Deplatforming – The Looming Threat to Adult Entertainment

In the blink of an eye, former President Trump was gone from social media. Facebook and Twitter suspended his accounts for violating their community guidelines. His opponents cheered and his supporters raged. But some in the adult entertainment industry were all too familiar with the feeling of waking up one day to find that your popular social media account has been cancelled. Some large adult website accounts have been booted off mainstream social media sites without notice. Numerous adult performer accounts were cancelled because they were associated with sex work. Still others were shadowbanned without their knowledge until they realized their influence had been throttled by their favorite online platform. These actions are often taken without warning or meaningful opportunity to appeal. A nameless, faceless person had decided that they stepped over a dim and uncertain line into “offensive” content. Current federal law, namely Section 230, allows for this type of content moderation without any practical legal recourse.

The banking system has its own version of deplatforming. By denying payment processing or deposit accounts to those in the adult industry, financial service providers can starve out controversial speakers, forcing them to rely on alternative currency such as Bitcoin or paper checks. One of the largest online adult platforms recently found itself without any payment processing services in the wake of some negative press reporting about third party content uploads.

The most extreme form of deplatforming took place when the social media site Parler found its app not only removed from the Google and Apple app stores, but cut off from access to the Internet backbone by Amazon Web Services. While this platform termination received much media attention, it was not the first time that a social media site had been denied access to Internet architecture. Social media site Gab.com was taken offline in 2018 after losing its payment systems, hosting company, and domain registrar after a user was allegedly involved in a mass shooting. Cloudflare took down sex worker platform Switter in April 2018, in the wake of the passage of FOSTA. Neo Nazi site, Der Stormer, lost online hosting and proxy server protection in February 2018, causing it to go dark in the wake of public pressure. While many celebrated the cancellation of platforms like Der Stormer, Gab, and Parler, the swift censorship of offensive yet largely constitutionally protected expression left many free speech advocates feeling uneasy. If this could happen to one form of controversial speech, what stops these private actors from stamping out any other?

As many in the adult industry have learned, they need more than First Amendment protection of their expression to do business. They require the permission of numerous private companies to allow their content to be disseminated to a worldwide audience for compensation.  

In the 70’s, during the era of Deep Throat and Behind the Green Door, distributors handed 16mm tape reels to theater owners in exchange for cash. There was no middleman who could decide to stop the show – other than the government. During this time, the courts developed what is now widely understood as constitutional protection of sexually-explicit speech. A prior restraint on speech is unconstitutional. The government must go to court and bears the burden of showing that erotic material is obscene, and therefore illegal. Any licensing regime for speech must include specific procedural safeguards to ensure that decisions are made in in a brief, specified time period, and decisions must be subject to prompt judicial review. The courts were trusted to ensure that decisions to censor or restrain speech would not violate the First Amendment or be based on arbitrary reasons.

Contrast this with the current environment which allows vast censorship of speakers, or even entire platforms, with a few button clicks by private actors. With enough public pressure, your social media platform, your host, your domain registrar, and your bank can decide they’ve had enough and “disappear” your online presence. Maybe you’ll get a warning, maybe not. Terms of service agreements with online service providers, processors, and banks are notoriously friendly to the provider, and allow for wide discretion in these decisions. Reversal of these actions is extremely rare. Lawsuits are expensive, time-consuming, and usually unsuccessful in these instances.

The solutions to these problems are complex, but some steps can be taken to protect yourself from deplatforming. First, know the rules. Learn what content is allowed on social media sites, and what will get you banned. This requires more than reading community rules and guidelines. Each platform has its own risk tolerance level. Study the type of content that is accepted and commonplace on the platform – particularly in your specific niche. Ask other users and learn from the mistakes of those who have violated the rules. It’s easier to stay out of trouble than to get out of trouble.

Do business with service providers that are adult-friendly. Your host, payment processor, accountant, attorney, and other service providers should have many other adult customers, so they understand the industry and won’t be scared off at the first sign of trouble. Some providers have been around the industry for decades, and understand the unique issues facing adult entertainment. Those relationships are invaluable.

Backup your follower list and have an alternate method of contacting them in the event of a problem. Attempting to recreate a list of fans or subscribers after your access has been terminated is a losing battle.

Diversify your options. If you are a performer, maintain accounts on numerous platforms so termination of one account will not force you offline completely. Website operators; maintain relationships with several hosts, payment processors, banks, and registrars. There may come a time when you’ll need to move business.

Become conversant in alternative currency. The adult industry is almost entirely reliant on credit card transactions. While cards are simple and widely accepted, this represents a vulnerability. Encourage users to establish virtual currency accounts, offer discounts, and provide information about these types of transactions. The less reliant the industry is on mainstream financial services, the more protected it will be from arbitrary termination decisions.

Finally, fight back against false narratives with facts. For many years, the adult entertainment industry was winning the War on Porn. The lies and deceptions used by eroto-phobic censors had been exposed and human sexuality was largely celebrated. But we have entered a new era. Opponents of erotic expression have distorted the perception of adult entertainment by conflating it with prostitution and sex trafficking. This intentional blurring of the lines has caught fire and resonates with those who have convinced themselves that sex workers are victims who need saving. Speak truth in the face of misinformation. Finally, defend speech with which you strongly disagree, against these deplatforming efforts, to ensure that your own voice will continue to be heard.

Lawrence Walters heads up Walters Law Group which has represented the adult industry for over 3 decades. Nothing in this article is intended as legal advice. Mr. Walters can be reached at www.firstamendment.com or on social media @walterslawgroup.

You’ve Been Served! – Dealing with Subpoenas

Adult business operators are forced to deal with a number of legal hassles. One of them is getting served with a subpoena seeking information about you, your operation, your finances, or your data. Given the increasingly hostile climate in the adult entertainment industry, operators and performers should understand how to react when served with a subpoena. If you run a website that accepts members, you likely acquire a substantial amount of personal and financial information from users which may be of interest to law enforcement, administrative agencies, or private lawyers. Performers also receive significant information and communication from their subscribers or fans which can become the subject of a legal proceeding. This article will help you understand your legal rights and obligations when receiving a subpoena.

First off, don’t panic! If you receive a subpoena, that usually means someone wants information that you have about others, and you are likely not the target of the investigation. There are many exceptions to this rule, but getting a subpoena does not automatically mean you have done something wrong. Subpoenas are commonly used by state and federal authorities to investigate crimes and are routinely issued to individuals or corporations that are not involved in wrongdoing. Civil claimants also use subpoena power in lawsuits to learn about the claims and defenses and investigate their case.

Most often, a subpoena asks for production of records or computer data. This is called a Subpoena Duces Tecum. While the subpoena will usually contain lots of scary language about contempt, appearing in court, or testifying, compliance is usually accomplished by simply emailing the requested documents by the deadline provided in the document (called the “return date”).

While your first inclination when receiving a subpoena may be to cooperate and immediately hand over the requested information, that is not always the right course of action. Some documents may be privileged or outside the scope of the subpoena. Sometimes subpoenas are sent by investigators or attorneys from other jurisdictions where they cannot be enforced. In still other instances, the recipient of a subpoena has an obligation to object and require the requestor to obtain a court order or search warrant before handing over the information. For example, operators of online platforms cannot turn over stored user communications to the government in most circumstances in the absence of a court order, under the Stored Communications Act.

To determine the scope of your subpoena compliance obligations, it is always best to consult with an attorney. You are entitled to legal representation when responding to a subpoena. Often, your lawyer can interface with the sender of the subpoena to narrow the scope of the requested documents and minimize disruption to your business or personal life. If you intend to deal with a subpoena on your own, there are several important points to keep in mind.

The first thing to understand is that you have a legal obligation to preserve all the documents or data requested in the subpoena. For example, if the subpoena asks for text messages and your mobile device automatically deletes messages older than 30 days, you have an obligation to change the auto-delete setting to ensure that you are not responsible for destruction of evidence. Your preservation obligations also extend to any archive or backup programs that are under your control. Therefore, the best thing to do when you receive a subpoena is to identify all of the potentially responsive information and make sure it is preserved. Tampering with, or destruction of, evidence is a crime and can result in significant civil sanctions as well.

Can you be compensated for your time and costs in responding to the subpoena? The short answer is yes. Most court rules allow for some reasonable compensation to be paid to the individual or company that has the burden of responding. However, the amount of compensation varies from jurisdiction to jurisdiction. If you will be seeking financial compensation, it is wise to discuss these issues with the sender of the subpoena before incurring any costs. In many cases, pulling the requested information can be done quickly and will result in little to no expense. But for significant research projects or vast data requests, the respondent is entitled to be paid. If the amount of compensation cannot be agreed between the parties, a court will resolve the issue upon request.

Frequently, subpoenas will ask for information about one of your customers or vendors. Can you notify the affected company or individual that you will be disclosing their information? The answer depends on the type of investigation. In civil cases, you typically have the right to notify third parties that you received a subpoena. Doing so will allow the affected party to assert any privacy rights or other legal challenges to disclosure of the information in a timely manner. The exception is where a court has issued a “gag” order prohibiting disclosure of the existence of the subpoena. This is done in cases where someone is concerned that providing notice of the subpoena will cause the affected party to destroy evidence or disappear. With criminal subpoenas, it is never a good idea to notify the affected party. Doing so can compromise the investigation and may constitute obstruction of justice. Criminal subpoenas are usually accompanied by instructions not to disclose the pending investigation.

Receipt of a valid subpoena requires you to conduct a thorough search of all your records, devices, computers, and data to identify responsive information. This is a serious legal obligation which should not be taken lightly. Failing to disclose information subject to a subpoena can result in significant legal sanctions being imposed. Any information that is in your possession, custody, or control should be evaluated for possible disclosure. This includes online databases that you can lawfully access, even if stored by a third party service. The most common error in responding to a subpoena is failure to conduct an exhaustive search. If you determine that you missed information that was subpoenaed, you should immediately inform the party that issued the subpoena and provide the omitted records unless legally privileged.

What if you don’t want to provide the requested records, or believe that the information should not be disclosed? A process exists to deal with those situations. Typically, the subpoenaed party will serve “objections” to the subpoena and identify the legal basis for withholding the information. Any information withheld based on privilege should be listed in a “privilege log” which is sent along with the non-privileged documents. In other instances, you or your attorney might file a motion to quash the subpoena with the issuing court, and make legal arguments as to why the subpoena is not valid or why the information cannot be produced. Such legal proceedings can get expensive, so the parties typically attempt to resolve these issues on their own before involving the courts. But in some circumstances, an agreement cannot be reached, and the court will decide the issues.

In some cases, a subpoena will actually command you to show up in court and provide testimony. If the primary goal of the subpoena is to produce documents, you can often submit a records custodian certification or affidavit to authenticate the documents instead of testifying in court. However, there are instances where the requesting party needs your live testimony on some issue. Again, you have the right to counsel in these proceedings. If your testimony may incriminate you in criminal activity, you also have a right to remain silent and invoke the Fifth Amendment on those issues. In current times, most court hearings occur remotely, so testimony can be provided with a minimal disruption of your business. If you are forced to travel to court for live testimony, you have a right to receive a witness fee and travel expenses which are set by law in the relevant jurisdiction.

Generally, a subpoena can only be issued in connection with an ongoing legal proceeding or investigation. Occasionally, people seeking information will send documents that look official and demand production of sensitive information. You have the right to verify the authenticity and validity of any document request before sending a response. Most court records are online, and the existence of pending litigation can be confirmed by checking the case docket for the relevant court. Criminal investigations are confidential, however the identity of the requesting agent should be confirmed before records are sent. Government emails are often spoofed by scammers seeking information that is otherwise unavailable. Therefore, some due diligence is necessary before transmitting documents in response to an official-looking request.

In the era of ecommerce where people are conducting business globally from their computers or mobile devices, subpoenas or other law enforcement requests can come from any jurisdiction – even foreign countries. Generally, a subpoena must be issued from a court of “competent jurisdiction” to be enforceable. As a result, not all subpoenas are binding on the receiving party. However, there may be reasons to consider cooperation with subpoenas even from foreign jurisdictions. Some countries have established Mutual Legal Assistance Treaties or other international agreements that allow foreign subpoenas to be enforced. Ignoring a subpoena is strongly discouraged.

While you may never receive a subpoena in the operation of your adult business, subpoenas are becoming much more common and can come from just about anywhere. Learning about your rights and obligations when receiving a subpoena in advance can help mitigate stress and confusion when confronted by this legal process.

Lawrence G. Walters heads up Walters Law Group. Nothing in this article constitutes legal advice. Mr. Walters can be reached at www.firstamendment.com or on social media @walterslawgroup.

Flame Wars – Legal Concerns with Social Media Posts

Many of us have been tempted to post that snarky comment or call attention to a bad business practice on social media. Perhaps your own business or reputation is being maligned, and your natural instinct is to fight back. But posting comments that are critical of another person or business generates potential legal concerns. Adding facts, images, or private information to the post can increase those risks. Consider the following issues when posting on social media in the heat of the moment.

Defamation: Perhaps the most significant legal concern involves defamation. To be liable for defamation, the claimant must prove that you published a false statement of fact that caused injury to another person. State law varies regarding the level of intent you must have when posting the comment. If you are posting about a public figure, you must act with “malice” which means knowledge or reckless disregard of the truth or falsity of the statement. Celebrities and politicians are generally considered public figures, but private individuals can be drawn into the limelight on certain issues and be deemed involuntary public figures. Similarly, individuals can gain prominence in a particular field and be found to be “limited purpose public figures” for certain issues. This is important because it is difficult to prove defamation of a public figure given the malice requirement imposed by the U.S. Supreme Court.

Defamation only applies to statements of fact which can be proven true or false. Truth is an absolute defense to a defamation claim. Opinions, on the other hand, are protected by the First Amendment even if publishing an opinion causes harm to an individual. Therefore, you can safely post a comment claiming that a person or business “sucks” since that statement is not capable of objective proof. However, stating that a business is “bankrupt” or “illegal” is a statement of fact that must be true to avoid potential exposure for defamation. Some statements are deemed so harmful that the claimant does not need to prove any monetary losses, and damages will be presumed (defamation per se). Common examples include false allegations of criminal conduct or disease.

The law recognizes various privilege defenses to defamation claims such as absolute privilege (i.e., a witness statement made in court), litigation privilege (i.e., statements made in law suit filings), or qualified privilege (i.e., statements on matters of public concern made in good faith for some recognized societal need or duty). Other defenses include substantial truth (where the gist of the statement is true even if it contained some inaccuracies), and rhetorical hyperbole (comments so expansive that nobody would understand them as statements of fact).

While these defenses are useful in court, defamation claims are expensive to defend. Under the “American Rule”, each party typically pays their own attorneys fees regardless of who wins a lawsuit. When faced with the daunting attorneys fee expenses of defending a defamation case, many defendants settle and retract their statement to avoid this financial exposure. This problem has caused some states to pass Anti-SLAPP laws which allow defendants to quickly end frivolous defamation claims and recover attorneys fees if the lawsuit was brought to silence protected speech. But not all states have Anti-SLAPP laws, and Congress has not yet passed such a statute at the federal level. Therefore, defamation can pose a significant risk when posting comments on social media about factual matters.

Invasion of Privacy: Some matters are deemed to be extremely private and the law allows claimants to sue for invasion of privacy rights if such private information is exposed publicly. Invasion of privacy claims can arise if you expose facts about someone’s private life which are highly offensive to a reasonable person, and the exposure was for no legitimate purpose. For example, disclosing details about a person’s sex life that are not publicly known can constitute invasion of privacy.

False Light: This is another type of privacy claim where an individual exposes potentially misleading or damaging information about another person. This claim may result, for example, if an individual was identified in a social media post as a participant in a violent protest when they were only an observer. Some states do not recognize false light claims, however making misleading posts in states that do can trigger significant legal risks.

Intrusion on Seclusion: Another variant of invasion of privacy; a seclusion claim is based on invading someone’s private space. For example, hacking into someone’s webcam or peering into a bedroom window and taking pictures without consent could trigger a seclusion claim. The violation occurs when the private area is breached, so this type of claim does not require publication of the information. However, publication can increase the damages.

Publicity: Violation of the right of publicity can be asserted as a common law privacy claim, but it is also governed by specific statutes in many states. This occurs when a poster uses someone’s name, image, or likeness without their consent. Many states require that use to be for some commercial benefit. Publicity rights extend to a person’s face or even their voice in some circumstances. Posting an image of a performer without their consent in an effort to bolster the popularity of a social media profile could generate a publicity claim.

Copyright: Posting any copyrighted image or video can result in an infringement claim. If the material was registered with the U.S. Copyright Office before the publication, the poster could be responsible for attorneys fees and statutory damages of up to $30,000, or up to $150,000 in cases of willful infringement. Even if the image was not registered beforehand, the copyright holder can pursue claims for actual damages.

Trademark: If the post included a business name, logo, or slogan that is used to identify a brand, the poster can be sued for trademark infringement. The primary concern here involves potential consumer confusion regarding your affiliation with the trademark holder if you include their mark. Trademark claims are subject to numerous variables such as whether the mark was registered, whether it has acquired distinctiveness in the marketplace, and whether the mark is enforceable.

Trade Secrets: Although not as well-known as copyrights and trademarks, trade secrets are another form of intellectual property. A trade secret is any confidential information that confers a competitive advantage to the owner of the secret information, if the owner uses reasonable efforts to maintain the secrecy of that information. Often, trade secret misappropriation claims are brought when a disgruntled or former employee shares confidential business information on social media without permission. If a court finds that a person has misappropriated a trade secret, it may issue injunctive relief, actual damages, and, if the person acted willfully or maliciously, punitive damages and attorneys fees.

First Amendment Issues: Not all posts which include someone’s likeness, content, or trademarks, are actionable as a legal claim. The First Amendment imposes certain limitations where the post is newsworthy, educational, or otherwise qualifies as “fair use.” All fair use defenses are dependent on the specific facts of the case, and no bright lines exist. Therefore, it is appropriate to learn about the relevant fair use factors before relying on this concept as legal protection for a social media post.

Conclusion: Social media posting is a part of everyday life for most of us. Sometimes heated debates develop on emotional topics. This can often lead to responses that cause damage to someone’s business, intellectual property rights, or personal reputation. Defamation claims and other lawsuits based on social media posts are on the rise. Before clicking the post button, consider the potential legal risks. Discretion is often the better part of valor when an online conversation turns into a flame war.

Lawrence Walters heads up Walters Law Group. Nothing in this article is intended as legal advice. Mr. Walters can be reached at www.firstamendment.com or on social media @walterslawgroup.

Section 2257 is Back from the Dead with New Ruling

I.  Introduction

 On September 1, 2020 the Third Circuit Court of Appeals issued an opinion in the long-running litigation brought by the Free Speech Coalition, and others, challenging the constitutionality of 18 U.S.C. §§ 2257 of the Child Protection and Obscenity Enforcement Act of 1988 and 18 U.S.C. 2257A of the Adam Walsh Child Protection and Safety Act of 2006, along with the related federal regulations (collectively, “Section 2257”). The decision reverses the previous nationwide injunction against enforcement of the vast majority of Section 2257, which was issued by the district court on First and Fourth Amendment grounds. While the recent decision provides some glimmers of hope for the adult industry, Section 2257 has now been resurrected from the dead.

II.  Historical Background

Section 2257 imposes criminal penalties on producers of sexually explicit materials who fail to comply with federal age verification, record-keeping, and labeling requirements. A person who fails to inspect IDs, create and maintain records, or properly label sexually explicit materials is subject to up to five years in prison for a first-time violation or ten years in prison per subsequent violation.

Since 2009, Section 2257 and the related regulations have been constitutionally challenged as a violation of free speech rights under the First Amendment by two adult entertainment trade associations and ten producers. As a result, the United States Court of Appeals for the Third Circuit has issued three prior opinions on the matter. Separately, the lower court previously issued the above-referenced nationwide injunction which prevented enforcement of Section 2257’s criminal provisions against any individual, based on the fact that Section 2257 was unconstitutional as applied to the ten producers in this line of cases.

In the first case, the Third Circuit determined that Section 2257 was content neutral and subject to intermediate scrutiny, but the court allowed the plaintiffs to move forward with an as-applied claim and overbreadth challenge.

In the second case, the Third Circuit determined that the two trade associations did not have standing to bring as-applied claims on behalf of their members, because they could not show the degree to which each member’s speech was unnecessarily burdened. The Third Circuit rejected the ten producers’ as-applied claims, because Section 2257 served the government interest in preventing producers from purposefully or inadvertently using underage performers, given that each producer used youthful-looking adults. The Third Circuit also upheld Section 2257 despite the plaintiffs’ overbreadth challenge.

In the third case, the court reviewed a then-recent Supreme Court decision, Reed v. Town of Gilbert, which the plaintiffs argued meant that Section 2257 was content-based and required the more onerous strict scrutiny review. A Third Circuit panel rehearing the case agreed with the plaintiffs and remanded the case back down to the District Court for further review.

The District Court held that (1) the trade associations lacked standing to bring as-applied claims on behalf of their members, (2) the age verification requirement was constitutional as applied to primary producers, but unconstitutional as applied to secondary producers, (3) the record-keeping and labeling requirements are unconstitutional as applied to both primary and secondary producers, (4) the criminal penalties are unconstitutional if used to enforce requirements that themselves are unconstitutional, (5) the plaintiffs failed to show that Section 2257 was substantially overbroad, and (6) the plaintiffs were entitled to an injunction prohibiting nationwide enforcement of the unconstitutional requirements by the Department of Justice. The District Court also formalized a ruling from the Third Circuit that found the warrantless inspection requirements of Section 2257 to violate the Fourth Amendment. At this point, Section 2257 was essentially dead other than requiring primary producers to verify age of performers.

III.  The Latest Opinion

In reviewing the lower court’s recent decision, the Third Circuit released a fourth opinion which changed the legal landscape and enforceability of Section 2257 yet again.

First, the Third Circuit held that the two trade associations lacked standing to challenge Section 2257 on behalf of their members. The court explained that the claims require an individualized inquiry of each association member, since what may be narrowly drawn and the least restrictive means for one association member will not necessarily be so for another.

Second, the Third Circuit held that Section 2257 violates the First Amendment rights of ten specific producers. The Court explained that Section 2257 is not the least restrictive way to protect children from sexual exploitation, since it applies to producers that use models who no reasonable person could mistake for a child. In other words, Section 2257 is invalid insofar as it applied to producers that used models that are at least thirty years old.

Third, the Third Circuit held that the criminal penalties for noncompliance are unconstitutional as applied to the producers, because the underlying age verification, record-keeping, and labeling requirements are unconstitutional as applied to the producers. The plaintiffs had asked the court to declare the application of harsh criminal penalties for technical records-keeping violations unconstitutional. The court rejected this argument but found that the penalties could not be applied against these specific plaintiffs since the law itself was unconstitutional as applied to them. Same result – different reasoning.

Fourth, the Third Circuit held that Section 2257 was not facially invalid under the overbreadth doctrine. The court explained that Section 2257 can be validly applied in an extensive number of situations, since many sexually explicit productions involve youthful-looking performers. The court also noted that the statute would be impermissible if applied against (1) producers that use models that are clearly adults, or (2) consenting adults who share sexually explicit images between themselves for purely private purposes. However, these two invalid applications were outweighed by Section 2257’s vast legitimate sweep.

Finally, the Third Circuit held that a previously imposed nationwide injunction against enforcement of Section 2257 was broader than necessary to provide full relief to the ten specific producers. The court explained that the injunction improperly applied to enforcement against all individuals, even though Section 2257 had only been held unconstitutional as applied to ten specific producers. In other words, Section 2257 cannot be enforced against the ten producers in this case, but the law can be enforced against everyone else. However, the opinion suggests that Section 2257 may be unconstitutional when applied against (1) producers that use only models that are clearly adults, or (2) consenting adults who share sexually explicit images between themselves for purely private purposes. The court left open the possibility that the criminal provisions may also be unenforceable against all secondary producers but did not expressly decide this issue.

This recent ruling also recognized that the warrantless inspection requirements violated the Fourth Amendment. The Third Circuit had already ruled on that issue in an earlier decision, so the government was unable to challenge it again in this appeal.

In response to this ruling, the plaintiffs can ask the full panel of judges on the Third Circuit to rehear the case (“rehearing en banc”), can seek review by the U.S. Supreme Court, or can allow the case to be remanded (sent back) to the District Court for final judgment in accordance with the rulings. Time will tell which path the litigation will take.

IV.  What Does This Mean?

Until this recent opinion, the adult industry could take comfort in the fact that a federal court had prohibited the government from enforcing Section 2257 against anyone other than primary producers who fail to verify the age of performers. That prohibition has now been lifted. While there may be constitutional problems with attempts to enforce Section 2257 in various circumstances, the Department of Justice can file criminal charges against non-compliant producers. A criminal prosecution can cause devastating consequences for any company or individual, regardless of the outcome.

Fortunately, the continuing prohibition on warrantless Section 2257 inspections means that producers who follow the law and do not use underage performers are unlikely to face an inspection. Presumably, the government would need to obtain a subpoena or warrant to inspect records. Nonetheless, all producers are encouraged to follow Section 2257 obligations to the letter.

The Free Speech Coalition, along with the other plaintiffs and their talented legal team, has worked tirelessly for many years to challenge Section 2257 on behalf of the adult industry. They deserve thanks and support for fighting this important constitutional battle.

Section 2257 – still crazy after all these years!

 

Lawrence Walters heads up Walters Law Group and has advocated for the interests of the adult entertainment industry for over 30 years. Nothing in this article is intended as legal advice. Mr. Walters can be reached at www.firstamendment.com or on social media @walterslawgroup.

Taking Your Strip Club Virtual

Introduction

Coronavirus lock-downs are slowly being lifted and businesses are starting to reopen, but it may still be some time before adult clubs are able to operate at full function across the nation. Reduced customer capacity mandates and the threat of a second wave of infections in the fall create additional uncertainty. Social distancing guidelines present their own unique challenges for all businesses that rely on close human contact.

In the meantime, many clubs have begun exploring options to take their adult performers into the virtual world. Strip clubs are uniquely situated to effectively and efficiently move into the online space. Club operators have relationships with dancers that are looking for a way to make money from home, and a base of clientele that are itching for some entertainment. The club has a brand, customers, and entertainers – the missing piece is an online platform on which to conduct business.

The Internet offers a variety of options for virtual strip club entertainment. Some operators seek to recreate the club environment online, complete with a DJ, music, and live stage performances. Others focus on creating live webcam platforms for individual dancers to interact with paying customers throughout the world. Yet another option is a club-branded social media platform that allows entertainers to develop their own profile and sell recorded content and other items. Regardless of the specific business model or theme, the legal issues facing online platforms are much different than many club owners are accustomed to in the brick and mortar world. This article is an introduction to those novel concerns.

Corporate Structuring

Any time a business offers a new service, it opens itself up to new legal liabilities. Any operator looking to explore online entertainment should consider creating a separate corporate entity to diversify risks. Many of the legal risks associated with website operations, like copyright infringement or federal age verification laws, are completely foreign to the brick and mortar club business. Segregating online operations from physical club operations through corporate structuring is often a wise first step.

Performer Age Verification

Federal law imposes certain record keeping requirements on producers of sexually explicit materials. These laws do not apply to live, unrecorded performances in strip clubs. Therefore, a full understanding of “Section 2257” is essential for any club operator considering online entertainment. Those who produce depictions of actual or simulated sexually explicit conduct must strictly comply with the age verification and records-keeping obligations of Section 2257. This is often accomplished by creating a Section 2257 file for each performer, with information such as legal name, all stage names, date of birth, date of first production, and other information required by federal law. This data, along with a copy of the performer’s government-issued picture ID card, must be maintained in a Section 2257 file along with all URLs depicting the performer’s content. The website must publish the physical address where these files may be inspected by the Attorney General. Some online business models are exempt from these Section 2257 requirements, depending on the operator’s role with respect to the content. Also, the law is subject to a pending legal challenge by the Free Speech Coalition which may result in invalidation of many of these legal requirements. For now, full compliance is recommended for any producers of sexually explicit content.

A separate federal law, Section 2258A, imposes certain legal obligations on website operators to report instances of child pornography to the National Center for Missing and Exploited Children (NCMEC). Failure to do so carries criminal penalties, while reporting the unlawful material provides a form of legal immunity in connection with the reported content. Online strip club operators should become familiar with this legal obligation and implement procedures to report any apparent underage content.

Online Agreements

Unlike a strip club which does not require its customers to sign a contract whenever they enter the club, commercial websites typically require users to agree to detailed user terms before accessing the site. These terms cover such things as billing procedures, user conduct, intellectual property rights, dispute resolution, etc. A separate model agreement is recommended for any entertainers who perform on the site. A model agreement will address issues such as release of rights, content ownership, compensation, performance rules, and the like. Website operators, or their attorneys, should carefully draft these online agreements and implement them properly on the site.

Copyright Infringement / DMCA Safe Harbor

Federal law imposes hefty civil damages and potential criminal penalties for copyright infringement. Numerous copyright-related issues arise from the operation of an online strip club. The parties must decide who owns the rights to the live or recorded performances, and what licenses are provided. Performers should avoid publishing infringing content during their performances such as unlicensed music, television broadcasts, and even background paintings. Decisions need to be made on who can pursue infringers if the dancers’ content is stolen by pirate websites. Importantly, some business models can take advantage of the protections offered by a federal law called the Digital Millennium Copyright Act (DMCA). If structured correctly, the site may be entitled to assert “DMCA safe harbor” in connection with any copyright infringement claims based on the performer’s content. This can provide a valuable defense to copyright infringement lawsuits in appropriate circumstances.

FOSTA/SESTA

In 2018, Congress passed a billed labeled FOSTA/SESTA in an effort to fight online sex trafficking. Since the statute is limited to online activities, many club owners have not encountered the difficulties created by this relatively new law. By way of summary, FOSTA/SESTA created a new federal prohibition on using a computer service to promote or facilitate prostitution. It also removed the previous legal immunity that many website operators relied upon to avoid liability for user-posted content. After the law was passed, many adult-oriented websites shut down, and others moved overseas. Since it can be extremely difficult for an online platform to determine whether some user-posted video or post somehow promotes or facilitates prostitution, many website operators have censored any sexually oriented content as a way to reduce legal risks. Given the serious criminal penalties associated with FOSTA/SESTA, online platforms have developed various content moderation tools and procedures to identify problematic users or posts. Legal compliance efforts in this area are critical for any virtual strip club operator.

 Privacy Policies & Data Retention

Websites often collect a lot of data on their users. This data can be both a benefit and a liability. There is no equivalent in the physical strip club space where customers can remain somewhat anonymous. As such, strip clubs that are looking to offer online entertainment services in the future must be sure that they comply with relevant data privacy laws which vary from state to state and country to country. A written privacy policy should also be published on the website.

Trademarks

While club owners are generally familiar with the importance of protecting their brand name, the issues change when the business operates in the online world. When the owner launches a website, the club is suddenly engaged in interstate commerce and promotion. A brand which may not infringe on a third party’s rights when used locally may now infringe on a trademark owner’s rights even if they’re located on opposite ends of the country. Interstate use of a brand name may have certain benefits as well, such as the ability to register a federal trademark with the USPTO. Any use of a brand name on a website platform must be carefully evaluated and protected.

Conclusion

With the state of coronavirus and associated lock-downs in flux, strip clubs will continue to innovate and bring exciting experiences to their customers. Some entertainment will move online, which generates a new set of rules and legal compliance obligations. A full understanding of this new environment can open doors to significant opportunity for both club owners and performers.

 

Lawrence G. Walters heads up Walters Law Group, and has represented adult industry clients for over 30 years. Nothing in this article is intended as legal advice. Mr. Walters can be reached through the firm’s website, www.firstamendment.com, or on social media @walterslawgroup.

Protecting Stage Names in the Age of Newcomers

Online adult entertainment is booming in these otherwise difficult times. Traffic and profits are up as so many of us try to fill the days at home and away from each other. The new gold rush has attracted a lot of new faces – and new names. But some of these new performers are using old stage names that established models have spent substantial time and resources promoting. So how can a model protect his or her own stage name and prevent newbies from profiting off this hard work? Separately, how can newcomers make sure their stage names do not infringe on someone else’s rights?

Starting with the basics, a performer can choose an assumed stage name for their online persona. If the performer is running a business through this pseudonym, most states require that the name be registered as “fictitious name” or d/b/a (“doing business as”). This is done at the state or county level, and some states require publication of the intent to use a fictitious name in a newspaper before it can be registered. Registering a fictitious name does not give the performer any rights in the name or prevent anyone else from using the same or similar name. That is the realm of trademarks. If the name is distinctive enough, the performer can apply for a trademark registration at the state or federal level. Online performers are almost always engaged in interstate commerce, so they can seek federal registrations at the United States Patent and Trademark Office (USPTO).

Trademark applications can be tricky. First, the performer (or an attorney) should search carefully to determine whether anyone else is using the same or similar stage name for related services. If so, there is a potential for infringement, and a different name should be considered. Changing a few letters or the spelling of the name will generally not be sufficient if the chosen name is confusingly similar to a registered trademark. If the name is clear of potential conflicts, the next consideration is whether the name is a generic term, or if it describes the service being provided. If so, registration on the Principal Trademark Register will be difficult if not impossible. Assuming the name does not infringe someone else’s rights, and is not generic or descriptive, the performer can consider filing a trademark application with the USPTO. The filing will require that the performer describe the services connected to the name and provide a “specimen” showing how the mark is being used in interstate commerce. Importantly, when applying for a trademark that refers to real person (such as a stage name), that person will need to be identified in the filing and consent to the application. If this is all done correctly, the performer can expect to receive a trademark registration certificate in about 8-12 months.

For those models who have planned ahead and obtained a trademark registration for their stage names, stopping other models from using the same or similar name will be much easier. A trademark registration is considered presumptive proof of ownership of the brand. Online platforms like Twitter and Instagram will typically respond quickly to infringement or impostor claims based on violation of a registered trademark. Those who register domain names incorporating the registered trademark can be taken down efficiently using domain name arbitration claims filed with the World Intellectual Property Organization or the National Arbitration Forum. In the event litigation is necessary to stop infringement, a trademark registration will save significant legal costs that would otherwise be required to prove up trademark rights. Owning a trademark registration gives models powerful ammunition against newcomers who use confusingly similar stage names in the same industry.

What if the model does not have a trademark registration? This is where things get more complicated. It is not absolutely necessary to have a registered mark to stop others from infringing. Use of a name in commerce can generate “common law” trademark rights which are enforceable under certain circumstances. Therefore, if a model named “Blue Angle” discovers that another model is using the name “Blu Angle”, it all comes down to who started using the name first. The first to use the name has priority rights in the United States. One exception is where a party has filed an “Intent to Use” trademark application with the USPTO, reserving the right to use the name in the future. In most cases, however, the first to use the stage name as a trademark can stop the later user from utilizing a confusingly similar name.

In the current expansion of live cam, fan site, and tube site business models, many performers are using similar stage names. Some may be generic or descriptive which can pose substantial hurdles to pursuing any infringement claims. But others are unique brand names which are inherently valuable. Mass consumer confusion can result from competing models using the same or similar stage names in the adult industry. A model’s brand name is the sum total of his or her reputation, quality, personality, and business goodwill. Tolerating infringement of these rights by other models weakens the value of the brand and can ultimately result in loss of trademark rights through abandonment. Therefore, models using established stage names should consider enforcing their rights against trademark infringers.

New adult performers are also encouraged to properly vet their proposed stage name by making sure they have not chosen a name that infringes on the rights of established models. One way to do this is to search the USPTO for registrations and pending applications. Note, however, that searching the USPTO records does not automatically reveal confusingly similar names or names that may sound the same but are spelled differently. This type of search also does not reveal state-level trademark registrations or common law uses by other models. That kind of exhaustive search takes time and careful analysis. Attorneys typically provide this service in conjunction with various trade name clearinghouse databases. Whether name clearance is done with assistance of counsel or on your own, some effort should be undertaken to ensure your desired stage name is not a ticking time bomb for an infringement claim by a superior rights holder.

New models are typically welcomed into the adult industry with open arms. Groups like the Free Speech Coalition and Pineapple Support provide numerous resources for newbies in this industry. While there will always be room for new adult talent, all performers must respect each other’s trade name rights.

Lawrence Walters heads up Walters Law Group which has represented clients in the adult industry for over 30 years. Nothing in this article is intended as legal advice. Mr. Walters can be reached at www.FirstAmendment.com or on social media @walterslawgroup.

Card Associations Facing Pressure to Terminate Adult Sites

As part of the aggressive campaign to tie adult websites to sex trafficking, various anti-porn activists are pressuring the major credit card associations to stop doing business with the adult industry. A recent opinion piece published in the Washington Examiner posed the loaded question: “How can mainstream credit card companies process payments for an industry that is virtually guaranteed to profit from rape and sex trafficking?” This led to an article on CBN News claiming that “Your Credit Card Company is Likely Partnering with Porn Websites.” The proponents of this effort point to the fact that PayPal decided to stop processing payments for most adult sites in late 2019 and suggest that the major credit card companies follow suit. The public pressure campaign is accompanied by an effort to shut down a large adult site for allegedly facilitating sex trafficking and a bill designed to force online platforms to impose restrictions on underage content.

This campaign is fueled by the unproven notions that pornography contributes to sex trafficking and turns our youth into a bunch of degenerates.  Instead of proof, the activists rely on a small sampling of incidents where individuals claim “revenge porn” videos have been uploaded to large tube sites or point to the outlier sex trafficking prosecution against the GirlsDoPorn producers. With these examples in hand, some are seeking to shut down the entire adult industry which relies largely on credit card transactions. Given the vast amount of sexually-explicit content found online, it is hardly surprising that some minute portion may be created and uploaded by bad actors. However, these instances are being used to support widespread censorship of adult content by demanding denial of access to basic credit card services. While probably not surprising in the era of “Cancel Culture,” this call for financial disruption of the adult industry should be taken seriously.

Such deplatforming efforts are dangerous to free speech principles, but can be notoriously effective in suppressing controversial or unpopular expression. However, they are usually targeted at specific individuals or organizations. This recent campaign sets its sights on the entire category of erotic speech. If successful it could do lasting damage to the entire adult industry. With sale of DVD’s in steep decline, adult performers, producers, photographers, website designers, affiliates, hosts, and website operators all largely depend on the ability of the end-user to purchase content online with a credit card. If the card associations respond to the public pressure by cutting off adult businesses, the results will be devastating.

Sex workers faced a similar dilemma when their access to online platforms was decimated as a result of FOSTA/SESTA. Escort advertising sites suddenly found that credit card processors, banks, and other service providers were unwilling to continue doing business with them. Sex workers suffered the most severe collateral damage, and were forced into dangerous and often exploitative circumstances to protect their livelihood. A widespread termination of adult sites by major credit card associations would cause similar results, but on a broader scale. Performers, cam models, clip artists, and website operators, themselves, would be forced to find a new line of work, or see their income dramatically reduced. Adult sites could try accepting payment in alternate currency like bitcoin, but only a small percentage of consumers are familiar with these payment methods. Financial service providers have always had a choke-hold on the adult industry due to their indispensable role. Their prohibited content policies have become a sort of industry best practices since failure to adopt them will result in termination of merchant processing accounts. If the card associations decide to block all adult content based on alleged, unsubstantiated ties to sex trafficking, the future is bleak.

One of the biggest objections asserted in the most recent effort is the lack of age or consent verification procedures required for users to upload sexually-oriented content on video sharing sites. Activists cite to the ability of a user to upload explicit content with only an email address. However, the same policies are in place for most user-generated content platforms – whether adult or mainstream. Moreover, requiring age or identity verification for the user would not address the larger issue of whether the person depicted in the videos consented to the filming or distribution. This is seemingly an intractable issue, since there is no reliable method for an online platform to verify performer consent – at least not one that could be effectively implemented. For example, large video sharing sites could not be expected to interview every person depicted in an adult film to satisfy themselves that the individuals were aware of the nuances of the rights they were releasing by publication and distribution of the content. Any such effort would hopelessly stifle the user upload process and impose an insurmountable burden on the site operator. Picture teams of lawyers reviewing release documents, signatures, ID’s, production dates, and facial expressions of performers to discern whether valid consent was given by willing adults.

Existing federal law requires producers of adult videos to review and maintain “Section 2257” age verification documents, but does not require specific documentation of consent to filming or distribution. Such issues are typically handled in the civil courts, if a production is not supported by sufficient contractual releases. Even the age verification law was declared unconstitutional by a federal court, as a content-based restriction on speech. There is no legal support for the proposition that online platforms must investigate every adult video to confirm that the performers have consented to both the production and distribution channels. Liability is rightly imposed on the up-loader or producer, if there is a problem with consent.

Despite the focus on the adult websites as facilitators of sex trafficking, the vast majority of underage content reports come from Facebook. Yet, activists are not calling for credits card companies to cease doing business with mainstream social media sites. The adult industry is often a convenient scapegoat to be blamed for larger social problems. In this instance, the focus is sex trafficking and revenge porn. Many of the proponents that paint themselves as “anti-trafficking” are comprised of anti-porn activists seeking to censor constitutionally protected adult entertainment. That is the goal. The First Amendment provides a necessary buffer against government censorship, however private companies make their own business decisions when it comes to online payment services. Thus far, the calls to terminate credit card services to adult sites remain isolated and hyperbolic. However, the adult industry remains susceptible to decisions made by public pressure and mob mentality, instead of logic and facts.

Lawrence G. Walters has represented adult entertainment clients for over 30 years. Nothing in this article is intended as legal advice. Mr. Walters can be reached through his website, www.firstamendment.com, or on social media @walterslawgroup.

Guidelines on Sponsored Social Media Posts

Guest Post by Bobby Desmond, Esq.

Many adult entertainment companies hire models, performers, and other so-called “influencers” to review, advertise, market, or otherwise promote their goods and services to their followers on social media. These influencers provide companies with a valuable and often relatively inexpensive method of reaching new customers.

Since these sponsored posts often impact the purchasing decisions of social media users, the Federal Trade Commission (“FTC”) requires companies to ensure that influencers follow certain guidelines whenever the company provides something of value to the influencer with the expectation that the influencer will discuss the company’s products or services on their social media. “Something of value” can mean free samples, cash, prizes, and more. There are some exceptions to this rule.

 

First, companies need not make disclosures when offering free samples to its general customer base without expecting more from those recipients. Second, companies may interview customers about their experience with their products or services and then quote those customers in their advertisements. Companies may even pay those customers for the use of their endorsements. No disclosure is necessary so long as the customer provided the quote before expecting any compensation for doing so. For example, no disclosure is necessary if a company finds a positive vlog about their product, reaches out to obtain the customers consent to share the vlog on their twitter account, obtains that consent, and then provides the customer with a thank you gift after the fact.

 

Companies must make sure their influencers are honest and not misleading. Companies should not encourage influencers who have not actually used that product or service to make sponsored posts. Companies should instruct influencers to provide only their honest opinion and to avoid any claim that the company would not be able to legally make on its own.

 

The FTC suggests that companies provide influencers with a list of examples that they cannot say and a set of instructions to prevent claims from going too far. Additionally, the FTC expects companies to make a reasonable effort in periodically reviewing their influencers’ sponsored posts and following up on any questionable practices. The FTC has explicitly stated that it is unlikely to pursue a law enforcement action for a post by a rogue influencer if the company has a reasonable training, monitoring, and compliance program in place to prevent such problems. Ultimately though, the company is responsible for its advertisements, whether they are posted by the company, a public relations firm, or an influencer.

 

Companies should also inform influencers about properly fulfilling the disclosure requirements. Disclosures must be clear and conspicuous. This requirement is generally met when the disclosure is (1) close to the claims to which they relate, (2) if text, in an easy to read font and color that stands out from the background, (3) if video, on screen long enough to be noticed, read, and understood, and (4) if audio, read at an easily understandable cadence.

 

Additional disclosures are required in certain circumstances. For example, influencers that receive only samples can fulfill the requirement by stating “Company X gave me this product to try for free.” However, if the company pays the influencer or provides some compensation in addition to the free sample, the company should instruct the influencer to make further disclosures such as “Company X paid me to try this product.” Companies should also instruct influencers to disclose whether the influencer achieved above-average results or has some connection to the company that their followers would not expect, such as an employment or familial relationship.

 

While the FTC does not generally monitor paid social media posts, followers can and do report possible violations to the FTC. The FTC then evaluates those reports on a case by case basis before deciding whether to investigate or involve law enforcement. The FTC has enforced these rules in the past, so it is important that companies become familiar with the guidelines and instruct their influencers on how to follow them.

War on Porn 4.0

You can tell it’s election season, when radical politicians start banging the drum for another war on something. Recently, four Republican Congressmen wrote a hysterical letter to the Department of Justice, demanding that Attorney General Bill Barr make obscenity prosecutions a priority again. These lawmakers sought to remind the DOJ that obscenity laws still exist, and that then-candidate Trump signed some kind of pledge to wipe out porn. Their pleas echo demands by a small, vocal contingent of politicians and activists who have sought to declare pornography a public health crisis and tried to link it to human trafficking. While this latest campaign relies on some new buzz words and sales pitches, it is based on the same faulty logic as previous failed prohibition efforts.

In 1969, the U.S. Supreme Court ruled that people had the right to view even obscene materials in their home. That triggered the first modern War on Porn by President Johnson, who created the “President’s Commission on Obscenity and Pornography.” However, the Commission did not deliver the report that the administration expected. Instead, it found no evidence that porn played any significant role in delinquent or criminal behavior, and had no effect on character or moral attitudes regarding sex. It also determined that most Americans believed that they should be able to read or see any sexual materials they wished. Naturally, the report was rejected by Congress, the Senate, and President Nixon, who succeeded Johnson. Obscenity prosecutions against “girlie magazine” publishers and adult film producers followed, and people went to jail.

In the early 80’s, adult video tapes became readily available in corner video stores across the country. People could finally watch their adult film star of choice from the comfort of their home without venturing out to the local XXX theater. As it turns out, they liked this idea and adult video rentals kept most of the small stores in business. In response to this phenomenon, President Reagan commissioned the infamous “Meese Report” on pornography. This time, the result was predetermined, and the report documented the purported harmful effects of pornography and the alleged connections between the adult industry and “organized crime.” The report was roundly criticized as being biased, not credible, and inaccurate. Yet the issuance of the report gave birth to the next War on Porn, in which video tape distributors and retailers were targeted by the Department of Justice with draconian racketeering laws. Numerous operators were prosecuted and imprisoned for selling videos of adults having sex. These efforts largely subsided with the election of President Clinton.

Then came the “W” years, when President Bush and Attorney General Holder revived the “Obscenity Unit” in the Department of Justice and began pursuing adult DVD distributors and website publishers. This effort was fueled by the exotic theory that watching porn produces erototoxins in the brain, which triggers addiction – just like the dreaded crack cocaine. U.S. attorneys were instructed to bring obscenity prosecutions against both large and small operators, to ensure that nobody could take comfort that they were too small to fly under the radar. Those prosecutors who refused to play along were fired, according to some reports. However, the proliferation of adult content online proved to be too much even for the most zealous anti-porn censors. By 2014, this War on Porn was lost. Adult video clips thrived on the Internet – particularly with the adoption of high-speed broadband access, and the popularity of adult “tube” sites.

That leads us to today. After a period of relative calm on the obscenity front, on December 6, 2019 Congressmen Jim Banks, Mark Meadows, Brian Babin, and Congresswoman Vicky Hartzler formally demanded that the Department of Justice stop the “explosion of obscene pornography” on the internet, cable TV, hotels, and retail establishments. The letter touched off a firestorm on the internet and social media, with numerous commentators demanding that the government step in and regulate pornography. It also created a rift between moral conservatives who want to ban porn, and the libertarian wing that resists government overreach. In support of the letter, Representative Banks claimed that children are struggling with pornography “addiction,” citing a UK newspaper article which anonymously quoted a single teenager claiming to be addicted. In a feat of mental gymnastics, he also managed to conflate concepts of pornography, child pornography, obscenity, violence against women, and human trafficking:

Anti-porn advocates argue that as online pornography consumption has increased, so too has violence towards women. The overall volume of human trafficking has reportedly increased and is now the third-largest criminal enterprise in the world. Child pornography is on the rise as one of the fastest-growing online businesses with an annual revenue over $3 billion. The United States has nearly 50% of all commercialized child pornography websites.

What any of this has to do with the adult entertainment industry is anyone’s guess. Temporal correlation does not equal causation. However, the industry is historically on the receiving end of the blame for these societal ills. Notably, there are specific laws prohibiting child pornography, human trafficking, and domestic violence. Obscenity prosecutions are not necessary to combat any of those crimes. Statements like those made by Congressman Banks are tremendously misleading, and facts matter.

Increased popularity of online pornography did not cause increase in violence against women. In fact, overall violent crime has decreased over the last several decades, including the rates of rape and sexual assault. Those who commit rape appear to consume less porn than the general population.

Online pornography is not uniquely addictive. Those who become addicted to watching online pornography have the same inability to self-regulate and other psychological conditions as people with other compulsions or attachment disorders.

Legal pornography does not increase human trafficking. No credible study has demonstrated such a causal link. However, previous prohibition efforts have shown that criminalizing some product or service does not stop it from existing. Instead, prohibition simply drives the activity underground, making it more dangerous for all involved. The previous concerns with porn’s alleged connection to organized crime would likely become more prevalent if the prohibitionists were successful.

The adult entertainment industry does not produce or endorse child pornography. This should be evident from the industry’s long-standing efforts to eradicate underage content through support of groups like asacp.org and NCMEC. Neither the business owners nor their customers want any involvement with underage materials. The fact that there have been exceedingly few documented cases of underage performers in professional adult films demonstrates the successful efforts undertaken to ensure that minors are not allowed to participate in the industry.

Putting adults in prison for making movies that other adults want to watch has always struck this author as outrageous, and antithetical to fundamental free speech protections. In the last round of obscenity prosecutions, the government suffered some embarrassing defeats. But juries in obscenity cases can be unpredictable, and the Miller obscenity test is far from clear. Unlike most other crimes, the defendant in an obscenity case does not know if he or she is actually guilty until the jury returns a verdict. The courts are split on whether local or nationwide standards should be used to evaluate online content. As a result of the uncertainty created by an obscenity prosecution, some producers and distributors have paid a heavy price for providing adult entertainment to the consuming public.

Using precious law enforcement resources to pursue this effort will do nothing to combat child pornography, human trafficking, or violence against women (or men). At most, some random lives will be ruined, and some videos may be taken off the market. Certain facets of the adult industry could be forced underground or overseas. However, there will be no appreciable impact on the production or distribution of erotic content.

But, the new War on Porn is different, as it tries to appeal to a broader segment of society than previous efforts, which were focused on morality and shaming. This newly-branded campaign is targeted at those who want to save vulnerable victims and achieve social justice. Members of the adult entertainment community must be armed with the facts and defend their rights to sexual expression. If state or federal prosecutors decide to dust off outdated obscenity statutes and challenge the adult industry once again, they will likely find that freedom does not die without a fight.

Adult Content Production and Sex Trafficking Laws

For years, opponents of the adult entertainment industry have attempted to link pornography to sex trafficking.  In 2015, the National Center on Sexual Exploitation (formerly known as “Morality in Media”) hosted a symposium which pushed the narrative that pornography increases the demand for sex trafficking, child exploitation, and violence against women. The following year, the Department of Justice commissioned a study which concluded that consuming adult entertainment causes people to be dismissive of sex trafficking concerns. Since then, substantial federal funds have been allocated to bringing more sex trafficking prosecutions at the local, state, and federal levels. Those who claim to be victims of sex trafficking can sue the perpetrators, and any websites involved (thanks to FOSTA), under state and federal law.

It has become increasingly clear that sex trafficking laws will be used against adult entertainment businesses. The first federal sex trafficking charges against an adult content producer have already been filed. Most content producers and performers react to this concern with disbelief. They have nothing to do with sex trafficking, so how could these laws ever be applied to their business?

Understanding this issue starts with the definitions used in federal statutes. For purposes of this discussion, sex trafficking occurs when someone recruits, entices, solicits, transports, or advertises an adult for a commercial sex act through force, fraud or coercion. The law also punishes anyone who attempts or conspires to engage in these activities, or who benefits financially from participating in a venture where such activities occur. The defendant need not intend that sex trafficking occur, if the defendant acts with reckless indifference. The punishment is severe: 15 years to life in prison. Unlike other crimes where the defendant is presumed to be entitled to a bond pending trial, the law presumes that accused sex traffickers should be detained until trial.

Sex trafficking laws can apply to those who are willingly recruited to engage in commercial sex acts. The elements of “force, fraud, or coercion” have been interpreted quite broadly by the courts. Actual force is not necessary. A threat of force is sufficient. Any scheme or plan which causes a victim to believe that physical restraint or serious harm might occur will meet the test. Creating a climate of fear is enough to prove coercion. “Fraud” is a notoriously broad concept which can include any form of deception, such as false promises of fame and fortune. With that in mind, consider the following scenarios:

• An amateur clip producer occasionally includes her live-in boyfriend in boy/girl clips. The boyfriend loses his regular job and can no longer contribute to paying rent. The content producer tells him that he must perform in more clips to supplement their income or move out. Is this “coercion”?
• A webcam model promises performers that she can make them famous in the adult industry, but they must participate in some of her cam shows to help launch their careers. The performers agree and participate, but never become famous. Is this “fraud”?
• A professional video producer hires security guards on the set. A performer decides that she wants to stop filming and leave, but the security guards are stationed near the exits. Is this “force” through threat of physical restraint?

It is not difficult to imagine many circumstances where the facts can be manipulated to fit within the ambit of sex trafficking statutes. Those in charge of making these decisions may be politically opposed to adult entertainment or hold the belief that pornography fuels sex trafficking. In the case of a civil lawsuit, the plaintiff stands to benefit financially by making the claim.

Any allegation of sex trafficking is emotionally charged. There is an inclination to believe the victim. In many cases, that is the correct thing to do. However, the adult industry is now vulnerable to potential prosecutions and civil claims that are politically or financially motivated. Anti-porn advocacy groups which previously opposed adult entertainment on moral grounds have adopted the sex-trafficking rubric as a basis for their censorship efforts. We have seen numerous instances where run-of-the mill business disputes between producers and performers are starting to include claims of sex trafficking.

This is a sensitive issue. Sex trafficking is a horrific crime, and perpetrators should be punished harshly. But the scope of the problem is up for debate since accurate statistics are notoriously hard to come by, and some of the numbers are overblown. As governmental entities and advocacy groups try to conflate issues of pornography, prostitution, and sex trafficking, the industry must be on guard for misuse of these laws. Just as anti-porn advocates have previously attempted to smear the adult industry with claims of child pornography, there is an effort underway to suggest that adult content production implicates sex trafficking.

To help address these issues, both producers and performers are encouraged to adopt best practices that focus on disclosure and consent. All expectations should be identified in written agreements. Performers must be afforded an opportunity to read and understand such agreements before production. Compensation terms should be clear and unambiguous. Obviously, there is no place for threats or violence in the adult content production industry. The Free Speech Coalition has issued a statement condemning the types of activities that were alleged in the recent sex trafficking charges against adult content producers. Its Code of Ethics encourages clear written performer contracts with sufficient time to review. Some large content producers and industry groups also offer a performer Bill of Rights that focuses on respect, clarity, and consent. Efforts like these will go a long way towards eliminating the risks posed by misuse of sex trafficking laws as a weapon against the adult industry.

Nothing in this article is intended as legal advice. Lawrence Walters has represented the adult entertainment industry for over 30 years. He can be reached at firstamendment.com or @walterslawgroup.