LEGAL BRIEFS

THE AFTERMATH OF THE ELECTIONS

On Election Day this month, the American public handed over control of the federal government to the enemies of online erotica.LEGAL BRIEFS

THE AFTERMATH OF THE ELECTIONS

On Election Day this month, the American public handed over control of the federal government to the enemies of online erotica. That is not to say that every Republican wants to eliminate adult entertainment, or that every Democrat is on our side. For the most part, however, social conservatives have tended to be Republican. Those conservatives run on a platform of enforcing morality and, accordingly, the Republicans have largely embraced the so-called “moral majority” – which, by the way, is neither.

Unfortunately, the adult Webmaster community has failed to use its tremendous powers of persuasion to influence the outcomes of federal elections. Few, if any, political messages can be found on adult Websites. It is essential that the adult Internet community use its resources to its full advantage to assist in electing those who take a more compassionate, and enlightened, view of human sexuality. Failure to do so could be the industry’s undoing. We can survive two years: but can we survive six? Campaigning for the 2004 elections has already started; have you?

PORNOGRAPHY AWARENESS WEEK

The weeks leading up the election coincided, perhaps by design, with “Pornography Awareness Week” (“PAW”), sponsored by Morality in Media. A recently retired FBI agent, speaking during one of these PAW events, compared pornography on the Internet to “intercontinental ballistic missiles with multiple warheads that explode all over the United States.”1

The Concerned Women for America (“CWA”) also participated in PAW by issuing a report criticizing a number of Fortune 500 companies who profit from the adult industry, calling them “white collar smut peddlers.”2 Some of the companies identified in the report as having ties to the adult industry include: AT&T, MCI, Time Warner, Comcast, Echo Star Communications, DirecTV, Hilton, Marriott, Sheraton, Radisson and Visa.3 Visa, in particular, was accused of accepting $420 million in processing fees from online erotica purchases. CWA has demanded that each of these corporations discontinue “trafficking in pornography.”4 This may shed some light on the new restrictions imposed by Visa on processing transactions for adult Websites.

Nevertheless, all of this negative hype has not caused a reduction in the adult Website business. According to recent research, over 1,500 formerly mainstream Websites have switched to providing adult content.5 “Our research has shown that expired domain names change ownership daily and can often be recreated as porn sites,” says Harold Kester, the Chief Technology Officer for WebSense. A recent investigation has confirmed that the Morality in Media Website has failed to make the switch, thus far.

TOO MUCH SECURITY?

The Republican takeover of Congress, buttressed by a Republican president, has caused some civil libertarians to express concern over how the USA Patriot Act might be used, or more appropriately, misused. The Patriot Act authorizes the FBI to obtain court orders to monitor anyone that the government thinks might have information relevant to anti-terrorism investigation, including American citizens, who are not themselves suspected of criminal activity. The Act also authorizes issuance of subpoenas directed to bookstores for customer information. Some booksellers have successfully resisted the subpoenas, however others may not have a chance depending on how the court orders are fashioned.6 Some orders are requiring that customer information be immediately turned over to the government, and include a gag provision preventing the booksellers from alerting anyone to the fact that the order has been issued or served.7 It is therefore impossible to determine whether this new power is being abused. The American Booksellers Foundation for Free Expression has issued an alert, warning United States citizens that these anti-terrorist measures pose a serious threat to Free Speech.8

Depending on how and if the Homeland Security Act legislation is amended before passage, it may pose an equal or greater threat to civil liberties as the Patriot Act. Every purchase you make with a credit card, every magazine subscription you buy, prescription you fill, Website you visit, email you send or receive, grade you receive, deposit you make, trip you book, or event you attend would go into a “virtual centralized grand database,” according to the Department of Defense.9 That is what John Poindexter, the head of the “Information Awareness Office,” is hoping for.10 In the name of fighting terrorism, Poindexter is advocating this “data mining,” or power to snoop on every public and private act of every American. Under the Patriot Act, at least the courts oversee this sort of governmental eavesdropping. The Homeland Security Act threatens to eliminate that oversight.11 By the way, the motto above Poindexter’s Pentagon office reads “Scientia Est Potentia” – Knowledge Is Power. Indeed!

SIBLING CENSORS

This month saw more nonsense by the anti-porn crusaders, with two sisters campaigning against “R” rated video titles at local video stores. Jenny E. Tonks and Patricia L. Barrett are campaigning against local video stores in Ruxburg, Idaho, seeking to convince retailers to remove all “pornographic films in our community, even the so-called ‘soft porn’ with an R rating.”12 These siblings probably wouldn’t be happy with the new “BMX XXX” video game, which uses the tag line “Keep it Dirty.” Major retailers such as Wal-Mart, Toys R Us and KB Toys have refused to carry the title because of its content. “We’re not going to carry any software with any vulgarity or nudity – we’re just not going to do it,” says Wal-Mart spokesman T. Williams.13 Umm… it’s just a game.

OBSCENITY UPDATE

More troubles exist for an Oxford, Alabama video store that has been the subject of regular raids for allegedly selling obscene materials. The District Attorney for Calhoun County, Alabama, obtained a court order temporarily prohibiting the store from distribution of materials portraying graphic sexual conduct, “in a like manner as” those tapes that were the subject of previous raids.14 In one of the raids, law enforcement seized $200,000 worth of adult movies from the business.15 The video store owner is grateful for all of the attention: “I couldn’t buy this kind of advertisement,” said Larry Amerson.16 This is but one of a string of recent obscenity cases that may help identify the community standards for what kind of adult fare crosses the line from protected speech to illegal obscenity, at least in Anniston, Alabama.

Another obscenity case was resolved with a freedom fighter sentenced to prison. Jennifer Dute, an amateur movie maker in Cincinnati, Ohio, was sentenced to a year in prison for selling video tapes of her having intercourse with black men.17 Her attorney, H. Louis Sirkin, observed, “I mean, it is simply unbelievable!” Dute is appealing.18

COURT BRIEFING

There is some interesting news out of the courts this month as well. The big news is that the United States Supreme Court has accepted jurisdiction over the Child Internet Protection Act (“CIPA”) case.19 A federal court out of Philadelphia previously ruled, in a stinging decision against the government, that the legislation chilled free expression and thereby violated the First Amendment by suppressing a substantial amount of constitutionally protected speech.20 It was found that the filters used by the libraries in the attempt to comply with the law blocked out certain words, or parts of words, such as “breast” in a search for “breast cancer” making many mainstream sites inaccessible.21 The Supreme Court is now expected to hear oral argument regarding the validity of the law early next year, and a decision is expected by July.22 Ten percent of all regular Internet users rely on access at a public library.23 Given the unique emphasis the current court has placed on First Amendment rights, a reversal in favor of the government may be a long shot, but time will tell.

Another Internet censorship law is also back in the courts this month, the Child Online Protection Act (“COPA”). You would have to be living under a rock to not know about COPA. For those who enjoy cave-dwelling, COPA is the federal legislation requiring some sort of age verification in order to provide commercial access to adult Websites. The United States Supreme Court ruled last May that it was not ready to render a decision on the merits until the Third Circuit Court of Appeal considered all of the constitutional arguments relating to the validity of the law. Accordingly, the Third Circuit heard arguments for a second time, during the last week of October, 2002. Ann Beeson, the ACLU staff attorney who is arguing the case on behalf of various Internet publishers, said, “We thought the arguments went very well, and we’re confident that the judges will keep the preliminary injunction against COPA in place.”24 Critically important in this case is the applicability of so-called local community standards to a global medium such as the Internet. The first time around, the Third Circuit Court of Appeal ruled that the law was overly broad since it required Web publishers serving numerous communities to develop a system that shielded material that the most puritan of communities might deem to be harmful. The United States Supreme Court is expected to address the constitutionality of the law again, after the Third Circuit issues its ruling.

On the positive side, a federal court ruled that Alabama’s sexual devices law was unconstitutional.25 The law outlawed sale of such popular devices as vibrators. United States District Judge Lynood Smith Jr. stated in his opinion: “The ultimate result is that plaintiffs have shown that the fundamental right of privacy, long recognized by the Supreme Court as inherent among our constitutional protections, incorporates a right to sexual privacy.”26 Rumor has it that Alabama is buzzing with excitement.

In other good judicial news, a federal judge from Virginia ruled that law enforcement officials went too far when they tried to use evidence gathered by a known hacker to convict someone of possessing child pornography.27 Under the ruling, the use of a private individual to hack into an Internet connected home PC without a warrant violates the Fourth Amendment.28 The hacker uploaded a file containing the SubSeven Virus, which the hacker used to remotely search various individuals’ computers for illegal images.29 The decision is likely to be appealed, but should serve as a word of caution to federal agencies seeking to use hackers as an arm of law enforcement.

One court struck a blow to anonymous speech on the Internet, by ruling against America Online, who sought to protect the identity of one of its subscribers.30 The Virginia Supreme Court sided with the Plaintiff in connection with a request to subpoena the identity of the AOL user as part of an unfair business practice claim. The court ordered disclosure of the information. The very unsettled law in this area is currently being written by the courts.31

BUSH UPDATE

President Bush was on the anti-child pornography bandwagon again, urging a ban on “morphed” child pornography. “Every day, millions of children log on to the Internet, and every day we learn more about the evil of the world that has crept into it,” said Bush during a recent speech.32 The United States House of Representatives passed a bill that would outlaw computer-generated sexually explicit images of anyone under 18 years old, even if no actual minor was involved. A similar bill is under consideration in the Senate, which has not yet addressed the issue. In April, the United States Supreme Court struck down a similar law banning morphed images where no child was actually used. Bush also endorsed mandatory library filtering, stating that “pornography and smut” should not be available in public places.33

DIRTY DANCING DOOMED?

Some brief notes from the adult dancing industry: The Oregon Court of Appeals, one of the more liberal courts, rendered a stunning ruling deciding that nude dancing does not constitute Free Expression under the Oregon Constitution, opening the floodgates for enactment of restrictions on the adult entertainment industry that had been traditionally off limits in that state.34 The decision almost certainly will be reviewed by the Oregon Supreme Court.

An icon in the adult dancing industry in Florida, Michael J. Peter, was cleared of racketeering by the Eleventh Circuit Court of Appeals, who agreed that Peter had not violated racketeering laws by failing to disclose the fact that members of the New York Gambino crime family owned part of his businesses.35 Peters is now entitled to reapply for liquor licenses, which he was prevented from doing as a result of the felony convictions. Welcome back, Mike.

FOREIGN POLICIES

United States Internet users still have more freedom than those in totalitarian-governed countries like China or Spain. A Chinese province has required Internet café users to buy access cards that identify them to the police in order to allow tightened official monitoring of Internet users and their activities.36 China has 45 million regular Internet users. However, the country blocks access to gambling, pornography and extremist Websites. In Spain, any Website that engages in commerce must register with the government under a new law that took effect on October 12. This law has prompted over 300 Website owners to take their sites offline in protest.37 Spain now joins such enlightened countries as Saudi Arabia and China, which also require Website registration. This kind of stuff almost makes VISA sound reasonable.

One final note: Don’t miss the sequel to “Bumfights,” which the producers announced last month.38 Part one showed homeless men fighting and performing various stunts such as setting their hair on fire.39 More than 300,000 copies of the first video had been sold online. The producers face felony charges for staging fights without a license for that video.

1 C. Hardiman, “Program to focus on Internet porn,” Mlive.com (October 24, 2002); quoting Roger Young.
2 S. Ross, AVNNews (October 30, 2002).
3 Id.
4 Id.
5 “Study: Some mainstream Websites switch to porn,” Silicon Valley/San Jose Business Journal (October 31, 2002).
6 ABFFE.org (November 1, 2002).
7 Id.
8 Id.
9 W. Safire, “You Are a Suspect,” NYTimes.com (November 14, 2002).
10 Id.
11 Id.
12 “Idaho Sisters Try to Remove ‘R’ Rated Titles from Video Chains,” AVNNews (November 7, 2002).
13 “Retailers shun new ‘XXX’ video game,” CNN.com, (October 18, 2002).
14 J. Landers, The Anniston Star (October 14, 2002).
15 Id.
16 Id.
17 “Jennifer Dute Sentenced to Prison,” AVNNews (November 6, 2002).
18 Id.
19 C. Lane, “Supreme Court to Hear Web Porn Case,” WashingtonPost.com (November 12, 2002).
20 American Library Association, Inc., et. al., v. United States, et. al., 201 F.Supp.2d 401 (E.D. Pa 2002).
21 A. Bromage, “Feds want ‘Net filtered, but libraries not so sure,” NewHavenRegister.com (October 27, 2002).
22 C. Lane, supra.
23 Id.
24 D. McCullagh, “Anti-porn law back in court,” CnetNews.com (October 30, 2002).
25 V. Walton, “Judge: Sex toy sales ban unconstitutional,” Al.com (October 11, 2002).
26 Id.
27 L. Bowman, “Ruling: Cybercops need a hack warrant,” ZDNet.com (November 15, 2002).
28 Id.
29 Id.
30 “Court rules against AOL on ‘net privacy,” Reuters.com (November 4, 2002).
31 Id.
32 D. McCullagh, “Bush urges ban on ‘morphed’ porn,” ZDNet News (October 24, 2002).
33 Id.
34 A. Green, “Nude dancing ruling touches on free speech,” OregonLive.com (October 31, 2002).
35 “Founder of nude bars cleared,” Orlando Sentinel (November 1, 2002).
36 Linda, “Internet Café Users Card ID’s Them To Police: China,” Online Casino News (November 8, 2002).
37 D.Wools, AP (November 4, 2002).
38 “Producers Working On ‘Bumfights’ Part II, Men Face Felony Charges For First Video,” TheSanDiegoChannel.com (October 28, 2002).
39 Id.

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.FirstAmendment.com or AOL Screen Name: “Webattorney.”

LEGAL BRIEFS

(more…)