Flame Wars – Legal Concerns with Social Media Posts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Woodhull Panel – FOSTA & Internet Censorship

The Woodhull Freedom Foundation is the lead Plaintiff in the lawsuit challenging FOSTA. Its legal challenge started in the spring of 2018, when the organization began to struggle with its online promotion of events involving sex workers at its annual Sexual Freedom Summit. The law broadly prohibits the promotion or facilitation of consensual sex work using the Internet.  Facilitation generally means; “to make easier.”  Woodhull questioned how it could promote its 2018 Summit events involving sex worker advocacy and harm reduction, or publish the biographies of its sex worker presenters, without running afoul of the new law. Was it promoting sex work, or making sex work easier? FOSTA’s failure to define the words “promote” or “facilitate” or even “prostitution” made it difficult for any reasonable person to know where the line would be drawn. That struggle resulted in the lawsuit challenging FOSTA for violating the First and Fifth Amendments to the Constitution.

Since FOSTA was adopted, countless websites have gone dark and sexual content has been purged from large online platform providers. Sex workers now face increased danger, and law enforcement has lost its access to online information to prosecute traffickers. Woodhull, and the other Plaintiffs, have kept fighting. The appeal of the district court’s decision dismissing the case, based on lack of standing, was heard by the United States Circuit Court, D.C. Circuit, on September 20, 2019. AVN’s take on the Oral Argument can be found here.

Woodhull has continued to conduct its Summit, despite FOSTA. In 2019, it partnered with the Sex Workers Outreach Project (SWOP) in its efforts to support the sex worker community as Woodhull pursues its mission of affirming sexual freedom as a human right. The 2019 Summit included a panel specifically addressing the impacts of FOSTA – both on sex workers specifically, and Internet freedom generally. The panel included Emma Llansó, Director of the Center for Democracy and Technology’s (CDT) Free Expression Project, Ronald London, attorney with Davis Wright Tremaine, and the author, Lawrence Walters, of Walters Law Group.

The panelists are all involved in the fight against FOSTA in some form. CDT has been a staunch advocate for online freedom and helped sound the alarm bells when the FOSTA and SESTA bills were working their way through Congress. London, along with his partner Bob Corn-Revere, are counsel of record in the Woodhull v. United States, along with Walters and attorneys with the Electronic Frontier Foundation (EFF).

The FOSTA panel lasted over 90 minutes and provided a full update on how FOSTA has harmed sex workers, hampered law enforcement, and stifled online innovation. Llansó described how the FOSTA “monster” came to be, and how it dramatically changed existing federal law that provided immunity for interactive computer services which host third party content. Walters and London discussed the status of the lawsuit, and the potential outcomes. Ultimately, the case may be headed for a U.S. Supreme Court appeal.

The panel delved into the numerous myths that fueled the adoption of FOSTA, such as:

  • Criminalization of prostitution works
  • All prostitution is sexual slavery
  • Sex trafficking is fueled by a proliferation of pornography
  • Decriminalization is harmful

Each of these myths have been debunked by facts, studies, or experiences in other countries that have decriminalized prostitution. The more criminalized sex work is, the more violence and exploitation sex workers face – by police, customers, and others. Consensual sex work is very different activity from sex trafficking, and cannot be effectively treated by one-size-fits-all laws like FOSTA.  As discussed during the panel, sex trafficking is not caused by pornography, despite persistent efforts to conflate the concepts. A similar strategy has been used by censors to link illegal child pornography with constitutionally-protected adult media. Jurisdictions that have decriminalized prostitution have seen fewer negative health and safety consequences for sex workers.

The damage already caused by FOSTA highlights the importance of Woodhull’s lawsuit. London pointed out how civil claimants are already arguing that FOSTA allows website operators to be sued for any state law violations that are consistent with FOSTA’s prohibitions. This greatly expands the potential legal exposure facing Internet platforms, and results in more censorship of erotic speech. Fortunately, Woodhull has many allies in its fight. Additional Plaintiffs in the suit include The Internet Archive; Alex Andrews / SWOP Orlando, Human Rights Watch, and Eric Koszyk (a licensed massage therapist who lost his opportunity to advertise on craigslist.org due to FOSTA).  Numerous other groups have filed briefs in support of the challenge at the appellate level, including CDT, Reddit, the Free Speech Coalition, Decriminalize Sex Work, the Institute for Free Speech, and the National Coalition for Sexual Freedom. London pointed out that some groups also filed briefs in support of the Government, such as a coalition of individual states. However, their brief actually supported the Plaintiffs’ arguments since they illuminated the credible threat of prosecution by states anxiously awaiting the opportunity to broadly enforce FOSTA against website operators.

The panelists fielded many questions from the audience on how they should operate in a post-FOSTA world, and the potential results of the litigation. Some wanted to know more details about the lawsuit or potential additional challenges to FOSTA. Some were curious about new threats to banking relationships or mandatory age verification. The panelists warned that other bills, modeled after FOSTA, are currently pending which would take away even more protection for online service providers and inhibit speech in other areas. Overall, the well-attended panel offered a realistic assessment of how FOSTA changed the internet for anyone operating in the adult or sex worker industries and provided a beacon of hope for change through the courts.

The full session can be viewed here: https://youtu.be/bJ-j9KJNr0M

 

Lawrence G. Walters heads up Walters Law Group, www.firstamendment.com. The firm represents clients involved in all aspects of the adult industry. Nothing in this article is intended as legal advice.

More of the Same from Polk County’s Thought Police

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.

Feminism or Fascism: Iceland’s Stunning Ban on Pornography May Be Spreading

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.”

The Sunshine State: A Ray of Hope for Content Producers

I. Mandatory Condom Law Spurs Potential Exodus from L.A. Area
In late January, 2012, the city of Los Angles passed a landmark law requiring all adult content producers to mandate the use of condoms by performers as a condition for obtaining a filming permit. This first-of-its-kind, mandatory condom law sent shock waves through the adult industry, and represented a huge victory for the AIDS Healthcare Foundation (“AHF”), which pushed for passage of the law by gathering a sufficient number of signatures to force the City to hold a special election on the issue. Instead of spending four million dollars on a special election, the City Council decided to pass the law on its own.
This concern may not be limited to the City of Los Angeles much longer. The AHF has already launched a similar petition drive, attempting to mandate condom use throughout Los Angeles County as a whole, in the hopes of getting the issue on the ballot for the November, 2012 general election. It is certainly possible that L.A. County could react the same way as the City, and simply pass the condom measure on its own without putting the issue to the electorate; effectively disregarding constituent input in its entirety.
Reacting to the rumors that the adult industry will move its operations elsewhere, the neighboring Simi Valley City Council reportedly plans to follow suit with its own mandatory condom ordinance. “We are not going to accept the pornographic purveyors from Los Angeles County,” Simi Valley Mayor, Bob Huber said when asked to comment on the issue. With the ordinance expected to be introduced in the very near future, Simi’s City Council is currently considering a slightly modified version of the L.A. measure. Under the potential Simi Valley law, content producers would be required to present proof of on-set health care professionals monitoring condom usage, as a prerequisite to receiving a permit to film within the city’s limits. As an additional precaution, the content producer would have a specific time period after completion of each project to submit an unedited copy of the content to the Simi Valley Police Department for confirmation of compliance.

II. Content Producers Consider Their Alternatives
Although the adult industry has been historically centered in the Los Angeles area, the recent, precedent-setting legislation has adult content producers considering a mass exodus to friendlier jurisdictions – even some outside of California entirely. Steven Hirsch, founder of Vivid Entertainment Group, stated that his company would simply move out of the city or the state and film elsewhere, as a likely alternative to complying with the mandatory condom law. Regardless of whether using condoms during erotic video production is a good idea or not, consumers seemingly prefer ‘bareback’ or condom-free content. Many adult performers also view condom usage as a personal choice that they should be allowed to make as opposed to something that should be mandated by the government. As far as the risk of disease, the current industry standard is for performers to be tested for STD’s at least every thirty days while they are working. One adult film star observed that people are more likely to catch a STD from someone outside of the adult industry, given the frequency of STD testing for adult performers. Thus, condom-free films will likely be made somewhere – even if prohibited in the Los Angeles area.
Since the adult industry generates an annual revenue stream of eight billion dollars, and 90% of U.S. adult films are currently produced in Los Angeles, the stakes are high. Local and state authorities stand to lose substantial tax revenue should the industry depart from California. However, since it appears that such departure is imminent, production companies are considering their options. Naturally, areas like Nevada or Arizona are under consideration, given their close proximity to California. However, upon getting wind of a possible migration to Arizona, state officials pushed back, and warned that adult content production may be deemed prostitution under state law. Therefore, the state of Florida stands to provide a viable opportunity for those considering a move to greener pastures.
III. The Climate in Florida
While Florida politics and law enforcement priorities are inconsistent throughout the state, certain areas of Central and South Florida have been a long-time home to some of the industry’s largest content producers. Several years ago, a Jacksonville newspaper reported on the growing popularity of both professional and amateur adult content production in the state of Florida. The story, which identified several local content producers, noted that Girls Gone Wild regularly visits Florida to capture the company’s world-renowned exhibitionist material. Another company referenced in the article, JacksVids, allowed customers to pay to have sex with a performer on tape, after which the video was uploaded to a site and sold to members. With local law enforcement recognizing that the monetary exchange was for filming, not sex, Sheriff’s deputies had difficulty identifying any actionable criminal conduct. “[T]here are so many constitutional protections, it’s extremely difficult to prosecute. It really has to go way outside society’s norms to come up to the level of criminal,” observed a sheriff’s deputy from the Jacksonville – notably one of the State’s most conservative areas.
In other locations, such as South Florida, adult content producers have been prospering for years. For over a decade, Miami-Dade County has been home to some of the largest adult content producers and website operators in the business. Also notable is that the high profile (and still controversial) .XXX registry operator, ICM Registry, Inc., calls Palm Beach Gardens, Florida, home.
Again, law enforcement in South Florida appears to have come to terms with the existence and legality of the adult industry. In fall of 2004, a local television network conducted an undercover “investigation” exploring the vast world of Miami’s adult content production, probing the amateur “gonzo” niche in particular. When asked to comment for the story, local police conceded that despite the raw, “uncut” nature of gonzo erotica, its production was not illegal. Perhaps the indifference to adult content production can also be partially attributed to Florida’s acceptance of nudity in general, exemplified by the State’s numerous clothing-optional beaches, resorts, and festivals. Offering a safe-haven for those looking to shirk traditional inhibitions, one Florida county has even been dubbed the “North American Capital of Nudism.” Florida is quickly becoming a seminal location for the naturist movement; a reputation that could easily benefit adult content producers. This, along with society’s increasing acceptance of the adult industry and erotica in general, bode well for content producers or webmasters considering Florida as a base of operations.
That’s not to say that all areas of the state are completely safe for adult industry producers to set up shop. Polk County, Florida for example, is notorious for its routine prosecution of obscenity cases against anyone involved with producing erotic content within its jurisdiction. Polk County Sheriff, Grady Judd, has even gone to the lengths of extraditing an individual from Colorado to face obscenity charges based on sending a book relating to pedophilia to the Polk County jurisdiction. The author has defended at least a dozen obscenity cases emanating from Polk County. Florida’s panhandle, spanning from Pensacola to Tallahassee, has also developed a reputation as a risky area in terms of obscenity prosecutions. In 2006, Pensacola-based webmaster, Clinton McCowen a/k/a “Ray Guhn,” was prosecuted by the State Attorney in that jurisdiction based on his alleged involvement with producing adult website material focusing on group sex themes. However, the obscenity, racketeering, and prostitution charges premised on content production were ultimately dismissed, in exchange for the defendant’s guilty plea to financial crimes. Aside from select areas of the State like the Panhandle and Polk County, Florida has generally adopted a ‘live and let live’ approach to the adult entertainment industry in recent times.
IV. Historical Basis for Locating in California
Historically, most adult film production has occurred in California as a result of a ruling from the Supreme Court of California holding that prostitution and “pandering” laws do not apply to the production of adult content in that state. This Court decision gave adult content producers a sufficient level of comfort to enable production of erotic material without fear of arrest for prostitution or “pandering” based on claims that they were paying individuals to engage in sexual activity. Since then, only one other state has been the beneficiary of a similar decision: In 2008, the Supreme Court of New Hampshire likewise held that its state prostitution statute cannot be legally applied to criminalize adult content production, under New Hampshire’s state constitution. While adult content producers did not go flocking to New Hampshire after that decision was rendered, the ruling might have given pause to prosecutors in other states who might have otherwise considered bringing charges against adult content producers under similar prostitution laws. No prosecutor wants to be responsible for bringing the landmark case resulting in their state becoming the latest safe-haven for adult content production. A state attorney who lets that happen on his (or her) watch can kiss any political or judicial aspirations “goodbye.” Therefore, a quiet detent has existed in the other forty-eight states (including Florida), where the applicability of prostitution laws to adult content production remains unsettled, with law enforcement generally looking the other way when it comes to such issues.
V. Why Florida?
Turning back to Florida, the adult industry has continued to grow and thrive in the Sunshine State since the early days of the Internet. Some of the reasons for this include the generally progressive community standards in South Florida, the warm climate, and the lack of any state income tax. The cosmopolitan makeup of Miami-Dade County, along with a strong presence from the fashion and modeling industries, results in ready access to many beautiful young women and men who are often willing to perform in erotic-themed material. Also an international travel hub, Miami fosters easy access to a constant supply of fresh faces seeking fame and fortune in the entertainment industry. Florida’s steady climb to the top of the list of locations piquing content producers interests has not gone unnoticed, as evidenced by the decision to hold the 2012 XBIZ Summit in Miami, Florida.
Few, if any, obscenity cases have been initiated in South Florida since the embarrassing loss suffered by former Fort Lauderdale Sheriff, Nick Navarro, who attempted to prosecute the producers of 2 Live Crew’s rap album, As Nasty As They Wanna Be, for violation of Florida’s obscenity laws. In that case, the Eleventh Circuit Court of Appeal ruled that the record, while sexually explicit, was not obscene as a matter of law. Other law enforcement officials in the area lost their stomach for obscenity cases after that high profile failure.
Similar censorship efforts, dating back almost twenty years, have failed from Tallahassee down to Daytona Beach, Florida as well. The unanimous acquittal of a video store owner brought up on obscenity charges in Tallahassee caused the prosecutor in that case to predict that the area would become a “porn haven.” In Marion County, Florida, prosecutors failed in their attempts to prosecute three separate store clerks from a local video store, based on their involvement with the sale or rental of allegedly obscene material. Several years later, in the same jurisdiction, jurors acquitted a man for wearing an allegedly “obscene” T-shirt depicting a nun masturbating. Another controversial state attorney was branded as having “skewed priorities” after losing several obscenity cases in both civil and criminal courts against local video store owners offering sexually explicit material. This failed “porn crusade” ultimately cost the “grandstanding” State Attorney his job, after he was voted out of office largely in reaction to concerns over censorship by the electorate.
While it is notable that Paul Little, a/k/a Max Hardcore, was prosecuted in Tampa, and convicted of federal obscenity violations (due to the presence of hosting servers containing the subject material in that jurisdiction), few other federal obscenity cases have been brought in Florida in the last two decades. Further, despite Little’s prosecution, the adult entertainment industry continues to thrive in the Tampa area, which reportedly has the most adult businesses of any metropolitan area in the country, and has been dubbed the “lap dance capital of the world.” Even in Orlando, Florida – home of Disney World – adult entertainment companies have prospered and generally been left alone by law enforcement after some unsuccessful attempts to censor adult video stores in the early Nineties. Perceived as the geographic happy-medium between South Florida’s overt sexual freedom and the Panhandle’s more conservative approach towards erotic material, Orlando adult content producers capitalize on what one local newspaper referred to as, “[…] the Florida lifestyle: sunny skies, sandy beaches, palm trees and tan girls in skimpy bikinis.”
Aside from a friendlier local political climate, Florida tends to afford content producers more bang for their buck – no pun intended – thanks to significantly lower operating costs compared to their West Coast brethren. “Our original plan was to go to California, but it would have been costly so we decided to set up shop here in Florida,” observed Leon Bryan of the Orlando-based Demon Seed Pictures. Industry veteran and publisher of AVN Online, M.J. McMahon, accredited Florida’s “large and willing talent base” for its ongoing adult content production success.
Moreover, Florida authorities have not targeted adult content producers for workplace safety violations as has CAL-OSHA in California. The well-publicized raids on West Coast adult content studios have threatened the “independent contractor” relationship that most producers have tried to maintain with their performers. There is no “FL-OSHA.” That said, in June of 2010, the Florida Department of Health initiated an investigation requested (not surprisingly) by the AIDS Healthcare Foundation, regarding the failure to use condoms in Florida’s “fast growing” adult film industry. The investigation was based on broad health regulations prohibiting the creation of a “sanitary nuisance.” Four Florida production companies were named in the investigation; however, the scrutiny appears to have run its course as no further action has been taken since the announcement of the investigation over a year and a half ago, and no new investigations have commenced. Notably, no city or county in Florida has considered any ordinance requiring mandatory condom use by adult content producers.
VI. Conclusion
While Florida may not have the established case law protecting content producers from prostitution charges, like California or New Hampshire, it certainly offers many other attractions: Beautiful models, dynamic cities, temperate climate and perhaps most importantly – no mandatory condom laws. As the Los Angeles area becomes less and less friendly to the adult entertainment industry, production companies are considering their alternatives. Some may discover a bright new future in the Sunshine State.

United We Stand; Divided We Fall – If Only It Were That Simple

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]

Reading the Tea Leaves  Discerning the Ultimate Fate of Section 2257

Adult content producers and webmasters have become increasingly resigned to the fact that Section 2257 compliance is here to stay. Renowned industry attorney Greg Piccionelli, Esq., has recently written a detailed set of articles reminding producers of their complicated obligations necessary to achieve 100% compliance with 2257. The increased focus on records keeping obligations is the result of a confluence of events, such as; the district court’s dismissal of the Free Speech Coalition’s (FSC) most recent legal challenge to the statute and associated regulations; the historical trend in the courts in previous 2257 challenges; and the potential for a Republican president in 2013, complete with a newly-appointed conservative Attorney General.

So, is this reluctant acceptance of 2257 as a fact of life warranted? Or is there still a possibility that these burdensome obligations will be lifted – potentially in favor of a more realistic and constitutional system of performer age verification? The answer to these questions requires that we delve into the history of the challenges to Section 2257, and recap the current status of the law.

Initially, the Free Speech Coalition should be congratulated for continuing to fight the good fight against Section 2257. They’ve litigated hard in several courts in the attempt to beat back these sweeping regulations. J. Michael Murray, Esq., whose firm was hired to mount the most recent
challenge, which is currently pending in the Third Circuit Court of Appeals – is one of the best First Amendment lawyers in the biz. But given the history of previous legal challenges to the statute and the way the wind is blowing in the current case, adult webmasters and content producers may need to come to grips with the fact that 2257 will be upheld, therefore, enforcement by the FBI may resume at any time.

The previous attempts to invalidate 2257 have spanned over two decades since its inception in 1988. The original law was struck down as unconstitutional on First Amendment grounds shortly after its passage. American Library Ass’n. v. Thornburgh, 713 F. Supp. 469 (D.D.C. 1989). After the Thornburgh challenge, Congress amended the statute to no longer utilize a rebuttable presumption that the performer in question was a minor, but to directly impose criminal sanctions for noncompliance. The ALA challenged 2257 again challenged, but this time the First Amendment didn’t come out on top. In American Library Ass’n. v. Reno, 33 F.3d 78 (D.C. Cir. 1994), the amended version of 2257 was upheld, as the court rejected the ALA’s argument that the record-keeping provisions were content-based restrictions. In doing so, the Reno court agreed with the feds that record-keeping requirements are necessary to prevent the exploitation of children and a commercial market for child pornography. Further, the district court tailored the scope of the record-keeping provisions by narrowing the definition of “secondary producers” and eliminating the indefinite temporal requirement for maintaining records.

All was calm on the 2257-front for a few years until Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), when the Tenth Circuit decided to shake things up a bit and take the DOJ down a peg. The Sundance court invalidated the regulations that imposed records keeping obligations on “secondary producers;” a broad category of ‘producers’ that was created purely by agency regulation and not referenced in the actual 2257 statute. The industry as a whole generally relied on the Sundance decision as the correct interpretation of the law. In the real world that meant that only original producers of adult content kept records, and webmasters that were uninvolved with content production maintained no records of their own, but simply identified the ‘primary producer’s’ records custodian on their website, in order to discharge their perceived obligations under the statute. The DOJ disagreed with the Sundance interpretation of the law, but the statute went unenforced for several years after the Sundance case, so the industry became complacent with the status quo.

That all changed in 2005, when the DOJ passed new regulations which re-ignited the “secondary producer” debate, by imposing records-keeping requirements on all producers including webmasters that published material on a website. The Code of Federal Regulations issued in June of 2005 defined a secondary producer as one who “inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct.” Overnight, hundreds of thousands of websites became illegal given the lack of 2257 records to back up the content appearing on those sites.

In response to these amended regulations, and the tremendous panic in the industry, the FSC filed suit in Colorado, which happens to be within the realm of the Tenth Circuit, and was therefore bound to follow the Sundance case as precedent. wordFree Speech Coalition v. Gonzales, 406 F. Supp. 2d 1196 (D. Colo. 2005). On December 28, 2005, the FSC received a late Christmas present when the district court, following Sundance, preliminarily enjoined enforcement of the new requirements for all secondary producers who were members of the FSC at the time. As the Attorney General commenced the appeals process in Gonzales, Congress was taking matters into its own hands by passing the Adam Walsh Child Protection & Safety Act, which officially amended 2257 by adding “secondary producers” to the list of those responsible for the record keeping obligations. This essentially ‘fixed’ the main problem identified in the Gonzales case. In the wake of the Adam Walsh Act passage, the Gonzalez court granted a partial summary judgment against the FSC in the case, finding that the Sundance decision no longer applied to 2257 as amended. Free Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2007). On May 1, 2007, based on an agreement by both the DOJ and the FSC, the Gonzales court dismissed the case, likely as a result of the legislative resolution of the main legal challenge raised in the litigation.

This left 2257 in a state of presumed validity until a breathtaking win followed quickly by a heartbreaking loss in the case of Connection Distributing Co. v. Holder, 557 F.3d 321 (6th Cir. 2009) (en banc), cert. denied 2009 U.S. LEXIS 6926 (Oct. 5, 2009). In fall 2007, a panel of three judges on the Sixth Circuit Court of Appeals found the record-keeping requirements set forth in 2257 imposed an overbroad burden on protected speech. Shortly after the opinion was issued, the government successfully petitioned the entire Sixth Circuit for “en banc” review of the panel decision. Ultimately, the en banc court rendered a devastating blow to the adult industry by vacating the well-reasoned panel decision, and upholding 2257 in the face of numerous constitutional challenges.

In 2008, the DOJ passed another set of regulations, clarifying its position on records keeping compliance by both primary and secondary producers (along with many other issues). Those regulations became effective in March, 2009, and are what the industry lives by today.

Ultimately, the FSC mounted its most recent challenge the statute and related regulations by filing FSC v. Holder, 2010. U.S. Dist. LEXIS 75471 (E.D. PA July 27, 2010), in Pennsylvania. However, the district court rejected the FSC’s challenges last summer, and dismissed the case (alternatively) on the grounds of collateral estoppel/res judicata, which means that the prior losses suffered by the FSC in the Gonzalez case prevented the organization from re-litigating those issues in the Holder case. Id; see Memorandum Opinion dated July 27, 2010, at p. 45. This doctrine of ‘claims preclusion’ essentially means that the same party can’t keep suing over and over again, asking different courts (or the same court) for the same relief. The FSC has appealed the dismissal of its most recent case to the Third Circuit, in the hopes of reviving the legal challenge and obtaining some relief on behalf of the industry.

While the author wishes the FSC all the success in the world in its pending appeal, the chances of success in striking down 2257 are looking somewhat slim. As is evident from the above, the majority of court decisions have rejected challenges to 2257, and the FSC has been a party to a couple of these cases already, which negatively impacts its chances of prevailing, given the issues of claims preclusion referenced above. While all the previous court decisions may be wrong, from an academic perspective, a brief gaze into the crystal ball provides a pretty good idea what will happen with the current challenge in the Third Circuit. As a general rule of thumb recognized in the legal community, the chances of prevailing in any appeal are less than 25%. When you factor in things like the fact that the case is being backed by the adult industry, the previous losses by the FSC, and the government’s claim that the challenged regulations are designed to “protect the children” from exposure to sexual activity, the chances of a win on appeal tend to grow even slimmer. Anyone who’s been involved in litigation before will tell you to expect the unexpected, but truth be told; the FSC is fighting an uphill battle.

Certainly this information will be tough to swallow for those closely involved with the case, who undoubtedly remain hopeful for a positive outcome. But as a practical matter, any producers who are counting on invalidation of 2257 as their records-keeping strategy need to wake up and read the tea leaves – to mix a metaphor. All producers of 2257-triggering content should be in full compliance by now, in preparation for another potential loss on appeal, and eventual enforcement of the statute. Moreover, given Congress’s track record lately and waning public approval of the current Administration, a rigorous enforcement plan could be very likely if there is a Republican to answer to in 2013.

At this point in the game, the only realistic hope for invalidating 2257 is for a party with substantial funding and completely separated from the FSC, to initiate a new challenge using a different legal strategy than that which has been employed thus far. Unfortunately for the FSC, as a party plaintiff in the previous cases, it is burdened with these ‘res judicata’ and ‘collateral estoppel’ defenses based on its previous losses in court. Any new 2257 challenge would need to come from a new entity, which may need to carefully avoid association with the FSC or its members, given how courts determine (based on “privity”) which parties are barred by claims preclusion defense. Additionally, for any realistic shot at a successful claim, any new challenge would need to be based on different legal arguments and theories. Admittedly, the arguments made in the litigation thus far have been viable and should have carried the day with any intellectually-honest judge. But that’s not always the reality when one steps into court – particularly when the adult industry is behind the challenge. Other potential claims remain available to be litigated, but it is uncertain whether they will ever be raised, and who would raise them. Naturally, funding is always an issue, and constitutional litigation against the federal government is nothing if not costly.

For the foreseeable future, the industry needs to take a second look at its records keeping and labeling compliance status. This includes so-called user generated content sites which have taken liberal advantage of the 2257 exemptions, even in some cases where the content is not truly user-generated, or does not fall into the recognized exemptions. It’s time to dot the I’s and cross the T’s with your 2257 records, because the writing may be on the wall, for those who choose to see. But for the time being, the only true constant for 2257 is the phrase, ‘to be continued…’

Back to the Future -Hatch Calls for More Obscenity Prosecutions Just in Time for the Presidential Bids

Gas up the DeLorean, because Orrin Hatch is taking us back to 1984. “As the toxic waste of obscenity continues to spread and harm everyone it touches, it appears the Obama administration is giving up without a fight.” The previous sentence is part of a statement issued by Senator Orrin Hatch last week in the wake of his very public, very brazen call to the Department of Justice to increase obscenity prosecutions.
Hatch, the Republican Senator representing Utah, along with House Representatives Mike McIntyre (D-NC) and Randy Forbes (R-VA), sponsored the letters to the DOJ, effectually calling out the Obama Administration’s lack of “vigorous enforcement” of obscenity laws; one to his legislative colleagues and one to Attorney General Eric Holder. The letter to Holder, signed by dozens of Senate members, demands that the Department of Justice and the FBI step-up their efforts in prosecuting producers and distributors of “hardcore adult pornography.”
The letter urges General Holder to examine the evidence gathered by sources like www.pornographyharms.com, in order to fully comprehend the “crisis” caused by adult obscenity and “urgent need” for action by the government. Incidentally, the website referenced in Hatch’s letter is operated by anti-porn crusader, Patrick Trueman, CEO of Morality in Media and Director of the War on Illegal Pornography Coalition. If you still think there’s a glimmer of possible impartiality located within the “evidence” (let’s use that term loosely, shall we) provided via www.pornographyharms.com, take a look at Trueman’s press release on Hatch’s letter where he references the “grave social costs documented by a plethora of researchers at http://www.pornographyharms.com and at a groundbreaking conference held by the Witherspoon Institute at Princeton University entitled, ‘The Social Costs of Pornography’.” The Witherspoon Institute? The same Witherspoon Institute that brought us such neutral and fair-minded studies and literary masterpieces like, ‘Politics & the Devil’, ‘Medieval Wisdom for Modern Universities’, ‘Where in the Constitution is the Separation of Church & State?’ and who can forget ‘Did Pius XII Lie to Save the Jews?’.

But as much as we’d like to pretend that this is yet another divine alliance between the consistently overlapping groups of Republicans and religious conservatives, it is most definitely not. Several democrats, including the unexpected addition of Dianne Feinstein of California, signed on in support of Hatch’s demands. Feinstein’s backing of the letter comes as a surprise given the fact that the adult industry companies the letter is targeting are the very same businesses comprising her southern California constituency. When asked to comment on Feinstein’s involvement in this new resurgence against obscenity, a spokesperson for the Senator pointed to her support of “several measures targeting child pornography in recent years” – which of course provides a crystal clear explanation for jumping on the witch-hunt bandwagon targeting completely lawful speech engaged in by adults.

Even more disturbing might be Hatch’s extremist allegations that “experts warn” pornography is related to sexual harassment, violence against women and sex trafficking. As if the Orwellian undertones of the letter aren’t enough, Hatch is channeling us back to the 80s with over-broad, feminist far-left propaganda, reminiscent of the Dworkin-MacKinnon Era anti-porn crusade. Note: unsuccessful anti-porn crusade.

An Assistant Attorney General has responded to the allegations of being “soft on porn” with a letter of reply, stating that the DOJ has made the realistic decision to focus its “limited investigative and prosecutorial resources on the most egregious cases, particularly those that facilitate child exploitation…” Given the DOJ’s unsuccessful attempt at its last high profile obscenity trial against Evil Angel owner, John Stagliano, it’s really no wonder that the DOJ decided to turn its attention to prosecuting media involving children as opposed to consenting adults. Stagliano’s obscenity trial last July, which resulted in a judgment of acquittal on all counts, was likely the final nail in the coffin for the now-defunct Obscenity Prosecution Task Force. The Task Force was a special Justice Department unit set up during the first Bush administration as a result of conservatives reacting to the abundance of allegedly obscene material available on the Internet. This recent disbanding of the DOJ’s ‘Porn Police’ may have been exactly what Orrin Hatch was waiting for to drop his bomb on Capitol Hill. Between Hatch’s demands for action on the DOJ and the fact that the 2012 presidential bids are being tossed around; is it possible the next year or so could provide the perfect storm for a resurgence of the Obscenity Prosecution Task Force?

Given the vagueness of the Obama Administration’s stance on obscenity prosecution, the possibility of a Republican taking over in 2012 leads to thoughts of a Reagan-era anti-pornography agenda renaissance. How likely is it that the incumbent will be able to stave off the Republicans for another four years; obviously everyone in every industry has their own prediction, but we all know it’s too soon to tell. However, with Obama’s approval rating plummeting daily and the GOP’s recent accusations that the democrats aren’t taking the budget crisis seriously enough, it’s not so far-fetched to see Obama throwing the conservatives a bone by entertaining Hatch’s demands in the near future. What would Trump do?

Notably, as this blog post goes to print, reports of adult filmmaker, Ira Isaacs, having been indicted on five new obscenity charges are hitting the newswire. These latest indictments join Isaacs’s three previous obscenity charges originating in 2006. Originally slated to go to trial in 2008, the case was postponed due to the controversial recusal of Judge Alex Kozinski. The trial, now set for May of this year, could commence within days of Isaacs’s arraignment on the new obscenity counts, unless his defense attorney can push off the trial again, in light of the new charges. Is this latest news pure coincidence or a knee-jerk reaction by Obama’s DOJ to the news of the day? Let’s sincerely hope that it’s the former because it’s a little disconcerting that the Attorney General might find it more damaging to be considered “soft on porn” than proceeding with a baseless fishing expedition against an easy target for the sole purpose of flexing his judicial muscles in some inter-branch, alpha-politician contest with Orrin Hatch.

So how does all this ambiguity ultimately affect the adult industry? This industry has traditionally been used as a tool in political agendas, unfortunately resulting in the First Amendment as the inevitable loser all too often. As referenced earlier in this post, Republican administrations going as far back as Reagan, have displayed blatant aggressiveness against the adult industry, citing the same ‘moral decay of society’-type rationale currently demonstrated by Senator Hatch and his supporters. On the other hand, the Democratic Party has traditionally been more receptive to the adult industry in general, but if recent years have shown anything, it’s that ‘liberal’ does not necessarily mean ‘libertarian.’ And now, especially with Capitol Hill reeling from some of the most volatile bipartisan infighting this country has seen in decades, one can’t help but wonder if adult entertainment is going to be a scapegoat yet again. So batten down the “Hatch’s” and get ready for another round.

*Note: This article was drafted with the purpose of addressing all political agendas affecting the adult entertainment industry and in no way was intended to act as a political endorsement of any candidate. It should also be noted that the author is not associated with any election campaigns or a member of any political party.

Polk County Goes Too Far With Obscenity Bust

Once again, Sheriff Grady Judd, from Polk County, Florida, is trying to grab some headlines by arresting Philip Greaves, for distributing his “last copy” of the book he authored entitled: “The Pedophile’s Guide to Love and Pleasure.” See:

http://www.theledger.com/article/20101220/NEWS/101229953/1410?Title=Polk-Sheriff-s-Detectives-Arrest-Author-of-The-Pedofile-s-Guide-Book&tc=ar

Sex, Lies and Children

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[1] in Chicago, and the federal obscenity case against certain written stories involving children by Karen Fletcher a/k/a Red Rose[2].   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.


[1] 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.

[2] 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.