HOLLYWOOD, CA – While the tone remained mostly civil, the depth of the division between supporters and opponents of the proposed .xxx sTLD were clearly on display at yesterday’s “The Proposed .xxx TLD: A Dialogue with ICM Registry” panel discussion at the Xbiz Hollywood conference.The panel assembled for the discussion included ICM Registry President and CEO Stuart Lawley, outside counsel for ICM Robert Corn-Revere, Stephen Balkam of the Internet Content Ratings Association (ICRA), and adult industry attorney Greg Picionelli. Brandon Shalton of Cydata Services, perhaps better known as the driving force behind FightThePatent.com and FightDotXXX.com, served as moderator of the session.

The panel got going with brief statements by each panelist, followed by a set of questions posed by Shalton, before wrapping up with an extensive, open Q&A session wherein members of the audience were afforded the opportunity to pose their own questions to the panel.

In his opening statement, Lawley said that he hoped to dispel a set of “myths and misunderstandings” about the proposed .xxx sTLD. Ticking off a set of concerns that ICM has encountered in the process of making their proposal, Lawley briefly addressed:

• the price of .xxx domains
• concerns that .xxx could be made mandatory for adult sites
• claims that “other industry players are behind .xxx”
• resolution of potential intellectual property disputes
• .xxx critics’ assertion that “the industry will have no say” in the operation of the Internet Foundation for Online Responsibility (IFFOR)
• the assertion that .xxx provides “no benefit for the industry”
• the argument that .xxx would have “no effect on CP”
• the claim that .xxx does not have significant support from within the adult industry

Arguably the most contentious aspect of the .xxx debate in recent months has been the question of whether anyone within the adult industry has some manner of clandestine financial stake in ICM, or has cut a deal to receive proceeds directly from the sale of .xxx domains. At the panel discussion, Lawley strongly denied such, and stated that he personally owns 70-percent of the company.

“Absolutely false,” Lawley said of the claim that other adult “industry players” were behind ICM. “ICM has no outside investors…. no secret deals.”

Addressing the concern over intellectual property conflicts, Lawley assured that ICM will have “multiple overlapping means of detecting IP conflicts” and “full challenge mechanisms [that will be] low cost and fast.”

Lawley said that, due to an unprecedented agreement ICM managed to work out with ICANN, the .xxx domain will be the first such domain that isn’t simply open for registration on a “first come, first served” basis.

“There will be no [domain] speculators,” Lawley said.

Attempting to quell concern that the adult industry would have no voice within IFFOR, Lawley said that the industry would have two of the seven total seats on the IFFOR board.

“There is no chance of any proposals getting past [IFFOR] that the adult industry does not want,” Lawley asserted.

To countermand claims that .xxx provides no benefit to the adult industry, Lawley focused his argument on the notion that use of .xxx would “clearly identify you with responsible and ethical behavior.”

With respect to adult industry support for .xxx, Lawley asserted that ICM has documented “broad and deep” industry support for the TLD.

“We have received unsolicited support from over 1500 webmasters in 71 countries,” Lawley said, adding that this expressed support “far outweighs the opposition,” which Lawley characterized as a “highly vocal minority.”

Addressing the purported benefits to children, Lawley asserted that ICM had “never claimed that .xxx would solve the problem” of child pornography, or of children viewing online pornography.

Noting that a portion of each .xxx domain sold would be donated to groups like the National Center for Missing and Exploited Children (NCMEC), Lawley said that it is through support of such organizations that .xxx would aid in the fight against child pornography.

While Lawley conceded that .xxx would not prove a panacea in terms of preventing the exposure of minors to online pornography, “labeled content can only help.”

In terms of the possibility that use of .xxx might be made mandatory under U.S. law, Lawley largely deferred to Corn-Revere to explain ICM’s position that any such attempt to make use of the TLD mandatory for adult sites would be unconstitutional. Lawley did reiterate, however, ICM’s commitment to fight any effort to make .xxx mandatory, saying that the “whole ethos of .xxx is voluntary, responsible self-regulation.”

Corn-Revere was the next to speak, starting by first detailing his substantial credentials as a First Amendment attorney and advocate, including a current challenge to the Federal Trade Commission’s “decency rules,” arguing and winning the first case concerning Internet filtering at libraries, and his involvement in the case ACLU v Reno.

“Self-regulation is the way to forestall mandatory government regulation,” Corn-Revere said.

With respect to the often-voiced concern that establishing .xxx would lend strength to any attempt to make use of the TLD mandatory for adult sites, Corn-Revere noted that previous attempts on the part of the government to base mandatory regulations on an existing voluntary system – like prior attempts to codify the Motion Picture Association of America (MPAA) ratings system in law – have failed.

“We anticipated from the beginning that if .xxx gained any traction, there would be attempts to make it mandatory,” Corn-Revere said.

Corn-Revere observed that bills had been proposed in Congress mandating use of some manner of adult-specific TLD by porn sites long before ICM Registry submitted their proposal to ICANN. Corn-Revere further argued that whether or not the .xxx proposal passes an ICANN vote, Congress doubtlessly will continue work on such bills, and probably pass one eventually.

Corn-Revere expressed great confidence that any attempt to make .xxx mandatory could be successfully challenged in court, a confidence buttressed by his ample experience in challenging other regulatory efforts.

Addressing the sort of “zoning” analogies that many have made with regards to .xxx, Corn-Revere noted that unlike zoning in the “brick and mortar” world, where government regulation is subjected to less court scrutiny because the regulation serves to mitigate “negative secondary effects,” regulation of internet content does not present the opportunity for the government to make secondary effects arguments.

Corn-Revere noted that when the expression in question is “pure speech,” the full protections of the First Amendment apply, meaning a strict scrutiny standard is applied by the court in evaluating the constitutionality of the law.

ICRA’s Balkan gave the briefest opening statement, summarizing how .xxx would employ ICRA labeling. Webmasters operating .xxx domains, Balkan said, would have the option of using a very basic tag that simply would identify the domain as being adult in nature, or using the more extensive set of descriptor tags ICRA already offers.

“I don’t see .xxx as ‘legitimizing porn,’ or ‘stigmatizing porn,’” Balkan said. “It’s a tool in the toolbox, nothing more.”

Balkan added that while .xxx would not solve the problem of children accessing online pornography, .xxx would be “a step in the right direction.”

Last to give an opening statement, and the lone panelist to voice opposition to the TLD, Picionelli came out swinging.

“At the heart of the .xxx debate is a political and money issue,” said Picionelli. “Equally at its heart is the freedom and right of the people in this business not to be sequestered in a ghetto.”

Picionelli expressed concern that the approval and establishment of the .xxx TLD would serve as a kind of foothold for legislators, and bolster attempts to mandate .xxx use through legislation in the U.S.

“I think the United States, or some other government, will soon pass a law mandating .xxx,” Piccionelli opined, adding that a law including such a proposal likely would pass Congress with strong bipartisan support.

In the discussion that followed the panel’s opening statements, some of the day’s most heated exchanges came not between Lawley and members of the audience, but between Picionelli and Corn-Revere.

Corn-Revere countered Picionelli’s observation about the strong bipartisan support for restricting the distribution of pornography by conceding that while proposals to tighten restrictions on sexually explicit material always pass by an enormous vote margin in Congress, that fact “doesn’t make [the new law] any more constitutional.”

“I agree it [a law mandating .xxx] would be unconstitutional,” Picionelli said, countering by observing that pornography is “unpopular speech,” and once .xxx exists, the public, and possibly U.S. courts, might be more receptive to the idea of restricting porn to the new TLD.

Corn-Revere sarcastically responded by thanking Picionelli for the “news flash.”

“Gosh, sexually explicit speech is unpopular,” Corn-Revere deadpanned, “I had no idea.”

At another point in the discussion, Corn-Revere characterized one of Picionelli’s conclusions as “a complete non sequitur.”

Picionelli noted that, quite apart from legal questions, content ratings can have a detrimental effect on the distribution and sale of the products containing the rated content.

Stating that his law firm also represents clients who produce non-adult films, Picionelli said that receiving a rating of NC-17 or “Not Rated” can be a “kiss of death for non-adult films.”

Picionelli also hypothesized that even without changes in U.S. law, the establishment of .xxx could bring about other changes in the market that could effectively cripple the operation of adult .com domains.

“What if [billing] processors turn around and say ‘Let’s not process for sites that aren’t on .xxx’,” Picionelli asked.

Judging by the questions posed by members of the audience, and response to questions posed to the audience by Shalton, the discrepancy in the perceived industry support for the .xxx proposal was a chief concern for many in attendance.

At one point, Shalton asked those that did not support .xxx in the audience to clap their hands; the response evolved into a protracted standing ovation, in which the vast majority of the audience participated.

Asked later if he thought the audience at the panel discussion represented a “fair sample” of the adult Internet industry, Lawley responded by saying he thought it was a fair sample of the “California-based” portion of the adult industry.

Late in the Q&A period, Joan Irvine of the Association of Sites Advocating Child Protection (ASACP) stepped forward not to ask a question, but to clarify the ASACP position with respect to the .xxx proposal.

Irvine declared that ASACP is neutral in the debate, and stated unequivocally that ASACP has struck no deals with ICM Registry, and has been promised no funds from the sale of .xxx domains.