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.

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]

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.

COICA – Friend or Foe?

Between the entertainment industry honing in on infringers and the current presidential administration looking to “crack down” on illegal content online, it’s no wonder that Senator Leahy’s “Combating Online Infringement Act” (COICA) has been making headlines again the last few months.
Briefly, COICA enables the Attorney General to institute an in rem action against the domain name of a website deemed to be “dedicated to infringing activities.” This means, if a site “engages in” any type of infringing activities where such activities, if “taken together” are “central to the activity” of the site, the site is in violation of COICA. Upon a finding of infringement, courts are authorized to issue injunctions against the domain name itself (as opposed to the registrant of the domain name), which may consist of ordering the domain name’s registrar and registry to “lock” the domain name. This “lock” effectively bans access to the site via the domain name. Courts would also be authorized to enjoin any “operator of a nonauthoritative domain name server,” a definition that could potentially extend liability to Internet Service Providers, requiring the operator to “take technically feasible and reasonable steps designed to prevent [the] domain name from resolving to that domain name’s Internet protocol address.”
Many believe that the problem with COICA lies in its lax due process procedures, as a U.S. court can essentially shut down a website operated anywhere in the world without an judicial determination of illegal activities or any application of structured dispute resolution. Most jurisdictions would call such a process an unlawful prior restraint on speech, but Senator Leahy and his supporters are taking a route we’ve seen all too often in recent years, with the mentality of ‘if you aren’t doing anything wrong, then you have nothing to worry about.’
Although the Obama Administration has made copyright enforcement a key issue in the last two years, the feds have really been bringing on the heat, recently. The reasoning? Supposedly to promote economic growth and competition, job creation and protection of American innovation. One can’t help but look at such an altruistic statement with a healthy dose of skepticism when massive legislation like COICA pops up and the witness list endorsing the Act in Senate Committee hearing are corporate giants like the Go Daddy, Visa and Verizon.
So what about free speech? What about censorship? What about the right of ISP’s, domain registrars, domain owners, payment processors, and advertising associates to not have to cut off all services to a website simply because the site has been accused of something? As the Electronic Freedom Foundation has pointed out, the fact that the government can block the whole domain and not just the infringing “portion” of the site is what fuels the censorship fire. Critics also cite to the fact that copyright owners have already been provided the means to combat online infringement via the DMCA. EFF has stated, and probably accurately so, that
“COICA streamlines and vastly expands [misuse of DMCA provisions resulting in damage to fair use and free expression]; it would allow the Attorney General to shoot down a whole domain including all the blog posts, images, backups, and files underneath it. In other words, it’s not just possible but probable that a great deal of legitimate, protected speech will be taken down in the name of copyright enforcement.”
Leahy’s quote that, “There’s no First Amendment right that protects thieves […]” sums up the rebuttal, I suppose. It’s true that not all communications fall into the realm of protected speech, but is shutting down a communicative business without any recourse to an adversarial hearing, and possibly extending that same liability to its business affiliates, the most reasonable way to regulate theft of IP? Supporters claim that the legislative intent of the Act is to block sites whose principal business purpose involves engaging in blatant IP infringement, not those who utilize material protected by fair use or “accidentally link to a copyrighted image.” Simple enough, right? It’s not like the federal government is trying to pass a bill unabashedly resulting in Internet censorship and effectually extending U.S. Attorney General jurisdiction to, well, everywhere. Oh, wait…
And what about that proposed legislation that would allow the President to push a button to shut down the Internet?
It’s too soon to tell for sure if COICA will go through, and Senator Leahy most certainly continues an uphill battle. But with an issue like global Internet regulation and the kind of conglomerate lobbying that COICA is garnering in Washington, this whole thing has to make even the most faithful supporter of the American political system ask themselves, ‘Is this going to be a case of money talks and freedom walks?’

Tube Site Business Model is Legal – Protected by Free Speech Principles

Kevin Cammarata’s lawsuit against redtube.com, a popular ‘tube’ site, and its advertisers, was dismissed, and that dismissal was recently upheld by the California Court of Appeals. In addition, the court determined the suit to be an illegal SLAPP Suit, and awarded attorneys fees.

The the operation of a tube site was described as “conduct of placing speech on the Internet where it can be viewed for free by the public.” The court rejected any claims of predatory business practices, and noted:

We reject Cammarata’s argument that his causes of action arise from [Redtube.com’s] predatory pricing, not its speech, because here the product being priced is speech.” See, Xbiz.com, Appeals Court Rules Against Cammarata in RedTube Case,

The ruling is important in the continuing development of the law surrounding user generated content website operation. The utility of sites such as forum for expression of protected speech cannot be underestimated. Hopefully the courts will continue to afford legal protection for this business model, and dismiss ill-conceived lawsuits, brought against online service providers operating venues for expressive activities.

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

U.S. Representatives Demand Further Action from Craigslist Regarding Adult-Oriented Classified Ads

Members of the House of Representatives who helped push through the Wilberforce Trafficking Victims Protection Act have directed a letter to Craigslist.com, demanding accountability and information relating to the site’s “Adult Services” ads.

http://www.scribd.com/doc/16485198/Craigslist-Letter-06-10-091

Apparently, its decision to delete the entire Erotic Services section in response to pressure from state Attorneys General was not enough for these representatives, who demand to know how the site will be punished if any further ads for illegal services are published. They also demand a ‘sit down’ with Craigslist.com representatives, to hash out their concerns.

All of this demonstrates a fundamental misunderstanding about how federal law protects interactive computer service providers like Craigslist.com. In case anybody forgot, Craigslist.com does not create, review or approve the ads posted to the site. It merely provides an online venue for third party users to post classified ads of their choosing. If service providers like Craigslist.com were held responsible for the content of material posted by third parties, the Internet would cease to function. Hosts could never review and approve every page of every website they host, to ensure that no illegal or inappropriate material appeared thereon. Search engines could not effectively deliver search results if each result needed to be scrubbed for compliance with 50 different states’ laws (and federal law to boot). Recognizing this reality, Congress passed Section 230 to the Communications Decency Act, 47 U.S.C. §230, immunizing online service providers from liability based on the content of user submitted material.

This immunity is seemingly ignored with greater frequency, when it is politically popular to do so. This is a disturbing trend. While Craigslist.com buckled to the pressure from the state AG’s to remove the Erotic Services section, it drew the line with South Carolina’s request to block all pornographic material from the state. The site may have to draw the line again, in the latest Congressional attempt to impose liability for violence against women who post escort ads. While this is certainly a sympathetic, hot-button issue sure to garner votes from constituents, the threat of imposing liability against a service provider like Craigslist.com generates potentially disastrous impacts for online communications. Stand your ground, Craigslist!  The consequences of giving in are too important for the rest of us.

The Craigslist Case; the First Amendment Implications

Introduction

Operators of user generated content websites, including social networks, ‘tube’ sites, and online adult classified operations, may be substantially implicated by the outcome of the litigation involving Craigslist.com.  This case implicates everything from the scope of Section 230 immunity for user-posted material, to the constitutional prohibition on prior restraint of speech.  Whether intentionally or otherwise, Craigslist has taken on a battle that may shape the user generated content business model for decades to come.

Craigslist, of course, has become the best known online classified site of our time.  Its (generally) free classified ad posting service attracts over 50 million users per month – both buyers and sellers.[1] Well before the recent dustup involving the state attorneys general – in November, 2008 – Craigslist became concerned with its own “erotic services” ads, and began requiring users to submit personally-identifying information, including phone numbers and credit card numbers prior to placing ads.[2] This allowed the company to identify the posters of these ads, and provide better cooperation with law enforcement, if necessary.   Not satisfied with this adjustment to company policy, a few months later, a Chicago-area sheriff sued Craigslist for facilitating prostitution.[3]

Unfortunately for Craigslist, things really heated up the following month, when a Boston man utilized the website to meet a masseuse in a local hotel, where he later allegedly murdered her.[4] His arrest on April 20, 2009, caused a public outcry against the widespread availability of thinly-veiled ads for prostitution on Craigslist.com

In response to mounting public pressure, Attorney Generals from several states demanded the closure of the “erotic services” section of Craigslist the following month.[5] Ultimately, Craigslist agreed to close the controversial section on May 13, 2009, and to replace it with a closely-monitored “adult” section.[6] However, that substantial concession was not enough for South Carolina Attorney General Henry McMaster, who demanded that Craigslist block all of the ads relating to prostitution or pornography from South Carolina resident’s view.[7] In that regard, he publicly stated: “The only agreement we could have is they block everything (sexually explicit) in South Carolina.”  McMaster then penned a letter, which was prominently displayed on the Attorney General’s website, threatening the filing of criminal charges in the event Craigslist did not remove all offending material by 5:00 pm Friday, May 15, 2009.[8]

That no-so-subtle threat turned out to be “a bridge too far” for McMaster in his battle with Craigslist.  The ultimatum provided Craigslist with the opportunity to sue South Carolina law enforcement officials, and seek a federal injunction preventing McMaster from carrying out his threat.[9] Craigslist’s lawsuit resulted in substantial negative publicity for South Carolina’s Attorney General, as the press began to pick up on the critical First Amendment concerns generated by law enforcement’s demand for censorship of Craigslist.com.  The flap also generated some important public discussion of the protections afforded to user generated content websites under federal law; specifically Section 230 of the Communications Decency Act, which provides a safe harbor for websites that allow third party postings.  Had McMaster done even the slightest bit of homework on the issue, he would have undoubtedly concluded that his demand – requiring a complete ban on access to constitutionally-protected, erotic material – was actionable under the First Amendment.  The aggressive litigation response by the site required some fancy backpedaling by McMaster, as he tried to spin this as a victory for South Carolina, and take credit for the elimination of the erotic services category from Craigslist.  Unfortunately for McMaster, Craigslist had removed the disputed classified section even before he submitted the ultimatum, and that point was not lost on the local and national media covering the dispute.[10]

Shortly after filing the lawsuit, McMaster’s legal team wisely consented to the issuance of a temporary restraining order, preventing his office from initiating any criminal charges as a result of Craigslist’s classified ads.[11] In the end, McMaster agreed not to file the threatened criminal charges against Craigslist, thereby resolving that issue in the lawsuit.[12] Had McMaster not backed down, the court would have almost certainly enjoined the threatened criminal prosecution on its own.

The legal arguments advanced by Craigslist in this lawsuit are of significant importance to adult webmasters operating any type of user generated content site or community forum.  Given the widespread popularity of this business model, and its many permutations, an analysis of the legal issues raised by the Craigslist case is important to the industry as a whole.

First Amendment – Prior Restraint Issues

The most compelling argument that can be advanced by Craigslist in this case is premised on the First Amendment’s protection of free expression.  Not only does Craigslist have the right to publish its ads, its users have a right to receive the information found on the website.[13] Important in the First Amendment analysis is the fact that Craigslist does not (and from a practical standpoint, cannot) review or approve each advertisement before it is published on the website.  Given the sheer number of ads appearing throughout this classified mega-site, any review or approval requirement would likely put the Company out of business.  Accordingly, even if McMaster is correct about the legality of the advertisements at issue, Craigslist is not in control of the content of its classified ads, and therefore would not likely possess the requisite scienter or criminal intent to violate either prostitution or obscenity laws.

With respect to obscenity, it must be noted that all sexually-explicit materials appearing on the Internet are presumed to be protected by the First Amendment, unless and until they are found obscene by the trier of fact.[14] Accordingly, law enforcement cannot constitutionally issue a blanket demand that Craigslist prevent any obscene material from appearing on the website, since Craigslist cannot know, in advance, which materials might be found obscene by a judge or jury at some place and time in the future.[15]

McMaster is not the first law enforcement official to use the heavy hand of possible obscenity prosecution as a tool to accomplish censorship of erotic materials.  In the 1970’s, law enforcement would routinely harass retailers selling erotic publications such as Penthouse magazine, with the intent to force the magazine off the shelves.[16] The Fifth Circuit Court of Appeal affirmed the issuance of an injunction prohibiting this sort of bad faith harassment and prosecution of the retailers, finding the activity to be an unconstitutional prior restraint on speech.  In a similar case, an anti-pornography campaign was put to an end by the Ninth Circuit Court of Appeal which found the effort to be unconstitutional.[17] There, the Mayor of Phoenix, Arizona even went so far as to suggest that the owners and clerks working in newsstands and bookstores selling sexually-explicit material were involved in the Mafia.[18] As the court explained: “[This sort of activity] can put the plaintiffs out of business without ever convicting any of them of anything.”[19] Numerous other bad faith prosecutions, in retaliation for the exercise of First Amendment rights, have been enjoined by the courts, over the years.[20]

McMaster appears to be particularly concerned about the availability of “pornography” to South Carolina residents.[21] However, the only way to ensure that this state’s residents will not be exposed to such material would be to block the entire website, including all its categories, from the State of South Carolina.  Again, Craigslist cannot control the nature of the content appearing in its classified ads, and therefore complete censorship is the only way to comply with South Carolina’s demands.  Needless to say, the demand to block pornography from South Carolina is, itself, blatantly unconstitutional, given the First Amendment protections afforded to sexually-explicit speech.[22] Accordingly, it appears that Craigslist would be successful in its claim that compliance with McMaster’s ultimatum constitutes an illegal prior restraint on protected speech.

Section 230 Issues

Sites like Craigslist are protected not only by the First Amendment, but also by specific provisions of federal law.  When enacting the Communications Decency Act,[23] Congress wisely recognized the practical problems that would result from any attempt to impose liability on website operators for the speech or communications of third parties.  If such liability were permitted, Internet service providers could be held responsible for the content of each and every website hosted on their servers, and search engines could be held responsible for the content of all of the search results provided by their services.  To alleviate this concern, Congress included Section 230 in the Communications Decency Act, which provides: “No provider…of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[24] This “safe harbor” language has been given broad scope and effect by the courts.[25] Websites that allow third party content have been found to be immune from a wide variety of civil claims ranging from housing discrimination suits, to negligence, to civil rights.[26] Federal intellectual property claims are excluded from the scope of Section 230 immunity; however another federal statute, the Digital Millennium Copyright Act,[27] provides its own similar safe harbor for copyright claims, if certain conditions are met.[28]

So what about criminal prosecution?  That is the big, unanswered question in this area of law.  Thus far, a website service provider has never been found to be immune from criminal prosecution as a result of Section 230 immunity.  While all of the reported cases interpreting this section have arisen in the context of a civil claim, the statute, itself, does not appear to be limited to civil liability protection.  Instead, the law broadly states: “…no liability may be imposed under any state or local law that is inconsistent with this section.”[29] South Carolina obscenity and prostitution laws may well be inconsistent with Section 230 immunity if they are imposed against a website operator, and based on the communications posted by third parties.  Accordingly, the Craigslist case may be the first to squarely confront the scope of Section 230 immunity, in the context of criminal prosecution.

A ruling in favor of Craigslist would be a game changer for user generated content websites, as it would open the door for extremely broad legal protections to be afforded to these websites.  It may be, however, that in order for the state or local law to be considered “inconsistent” with Section 230 that it would have to deal with a substantive criminal offense that is similar to conduct addressed in the Communications Decency Act (“CDA”).  The CDA imposes criminal liability on individuals who transmit obscene materials via the Internet.[30] Under the more narrow interpretation, only state level obscenity laws would be preempted by Section 230.  This would still benefit Craigslist, since at least a portion of McMaster’s threats were premised upon prosecution for pornographic and/or obscene images.  However, the prostitution charges may survive the safe harbor, under this analysis.

The only case, of which this author is aware, where the argument regarding Section 230’s applicability to criminal prosecution was raised, was in the highly-publicized obscenity prosecution by Polk County, Florida against Christopher M. Wilson.[31] There, the Defendant argued in his pretrial Motion to Dismiss that Florida’s obscenity law was preempted by Section 230, since the images forming the basis for the obscenity allegations were posted by third parties on his user generated content site, over which he exercised no content control.  Fortunately for Wilson, a higher court intervened in the case, issuing a writ of habeas corpus, finding the Defendant’s pretrial detention to be illegal, thereby clearing the way for a favorable resolution of the case involving no felony conviction and no jail time.[32] As a result, a decision was never issued on the merits of the argument, so the issue has yet to be addressed by the courts.

User generated content sites of all makes and models will be carefully watching the outcome of the Craigslist litigation, given the important Section 230 issues at stake.

Commerce Clause Issues

Craigslist also raises the important question of whether McMaster’s threatened state law prosecution triggers potential Commerce Clause concerns.  While issues surrounding the dormant Commerce Clause of the United States Constitution are somewhat esoteric for the average adult webmaster, they may prove to be critically important for Craigslist and user generated content sites throughout the nation.

In its most basic form, the argument goes like this: The individual states should not be permitted to impose a hodgepodge of inconsistent state laws on national (or international) commercial activities.  Such activities can only be regulated at the federal level.  This makes good sense, since little issues like the mandatory width of railroad tracks need to be uniform throughout the fifty states so trains can stay on the tracks when crossing state lines.  Similarly, restrictions on commercial airlines, importation of foreign goods, and telecommunication systems all need to be regulated at the federal level, for our country to successfully function as a cohesive collection of individual states.

This Commerce Clause argument has been accepted in the context of Internet commerce on numerous occasions, where the states have attempted to impose restrictions on the transmission of sexually explicit materials via the Internet.[33] In every case where that issue has been raised, the state statute was declared unconstitutional in violation of the dormant Commerce Clause.  Any attempt to impose state obscenity or prostitution laws on websites implicates similar commerce clause concerns.  Each statute, and each case is different, and legitimate distinctions may exist with respect to regulation of targeted classified ads focusing on specific geographic areas.  Moreover, the Commerce Clause analysis is nuanced and complex, often making the outcome unpredictable.  But Craigslist has raised a legitimate and important issue of constitutional law in response to South Carolina’s attempt to impose state law restrictions on Internet communications.  Even if the dormant Commerce Clause is found to be inapplicable to geo-targeted online classified ads, other user generated sites may have more compelling and successful arguments in future cases.

The Court of Public Opinion

McMaster has taken quite a bit of heat for his ham-fisted approach to law enforcement against such a popular and widely used website as Craigslist.  But the Internet industry should be thankful for his bumbling, in some respects.  Because he went too far in demanding censorship of Craigslist.com, the public discourse has turned away from prostitution, pornography, and decency, to First Amendment censorship and Section 230 protection.  Many law enforcement officials, who might have made the same freshman mistake as McMaster, have now been educated regarding the unique protections afforded to user generated content sites, and may be more hesitant to take action if they see something questionable on one of these websites.  If the target of the investigation had been a fetish tube site, the public discussion of the issue may have been quite different and more supportive of the Attorney General’s tactics.  But since the target was Craigslist, which is used by employers, friends, and family throughout the nation, the public was decidedly more sympathetic.  If law is to be made in this area, it is better that Craigslist bring the case to court as opposed to some other plaintiff with less public acceptance.  While Lady Justice is blind, she has been known to have x-ray vision on occasion, with legal decisions sometimes being influenced by the identities of the parties.

Without a doubt, McMaster stepped in a large pile of excrement with his overzealous bullying tactics.  But the rest of us can sit back and enjoy the show as the courts of law and public opinion sort out just how much protection user generated content websites should enjoy when the next bully with a badge decides to impose an agenda of Internet censorship.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, Walters & Mooney, with offices in Orlando, Los Angeles, Salt Lake City, and San Diego.  Mr. Walters represents clients involved in all aspects of the adult industry and has practiced law for two decades. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 45 years.  All statements made in the above article are matters of opinion only, and should not be considered legal advice.  Please consult your own attorney on specific legal matters.  You can reach Lawrence Walters at Larry@FirstAmendment.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”


[1] S. Kirshner, “Craigslist CEO Needs Help on His Soundbites,” Boston.com (April 27, 2009), found at: http://www.boston.com/business/technology/articles/2009/04/27/craigslist_ceo_needs_help_on_his_sound_bites/.

[2] J. Skillings, “Craigslist sues So. Carolina attorney general,” CNET News (May 20, 2009), found at: http://news.cnet.com/8301-1023_3-10245380-93.html.

[3] “Sheriff sues Craigslist as ‘largest source’ of prostitution,” Chicago Breaking News Center (March 5, 2009), found at: http://www.chicagobreakingnews.com/2009/03/sheriffs-lawsuit-says-craiglist-largest-source-of-prostitution.html.

[4] “Med Student Arrested In Craigslist Murder,” CBS News (April 20, 2009), found at: http://www.cbsnews.com/stories/2009/04/20/national/main4958272.shtml.

[5] A. Johnson, “Authorities seek to crack down on Craigslist,” NBC Washington (May 6, 2009), found at: http://www.nbcwashington.com/around_town/the_scene/Authorities_seek_to_crack_down_on_Craigslist.html.

[6] G. Sandoval, “Craigslist to remove ‘erotic services’ section,” CNet News (May 13, 2009), found at: http://news.cnet.com/8301-1023_3-10239610-93.html?part=rss&subj=news&tag=2547-1023_3-0-5.

[7] C. LeBlanc, “McMaster says no to Craigslist deal,” The State (May 14, 2009), found at: http://www.thestate.com/local/story/785877.html.

[8] Read McMaster’s letter to Craigslist here: http://www.scag.gov/newsroom/pdf/2009/craigslist_letter.pdf.

[9] “Craigslist sues So. Carolina attorney general,” supra.

[10] E.g., M. Arrington, Stand firm, Craig (and Jim), Washington Post (May 18, 2009), found at: http://www.washingtonpost.com/wp-dyn/content/article/2009/05/18/AR2009051800628.html;

Bad Publicity May Backfire, The Independent Mail (May 19, 2009), found at: http://www.independentmail.com/news/2009/may/19/bad-publicity-might-backfire/

[11] Craigslist, Inc. v. Henry D. McMaster, et. al., Civil Action No. 2:09-1308-CWH (May 22, 2009) (Consent Order, Honorable Weston Houck).

[12] “McMaster says no to Craigslist deal,” supra.

[13]Griswold v. Connecticut, 381 U.S. 479, 482 (1965).

[14] Reno v. ACLU, 521 U.S. 844 (1997); Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

[15] Of course, the inability to know, in advance, what materials are illegal should render all obscenity laws unconstitutional, in violation of Due Process rights, in this author’s view, however obscenity laws have inexplicably withstood such challenges over the years.

[16] Penthouse Int’l Ltd. v. McAuliff, 610 F.2d 1353 (5th Cir. 1980), cert. dismissed 447 U.S. 931 (1980).

[17] Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972).

[18] Id. at 705-06.

[19] Id.

[20] E.g. Weston v. McDaniel, 760 F.Supp. 1363, 1371 (N.D. Ga. 1991) (grand jury proceeding against criminal defense attorney enjoined as retaliatory against Plaintiff exercising his right to Freedom of Speech); Entertainment Ventures, Inc. v. Brewer, 306 F.Supp. 802, 822 (N.D. Ala. 1969) (enjoining all state criminal obscenity prosecutions); Daughterty v. City of Eastpoint, 447 F.Supp. 290, 296 (N.D. Ga. 1978) (prosecution under sign ordinance enjoined not withstanding pendency of appeal of criminal action); The Video Store, Inc. v. Holcumb, 729 F.Supp 579 (S.D. Ohio 1990) (state court criminal prosecutions against video store owner enjoined because of bad faith harassment); Empire News, Inc., v. Soloman, 818 F.Supp. 307 (D.Nev. 1993) (adult bookstore licensing law prosecutions against owners of adult bookstore enjoined on First Amendment grounds).

[21] S. Gaudin, “State AG ultimatum to Craigslist: Pull racy ads or face prosecution,” Computerworld (May 6, 2009), found at: http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9132631.

[22] Reno, supra.

[23] 47 U.S.C. § 230(c)(1).

[24] Id., see also Section 230(e)(3): “No cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section.”

[25] Chicago Lawyers’ Committee for Civil Rights Under Law, Inc., v. Craigslist, Inc. 519 F.3d 666 (7th Cir. 2008); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003); Doe v. AOL, 783 So.2d 1010 (Fla. 2001) cert. den. 534 U.S. 891 (2001)

[26]Chicago Lawyers’ Committee for Civil Rights Under Law, Inc., v. Craigslist, Inc. 519 F.3d 666 (7th Cir. 2008)(fair housing claims) Doe v. AOL, 783 So.2d 1010 (Fla. 2001) cert. den. 534 U.S. 891 (2001)(negligence); Noah v. AOL Time-Warner, Inc., 261 F.Supp.2d 532, 538 (E.D. Va. 2003)(civil rights).

[27] 17 U.S.C. § 512.

[28] Id.

[29] 47 U.S.C. § 230(e)(3) (emphasis added).

[30] The original CDA also included a broad prohibition on any indecent material on the Internet; however those provisions were invalidated by the United States Supreme Court in Reno, supra on First Amendment grounds.

[31] State of Florida v. Christopher M. Wilson; Case No. CF-05-7738 (Fla. 10th Cir. 2006).

[32] See, J. Geary, “Wilson Avoids Jail,” The Ledger (April 22, 2006), found at: http://www.theledger.com/article/20060422/NEWS/604220360?Title=Owner-of-Controversial-Web-Site-Gets-5-years-Probation-.

[33] American Book Sellers Foundation for Free Expression v. Dean, 202 F.Supp.2d 300 (D. Vt. 2002); PSI Net, Inc. v. Chapman, 167 F.Supp. 878 (W.D. Pa. 2001), question certified, 317 F.3d 413 (4th Cir. 2003); Cyberspace Communications, Inc. v. Engler, 142 F.Supp.2d 827 (E.D. Mich. 2001); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997); Center for Democracy & Technology v. Pappert, 337 F.Supp.2d 2006 (E.D. PA 2004); Southeast Booksellers Ass’n v. McMaster, 371 F.Supp.2d 773 (D.S.C. 2005).