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

[Declan McCullagh <declan () well com>]

---

From: "Gary Kremen" <gkremen () sex com>
To: <declan () well com>, <politech () politechbot com>
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
Larry () LawrenceWalters com, www.FreeSpeechLaw.com or AOL Screen Name:
"Webattorney".




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