FC: Internet, pornography, and law update, by Larry Walters

From: Declan McCullagh (declanat_private)
Date: Tue Sep 17 2002 - 22:57:49 PDT

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    From: "Gary Kremen" <gkremenat_private>
    To: <declanat_private>, <politechat_private>
    Subject: MICHIGAN THROWS THE FIRST PUNCH
    Date: Mon, 16 Sep 2002 00:00:51 -0700
    
    
    LEGAL BRIEFS
    
    
    Adult Industry Update: September 2002
    
    by Lawrence G. Walters, Esq.
    FreeSpeechLaw.Com
    
    
    
    
      MICHIGAN THROWS THE FIRST PUNCH
    
    The Michigan Attorney General, Jennifer M. Granholm, has appointed
    herself as the official "locomotive" for the slow motion train wreck
    predicted in last month's Update. As most readers already know, the
    Attorney General issued notice letters to the industry's largest third
    party billing processors, instructing these companies to immediately
    disable services to numerous sites that "may" contain child pornography,
    and further disable all "similar" Websites.1 The billing companies
    reacted in a variety of ways, including immediate termination of
    services to the named sites, requests for further information, or no
    response at all.2 While some Webmasters in the industry reacted with
    indifference or support for the Attorney General's actions, given the
    universal disdain for child pornography, others realized the dangerous
    precedent that will be set if her actions are successful.
    
    When this author first learned of the warning letters, he was hearkened
    back to the earlier days of his practice, in the 1980's, when the State
    Attorney in Daytona Beach, Florida, delivered similar warning letters to
    the Mom & Pop video stores, demanding that various "unsuitable,"
    "immoral" and possibly obscene videotapes immediately be removed from
    the shelves; unless the owners wanted to be the target of a Grand Jury
    investigation. One of the tapes identified was Pink Floyd's The Wall.
    
    There is nothing new about this procedure: Some of the elder (and past)
    partners in the author's firm have been through this battle, in various
    incarnations, even dating back to the Nixon Administration. It happened
    again in the Reagan years, starring the infamous Attorney General Edwin
    Meese.
    
    Throughout history, censors have been acutely aware of the efficiency of
    the so-called "chilling effect."3 When protected speech is involved, the
    threat of prosecution can have a devastating effect on other
    individuals, who are not targets of the investigation. Such threats
    encourage self-censorship out of fear of potential prosecution in the
    future. Thus, government has learned that it need only threaten a small
    number of individuals to realize substantial, immediate results from the
    chilling effect. That is precisely what is going on with the Michigan
    Attorney General's Office. It becomes irrelevant whether a particular
    billing company actually complies with the AG's demands, since many
    Webmasters have already run for cover, and the third party processors
    likely will be much more conservative in their policies and criteria
    concerning client Website content. Yes, Virginia, censorship works.
    
    However, not all targets have consistently buckled under the threat of
    government censorship. Over the years, many adult media freedom fighters
    have challenged this unconstitutional form of censorship, which
    threatens prosecution in the absence of any judicial determination of
    the legality of the content. Those challenges have not been in vain. The
    courts have generally taken a dim view of this type of governmental
    action, and have often concluded that threats of prosecution that are
    designed to result in self-censorship constitute an illegal prior
    restraint on protected speech.4 So, it will be interesting to see what
    the adult Internet industry does about the fact that the first punch has
    been thrown by the Michigan Attorney General. Will it wait to see if the
    next one is worse, or if more Webmasters are affected next time? Perhaps
    the industry will erroneously conclude that this is an isolated
    incident, and that none of the other 49 Attorney Generals across the
    country are watching and waiting in the wings.
    
    Now is the time when the adult Internet industry must ban together and
    assist those unfortunate souls who happen to be in the government's
    cross hairs this week. Solidarity is critical at this juncture,
    particularly given the fact that the Michigan Attorney General has
    played the child porn card, attempting the smear the targets with a
    despicable label, in the hopes that the industry will step aside and
    clear the way for unhampered intimidation.
    
    Virtually everyone in the legitimate adult Internet industry will agree
    that processing memberships for sites involved in actual child
    pornography is unacceptable, and should be terminated. However, what
    should concern this industry more is the perceived ability for a state
    government to allege that certain Web site content is illegal, without
    any specific proof or judicial determination that it is, and demand that
    access to the material cease. In this country, speech is presumed to be
    protected unless and until a judicial determination to the contrary has
    been made. This author recommends that each and every concerned
    webmaster express his or her concern with the actions of the Michigan
    Attorney General by sending an email to her office, which can be found
    here. Further, these actions illustrate the need to join organizations
    such as the Internet Freedom Association and the Free Speech Coalition.
    If a small percentage of Webmasters joined or took an active role in
    these organizations, the membership numbers, resources, and negotiating
    strength of this industry could be overwhelming.
    
    
    GOOD NEWS FROM OHIO
    
    Although overshadowed by the news from Michigan, other events of
    interest to adult webmasters occurred throughout the world this month.
    Yet another victory was realized for First Amendment principles through
    a decision by District Judge Walter Herbert Rice, in Dayton, Ohio, who
    permanently prohibited the state government from enforcing its new
    Internet pornography law, designed to prohibit distribution of harmful
    materials to juveniles.5 The law prohibited communications portraying or
    describing sex acts, repeated use of foul language, lurid details of
    violence, and the glorifying of criminal activity, over the Internet and
    elsewhere.6 Like similar laws that have been struck down on First
    Amendment and Commerce Clause grounds, the Ohio law was broad enough to
    criminalize Websites that answered sexual health questions or which
    depicted images of indigenous women naked from the waist up, such as are
    commonly found in National Geographic.7 The Judge noted that the law's
    prohibitions on extreme violence could even prohibit teaching about the
    Holocaust.8
    
    
    ONLINE GAMBLING LOSSES
    
    The online gambling industry also took some hits this month, with the
    withdrawal of major payment processors such as Pay Pal, Citibank and
    Bank of America, along with a written opinion from the Department of
    Justice concluding that online gambling violates the Wire Act if United
    States bettors are involved.9 Financial analysts, who once predicted
    that Internet gambling would become a 6.2 billion dollar annual
    enterprise by next year, have now reduced their prediction to 4.2
    billion.10 That is less than half of what the Nevada casinos take in.11
    
    
    CLEANING UP BROTHEL WEBSITES
    
    Webmasters in the United States will no doubt find it amusing that
    houses of prostitution in Victoria, Australia, can no longer include
    nudity on the businesses' Websites under regulations that took effect on
    September 2, 2002.12 Oddly, such a restriction on Website content would
    likely be illegal in the United States, although regulations completely
    banning prostitution are universally upheld. Conversely, it appears that
    the folks "Down Under" will tolerate censorship of the Internet, but
    allow prostitution services to operate openly.
    
    
    WALMART EROTICA
    
    This month also saw the censors crawl out of the woodwork and into the
    WalMart, which bore the brunt of a national campaign by The Timothy
    Plan, the nation's leading mutual fund group offering funds based on
    moral responsibility.13 The Group accused WalMart of "anti-family
    promotion of pornography." All of this was over WalMart's refusal to
    either remove or partially screen the covers of Cosmopolitan Magazine,
    which the plan's president describes as one of the most "blatantly
    aggressive soft core pornographic magazines in America."14 That probably
    answers your question if you're wondering whether any erotic Website
    would ever be acceptable to the "family values groups."
    
    
    OBSCENE PERFORMANCE
    
    Even comedy performances were on the censorship chopping block this
    month, with Steve-O (star of MTV's Jackass), being charged with felony
    obscenity for misusing a staple gun on himself in ways too graphic to
    describe here.15 Steve-O is facing obscenity charges in the notably
    progressive part of the country known as Terrebonne Parish, Louisiana.
    His original bond was $1.12 million, until his attorney successfully
    convinced the court that the comedian was not a flight risk, resulting
    in bond reduction to $35,000.16 Interestingly, a Terrebonne Parish
    Corrections Officer was disciplined for "participating" in the
    performance.17 Apparently the masochist fetish has not yet taken hold in
    Terrebonne Parish.
    
    
    MOBILE EROTICA
    
    Count High Point, North Carolina, out on the voyeurism fetish as well:
    Four men were charged with obscenity violations after a local police
    officer observed them watching an adult film in a large SUV.18 One of
    the men argued that the charges were inappropriate because the film was
    being shown in the privacy of their personal car and was just "a bit of
    getting it on."19 They face up to six months in prison if convicted.
    There's nothing like getting your erotica fix on the run.
    
    
    ASHCROFT ON OUR SIDE?
    
    Webmasters who wish that Attorney General John Ashcroft would turn his
    attention away from adult materials and to protecting Web sites from
    copyright theft might be in good company.20 Some nineteen lawmakers from
    both sides of the isle asked Ashcroft to begin prosecuting "peer to
    peer" networks like Kazaa and Morpheus and their users, who swap digital
    songs, video clips and other files without permission from artists or
    their record labels.21 One can only wonder whether Ashcroft will
    maintain a sufficient level of commitment to the project once somebody
    lets the cat out of the bag that the majority of these file swaps
    involve erotic images or movies.
    
    
    VIDEO GAMES NOT TO BLAME
    
    One voice of reason has stood out this month amongst the clamor of
    censorship: The Sixth Circuit Court of Appeals issued a decision which
    upheld the dismissal of the $33 million lawsuit which sought to blame
    video game makers, a pornographic Website and a movie studio, for a
    deadly 1997 school shooting massacre at Heath High School.22 Judge Danny
    Boggs, writing for the three judge panel, summed it up in the court's
    written decision: "We find that it is simply too far a leap from
    shooting characters on a video screen (an activity undertaken by
    millions) to shooting people in a classroom (an activity undertaken by a
    handful, at most)."23 The suit was one of several filed against the
    lucrative video game industry seeking to hold interactive software
    developers responsible for the actions of consumers. All such suits have
    been uniformly rejected by the courts.
    
    
    "SEND ME YOUR SPAM"
    
    California Attorney General, Bill Lockyer, surprised many in the online
    community this month by asking for SPAM email.24 The request was
    actually a part of an investigation by the California AG's Office into
    the legality of unsolicited emails. California law imposes stringent
    requirements upon unsolicited emails directed at California residents.
    For example, the subject line of each message must include the letters
    "ADV." SPAM advertising for adult materials must also include the
    designation "ADLT."25 The adult industry is carefully watching the
    California AG's actions because of the level of marketing it does using
    unsolicited email. Some industry leaders are concerned that California
    will go after the adult industry first, even though other industries
    such as the online gambling industry, make more frequent use of SPAM.26
    Currently, only sixteen states have anti-SPAM legislation. At the
    federal level, Congress has been toying with anti-SPAM legislation for
    some time now, but with no results.
    
    
    CLEAN UP YOUR (HOTEL) ROOM
    
    Hotels buckled under pressure from family values groups by removing
    adult film viewing options from their entertainment packages. The
    Citizens for Community Values ("CCV") helped convince Warren County,
    Cincinnati prosecutors to pressure Cincinnati hotel chains to stop
    offering pay-per-view adult movies to guests.27 The Marriott chain was
    the first to remove the option, with Comfort Inn and others quickly
    following suit. The decision was made after Warren County prosecutors
    threatened that obscenity charges could be brought against the hotel
    chains.28 "I'm very pleased with the Marriott and their response," said
    Bill Burress, the president of the CCV. "We're ecstatic," he added.29
    The ACLU of Ohio, on the other hand, referred to the group as
    "fundamentalist wackos," calling the actions a "pressure tactic and
    anti-First Amendment."30 The CCV promises to expand its efforts, despite
    the criticism.31
    
    
    FEDS: DIRTY LAUNDRY VIOLATES FEDERAL LAW
    
    The bizarre story this moth comes from Anderson, South Carolina, where a
    woman has been charged with "mailing indecent and filthy substances" for
    selling her dirty panties to customers over the Internet.32 The common
    practice for amateur adult Websites can result in penalties ranging up
    to five years in prison and/or a $250,000 fine, according to federal
    law.33 South Carolina U.S. Attorney Strom Thurman, Jr., filed the
    charges against the women under the rarely used federal statute. What's
    next? Panty raids by the Department of Justice?
    
    
    FIRST AMENDMENT SECOND TO SECURITY
    
    Even the general public may not be as supportive of the First Amendment
    as they were before 9-11. A recent poll indicates that half of us think
    that the First Amendment goes too far and protects too much speech.34
    That is up from only 39% at this time last year.35 This is particularly
    discouraging when you consider that these same people will ultimately
    decide the fate of any Webmaster prosecuted based on content appearing
    on the Website. Polls like these highlight the critical importance of
    educating the general public about the policies underlying First
    Amendment protections. While many Americans support the government's
    right to fight the war on terrorism using covert information kept from
    the press, those same individuals react poorly when told what they can
    or can't read, write or view.36
    
    
    1 Attorney General Press Release (August 27, 2002).
    2 K. Brewer, T. Hymes, & E. Black, "Granholm Throws Down Gauntlet," AVN
    Online (August 28, 2002).
    3 See: Playboy Enterprises, Inc., v. Meese, 746 F.Supp 154 (D.D.Cir.
    1990) [detailing the actions of the Meese Commission]
    4 See: Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9
    L.Ed.2d 584 (1963); Luke Records v. Navarro, 960 F.2d 134 (11th Cir.
    1992).
    5 C. Seper, "Federal Judge Bars New Pornography," The Plain Dealer
    (August 31, 2002)
    6 Id.
    7 Id.
    8 Id.
    9 D. Colker, "Net Casinos Find They Can't Bet on Plastic," LATimes.com,
    (September 1, 2002); "Reactions to 'That Letter' Are In," Online Casino
    News.com, (September 2002).
    10 "Net Casinos," supra.
    11 Id.
    12 J. Szego, "Brothers Loose Web Nudity Rights," SMH.com.au (September
    2, 2002).
    13 "Timothy Plan Mutual Fund Group Denounces WalMart For 'Promotion of
    Pornography,'" Press Release, The Timothy Plan, Yahoo.com, (August 15,
    2002)
    14 Id.
    15 J.Vineyard, "Steve-O Out on Bond After Turning Self In,"
    MTV.com:MTVNews:Headlines, (August 14, 2002).
    16 Id.
    17 Id.
    18 H. Cassubhai, "Four charged for watching porn in a car," Court TV
    (August 15, 2002).
    19 Id.
    20 A. Sullivan, "Ashcroft Asked to Target Online Song Swappers," (August
    9, 2002).
    21 Id.
    22 "Judge Won't Reinstate Lawsuit Blaming Video Games For School
    Shooting," CNN.com (August 14, 2002).
    23 Id.
    24 E. Black, "Calif. AG: 'Send us your SPAM,'" AVN Online (August 7,
    2002).
    25 Id.
    26 Id.
    27 N. Clark, "Adult Movies In Hotels Targeted," The Cincinnati Enquirer
    (August 5, 2002).
    28 Id.
    29 Id.
    30 Id., quoting Scott Greenwood, General Council for the American Civil
    Liberties Union of Ohio.
    31 Id.
    32 A.P. (July 25, 2002).
    33 Id.
    34 Mark Lane, "Survey suggests scary longing for a First Amendment
    lite," The Daytona Beach News Journal, (September 6, 2002).
    35Id.
    36Id.
    
    
    ------------------------------------------------------------------------
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    Lawrence G. Walters, Esquire is a partner with the law firm of Weston,
    Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr.
    Walters represents clients involved in all aspects of adult media. The
    firm handles First Amendment cases nationwide, and has been involved in
    significant Free Speech litigation before the United States Supreme
    Court. 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
    Larryat_private, www.FreeSpeechLaw.com or AOL Screen Name:
    "Webattorney".
    
    
    
    
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