--- 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. ------------------------------------------------------------------------ -------- 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". ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? 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