Archive for the 'Uncategorized' Category

09
Dec
19

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.

17
Oct
19

What’s In A Name?

Adult business operators often struggle with the legal complexities of trademarks, trade names, fictitious names, and corporate names. This is particularly true for amateur performers, producers, or distributors who have operated a small business under their own personal name but want to consider doing business under a corporate or brand name. Let’s try to sort through some of the confusion.

Personal Names

Anyone can operate a business individually, using their personal name and social security number as their taxpayer identification number. This is known as a sole proprietorship. This simple business format is user-friendly but provides no legal protection from claims against the business, and offers no anonymity for the owner.  If a personal name is used as a business brand, it can be registered as a trademark. More about trademarks later. But actors, authors, sports figures, and other celebrities frequently register their personal names as trademarks, in the class of services for which the name is being used.

Fictitious Names

An individual can operate a business under a fictitious name, also known as a “d/b/a” which stands for “doing business as”. A fictitious name is also known as a “trade name”. Most states require a business to register a fictitious name before using it to engage in commerce. Registration can occur at the state or local level – sometimes both. In some states, it is a criminal offense to use a fictitious name without a registration. The idea is to protect the public by allowing people to look up the name of the actual owner of a fictitious business name. Registering a fictitious name does not provide any legal protection for the owner of the business and does not automatically grant any intellectual property rights to the name. In other words, someone else can use the same fictitious name for a separate business, and your registration will not give you any rights to stop them. Both individuals and companies can register fictitious names.  Theoretically, any stage name or website name is a fictitious name of the individual or company behind the operation, and registration of these names should be considered as an element of basic legal compliance.

Corporate Names

Setting up a corporation or limited liability company (LLC) should be considered by any business, no matter how large or small. Conducting business through a corporate entity provides some protection against claims or debts of the company. Incorporation is often viewed as a form of cheap insurance. A corporation is considered a separate legal “person” from its owner(s) and has perpetual existence. A corporation can also obtain its own taxpayer identification number, and hold bank accounts or other property in its own name. The incorporation process is not complicated, but maintaining the corporate formalities can be challenging for small business operators who are not familiar with the process. All corporate entities should have a corporate book, records of ownership, and minutes of corporate meetings. Corporations should likewise have bylaws and shareholder agreements, while LLC’s should have operating agreements. These documents will describe how the owners are compensated, how shares are issued, and how disputes are resolved. The absence of a shareholder or operating agreement can result in significant problems, such as third parties claiming to be owners. In some instances, failure to observe the corporate formalities can also result in the individual owners becoming responsible for corporate debts or liabilities.

Corporations also provide some level of anonymity for the owners, since corporate ownership is typically not a matter of public record. The information necessary to set up a corporation varies from state to state, with some states requiring very little public information about those involved with the business. You can select any state for incorporation, regardless of the physical location of the business. Typically, however, a corporation must appoint a registered agent who is physically located in the state of incorporation.

Your corporate name need not be your business brand name. As noted above, a corporation can register a fictitious name that represents its brand. But in some circumstances, it can also register the name as a trademark.

Trademarks

Trademark registration is an important consideration for any business. If your brand name meets certain criteria and does not conflict with the rights of third parties, you may restrict others from using the same or similar brand for your business. Protecting your brand is essential, and a trademark can often become your most valuable business asset. In the event anyone infringes on your brand name, having a registered trademark can provide an expedited path toward resolution of the dispute. Importantly, not all brand names qualify for trademark registration. Brands which are generic, or merely descriptive of the business’s products or services, typically will not be accepted for registration as trademarks. In some cases, use of a descriptive brand for a sufficient period of time will allow for trademark registration, if the mark has acquired distinctiveness in the marketplace.

Trademarks can be registered at the state level, or at the federal level with the United States Patent and Trademark Office (USPTO). In order to qualify for federal registration, the brand must be used in some form of interstate commerce. Often, businesses will wait until they are actually using a brand before applying for registration. However, the USPTO allows business owners to file a trademark application if they have a bona fide intent to use the brand in the future. Filing the application sets your priority date and allows you to prevent others from using the same or confusingly similar brand in the future, so long as you ultimately receive a trademark registration.

Trademarks can be owned by corporations or individuals. The owner of the trademark will have the power to control the use of the brand name, and the power to license that brand for use by third parties. Sexually explicit trademarks have historically been refused registration by the USPTO, but that may change depending on a decision from the U.S. Supreme Court that is expected in the near future. Many adult business operators have sought registration of explicit brand names in the hopes that the Supreme Court will clear the way for registration soon.

Conclusions

Choosing the right name and structure for your business is an important decision for any adult business operator. Your brand name represents the reputation and goodwill of your business. Some brands may conflict with the trademark rights of other operators, so careful consideration should be paid when selecting your trade name, corporate name, or trademark. After some initial legwork, you can find the perfect brand name, and protect it from infringers for the life of your business.

 

Lawrence G. Walters heads up Walters Law Group, www.firstamendment.com. Nothing in this article is intended as legal advice.

26
Jun
19

Congress Considering Deep Fakes Law

The technological ability to create convincing “deep fakes” is getting some attention in Congress. The adult entertainment industry has already struggled with deep fake porn, and the unsettled intellectual property issues generated by this type of content. On the one hand, rights holders can assert trademark, copyright, and/or publicity rights claims against producers of deep fakes. Publishers, on the other hand, can argue “fair use”, Section 230 immunity, or First Amendment protections in certain circumstances. But the recent publication of a doctored depiction of Nancy Pelosi appearing to stammer through her words, has apparently caught the eyes of some politicians who are poised to take action.

In early June, 2019, Rep. Yvette D. Clarke [D-NY] introduced H.R. 3230, the Defending Each and Every Person from False Appearances by Keeping Exploitation Subject to Accountability Act of 2019, in the House of Representatives. The DEEP FAKES Accountability Act intends to “combat the spread of disinformation through restrictions on deep-fake video alteration technology.” If passed, the bill would create both criminal and civil penalties for failing to disclose a covered deep fake and for altering disclosures. The bill would also create a private right of action for those injured by covered deep fakes. The bill was referred to the House Committee on the Judiciary, Committee on Energy and Commerce, and Committee on Homeland Security. If the bill is passed, it will take effect one year after it is enacted.

Rather than imposing restrictions on all deep fakes, the bill would impose a watermark and disclosure requirement on all deep fakes which are “advanced technological false personation records” – meaning any deep fake that a reasonable person would believe accurately depicts a living or, in more limited instances, deceased person who did not consent to the production. The bill would apply only to those productions which appear to authentically depict the speech or conduct of a person by technical means. The bill would purposefully exclude productions that utilize the skills of another person capable of physically or verbally impersonating the falsely depicted living or deceased person. The bill would also provide an exception for parodies, historical reenactments, and fictionalized programming that a reasonable person would not mistake as depicting actual events.

All visual-only “advanced technological false personation records” must include an unobscured written statement at the bottom of the image for the duration of the visual element that the deep fake contains altered audio and visual elements and that explains the extent thereof. All audio-only “advanced technological false personation records” must likewise include at least one clearly articulated verbal statement at the beginning of the record that the deep fake contains altered audio and visual elements and explaining the extent thereof. This verbal statement requirement applies to every two minutes of audio. All audiovisual “advanced technological false personation records” must include both an unobscured written statement and at least one clearly articulated verbal statement. Finally, all “advanced technological false personation records” that include a moving visual element must contain a watermark clearly identifying the deep fake as containing altered audio or visual elements.

Software developers that reasonably believe their software may be used to produce deep fakes would be required to ensure that their software allows for the insertion of necessary watermarks and disclosures and includes terms of use that require the user to affirm their general awareness of their legal obligations under this bill.

If passed, an individual may be fined, imprisoned for up to 5 years, or both, for knowingly failing to include a required watermark or disclosure (1) with the intent to humiliate or harass by falsely, visually depicting a person engaging in sexual activity or in a state of nudity, (2) with the intent to cause violence or physical harm, incite armed or diplomatic conflict, or interfere in an official proceeding, and the deep fake did in fact pose a credible threat of doing so, (3) in the course of criminal conduct related to fraud, or (4) by a foreign power or agent, with the intent of influencing policy debates or elections.

The legislation also provides criminal penalties for  knowingly altering the deep fake to remove or obscure the watermark or disclosure with the intent to distribute the altered deep fake and with one of the four prongs listed in the paragraph above. In addition to prison time, the proposed law allows for a civil penalty of up to $150,000 per deep fake as well as appropriate injunctive relief. An individual or affiliated business entity who is falsely exhibited in a deep fake would be able to seek damages and injunctive relief against anyone that violates the disclosure requirements of anti-alteration clauses of this bill. Damages would be the greater of actual damages or $50,000 per deep fake, except the limit would increase to $100,000 per deep fake that depicts extreme or outrageous conduct by the falsely depicted person and would increase to $150,000 per deep fake containing sexually explicit visual content intended to humiliate or harass the falsely depicted person. An individual would be able to file the private action under seal if there is a reasonable likelihood that the creation of public records would result in embarrassing or harmful publication of falsified material.

The bill would also create a process by which producers of deep fakes may seek an advisory opinion from the Attorney General about the legality of their proposed deep fakes within 30 days. The Attorney General would not be able to enforce this law against any producer of deep fakes that relies on an advisory opinion in good faith. The Attorney General would also be required to issue rules governing the technical specifications of the required watermarks within one year of enactment. The Attorney General would designate a coordinator in each United States Attorney’s Office to receive reports from the public regarding potential violations by foreign states and agents as well as any violations depicting acts of an intimate or sexual nature.

In the year after the bill is passed, the Attorney General would be required to publish a report containing a plan to enforce the law, a description of foreign efforts to use deep fake technology to impact election and policy debates in the U.S. and abroad, a description of the impact of sexual deep fakes on women and marginalized communities, and official guidance to Federal prosecutors.  In addition, the bill would require the Secretary of Homeland Security to establish a “Deep Fakes Task Force” to combat the national security implications of deep fakes, research and develop technologies to detect, counter, and distinguish deep fakes from actual events, and work with the private sector on this issue.

The bill would not serve as a defense against, preempt, or limit any Federal, State, local, or territorial laws on deep fakes or related content. Producers will still be able to seek other legal remedies against those individuals that use their copyrighted content without authorization to create deep fakes. Those individuals falsely depicted in deep fakes would still be able to seek other legal remedies against those individuals that use their likeness in deep fakes including privacy, defamation, false light, and unauthorized use of likeness claims. Sites that host user generated content, potentially including deep fake material, would still be able to claim the defenses provided by Section 230 of the Communications Decency Act. However, some members of Congress have expressed their interest in amending Section 230 of the Communications Decency Act to more directly address liability for deep fakes.

Future regulation of deep fake technology is still uncertain, as Congress struggles to sort out the numerous legal and constitutional issues generated by this content. While the adult industry continues to wrestle with the problems caused by deep fake porn, politicians seem interested in nipping the issue in the bud, before a deep fake costs one of them an election.

This post was co-authored by Lawrence Walters and Bobby Desmond, of Walters Law Group. Nothing herein is intended as legal advice.

14
Jun
19

Texas Embraces FOSTA

Over a year ago, Congress passed the Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”) and the Stop Enabling Sex Traffickers Act (“SESTA”) in a confused attempt at combatting sex trafficking, but instead endangered sex workers and censored private companies that were worried about newly-imposed civil and criminal liability. Now, states are getting in on the action by passing their own versions of the misguided law. These new laws will be used to come after platform operators for user-submitted content, to subject those platforms to the whims of state-level officials who are more often influenced by politics than the Department of Justice, and to put more pressure on those platforms to censor erotic media.

Texas Governor Greg Abbott recently signed a state version of FOSTAA hidden amongst four other bills related to reducing the backlog of thousands of untested rape kits in the state, criminalizing “stash houses” that facilitate human trafficking, and increasing resources available to sexual assault survivors. These bills will take effect on September 1, 2019.

“I’m here to sign legislation that keeps Texas a national leader in cracking down on human trafficking, making Texas a hostile place for human traffickers, and providing protection to the victims of this heinous crime,” Gov. Abbott claimed. “It doesn’t matter what your politics are. It just matters what your commitment is. We are proud to make Texas synonymous with the word justice.”

Despite the Governor’s pronouncements, the Texas FOSTA law will not be effective at reducing sex trafficking or protecting victims. Instead, it will have the opposite effect. Like FOSTA, which caused huge amounts of erotic content to be removed from the internet, the law will encourage continued censorship of protected online expression. In addition, it will eliminate the crucial digital evidence often provided to law enforcement by online advertising networks used by traffickers. More of these platforms will shut down or move overseas – outside the reach of U.S. investigators. But worse still, the law will create increased danger for sex workers who will no longer have access to digital screening and security protections such as “bad date” lists and safety tips. The human cost imposed by FOSTA was recently detailed in an article published in Fordham Law Review, which concludes that the law “confines commercial sex to its most dangerous model.” This is particularly devastating for the estimated 79,000 young sex trafficking victims in Texas, many of whom are Latino or African American, according to estimates provided by the state’s Attorney General’s Office and a recent study by the University of Texas. Women of color are disproportionately arrested and prosecuted for sex work and forcing the activity back to the street will naturally increase the victimization.

Like the federal FOSTA/SESTA bills, the Texas version titled Senate Bill 20 creates criminal and civil liability by stripping online platforms and content providers of an over 20-year-old protection that effectively fostered innovation and guarded freedom of expression on the internet. Now, in addition to federal criminal and civil liability levied by FOSTA, online platforms and content providers will be exposed to potentially debilitating criminal and civil liability for prostitution and sex trafficking claims at the state level in Texas, unless they take onerous measures to find and remove users involved in this criminal activity. While such measures are hard to successfully implement for even the largest sites, startups and smaller platforms will have a particularly tough time complying with Senate Bill 20, as fledgling businesses do not have the financial resources necessary to employ costly artificial intelligence tools and/or a large team of moderators trained to hunt down anything vaguely resembling sex trafficking or prostitution on their platforms.

Importantly, Texas Senate Bill 20 targets not only illegal sex trafficking, but consensual sex work as well. Now, online platforms and content providers can be sued or prosecuted in state court in Texas, if their services were used by third parties to promote or facilitate prostitution. Consensual sex workers will be pushed away from the protections the internet provides and toward potentially violent and dangerous people on the streets. They face increased risk in customer interactions, now that their harm reduction tools have been removed from the internet in reaction to FOSTA. Such risks are now more prevalent. For example, there was a 170% spike in sex trafficking incidents reported in San Francisco as a result of FOSTA. Additionally, such risks are often more serious, and may include death. In fact, before FOSTA, Craigslist’s erotic services section helped reduce the female homicide rate by 17%, according to a recent study. More FOSTA-like prohibitions at the state level will exacerbate the damage already done by the federal law.

Similar to FOSTA, Article 3 of Senate Bill 20 regulates the “Online Promotion of Prostitution” by making it a criminal offense to own, manage, or operate an interactive computer service or information content provider with the intent to promote or facilitate prostitution. Also, like FOSTA, the law broadly-defines these terms, but also adds new categories of targeted online intermediaries. An “interactive computer service” is any information service, system, or access software provider that provides or enables access to a computer server by multiple users, including a service or system that provides access to the Internet or a system operated or service offered by a library or educational institution. An “access software provider” is any provider of software or enabling tools that (1) filter, screen, allow, or disallow content, (2) select, analyze, or digest content, or (3) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content. An “information content provider” is any person or entity that is responsible for creating or developing information provided through the internet or any other interactive computer service. Essentially, just about any online service or content provider may be charged if its users promote or facilitate prostitution.

Article 3 of Senate Bill 20 creates new trafficking offenses such that a conviction may be obtained when a person knowingly:

  • Traffics another person with the intent that the trafficked person engage in forced labor or services;
  • Traffics another person and – through force, fraud, or coercion – causes the person to engage in prostitution, promotion of prostitution, or compelling prostitution;
  • Traffics a child with the intent that the trafficked child engage in forced labor or services;
  • Traffics a child and causes the child to engage in continuous sexual abuse, indecency, sexual assault, prostitution, promotion of prostitution, compelling prostitution, sexual performance, harmful employment, or possession or promotion of child pornography; or
  • Receives a benefit from participating in a venture that involves any of the above.

Article 3 of Senate Bill 20 also creates civil liability for damages arising from compelled prostitution when a defendant (1) compels prostitution of the victim, (2) knowingly or intentionally engages in promotion of prostitution, on or off line, that results in compelled prostitution of the victim, or (3) purchases an advertisement that the defendant knows or reasonably should know constitutes promotion of prostitution, and which results in compelled prostitution of the victim.

Other portions of the law will require the state to collect data on trafficking cases, implement a “media awareness campaign,” and develop recommendations to decrease demand. Significantly, the law also requires an examination of the presumed connections between trafficking and sexually-oriented businesses.

States like Texas have been anxious to pass laws like this; holding online intermediaries responsible for illegal activities of their users. However, until the passage of FOSTA, they faced an insurmountable hurdle in the form of Section 230 to the Communications Decency Act. FOSTA removed that hurdle, and effectively invited states to adopt legislation like the Texas bill. Now, the states need not wait for the Department of Justice to pursue websites that are believed to promote or facilitate consensual sex work. The floodgates of liability have been opened in Texas, and there is no longer any gatekeeper. Any state prosecutor looking to leverage the sex trafficking panic can use a law like the one passed by Texas to target online platforms. This will predictably result in a chilling effect on speech and continued censorship of erotic media, as platforms react by exterminating any content that may be considered risky.

While Texas may be the first state to enact its own version of FOSTA, it is unlikely that it will be the last to do so. Publishers and consumers of adult-oriented media will pay a price as online access becomes more burdensome. The real price will be paid by sex workers who will face increased hostility and violence now that their harm reduction tools have been criminalized. Other states considering these “mini-FOSTA” laws are encouraged to look carefully at the devastation caused by the federal version before making the same mistake.

This post was co-authored by Lawrence G. Walters, Esq., and Bobby Desmond, Esq., of Walters Law Group. Nothing in this post is intended as legal advice.

03
Jun
19

A Year with FOSTA

Are we having fun yet? FOSTA/SESTA (“FOSTA”) has been around for a full year now and has managed to wreak significant havoc on the Internet. Sold to Congress as a law to combat “sex trafficking,” FOSTA has instead endangered sex workers and forced massive online censorship by private companies fearing enhanced civil and criminal liability. Unless the law is struck down by the courts, things will get worse.

Early versions of the bill focused exclusively on amending Section 230 immunity, which broadly protects interactive computer services from claims based on user content. Congress decided that online intermediaries enjoyed too much protection when it came to sex trafficking, so it began looking at ways to carve out sex trafficking claims from the scope of the immunity. The proposed change was supposedly necessary to allow the government to take down Backpage.com, which had fended off claims by asserting Section 230 defenses for years. The idea of tinkering with Section 230 immunity was bad enough on its own, since it exposed online platforms to expansive liability for sex trafficking claims if they did not take sufficient action to root out users involved with this criminal activity. Eliminating this important legal protection creates significant problems for smaller platforms or startups, which cannot afford expensive artificial intelligence tools and an army of human moderators looking for anything that might resemble sex trafficking on their servers. The level of proof that might be required to hold an Internet intermediary responsible for sex trafficking offenses is not clear under FOSTA, so companies braced for potential exposure based on the slightest hint of abusive user posts.

But Congress was not content to focus solely on illegal sex trafficking. While they were at it, lawmakers figured they would tackle consensual sex work as well. This proposed addition to the bill was opposed by free speech groups, trafficking survivors, and the DOJ, itself.  Nevertheless, in late February 2018, the House Judiciary Committee approved an amendment to FOSTA which created a new federal prohibition on using an interactive computer service to promote or facilitate prostitution. The amendment did not bother to define the terms “promote” or “facilitate” or even “prostitution.” The bill, including the amendment dealing with consensual sex work, was pushed through the legislative process and signed into law on April 11, 2018. Now, online platforms could be sued or prosecuted in state or federal court, if their services were used by third parties to promote or facilitate prostitution. Congress had officially broken the Internet. Notably, however, Backpage.com was taken down by federal authorities in the weeks before FOSTA was signed, raising the obvious question whether the law was necessary in the first place.

In the immediate aftermath of FOSTA, Craigslist.org killed its entire personals section, given the uncertain risks it now faced. Dozens of other websites went dark, including numerous sites that provided harm reduction information and “bad date” lists that sex workers used to keep themselves safe from abuse. Banks, payment processors, hosts, and other service providers began cancelling accounts of customers whose sites might be used to promote or facilitate prostitution. The undefined prohibitions included in FOSTA, along with the draconian prison sentences for violations, forced online service providers to steer far clear of any content or speech that may be related to prostitution. It is not hard to imagine the difficulty facing large Internet platforms who were suddenly forced to determine with certainty whether adult content posted by users might be associated with some definition of prostitution, in some geographic jurisdiction. The legal exposure and uncertainty proved to be too much for many companies to bear, resulting in a huge swath of protected speech being wiped from the Internet. Instead of directly prohibiting adult content, itself, the government incentivized online platform providers to do the dirty work.

Fast forward to Spring of 2019: Tumblr has removed all adult content, and Facebook prohibits virtually all discussion of sexual activity. Instagram demotes any sexually suggestive content, on the grounds it may be “inappropriate.” Countless smaller sites have disappeared, and many startups cancelled their plans due to the increased legal risks. Consensual sex workers are facing increased violence, as they are driven from the Internet onto the streets, and into the hands of dangerous people. Their online safety and harm reduction tools have been taken away by FOSTA, so they accept more risk in their customer interactions. A recent study showed that use of Craigslist’s erotic services section by sex workers resulted in a 17% decrease in female homicide rate – attributed primarily to the (previous) ability of sex workers to vet their clients and take their business indoors. Police tasked with the job of fighting actual sex trafficking have found their jobs much harder after the closure of sites like Backpage.com, which historically provided a treasure trove of information for trafficking investigations when subpoenaed. Ironically, San Francisco has reported a 170% spike in sex trafficking incidents as a result of FOSTA. This is to be expected, as even the DOJ said that FOSTA would make their job of prosecuting traffickers more difficult. A non-profit sex worker clinic noted that the law suddenly re-empowered a whole underclass of pimps and exploiters. In sum, FOSTA has sanitized the Internet of erotic speech, has increased trafficking, and has created a dangerous climate for sex workers.

Some lawmakers are even calling for new exemptions to Section 230, in response to alleged abuse of the protected status by online intermediaries. Representative Nancy Pelosi, Senator Ron Wyden, and Senator Joe Manchin have all warned that Section 230 may be amended again, or eliminated, given the mounting political pressures in Congress. As a result, FOSTA may be only the beginning of a dangerous trend.

Despite this adversity, there have been some encouraging developments. The sex worker community has found its voice and become mobilized. Decriminalization of sex work is now part of the national debate. Democratic presidential candidates are being pressed to defend their views on FOSTA and sex work while campaigning. States are passing laws designed to protect underage trafficking victims from being charged as prostitutes. The media is finally discussing the negative impacts that can result from overly aggressive sex trafficking laws and investigations.

Notwithstanding some impassioned advocacy against the new law, Congress is not likely to repeal FOSTA. Just as most politicians found it impossible to oppose a law branded as “anti-sex trafficking,” they will find it equally impossible to support a repeal. Amendments to the law are theoretically possible, but significant damage has already been done. Speech has been silenced, and FOSTA actively chills online communication on the topic of human sexuality. However, some are fighting FOSTA in the courts. The Woodhull Freedom Foundation, the Internet Archive, Human Rights Watch, and others have mounted a constitutional challenge in Washington, D.C. The suit argues that FOSTA violates the First and Fifth Amendments to the Constitution, since it is overbroad, vague, and applies to conduct that occurred even before the law was passed. The case is currently on appeal to the D.C. Circuit, after an initial ruling that the plaintiffs did not have legal standing to raise the constitutional issues. The plaintiffs have been supported by numerous advocacy groups such as Reddit, the Center for Democracy and Technology, and the Institute for Free Speech, as amici curiae in the appeal. The parties are hopeful, but the damage FOSTA has caused to the First Amendment is undeniable. The ethos of the Internet has changed in the course of a year. However, the courts have the power to fix this.

In 1996, Congress passed an equally dangerous law (the Communications Decency Act) which prohibited all “indecent” content on the Internet. Online freedom fighters quickly mobilized to fight that law under the iconic “Blue Ribbon Campaign.” The U.S. Supreme Court unanimously held that such a broad prohibition on erotic speech violated the First Amendment, despite its purported goal in protecting children from viewing adult materials. Some 20 years later, Congress made the same mistake, but dressed up this censorship effort as a law to combat sex trafficking. Censorship of protected speech is not a price that Americans should be willing to pay to achieve politically attractive goals. The government did not need FOSTA to seize Backpage.com, or to prosecute numerous other websites alleged to be directly involved with promoting prostitution. Existing federal law already supports those efforts. Over the last year, FOSTA has proved to be unnecessary, dangerous to sex workers, a hindrance to law enforcement, and an impediment to free speech.

Ultimately, FOSTA’s constitutionality will be tested in the courts – whether in the current legal challenge or some future case. For now, we must endure an Internet burdened by FOSTA while remaining hopeful that the law does not live to see its second birthday.

26
Oct
18

30 Years of Defending Free Speech

30 years ago today, I received my license to practice law. I devoted the next 3 decades to defending constitutional rights – especially the right to freedom of speech. It has been an honor and a privilege to advocate for clients seeking to express themselves in some way that the government disliked. This practice has included defending protesters, video stores, street performers, raves, website operators, non-profit associations, fortunetellers, artists, and politicians. Each was threatened with censorship based on their protected expression. The First Amendment is the building block of our Constitution, and allows the breathing space for all other rights to exist. I have been fortunate to build a career around my passion, and am thankful for the chance to work with some of the legends in this field.

In the late ’80s, I began representing “mom and pop” video stores that had an 18+ room in the back that rented adult tapes. With the support of my first law firm employer, I began defending these folks against obscenity charges leveled at them by a conservative state attorney who vowed to “clean up” Daytona Beach.  We launched a grass-roots anti-censorship campaign that took hold. All the owners were either acquitted, or the charges were dismissed. The community rejected the government’s efforts to dictate what movies adults could watch in their own homes. Eventually, the state attorney was voted out of office – then re-elected, after a promise not to file any more obscenity charges.

With the advent of the Internet in the early 90’s, and my love of all things tech, I began to focus on representing website operators on First Amendment issues. After grabbing firstamendment.com in the early days of the web, a new practice area was born. I was able to devote the rest of my career to defending online freedom.

First Amendment rights are under attack right now in a way that I have not seen since graduating law school. Political correctness, porn panic, fear of surveillance, sex trafficking hysteria, and social media censorship are threatening bedrock free speech principles. Comedians cannot tell jokes, websites are routinely seized, protesters are being silenced, and lives are destroyed based on a single “inappropriate” comment. Regrettably, the public’s knowledge and appreciation of their First Amendment rights is dwindling. Many are willing to sacrifice free speech rights in order to avoid being offended. These are dangerous times, and many battles loom on the horizon.

Fortunately, there are freedom fighters in every generation. The disputes will be different, but the core principles remain the same. Citizens of a free country are allowed to speak their mind. The government is not permitted to dictate what we read, watch, or create in the realm of free expression. This social contract comes with a price. Sometimes we will be exposed to viewpoints and ideas that are controversial, offensive, or even vile. But living in a constitutional republic requires that we all have a reasonably thick skin. The marketplace of ideas will sort it out. The remedy for bad speech is more speech, not censorship. These are not mere platitudes. Our country sacrificed precious blood and treasure to preserve these freedoms. It is critical that we remember this when considering any sacrifice of free expression or tolerance of government censorship.

I remain thankful for the many years that I have had an opportunity to represent clients who stand for the First Amendment. As we face the future full of threats to free expression, I remain optimistic as our history has proven that freedom is not easily vanquished, and often overcomes great odds.

22
Nov
17

Filming Sex in Public

I.  Introduction

Increasingly, our law firm is asked about the legality of filming nudity or explicit sex scenes in public.  Recent obscenity charges filed against amateur adult content producers in Arkansas and Louisiana have re-ignited discussions about this type of content.  Before that, it was the public indecency charges against webcam model “Library Girl,” a/k/a Kendra Sunderland.  There is something intriguing about the possibility of getting caught that perks interest in some viewers.  Sex scenes filmed in public – even with (purported) members of the public watching – have now become commonplace online.  Given the interest in this topic, this article will explore the various legal issues triggered by public sex content.

To start, the mere fact that explicit sex scenes are shot in public does not make the content automatically illegal.  To strip erotic media of presumptive First Amendment protection, the content must be deemed obscene by a judge or jury.  The issue of obscenity is determined by application of the Miller Test, with which most readers are already familiar.  Part of that test includes an evaluation of “contemporary community standards.”  Using this test, the so-called trier of fact (judge or jury) will consider whether the content is acceptable in the community, under its standards relating to erotic fare.  The “community” can be a county, a metropolitan area, a state, or even the nation as a whole, depending on the legal precedent in a particular jurisdiction.  Presumably, the fact that the filming occurred in public could be considered in the overall obscenity determination, in connection with the evaluation of community standards.  Some jurors might be more offended by the fact that the sex acts occurred in public, and thus more likely to conclude that the content is not consistent with the community’s standards.  A skilled defense attorney may be able to parse legal arguments about judging only the content, not the underlying activity, but the public nature of the material could enter into the analysis.

While obscenity charges have become increasingly rare in the last decade, the recent spate of cases illustrates how public filming can call attention to content that might otherwise remain off the radar.  Members of the public, themselves, might witness the public sex display, and decide to report the activity to law enforcement.  Alternatively, investigators might notice that explicit content is being filmed in public, and then decide to track down and charge producers or distributors in a perceived effort to protect the public from future exposure to the activity.  In sum, the public aspect of the filming increases the potential for a challenge to the legality of the content.

II.  Public Indecency

While obscenity is always a possibility, more commonly creating public sex content can result in “public indecency,” “lewdness,” or “indecent exposure” charges.  These laws typically prohibit some sort of lewd exhibition of the human body.  Engaging in a sex act in public can result in a conviction under this type of statute.  Photographers could be charged as accomplices.  What if the sex act is part of a bona fide film production or performance?  Lewdness and indecency laws have routinely been used against nude dancers who cross the line from performing a dance routine to performing a sex act.  Efforts to raise First Amendment defenses to charges involving public sex acts have generally been unsuccessful.  However, the line is not crystal clear.  If Miley Cyrus rubs her crotch during a singing performance, this might qualify as lewd under some statutes, but also potentially protected by the First Amendment.  While free speech arguments could theoretically be raised, filming explicit sex acts in public is likely within the scope of what is prohibited by most indecency and lewdness laws.

III.  Nudity Ordinances

If the content at issue involves only nudity, but not sex, the activity may not violate indecency or lewdness laws.  Simple nudity (without intent to arouse or offend) is not prohibited at the state level, in many states.  However, numerous county or municipal ordinances do prohibit various degrees of public nudity.  These ordinances are often directed at topless dancing clubs, but they generally apply to any nudity in public.  To avoid constitutional challenges, these local ordinances routinely include exemptions for expressive activity that is protected under the First Amendment.  Therefore, the production of erotic content in public might fall within such an exemption.  However, the courts have ruled that in order for expressive conduct to be protected, it must be designed to convey a particular message, and there must be a great likelihood that the message would be understood by the viewers.  The legal protection afforded to filming of public nudity will thus turn on the type of content being filmed.  The mere act of being nude is generally not deemed to be sufficiently expressive to warrant First Amendment protection.  However, nude dancing can convey a “message of eroticism” which carries constitutional protection.  Again, consideration must also be paid to whether those who view the activity being filmed will understand whatever message is being conveyed by the performers.  While filming nude performers may generate some degree of constitutional protection, law enforcement may well arrest first and deal with the constitutional nuances later if the filming occurs in public view.

The presence of minors during any public sex filming can result in disastrous consequences.  Many of the complaints about filming nude or explicit content in public arise from the potential that minors might be exposed to the activity.  Adult content producers should ensure that no minors are in the vicinity of any productions, to avoid substantial legal danger.  Most states prohibit exposing minors to “harmful” material, including pornography.  Even more serious are statutes which prohibit exposing one’s genitals to a minor, or engaging in a sex act in front of a minor.  These laws typically carry sex offender penalties upon conviction, in addition to the usual fines and imprisonment.  Filming in any public place where minors might gather carries risks that a minor will happen by at the wrong time.

IV.  Civil Claims

In addition to potential criminal charges, filming explicit content in public may result in a variety of civil claims by members of the public, local governments, or even intellectual property holders.  Initially, an individual who is exposed to the activity could theoretically assert a claim for intentional infliction of emotional distress.  The contours of these claims vary from state to state, but they typically require some outrageous activity that results in mental pain and anguish.  A particularly sensitive individual might decide to pursue such a claim.  Members of the public who happen to be captured on film can also assert claims of their own.  Generally, there is no expectation of privacy when someone appears in public, but people have a certain right to control publication of their image and likeness.  Filming a person, and using that footage in a commercial adult video can therefore trigger claims for violation of publicity rights.  If a producer used a location to repeatedly film public sex acts, the local authorities could file a “nuisance” action, asking the court to shut down the activity.  Cities have also been known to object to filming near recognizable landmarks.  Finally, adult content producers have faced claims involving trademark infringement when a famous brand or logo appears in an adult film.  Any number of protected trademarks could be captured when filming in public.  For example, we’ve defended claims brought by a fraternity when its Greek symbols briefly appeared in an adult film, and claims from a well-known hotel, whose brand was captured during taping.  Often, trademark holders object to their brands being even remotely associated with adult content.  Potentially viable trademark dilution claims could therefore be asserted in such instances.

V.  Conclusion

Filming sex scenes in public view remains taboo, but generates niche interest.  As shown above, a wide variety of claims could result from producing or distributing this type of content.  As always, the legal risks should be weighed.