Webmasters looking for free legal information crowded together at various legal seminars during this year’s winter Internext Expo convention in Las Vegas, Nevada. Hosted this year at the Mandalay Bay Hotel and Casino, Internext Expo featured its usual assortment of exhibits, seminars and networking events.Webmasters looking for free legal information crowded together at various legal seminars during this year’s winter Internext Expo convention in Las Vegas, Nevada. Hosted this year at the Mandalay Bay Hotel and Casino, Internext Expo featured its usual assortment of exhibits, seminars and networking events. Three legal seminars were well attended and featured some of the industry’s best and brightest attorneys. One of the featured speakers was attorney JD Obenberger of JD Obenberger and Associates (xxxlaw.net). He spoke at length on Tuesday, January 4th about the most significant legal developments of 2004. He also took a quick look at some of the legal stories that should develop in 2005.

So what were the leading legal developments from 2004?

First on the list was the Supreme Court’s decision on the COPA case. Or perhaps better stated: its indecision. Although the Supreme Court failed to strike a crippling blow to the COPA legislation and instead sent it back down to the lower courts for further consideration, according to Obenberger the Supremes nonetheless provided notable clues concerning COPA’s likely fate.

On its surface, COPA would make it illegal to display on the internet any materials deemed “harmful to minors” unless said materials were sufficiently removed from areas easily accessible by minors. Failure to comply with this law would result in a $50,000 fine and up to six months in prison. An injunction was issued shortly after this legislation was signed into law, meaning COPA cannot be enforced unless the courts decide that it can pass constitutional muster.

According to Obenberger’s presentation, a slim majority of the Supreme Court’s nine Justices seem to believe that COPA is “probably unconstitutional” and that filtering software is a better solution for protecting minors from harmful materials online. However, the decision to send COPA back down to the lower courts was made possible by a narrow 5-4 vote. In other words, the American adult industry finds itself one Justice away from legislation that would make most free sites and TGP galleries – not to mention most pay site tours – illegal under American law. Justice Breyer argued that COPA should be allowed to pass the constitutional test because, he believes, it would affect only obscene materials – which are not protected by the First Amendment. The actual legislation, however, singles out “indecent to minors” content and not exclusively content that is legally “obscene.” Justice Scalia argued that the kind of adult materials that COPA seeks to restrict are not protected by the First Amendment because they seek a sexual response. A plethora of mainstream content would fail that test if Scalia’s standards were broadly applied to Hollywood films, popular paintings and sculptures, and other forms of mainstream art.

Next on Obenberger’s list of 2004 legal developments were the proposed changes to Title 18 U.S.C. Section 2257 – the adult industry record-keeping laws known often as “2257” for short. Obenberger pointed out the changes proposed by departing Attorney General John Ashcroft have not yet been enacted and that they don’t appear to be on any fast track. If enacted, it’s widely expected that they will be immediately challenged by an industry Free Speech group, possibly by the Free Speech Coalition. Obenberger argued that the new 2257 changes, if enacted, would chill Free Speech rights; one example of this would be the inspection period requirement (8 AM – 6PM), which Obenberger says would constitute an undue burden on work-from-home webmasters who don’t observe regular business hours. These webmasters might be forced to self-censor. Obenberger also pointed out that the new changes would require record custodians to keep records for a period of seven years following the publication of the affected content.

Third on Obenberger’s 2004 list was the Senate’s recent hearings on the “effects” of pornography. In November of 2004, a Senate committee held hearings on the subject of pornography in which they heard testimony from “researchers” who claimed that pornography is comparable to heroin and other addictive drugs. The presenters at these hearings were of course stacked only with well known anti-pornography activists, with nobody from the more sensible side of the debate invited to offer a rebuttal to these so-called porn “experts.” By comparing pornography to illegal drugs, these anti-pornography activists hope that any porn-censoring legislation the Senate might pass will finally be able to pass constitutional muster.

Obenberger pointed out that there are all kinds of healthy and normal activities that might be addictive to an unhealthy individual – for example, sporting events, shopping, and even eating. Even the experience of attending Hollywood movies or playing video games can be addictive to certain people.

Fourth on the developments list was the Justice Department’s launch of criminal investigations against the online adult industry. Obenberger was referring to an article published by the Baltimore Sun newspaper, which claimed a handful of Justice Department prosecutors and several FBI agents were working on bringing a rash of obscenity indictments against adult pornography companies. The article even claimed that the Justice Department had counselors to work with those agents and prosecutors who were traumatized by looking at adult materials all day.

The fifth significant development of 2004 was the return of porn enemy Bruce Taylor to the United States Justice Department. Taylor was the lead prosecutor on many obscenity cases that sent adult video company owners to prison in the 1980’s. According to Obenberger, it’s not readily apparent what Taylor’s exact role will be with the Justice Department. “Nobody really knows exactly what he’s doing,” said Obenberger. But regardless of whether Taylor ultimately serves as a prosecutor or in a more senior position, his return to the Justice Department has widely been seen as a troubling omen for the adult industry.

And just for fun, Obenberger added another development to his 2004 list: Justice Scalia talks about orgies. Last year it was reported that ultra-conservative Supreme Court Justice Antonin Scalia told a Harvard audience that orgies can “eliminate social tensions and ought to be encouraged.” As Obenberger himself put it, the story was just too good to be true. It turned out that Scalia was making a rhetorical point and that his comment was taken out of context by the Ivy League school’s student newspaper.

So what’s ahead in 2005?

According to Obenberger, obscenity law and the issue of “community standards” are likely to see some significant developments in 2005. Obenberger pointed to the Extreme Associates obscenity case, and specifically to the manner in which the government is attempting to isolate specific video clips from an Extreme Associates website while ignoring their larger context. In other words, the Extreme Associates case could impact what constitutes a “work as a whole” when a work is evaluated using the Miller Test.

On the issue of community standards, Obenberger said that it appears the Supreme Court now favors a “national” standard over the current “local community” standard test by a margin of 6-3. If obscenity laws are changed so that national rather than local standards are applied to all obscenity cases, it would constitute a solid victory for the adult entertainment industry and make it more difficult for federal prosecutors to convince juries to convict mainstream adult entertainment companies of obscenity.

Another development to watch in 2005, according to Obenberger’s presentation, is who will lead the Child Exploitation and Obscenity Section (CEOS) of the United States Justice Department. The CEOS, commonly called the “God Squad,” is the department that would bring obscenity charges against adult entertainment companies. Obenberger said the current leader of the God Squad, Andrew Oosterban, has done a solid job attacking child pornographers and bringing many of them to justice. If leadership changes at the CEOS, however, that might be a sign that the God Squad is gearing up for an attack on the adult industry.

Obenberger closed his look forward with a reminder that the proposed 2257 changes are still in our industry’s future. He then reminded the audience that Free Speech isn’t free, but comes with a price.

“Please do not bury your head in the sand and pretend the storm is not coming,” said Obenberger, “because it is.”

For more information on Internext Expo, please visit www.internext-expo.com.

Connor Young is Editor-in-Chief of YNOT News. He has been involved with the online adult entertainment business since 1997, and also serves as Editor-in-Chief of The ADULTWEBMASTER Magazine. Connor can be reached at connor@ynot.com.