LEGAL BRIEFS

You may be fed up with the anti-porn rhetoric here in the United States, but when the media releases reports that people are flogged in Iran for selling erotic CD’s,1 or webmasters are arrested for “suspicion of operating a pornographic Web site” in Hong Kong,2 it becomes readily apparent things could be much worse.LEGAL BRIEFS

You may be fed up with the anti-porn rhetoric here in the United States, but when the media releases reports that people are flogged in Iran for selling erotic CD’s,1 or webmasters are arrested for “suspicion of operating a pornographic Web site” in Hong Kong,2 it becomes readily apparent things could be much worse. Here, in the United States, the Adult Internet Industry thus far has flourished, despite some economic ups and downs.

While the days of easy money are long gone,3 the past Administration allowed this industry to become strong and forever embedded in the fabric of the World Wide Web. Sure, there will be some prosecutions on the federal level against adult Web sites in the coming years; possibly even many. But social conservatives and “morality police” will not succeed in accomplishing any significant change in sexual behavior of the people of the Western Hemisphere; nor will they succeed in driving underground what has become a powerful industry. Unlike Afghanistan, which recently banned the Internet entirely,4 Americans will never accept a wholesale prohibition on any form of protected speech. Not to mention that the Constitution forbids it.5

The last ten years of unprecedented growth in the Adult Media Industry resulted in irreversible acceptance of the fact that mainstream erotica is available in our motel rooms, our televisions, satellite systems, and computers. This phenomenon makes it more difficult for prosecutors to convince jurors their neighbors should not be allowed access to erotica of choice. The current erotica saturation will make the selection of any particular work for prosecution to appear arbitrary and capricious. Why this movie? Why not that mpeg? Certainly any obscenity prosecution will have a chilling effect on the distribution of other similar materials, but given the vast amount of explicit content out there, the random selection of any particular work for prosecution borders on the absurd.

Assuredly, however, the same cannot be said for images involving minors. At every turn, the Government tries to mix the issues of obscenity and child pornography. The Division of the federal government that prosecutes obscenity cases is called the “Child Exploitation and Obscenity Unit” (a/k/a the “God Squad”). Recent reports indicate that this Unit is preparing to gear up after basically eight years of inactivity. Whenever law enforcement can wave the banner of “Protect the Children,” it will. That argument sells much better than “Restrict What Consenting Adults Can View,” which is why so many obscenity cases are prosecuted in conjunction with charges of child pornography. The chances of being charged with an adult obscenity offense skyrockets when the government can also argue the defendant exploits children. Many expect that also will be true with respect to Web sites that do not restrict acces by minors.

Attorney General John Ashcroft’s first offensive against Internet content ostensibly was a large-scale Texas child pornography prosecution nicknamed “Operation Avalanche.”6 Ashcroft grabbed headlines across the world, in an obvious attempt to link the concept of adult Web sites to child pornography with this case – which, by the way, was assembled and prosecuted for the most part during Janet Reno’s watch.

Since most Internet experts have concluded it will be futile to attempt arresting actual producers of child pornography in Indonesia and Russia,7 the U.S. Postal Inspection Service decided to go after subscribers to the Web sites. Now there’s an interesting use of tax dollars! It was conclusively established that pedophilia is an incurable disease, often caused by a sexually abusive childhood. Putting 100 people in federal prison for viewing illegal images on their computers may garner a day’s headlines but it does nothing about the root of the problem of production that actually victimizes the children.

Adult webmasters can take these arguments away from the government, however. Unfortunately, the Internet is currently replete with images of child pornography on foreign Web sites, newsgroups and many voyeur sites. Any responsible webmaster should take a strong and definite stance against child pornography, using minors8 in any type of explicit imagery or allowing minors access to it. That includes monitoring the content of any sites which one is affiliated with, linked to, or promoting. Do not lose sight of the fact the Texas bust of Landslide Productions, Inc., involved only links to child pornography. The convicted webmasters had no content on their site.

Currently, a debate is emerging whether nudist sites and “Youth and Beauty” glamour sites featuring teenagers or children constitute child pornography as that term is defined under state and federal law. While there is some legal support for the position that the First Amendment protects the dissemination of nude or semi-nude images involving minors, this issue has not been conclusively decided. Such material raises unique legal concerns. However, webmasters all can agree that any images involving erotic depiction of children should be avoided and condemned. Without reliance on the issue of protecting children the Government is left with nothing but “restricting adult access to erotica” as a battle cry in any obscenity prosecution. Hardly a consensus builder!

Jurors will be less swayed by the Government’s arguments if minors are entirely taken out of the mix. We live in an age of tolerance, not judgment. The “live and let live” philosophy has taken hold in both urban and rural areas of our country. Life is too short to spend time in a courtroom judging what your neighbor watches in the bedroom. More importantly, given the current availability of explicit imagery jurors may be viewing the same materials.

The U.S. Supreme Court is about to decide an important case that will determine the definition of child pornography under federal law.9 It may turn out that webmasters will face prosecution for using young looking models, regardless whether all models were over the age of eighteen when photographed. While such restrictions appear to push the limits of constitutional regulation in a free society, webmasters should make a concerted effort to level the playing field by drawing a bright-line distinction between adult erotica and deplorable child pornography and by restricting adult Web sites to adults. Failure to do so will only empower your enemies and support their effort to blur the line between protected speech and illegal materials.

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, based in Los Angeles. Mr. Walters runs the firm’s Florida office, and represents clients involved in all aspects of adult media. Weston, Garrou & DeWitt 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 or at FreeSpeechLaw.com.

Footnotes:
1 See: July 2001, Adult Industry Update
2 A.Creed, Newsbytes (August 27, 2001)
3 R. Barrett, “For Cybersex Sites, Easy Money Is Gone,” Interactive Week (August 20, 2001)
4 A.P. News (August 25, 2001)
5 U.S. Const. Amend. 1
6 K.Gullo, “Feds Arrest 100 for Child Porn,” A.P. News (August 8, 2001).
7 “Futile Quest for Kid Porn Traders,” Reuters (August 9, 2001).
8 U.S. v. Various Articles of Merchandise, Schedule No. 287, 230 F.3d 649 (3rd Cir. 2000) [nudists magazines including images of nude children were not obscene and entitled to First Amendment protection].
9 Ashcroft v. Free Speech Coalition -US-(2001).

LEGAL BRIEFS

(more…)