We always enjoy the opportunity to speak with Larry Walters, a bright and well-respected First Amendment attorney, and one of the primary individuals defending the adult entertainment business. Following the airing of American Porn on PBS, there has been much discussion about obscenity laws and how the Bush administration will affect adult Webmasters and the online pornography business. We asked Larry to talk a bit about obscenity and the risk it poses to adult Webmasters, and we think everyone involved with online pornography should hear what he had to say.We always enjoy the opportunity to speak with Larry Walters, a bright and well-respected First Amendment attorney, and one of the primary individuals defending the adult entertainment business. Following the airing of American Porn on PBS, there has been much discussion about obscenity laws and how the Bush administration will affect adult Webmasters and the online pornography business. We asked Larry to talk a bit about obscenity and the risk it poses to adult Webmasters, and we think everyone involved with online pornography should hear what he had to say.

Larry: We do not have any independent confirmation of that, but it is certainly safe to assume that Ashcroft intended, and still intends, to make obscenity prosecutions a priority. He and his handlers have publicly stated as much, and my guess is that Frontline obtained a direct confirmation of that fact from someone on the inside.

Connor: In her interview with Frontline, Los Angeles city deputy attorney Deborah Sanchez suggested that the reason why there have been no obscenity trials in Los Angeles since 1\’\’3 is because the accused rarely plead not guilty. Is this true?

Larry: False. First of all, the reason why there have been no federal obscenity trials is because Clinton shifted the priorities to other matters, and the new Bush administration has not had a chance to regroup and initiate these prosecutions yet. There have been numerous state level obscenity prosecutions all over the country, but especially in Texas and Florida. The plea rates in these cases are pretty much the same as with other criminal cases. It is important to remember that \’0% of all criminal cases are resolved by way of some kind of plea. But the implication that the government somehow obtains higher plea ratios in obscenity cases is unfounded, and inaccurate. That being said, when the government says just take this one video title off your shelves and you will not have to risk 10 years in jail, many people pick Option 1. On the other hand, there is much more to fight about in an obscenity case since it is never a given that any particular work is obscene. Finally, I would be surprised if many obscenity charges have been brought at all in Los Angeles since 1\’\’3.

Connor: I tend to be paranoid, so I have to ask. Is there any chance that Sanchez is secretly working in connection with federal agents in regards to the Glasser case? If Glasser is convicted in relatively liberal Los Angeles, would that make it easier for the Justice Department to win future convictions?

Larry: I would not put anything past the government these days! Each obscenity case stands or falls on its own merits, so I doubt that the outcome of the Glasser case will have any legal impact on future cases. That being said, it may embolden Los Angeles and other law enforcement agencies to do the same thing if Glasser is convicted. It only takes one conviction to get the snowball rolling.

Connor: Also in her interview, Sanchez said that a first offense obscenity charge is a misdemeanor, and that a second offense can be a felony. Would that also apply to Webmasters targeted in a federal sting, or would the interstate nature of the Internet push a first offense up to a felony?

Larry: Webmasters could face either a state or a federal obscenity charge, given the international nature of the communications. The federal offenses are all felonies, and may also support a Racketeering charge, if the government can prove that the defendant engaged in a pattern of obscenity offenses, and invested the proceeds of that activity into an ongoing business enterprise. The penalties for racketeering convictions are staggering, involving decades of incarceration, forfeiture of all business assets and six figure fines. If prosecuted at the state level, the charge could be either a misdemeanor or a felony. I have defended an obscenity charge out of Polk County, Florida, where the state elected to charge the defendants with the felony offense of “wholesale promotion of obscenity.” Simple retail sale of obscenity is a misdemeanor, under Florida law. Often defendants are charged with a more serious offense at the onset of the prosecution, in the hopes that they will plead to a lesser offense, like a misdemeanor, in exchange for dismissal of felony charges.

Interview with Larry Walters: The Obscenity Threat

by Connor Young – The ADULTWEBMASTER Magazine

Connor: Now Sanchez paints a totally different picture than former obscenity prosecutor Bruce Taylor. Sanchez only seems interested in prosecuting the more extreme content, with no interest in pursuing felony charges, where as Taylor suggests in his interview with Frontline that all hardcore will come under the fire of the Justice Department. Do you have any indication which direction Ashcroft will take?

Larry: As is typical of the Religious Right, Taylor is mixing legal concepts: When he says that the obscenity laws apply to all hardcore content, this only means that at a minimum, the content must be hardcore in order for the obscenity laws to apply. Softcore content, with no penetration, for example, is an unlikely target for obscenity prosecutions, and probably does not even meet the threshold definition for obscenity. Will the government go after generic hardcore or extreme content? That’s anyone’s guess. We have found that obscenity prosecutions are often based on factors other than the content. For example, complaints by private citizens or even competitors often generate these prosecutions. Occasionally, some zealot goes through a video store and picks out the most offensive box covers. It is almost like shooting in the dark, trying to predict what content is likely to be prosecuted. Our information indicates that the current administration is most interested in prosecuting content that is available to children, with less emphasis on its level extremity.

Connor: Taylor claimed in his interview that hardcore actors are engaged in prostitution, although a California court recently ruled otherwise. Why haven’t federal authorities used the charge of prostitution to harass the adult video business, or have they?

Larry: The adult film / video industry blossomed in the Los Angeles area for a reason: Decades ago, California law enforcement authorities decided that the best way to shut down the adult film industry was to prosecute the producers for “pandering” since the actors were being paid for sex acts. The case was litigated through the court system, and ultimately the Appeals Court decided that once the sex acts were captured on camera, the First Amendment prevented enforcement of the pandering laws as a means of censorship of erotica. Even though the producer’s actions fell within the meaning of prostitution and pandering, the courts held that those laws could not be applied consistent with the First Amendment’s protection of sexually oriented media. Under the protection of that court decision, the sex business boomed in California. This legal decision is not binding anywhere else in the country, but producers of adult materials nationwide have assumed that they are protected because producers can get away with it in California. Once the Internet exploded, we had adult film producers in every state and county. It may be that some court, in a particularly conservative area of the country, would disagree with the California courts and decide that adult film making constitutes prostitution. Thus far, most law enforcement officials think the same way the producers do, and conclude that the prostitution laws do not apply to adult film making given the vast amount of adult films on the market. Let’s not give them any ideas!

Connor: Remember when the beef industry had a beef, so to speak, with a talk show host… I believe it was Oprah. Any chance for a libel suit against Taylor and other “values” groups who continually insist that adult industry professionals are known criminals?

Larry: When they perpetrate those kinds of outmoded stereotypes, Taylor and his censorship buddies discredit themselves. It has become common knowledge that the adult industry has been taken over by corporate America, and is not controlled by the “mob.” As far as a defamation claim, I suppose it’s possible, but rarely does Taylor name any particular individuals. The industry, as a whole, cannot bring a defamation claim; those rights belong to individuals only. The Oprah case was based on a specific federal law which made it a crime to, believe it or not, make derogatory comments about beef. I guess they had a good lobby.

Connor: During the 1\’80’s and early 1\’\’0’s, how successful were the federal prosecutors at winning convictions? Any idea what Taylor’s record was in this regards? How successful were pornographers at winning acquittals?

Larry: I cannot recite statistics here, but a good source for such information is a book called “Know Censorship” published by a group called the Free Speech Coalition, found at www.freespeechcoalition.org . I can tell you that many people went to jail during the ‘80’s and early ‘\’0’s for obscenity offenses. Certainly, many people were also acquitted as well. The Internet has given us many new arguments for acquittal or dismissal of these cases. A huge nationwide government prosecution of adult video distributors was enjoined (stopped) by the federal courts in the 80’s as a bad faith prosecution, in a case brought by Adam & Eve, called P.H.E., Inc., v. Department of Justice. Interestingly, in that case the government revealed that part of its strategy was to simultaneously file numerous prosecutions against many individuals across the country, in an intentional effort to overwhelm the limited number of competent First Amendment attorneys who were available to handle the cases. The lesson here is that there is always room in this industry for additional competent First Amendment lawyers.

Connor: If a federal prosecutor managed to win an obscenity conviction against a Web site offering “plain vanilla” hardcore – in other words, nothing more extreme than cum shots and anal penetration – what kind of potential sentence would that Web site operator be facing?

Interview with Larry Walters: The Obscenity Threat

by Connor Young – The ADULTWEBMASTER Magazine

Larry: The federal sentencing guidelines depend on the interplay of various different factors including the defendant’s prior criminal history, the number of related offenses charged, the defendant’s position in the operation, and whether special skills are involved. The range is anywhere from federal probation to years in jail. Of greater concern is the potential application of the federal child pornography laws to “youth” or “teen” content. A recent calculation of a typical sentence for a webmaster for this content, even if all models are over 18, was between 180-210 months in a federal prison.

Connor: Certain drugs are illegal to possess and to distribute. Child pornography is illegal to possess and to distribute. How can it be that certain types of pornography can be considered illegal to distribute, but not to possess?

Larry: Very interesting question, from a legal standpoint. The answer comes down to the application of another First Amendment right; the Right of Privacy. This right protects the right of private individuals to possess obscene materials in your own home. Now, you do not have a right to sell it, buy it, or transport it, so I’m not sure how you get it in your home, unless you’re talking about Internet content. Simply stated, there is not a sufficient governmental interest in regulating the content of media that people possess in their own homes.

Connor: I’ve heard many Webmasters argue that if they keep their material behind an age verification screen, use good business ethics and pay their taxes then they don’t see much risk from the federal government. Would you say that this stance is realistic?

Connor: Anything else you want to add?

Larry: Yes. The American Porn expose was important since it woke adult Webmasters up, and put a face on the enemy. My email box was flooded with concerned messages about the statements made by Taylor and others on the show. We’ve been preaching about this stuff for years, but sometimes it takes a media event like this for people to take these issues seriously. On the other hand, I would hope that we do not see adult Webmasters running for cover and getting out of the industry as a result of this information. That’s playing right into the enemy’s hands. Nothing has really changed; there has always been some risk by being involved in the adult industry. Fortunately, the adult industry seems to attract civil libertarians and freedom fighters. Now is not the time to back down in response to threats and intimidation. Erotica has endured much worse than a Bush and a Dick (Cheney).

Connor: Thank you Larry. I think this issue as about as important as they come, and I truly appreciate your taking the time to discuss it with us.

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 www.FreeSpeechLaw.com

We always enjoy the opportunity to speak with Larry Walters, a bright and well-respected First Amendment attorney, and one of the primary individuals defending the adult entertainment business. Following the airing of American Porn on PBS, there has been much discussion about obscenity laws and how the Bush administration will affect adult Webmasters and the online pornography business. We asked Larry to talk a bit about obscenity and the risk it poses to adult Webmasters, and we think everyone involved with online pornography should hear what he had to say.We always enjoy the opportunity to speak with Larry Walters, a bright and well-respected First Amendment attorney, and one of the primary individuals defending the adult entertainment business. Following the airing of American Porn on PBS, there has been much discussion about obscenity laws and how the Bush administration will affect adult Webmasters and the online pornography business. We asked Larry to talk a bit about obscenity and the risk it poses to adult Webmasters, and we think everyone involved with online pornography should hear what he had to say.

Larry: We do not have any independent confirmation of that, but it is certainly safe to assume that Ashcroft intended, and still intends, to make obscenity prosecutions a priority. He and his handlers have publicly stated as much, and my guess is that Frontline obtained a direct confirmation of that fact from someone on the inside.

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