Sheriff Grady Judd and his crew is at it again. Now they’ve turned their sites on some hapless gas station owner in Dundee, Florida, for allegedly selling some girly videos. Little did she know that the all powerful local government knew better than her what kind of entertainment the delicate citizenry of Polk County could tolerate. So now Minakashiben Patel sits in jail, apparently on a no-bond status, facing charges of obscenity. This isn’t the first time that this Central Florida jurisdiction has tried to enforce its version of “decency” on its citizens. The following article gives a pretty good history of Sheriff Judd’s efforts to promote Christian values in Polk County government: http://orlandoweekly.com/news/church-and-state-1.1109454. The First Amendment never stopped a skilled politician like Grady Judd, however. He takes pandering to a new level, and destroys lives in the process. Fortunately, the First Amendment protects the New York Times the same way as a small gas station owner, when it comes to dissemination of free speech. We shall see how this case plays out, but their random obscenity prosecutions are certainly a threat to civil liberty, and the whole effort demonstrates a fundamental misunderstanding of the changing societal mores in this country. Just look at how fast 50 Shades of Grey flew off the shelves. In year 2013, I think we can tolerate the sale of a few adult films sold in a local gas station.
Can a webcam model also be a paid escort and an active member of a “hookup” dating site? Naturally, the answer is “yes,” but at what costs? Blurring the lines between these adult-themed user categories creates an uncharted hybrid of legal exposure for both the individual model/escort and those operating the associated websites. However, more and more frequently we’re seeing this sort of crossover in the live webcam, escort, and casual dating industries. Historically, escort sites have operated on the legal assumption that their advertisers do not engage in sexual activity for hire, but simply offer paid companionship services. Live webcam operators routinely engage in sexual activity on cam, but are typically prohibited from any “real world” meetings with users, so as to avoid concerns with prostitution and solicitation. Finally, adult dating sites have avoided prostitution-related issues based on the fact that they merely serve as a forum for social interaction, and should any sexual activity occur between users, it is not in exchange for money or anything of value. However, when the same individual acts as a webcam performer, an escort, and a hookup site user, these important legal distinctions and assumptions can start to break down.
Importantly, no law prohibits an escort from having a normal, romantic dating life, complete with sexual activity. Similarly, live webcam models are not legally prohibited from offering companionship escort services, or submitting profiles to casual dating sites in search of an occasional tryst. The legal danger arises in the not-so-rare scenario, linking all of these activities together in some way. For example, escorts who provide sexually explicit performances via webcam must be careful to separate any discussion of escort activities or reference to online escort profiles, to avoid sending the wrong message to users. Without clearly distinguishing between webcam and escorting activities, the government will likely argue that any explicit webcam activity is indicative of the services the model might provide when acting as a paid escort. Whether such argument would be successful in a court of law is another matter, but the risk exists. Escorts should be similarly cautious when linking to any dating site profiles that reference sexual activity, so as to avoid conveying any misconception regarding the limited, non-sexual nature of the activities that the escort is willing to engage in during a paid session.
While compelling legal arguments can be made in support of the legality of live webcam sites, escort sites, and hookup sites, those legal arguments can be negatively impacted by linking such activities together in some manner. In a perfect world, escorts would never engage in sexual activity, webcam models would never meet users offline, and adult dating site participants would never be compensated for anything having to do with erotic interaction. Unfortunately, however, reality is messy. Escorts and webcam models are entitled to a healthy sex life, like anyone else. But as the escort, webcam, and adult dating business models become more popular and profitable, site operators will be forced to make difficult but important decisions regarding the extent to which any co-mingling of activity will be permitted or referenced on the site.
In the immortal words of The Offspring: “You gotta keep ’em separated.” But with many operators permitting posting of user generated content with limited or no pre-publication review, along with real-time social network feeds, the ability of a site operator to control the intersection of these three areas of online adult entertainment can be challenging. That said, pre-publication review of user posts/profiles creates its own set of complications, and may negatively impact the legal protections afforded to online service providers under federal statutes like Section 230, the DMCA, and Section 2257. Thus, actively attempting to control linkage of these various activities could impact the site operator’s legal defenses to claims arising from the publication of this third-party content. Coherent operating policies should be adopted in connection with the publication of any such material, taking into consideration all of the factors. However, given the serious legal consequences attached to the promotion of sexual activity for hire in the United States, site operators, escorts, and performers should be forewarned regarding these dangerous intersections.
Update: The passage of FOSTA in April, 2018 has significantly impacted the legal issues addressed in this post.
Iceland recently made headlines with the latest project on its allegedly progressive agenda: a nation-wide ban on pornography. No stranger to proscribing activities related to commercializing sex, Iceland has already passed laws banning printed pornography, prostitution and stripping, and has done so all in the name of feminism. Rattling off the standard laundry list of the evils of porn, the Icelandic Parliament noticeably lingered on the “damaging effects” adult material has on the children who view it and the women who participate in it. Iceland’s Office of the Interior Minister defended the ban by stating that Icelandic citizens deserve to live and develop in a non-violent environment, therefore, the resulting law is “not anti-sex, but anti-violence.” What’s potentially more concerning is that this feminist backlash against commercial sexualization is gaining serious momentum throughout Europe, as evidenced by the European Union’s recent parliamentary vote on a blanket pornography ban. Taking a page from the Nordic view on feminism, the EU claims the ban will foster gender equality and combat sexual stereotypes by sanctioning individuals and businesses “promoting the sexualization of girls.” With Parliament disclosing very little about the potential ban, most Europeans are looking to the recent path blazed by Iceland for some guidance on what’s to come.* So what is the likelihood of Iceland being the first democratic state to successfully ban pornography? The answer to that question probably depends on your definition of success…
Given that Iceland is expected to implement similar blocking filters to those used in China and Iran, it stands to reason that Iceland would enjoy comparable success in restricting online content. However, the environmental and temporal differences between Iceland’s efforts and that of middle and far east authoritarian regimes, shouldn’t be so easily dismissed. Countries like China and North Korea limited citizens’ access to online content, but such restrictions have been in effect practically since the Internet’s inception. Any armchair psychologist will tell you – and any parent of a toddler will confirm – it’s human nature to want what you can’t have. And if whatever you can’t have, is something that was in your possession but was taken from you, well that ups the ante even more. Like most citizens across the globe, Iceland’s people have had unfettered access to online adult material. To put it bluntly, it doesn’t matter how inherently progressive a country is, when you confiscate a piece of personal autonomy, there’s bound to be consequences.
Even if the Icelandic government seamlessly weathers whatever discontent that’s thrown its way, there’s still the matter of enforcement. Logistically speaking, Iceland will employ filters barring citizens from accessing flagged websites, and fire walls prohibiting Icelandic credit cards from purchasing adult content. But what about the tangible transport of digital pornography? Streaming, downloading and cloud access aren’t the only ways to retrieve digital content. What’s stopping someone located in another jurisdiction from entering Iceland’s borders with a pornographic DVD? With so many vehicles capable of transporting digital content, common sense says that it would be impossible to inspect each and every tablet, flash drive, laptop, and Smartphone that crosses Iceland’s borders. As long as there’s been contraband, people have been smuggling contraband – the digitization of such contraband has only made it that much easier.
The ability to control infiltration of the banned content leads directly to the next hurdle – the black market. We live in the Internet Age; every technological restriction is met with a response circumventing that restriction. Whether it’s a scrubbing tool used to mask IP address identification or software that scrambles collected geo-location location, there are countless techniques enabling the average Internet user to evade government-imposed limitations.
Without getting too high up on the First Amendment soap-box, this type of regulation tends to invoke the constitutional scholar in all of us. If Iceland wants to completely ban pornography, exactly what kind of material is considered “pornography”? Without careful and meticulous drafting, any such law will inevitably encompass content as innocuous as the mere display of genitals. Some reports say that the ban would only include “violent or degrading content.” As admirable as that is, we’re still left with the subjectivity surrounding the definitions of “violent” or “degrading.” Another variable to throw into the mix in determining what would constitute pornography is the intended purpose of the material in question. Specifically, was the content created for private consumption or commercial use? If Iceland’s chief concern is to prevent the commercialized sexualization of women and children, logically, only material disseminated commercially would violate the ban and any application of the law beyond that specific scope would be a flagrant infringement on privacy rights. Given the widespread creation and sharing of private erotica, a substantial amount of pornographic material would presumably be unaffected by the legislation.
In a very short time, Iceland will undoubtedly find itself at the age-old prohibition impasse, asking which holds more clout: a government imposed ban or the tenacity of those looking to circumvent that ban? As shown with most government-sanctioned goods or services, a black market develops; those participating eventually monopolize the marketplace; a consistent profit is generated; and ultimately standard supply and demand principles are used to exploit and perpetuate a marketplace devoid of legislative supervision. Government-imposed prohibitions might change behavior, but a behavioral change does not prove that the problem was solved; only that it has been forced underground. On that note, one must question whether the “problem” existed in the first place. One person’s degrading porn, is another’s…you know the rest. Ultimately, Iceland is unlikely to become a porn free zone irrespective of the pending legislation. If history has taught us anything, it’s if there’s a will, there’s a way.
*As this post went to press, the EU Parliament voted against the anti-porn proposal due to censorship concerns: “Language that would ban online pornography has been dropped from a report approved by the European Parliament.”
By the close of 2011, the Republican presidential hopefuls had their work cut out for them. It was starting to look like the people had gotten their fill of Michele Bachmann’s eccentricities. Such a sentiment was confirmed at the Iowa Caucuses, when the Tea Party Chair, receiving only 5% of the votes, placed sixth among the other candidates, ultimately resulting in Bachmann’s withdrawal on January 4, 2012. Despite consistent double-digit polling numbers since early fall, January claimed another candidate in former Utah Governor, Jon Huntsman. Withdrawing from the race on January 16, the former ambassador pledged to ”stay relevant” in the race, and has kept that promise by actively supporting Mitt Romney. Then, of course, there’s Herman Cain – once his luck ran out with the ladies, the voters soon followed. Despite suspending his candidacy back in December amidst allegations of sexual misconduct, Cain has done his best to remain in the spotlight, still lobbying for his 9-9-9 Plan and has yet to formally endorse one of his former competitors. And we can’t forget 2012’s latest casualty, Texas Governor, Rick Perry. After his promises to end “Obama’s war on religion” evolved into concerns of Perry’s War on the Establishment Clause, steam behind Team Perry was waning towards the end of 2011, and finally came to an end on January 19.
At this point, it’s almost mid-February and oh how the tides have turned. Deemed a misfit for most of his political career, Ron Paul has ridden the ‘rebel, nonconformist’ wave all the way to its peak. With that success, comes mainstream popularity and partial loss of Paul’s famous underdog status. Struggling to reconcile the Congressman’s political identities, voter support seems to be reaching a plateau, although not necessarily declining. The likely result: Paul is applauded for his valiant effort, but ultimately directed by the GOP powers-that-be to graciously keep the rebel rousing within the confines of the Texas state line.
Former Speaker of the House, Newt Gingrich, was thought to be down and out this past summer after a series of questionable spending excursions and the infamous mass exodus of several high-ranking campaign officials. But ever the true politician, Newt has overcome the instability of his early campaign and gained enough momentum to be considered a genuine presidential hopeful.
Probably the biggest candidate surprise of the campaign thus far is former Pennsylvania Senator, Rick Santorum. Battling disheartening numbers since the day he threw his hat into the ring only to surge ahead in 2012 by winning four of the eight presidential primaries thus far, Santorum is the very definition of a ”comeback kid.” Making no apologies for his socially conservative politics, Santorum ready and willing to squeeze out the very last bit of libertarian influence that might be left in the GOP, and based on recent numbers, he might just be able to do that.
The one constant since the beginning of the campaign trail is Mitt Romney’s title as the election’s front-runner. Romney is currently blowing everyone out of the water with ninety-five pledged delegates; that’s more than the other three candidates combined. Maybe the American people think a business consultant as President is the only way to completely pull out of this economic tailspin, or maybe we all harbor deep-seeded respect for Mormon’s with good politician hair – either way, Mitt Romney isn’t going anywhere any time soon.
So what do the Republican Presidential candidates have to say about adult entertainment issues? Not that the Obama Administration has been the champion of personal freedoms that was originally hoped for, but at least the DOJ’s decision to focus on child pornography instead of filing any new obscenity cases allowed the industry a bit of momentary relief. However, it’s safe to say that if a Republican takes over the presidential seat, it’s going to be a different ballgame all together.
According to Morality in Media’s (“MIM”) President, and former DOJ official, Patrick Trueman, “Vigorous prosecution of those who violate our nation’s obscenity laws is critical now. Our nation is suffering a pandemic of harm from pornography that is readily available – even to children on the Internet and in other venues.” Trueman has targeted Santorum, Romney and Gingrich for months, requesting that the candidates take a public stand in favor of his anti-porn efforts.
Heading straight for the newbie, Trueman successfully got Santorum to sign the Family Leader Pledge (made famous by former candidate Bachmann’s ”ban on porn”) all the way back in July of 2011. The pledge requires Santorum to uphold, among other things, the “Humane protection of women and the innocent fruit of conjugal intimacy — our next generation of American children — from human trafficking, sexual slavery, seduction into promiscuity, and all forms of pornography and prostitution, infanticide, abortion and other types of coercion or stolen innocence.”
Nothing if not persistent, Trueman continued MIM’s crusade this past October by demanding that the 2012 presidential candidates publicly disclose “their respective views on the enforcement of obscenity laws.” MIM officials eventually obtained statements by all three of the frontrunners after calling on MIM followers to continue the crusade through emails, calls, and meetings with the candidates urging them to respond to MIM’s request for disclosure.
In his response to MIM, Santorum wrote: “Federal obscenity laws should be vigorously enforced. If elected President, I will appoint an Attorney General who will do so.”
In a one-on-one interview with MIM staffers, Gingrich was asked if he will enforce existing laws that make distribution of hard-core adult pornography illegal, he responded:”Yes, I will appoint an Attorney General who will enforce these laws.”
The only candidate to reference online content in his written reply to the MIM demand, Romney stated: “It is imperative that we cultivate the promotion of fundamental family values. This can be accomplished with increased parental involvement and enhanced supervision of our children. It includes strict enforcement of our nation’s obscenity laws, as well as the promotion of parental software controls that guard our children from Internet pornography.” Although, Mitt’s status as one of MIM’s golden boys of piety may have hit some rough terrain as it was revealed that everyone’s favorite squeaky-clean Mormon accepted a maximum amount campaign donation from Daniel Staton, chairman of the board of the company that owns Penthouse. While this may not be tantamount to accepting a donation from Max Hardcore or Extreme Associates, this minor campaign faux pas is going to raise more than a few eyebrows.
With MIM sparking GOP discussions of a resurrection of strict enforcement of obscenity laws, notions of MIM President’s Trueman staging a re-entry into politics seem unsettlingly attainable. So is the country in imminent danger of the DOJ turning into the “Trueman Show” come January, 2013? Hopefully not, but with polling data saying one thing, schizophrenic primary numbers saying another, and public opinion exhibiting an extreme of the two on any given day, it truly is anyone’s race. The stakes are high for the country and our Constitutional freedoms. And with the top three presidential candidates pledging to reinvigorate the ‘War on Porn,’ one can’t help but hope that the adult industry won’t be one of the losers in 2012.
Liberal or conservative? Mac or PC? Romney or Rick? Exacerbated by politics, economic theories, technological preferences and even something as trivial as your reality TV show of choice – these days, it always seems like we’re always picking a side in one way or another. Given that we’re so quick to draw that proverbial line in the sand, one can’t help but wonder how any groups rally together for a common purpose anymore. In this respect, the adult industry is the same as any run-of-the-mill church organization, PTA, or even the federal government – there’s infighting. Representative of, arguably, the strongest motivator of human nature, the adult entertainment industry has the unique task of justly operating within its own sociosphere , all while conveying a somewhat united front to the outside world. But between high-profile obscenity prosecutions, piracy problems, the economy, and DOTXXX, the pressure on those in the industry hasn’t made it easy to sit around singing Kumbaya at the latest industry gathering.
In all fairness, dissension, disagreement, and the dialogue the two create – that’s the kind of stuff we thrive on. When I say ‘we,’ I mean those of us involved in the adult entertainment industry – in one way or another. I understand that we all got involved in the industry for different reasons, intended or not, but we all have that little bit of rebellion deep down inside – if we didn’t, we wouldn’t still be here. This begs the question: Is that drive to question the status quo so innate within us that we simply cannot recognize when it benefits the greater good of the industry to offer support based less upon conditions and more upon the recognition that we’re all supposed to be fighting the same fight?
Despite its substantial contribution to everything from technological development to global charity, the adult industry is not necessarily held in the highest regard in mainstream society. Because of this ‘outsider’ perception, conveying a united front on headline-grabbing issues is all the more important. It seems that the higher-profile the issue, the more cavernous the division is within the industry; especially with matters having a direct impact on the mainstream. Unfortunately for us, those issues that reach the ‘outside’ world, so to speak, are the ones that warrant the most serious attempt at forming a unified front.
As we’ve seen in the past, this industry has actually turned on its own a time or two – a regrettable circumstance that does nothing but harm the industry as a whole. The Extreme Associates and Max Hardcore cases are two perfect examples of situations where the industry severely lacked in supporting its own. Arguably, one of the most significant legal attacks against the adult industry, US v. Extreme Associates, was the federal government’s first major obscenity prosecution since the early 1990’s; a grim reminder that political rants on “moral values” aren’t always just empty threats. For those who don’t remember, in 2003, husband and wife business partners, Rob Black and Lizzy Borden were indicted on various conspiracy and obscenity charges based on the “extreme” hardcore nature of adult content produced by their corporate entity, Extreme Associates. The case was dismissed by the district court in January 2005, which ruled that the federal obscenity statutes were unconstitutional because they violated an individual’s right to privacy. The DOJ appealed and found success in a Third Circuit decision overturning the District Court’s ruling, which eventually lead to the couple pleading guilty on obscenity charges and their subsequent imprisonment. Similarly, in 2008, Paul Little (a.k.a. Max Hardcore) was convicted of ten counts of distributing obscene materials, stemming from adult films produced by his company, Max World Entertainment. He was ultimately sentenced to a 46 month prison term. The lack of support – both, financial and moral – offered to these individuals illustrates exactly how the adult industry should not respond to government attacks against a fellow industry associate. Black and Little were essentially on their own, as other content producers tried to distance themselves from the type of content subject to prosecution. Sadly, it became alarmingly easy to distinguish one’s self and/or business practices from “those people” who were targeted in the DOJ’s latest witch hunt du jour.
If we’re being frank here, it was the extreme nature of Black’s and Little’s content that likely had industry players running to their lawyers asking whether their content was ‘safer’ than the material subject to prosecution. Those same lawyers may well have cringed at the thought of advising any public support or association with defendants under federal indictment. But support for the most extreme end of the industry ironically helps keep all others safer. Bottom line: The members of the adult entertainment industry should not only have rallied behind Paul Little and Rob Black, but should thank them for being willing to take a bullet for the same people that averted eye contact for years instead of readily opening their wallets as a gesture of unwavering solidarity. The federal government (and more than a few right-wing political groups, for that matter) would love nothing more than for the industry to cannibalize itself – and with Extreme Associates and Max Hardcore, that’s what happened. Even more industry division has resulted from the DotXXX battle, which has left close friends no longer speaking with each other. It is time to rise above.
Despite its wavering past, hope springs eternal. In 2008, when producer John Stagliano was indicted on seven counts of violating federal obscenity laws stemming from the sale and distribution of adult films by his company, Evil Angel, the industry galvanized solidly behind John. Even though he was financially able to defend himself from the governmental onslaught, most industry stakeholders provided much-needed moral and public support for his cause. Approximately two years later a federal district court judge dismissed the case finding that the evidence provided was insufficient for a jury to find guilt beyond a reasonable doubt. The Stagliano case is a prime example of the adult entertainment industry pulling together to present a united front. Recognizing the fluidity of obscenity prosecutions and the particular content targeted in them, Stagliano’s legal team addressed the industry, specifically requesting that it not make the same mistakes seen in the Max Hardcore case. Calling on each content producer to be a ”foot solder” in the battle against unwarranted prosecution, Stagliano’s attorneys encouraged industry players to preserve current business relationships, donate to the cause and maintain unconditional assistance despite fear of prosecution. John Stagliano chose to fight the good fight and luckily the industry as a whole remained a foundation for that fight.
Remaining optimistic thanks to the Stagliano case, I have also had the pleasure of seeing first-hand the industry unite on a much smaller, but equally as important, scale in opposing the current prosecution of Theresa Taylor (a.k.a. Kimberly Kupps). Involving the all-too-familiar venue of Polk County, Florida, Ms. Taylor is facing felony state obscenity charges based on the content of her website KimberlyKupps.com. The content targeted in this case is well within the mainstream of modern erotic fare, and has thus far not resulted in the distancing and finger pointing that occurred during the Extreme Associates and Max Hardcore cases. This Kupps prosecution epitomizes the slippery slope that occurs when law enforcement agents deem themselves the judge, jury, and executioner in enforcing overly subjective legal standards to adult content. Having already received dozens of donations to help fight the censorship machine that reared its ugly head once again in Polk County, I remain extremely encouraged and pleased to see the adult industry supporting the cause – even for a state level prosecution such as this.
The spirit of this post is a call to action for the adult entertainment industry, not to dwell on missteps of the past. Heck, even the industry lawyers have their own share of in-fighting. But in order to know where we are going, we must know where we’ve been, and in turn recognize the mistakes that were made on the way. I am proud, and always humbled, to have the opportunity to fight for the First Amendment rights of the adult industry, and represent those victimized by sex hysteria. But in order to make progress and deter the government from committing future Free Speech violations, the members of the adult industry must stand in solidarity with each other, regardless of petty intra-industry disputes, issues with competition, disagreements over content, or fear of becoming the next target. Aptly referenced by our colleague, H. Louis Sirkin, Esq., in discussing the importance of unconditional industry support of its own members, I leave you with this famous quote: “First they came for the communists, and I didn’t speak out because I wasn’t a communist. Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist. Then they came for the Jews, and I didn’t speak out because I wasn’t a Jew. Then they came for me and there was no one left to speak out for me.” [Pastor Martin Niemöller]
A favorite trick of the censors in this country is to blur the lines between protected speech, in the form of adult erotica on the one hand, and patently illegal material, in the form of child pornography on the other, by mixing the two at every opportunity. Family Values groups and other opponents of free speech routinely use the terms “pornography,” “obscenity” and “child pornography,” interchangeably, in the attempt to cause confusion in the mind of the public, and intentionally link perfectly legal content with evidence of a horrific crime. The media often plays along, whether through ignorance or complicity, and refers to the new child porn arrest as a “Pornography Bust.” All of this helps convince the public through confusion, that pornography has something to do with abuse of children, and that all of it is probably illegal somehow. In some jurisdictions, law enforcement investigators seize every chance to mix these concepts in a blender, by charging defendants with obscenity as well as child pornography, no matter how remote the connection, or how strong the evidence. Some evidence of this can be found in a couple recent cases initiated by the Polk County, Florida, Sheriff, Grady Judd. This is the same Sheriff that was made famous by declaring that he had jurisdiction to regulate anything online, so long as it was available for download in Polk County, Florida. According to Judd:
“But it makes no difference, because if you fed that server or you could receive information off that server in this county, then it gives us jurisdiction. … Technically I could charge someone in Kansas, if I received child pornography here, obtained a warrant and had him extradited from Kansas and tried here.” http://www.ojr.org/ojr/stories/051018glaser/
Note the stray reference to “child pornography” there. That particular case had nothing to do with children, but was an adult obscenity case against Chris Wilson, arising from his operation of a user-generated content site. This quote provides a unique glimpse into the strategy of many law enforcement agencies and anti-porn groups, who constantly mention child pornography whenever discussing adult erotica.
Judd’s office recently investigated an antique store owner by the name of John Denitto, who engaged in some adult content production on the side. See, here. Sheriff’s Deputies raided the business based on the claim of a “confidential informant” that a teenager was being photographed there. Leaving aside the fact that a teenager can be 18 or 19 and still legally participate in adult photography, this unconfirmed statement gave law enforcement the hook they needed to raid the modeling studio, under the guise of a child pornography investigation. However, no evidence of child pornography was ever found, and the “confidential informant” turned out to be a former “model” herself, who was trying to buy her way out of her own criminal problems by turning informant for the state. Not the most reliable informant, to put things mildly.
But what does a good Deputy do when his information results in the seizure of nothing more than a bunch of video tapes of adults having sex? File obscenity charges, of course! Not much is required to arrest someone for alleged obscenity. A charging document needs to be filed saying that a prosecutor believes in good faith that there is probable cause that the material is obscene. Polk County usually goes the extra step of getting a local judge to sign off on a confirmation that such probable cause exists, but that is all smoke in mirrors. Any erotic work might be obscene, simply based on its sexually-explicit nature. The question of obscenity is for the judge or jury. So just about anybody involved in the commercial production or distribution of adult material can be prosecuted for obscenity. That is one of the (many) reasons the obscenity laws are unfair, unconstitutional and inhumane on modern society. There is no fair warning as to what material might result in serious felony charges, with implications and innuendo of child pornography to boot. Denitto’s felony obscenity case remains pending, and no proof of child pornography ever came to light.
Law enforcement and prosecutors know that as soon as the specter of child pornography is raised, the defendant loses public sympathy, support of friends, and jury appeal. So they try to throw it in any time they can.
In another recent case from Polk County, Sheriff Deputies arrested Timothy Keck for numerous counts of obscenity depicting a minor. This sounds like a valid offense, until the facts get in the way. Keck was a former Sheriffs Deputy himself, until he had a falling out with the agency. Oddly enough, he found himself was targeted for some Internet surveillance by the same agency, and a warrant was issued for offenses involving child pornography. Keck allegedly used Limewire, a popular file sharing service, to download various images, including numerous drawings of underage individuals engaged in sexual activity. That’s right, drawings. Oh, and the investigators apparently also dug up a single image from a temporary cache file allegedly depicting only the genitals of an underage couple in the act of intercourse. It has not been explained how one divines the age of models based solely on a depiction of their genitals engaged in a sex act. But Keck faces one count of possession of child pornography (for the temp file) and 26 counts of distribution of obscenity, for the drawings. This arrest has been described by Judd as the “largest roundup in the county,” and “horrific.” See: here and here ;
Given that Keck was lumped in with 45 other suspects, all of whom are referred to as a group despite the lack of any apparent connection, some of the other images involved in the other cases may well have been horrifying. Child pornography is a heinous, inexcusable crime, and legitimate cases should be vigorously prosecuted. But when politicians or special interest groups start mixing in allegations of child porn with adult pornography, both children and adults are the losers. Trying to force a tenuous charge of child pornography just to tarnish the reputation of a suspect in an adult obscenity case dilutes and reduces the importance – and indeed the ‘horror’ – of real child pornography cases. Future child pornography investigations will not be taken as seriously by prosecutors, judges and juries, as a result. Adults also lose, when important constitutional safeguards are dismissed or glossed over as a result of the forced connection with child pornography allegations in these cases. Sexually-oriented media is entitled to full First Amendment protection. Ashcroft v. Free Speech Coalition, 534 U.S. 234 (2002). Protecting the most controversial and indecent speech is essential so that all other speech remains securely within the coverage of the First Amendment.
The tactic of mixing child pornography with adult obscenity has been used in countless other cases in the past, including the highly-publicized obscenity case against Mike Jones in Chicago, and the federal obscenity case against certain written stories involving children by Karen Fletcher a/k/a Red Rose. Child pornography was not the focus of either of these cases, but the concepts were thrown around by the prosecutors in court and in the public, in an effort to tarnish the reputation of the defendant, and make the obscenity charge more likely to stick.
 Jones was charged with several counts of both obscenity and child pornography, the latter involving dubious evidence of possession in temp files. His attorney, J.D. Obenberger referred to the child porn charges as “concocted.” All charges against Jones were ultimately dismissed after the court suppressed the state’s evidence resulting from an illegal search.
 Fletcher was indicted for federal obscenity violations, although the U.S. Attorney, Mary Beth Buchanan, referred to the material as involving “…the rape and torture of children.” C, Deitch, Dirty Words, Pittsburg City Paper, http://www.pittsburghcitypaper.ws/gyrobase/PrintFriendly?oid=oid:30196. Of course, no children were raped or tortured by Ms. Fletcher, and she was never actually charged with child pornography.
Nowhere is the misuse of child pornography charges more apparent than in the case of ‘sexting.’ Countless articles, blogs and Op-Ed pieces have come out recently, decrying the use of harsh child pornography statutes against teenagers accused of sending racy photos of themselves. Eg. Provocative Photos: Don’t Overreact to “Sexting” Several states are currently considering legislation to decriminalize the behavior, or reduce its severity to nothing more than a misdemeanor. This is a step in the right direction. Children convicted of child pornography are forced by a federal law, the Adam Walsh Child Protection Act, to register as sex offenders – a label that can deal damage for the rest of their lives. Teens impacted by this registration requirement cannot go to school, find jobs, or lead normal lives. Eg.: Sexting Teens Who Send Racy Photos Run Risk of Child Porn Charges. Oddly, this is the only instance where the child porn victim is also the perpetrator.
The end game for the activists and politicians here is to cause the public to immediately associate any incident involving pornography with the rape and abuse of children. If they can somehow work the word “child” into any sentence referencing “pornography” they have achieved a victory. But the misuse, and overuse, of child pornography statutes to prosecute these tangential cases involving cache files, young-looking adults, and sexting behavior, undermines the core policies of the child pornography laws for a cheap political purpose. Children will suffer when these cases are passed over by prosecutors, or dismissed by judges flooded with dubious claims of child exploitation. The censors may gain minor ground with some, but the voices opposing distortion of constitutional freedoms under the guise of protecting children are getting louder.
Lawrence G. Walters, Esq. www.FirstAmendment.com © 2009. All rights reserved.