmingly voted, 391 to 22, to increase penalties to $500,000 for the holders of broadcast licenses and performers who violate federal standards at times when children may be listening, between 6 a.m. and 10 p.m., and also supported the revocation of licenses of repeat offenders. The Senate version of the bill proposes to increase fines to $275,000, with a maximum fine of $3 million for a 24-hour period for corporations and a maximum fine of $500,000 for a 24-hour period for individuals.9
The passage of the House bill, H.R. 3717, which encompasses only content broadcast over public airwaves and not cable or satellite programs, bars the transmission of obscene, indecent, and profane material. The measure was strongly supported by the White House, which said in a statement, “This legislation will make broadcast television and radio more suitable for family viewing.”10 This measure may make television safer for children, but what about those adults who use their brains and want the right to choose what they watch or listen to? Howard Stern fans across the country did not have a choice when their favorite disk-jockey was pulled from Clear Channel Communications’ programming recently over allegedly “indecent conduct” aired during the broadcast. A campaign designed to oppose this new decency push by the FCC is circulating, and can be found here: StopFCC.Com – The campaign for free speech. Free speech is an essential liberty provided to Americans, yet it is one that we must fight the most to preserve, as evidenced here.
1 Richard Schmitt, Yes Plans to Escalate Porn Fight, Los Angeles Times, (Feb. 14, 2004) at http://www.latimes.com/la/na/porn14feb14,1,7713213.story.
2 Id.
3 AP, Supreme Court weighs porn, free speech, CNN.com, (Mar. 2, 2004), at http://www.cnn.com/2004/LAW/03/02/scotus.online.porn.ap/index.html.
4 Scott Ross, Ragsdales Sentenced to Federal Prison, AVN, (Mar. 8, 2004), at http://www.avn.com/index.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=76443.
5 Chris Wetterich, Nitro Man Indicted on Obscene-Video Charges, The Charleston Gazette, (Mar. 11, 2004) at http://wvgazette.com/section/News/Today/2004031027.
6 Angus Fitzpatrick, Steve Sweet Goes to Trial, Xbiz, Feb. 18, 2004, at http://xbiz.com/articles/print.php?article_idp=1108.
7 A. Schatz, The Lycos 50 Daily Report, Lycos (Feb. 4, 2004) at http://50.lycos.com/020404.asp.
8 J. Pelofsky, House Panel Pushed TV, Radio to Clean Up Shows, Reuters (Jan. 28, 2004) at www.reuters.com/printerfrinedlypopup.jhtml?type=domesticNews&storyID=4231052.
9 Scott Ross, Broadcast Decency Enforcement Act of 2004 Passed in Landslide Vote, AVN, (Mar. 11, 2004), at http://www.avn.com/index.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=76895.
10 C. Hulse, House Votes 391-22, To Raise Broadcasters’ Fines For Indecency, New York Times (March 12, 2004) at www.nytimes.com/2004/03/12/politics/12INDE.html.
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 much of the significant Free Speech litigation before the United States Supreme Court over the last 40 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.”
