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CyberNet Legal Seminar Wrap-up
Posted On 14 Jun 2002
The CyberNet Expo panel discussion titled “Legal and Legislative Battles” took place at 3:00 PM on Saturday, August 25th at the Fontainebleau resort. Colin Rountree of Wasteland.com (http://www.Wasteland.com) was on hand to provide his moderating skills, a job he handles with absolute ease.The CyberNet Expo panel discussion titled “Legal and Legislative Battles” took place at 3:00 PM on Saturday, August 25th at the Fontainebleau resort. Colin Rountree of Wasteland.com (http://www.Wasteland.com) was on hand to provide his moderating skills, a job he handles with absolute ease. Guest speakers included the following four attorneys: Judith Silver of Coollawyer.com (http://www.Coollawyer.com); Larry Walters of FreeSpeechLaw.com (http://www.FreeSpeechLaw.com); the ever-energetic J.D. Obenberger (http://www.xxxlaw.net); Greg Geelan (some of you known him better as Otto), of the YNOT Network and AdultInternetLaw.com (http://www.AdultInternetLaw.com).
When it comes to the legal issues that face our Industry, there is an astonishing lack of understanding concerning the dangers one assumes when operating an adult business online. Few webmasters fully realize the peril in which they place themselves and their employees simply by offering erotic content over the Internet. In addition, a general sense of apathy has engulfed adult webmasters when it comes to fights that are of a political nature. During the hour-long CyberNet Expom (http://www.CyberNetExpod.com) seminar, all four attorneys strove to overcome this ignorance and apathy, and to reach the audience with a message that is really very important to everyone involved in adult entertainment.
Judith Silver kicked off the discussion with a review of the Napster case. Prompted by numerous clients who had been suggesting legally-flawed methods for getting around the legal trap to which Napster fell victim, Ms. Silver explained that there’s no way around copyright laws for those aspiring to trade copyrighted materials online – other than, of course, owning the copyrights to said works.
Larry Walters opened with a brief legal overview of the current state of affairs for the Adult Industry. Saying the issue of age is the “Achilles Heel” of the Adult Industry, Mr. Walters called attention to a new trend in anti-obscenity prosecution: prosecutors will seek to tie in obscenity with children by any means available to them. Pointing out that obscenity cases solely involving consenting adults are often an uphill battle for prosecutors, Walters went on to say that prosecutions are far more likely to result in convictions if the prosecution can successfully raise the flag of “protecting children.” In other words, if a jury can be convinced that the defendant was involved in knowingly exposing children to porn, that jury will be far more likely to convict the defendant of obscenity. That means, according to Walters, that free “hardcore” sites make an attractive target to prosecutors, even if COPA is never confirmed.
In perhaps the most rousing speech yet given at an Adult Industry legal seminar, Mr. Obenberger talked about the apathy that plagues both Americans in general and webmasters in specific concerning a wide range of issues that relate directly to civil liberties. Obenberger cited George Orwell’s famous novel “1984,” drawing examples of how many of the novel’s fictions had become a sad reality in America. He developed this theme by pointing to the fact that despite what should be considered intolerable attacks on our basic freedoms at the hands of our Government, many Americans show a complete lack of concern when it’s shown that Government officials are monitoring citizens in questionable manners. Obenberger also alluded to the pending Mike Jones (http://www.cdbabes.com) case (an adult photographer recently accused of obscenity and possessing child pornography), outlining how Government and law enforcement can separate their targets from the support of the Adult Industry by tying in child pornography charges. Obenberger argued that the validity of the charges are irrelevant to prosecutors – whether valid or not, just the charges alone are enough to cause other adult businesses to keep their distance from the accused and withhold their financial and verbal support.
Another important point made by Obenberger – those individuals who joined the Adult Industry following the “Internet Gold Rush” were not present to witness the relentless attacks on adult video stores carried out by past Republican administrations in the late 80s and early 90s. Obenberger added that Government has no desire to replace 18 U.S.C. 2257 with something more fair and effective, because 2257 gives them the power to search a pornographer’s home without the necessity of a search warrant. That’s a liberty Government took often under Ronald Reagan and George Bush Sr.
Tying into the theme of Republican administrations, Larry Walters was asked about a past case involving a mail-order company known as Adam and Eve. According to Walters, the case (PHE vs. Justice) produced into public record a Justice Department memo that outlined their strategy for attacking adult entertainment. This strategy included hitting a large number of adult video stores simultaneously with criminal charges – the hope being that all capable First Amendment lawyers would be tied up, leaving many video store owners without specialized counsel. This, of course, would increase the chance of a conviction. In other words, the Government sought to put its citizens into a situation from which they could not properly defend themselves due to a shortage of adequate counsel… but if the Government truly felt that the individuals being charged were guilty of crimes, why should it be necessary to resort to such tactics? Obviously, the lesson here is that webmasters might severely regret their choice should they elect not to establish a relationship with a capable lawyer prior to any Government offensive.
When a member of the audience asked how to find a lawyer online, the following resource sites were mentioned: YNOTMasters.com (http://www.YNOTMasters.com), FreeSpeechLaw.com (http://www.FreeSpeechLaw.com), and SexBizLaw.com (http://www.SexBizLaw.com). It was pointed out that while a local lawyer can be extremely valuable in terms of dealing with local business issues, a specialized lawyer is more important to your business than would be the geographical location of your lawyer.
“The law of free expression is national,” Obenberger explained.
Walters added that a lawyer who specializes in adult law can work in conjunction with a local lawyer, and in many cases can refer you to a local lawyer should you require one.
The topic of “dangerous” categories of porn was raised by an attendee wanting to know which types of content were best to avoid. While Walters was hesitant to list off categories due to his stated disbelief in all forms of censorship, he nonetheless conceded that voyeurism sites, celebrity sites and fetish sites add to the risk of prosecution. Interestingly enough, Walters added that a “parody” defense might be able to be made for celebrity “fakes,” since parodies are protected speech, although any webmaster wanting to operate such a site would certainly have to be ready and able to go to court to defend their site from angry celebrities. Obenberger added that the further a webmaster deviates from the “norm,” the higher the risk of an obscenity conviction.
Judith Silver next pointed to the advancement of technology as a potential savior for adult webmasters. In Utah, a local video store owner escaped an obscenity conviction by digging through the records of local hotels. According to Silver, the hotel records showed that the percentage of adult movies ordered through the hotels’ entertainment networks was higher than the national standard for such films. This fact made a strong impression on the jury, and Silver believes that future means of documenting porn consumption might help defendants fight off obscenity charges. Yet perhaps obscenity law can be a good thing? Larry Walters pointed out that obscenity law is vague, making it easy to defend numerous types of content – whereas a strict and specific Government-crafted law might expressly forbid content that is now legal.
On the subject of the pending “virtual child porn law,” Greg Geelan raised an interesting legal enigma. Since drawing and artwork are subject to obscenity laws in the same manner as photographs, what can be done when a fictional model is drawn to “appear” as though she could be 18? Obviously no records can be produced to verify the intended age of the drawn model, so how would such a case proceed? Would the virtual child porn law, if passed, result in the conviction of Anime artists? How can these artists defend themselves and their intentions?
Re-enforcing his earlier theme of Government mixing kids with porn to win convictions, Walters added that cartoon drawings such as Anime would be accused of appealing mainly to children. Government could easily argue that “toon sites” are luring children into an abusive situation. Many of you are likely familiar with the demise of “Joe Camel,” a cartoon character that used to hawk Camel cigarettes. In that case, the Government argued that “Joe Camel” was intended to draw children to cigarettes. There’s no reason to think a similar approach won’t be taken with “toon” porn sometime in the future.
The seminar closed with J.D. Obenberger, who accused Government of crafting the “virtual child porn” law as a way to get around proving their child porn cases. Without such a law, the Government must prove that the images they seize in any child porn case consist of actual underage girls. If the models are close to the age of 18, proving that they are not yet 18 can be burdensome for the prosecution when the models cannot be located. Obenberger charged that the “virtual child porn” law, which carries an identical penalty as actual child porn laws, would allow the Government to convict almost any webmaster offering images of girls who “appear” to be under 18… even if the models are actually 30 years old, and the webmaster can prove their age.
You can get more information about Industry legal battles by visiting any of the websites mentioned in this article, or by visiting www.freespeechcoalition.com (http://www.freespeechcoalition.com).
Connor Young is editor-in-chief at theAdultWebmaster.com.
