2257: A Temporary Truce: 2
The 11th Commandment
In last month's column, I made reference to one of my adult business maxims I share with all my adult entertainment clients. I call it the 11th Commandment of "The Business": "Do not publicly speak ill of thy fellow adult industry entrepreneurs for it is the government's power-abusing censors that are thy real enemies." Put another way "Don't publicly dis someone in the biz."
I am sorry to say that my call to civility has not yet been universally answered. In fact, the last month has seen some of the worst online vitriol I have ever seen, aimed at, of all parties, the FSC. I have seen posts to various boards by misguided webmasters attacking the FSC and attributing to it everything from fear mongering for the purpose of generating membership revenue to collaboration with the government to prosecute those who are not members.
Here is an example from one of the boards:
"The FSC is a joke. They want nothing more than to take advantage of webmasters by scaring them. It's all about money and I'm not giving them one fuckin' cent. Anybody that joins those scum sucking gougers are just fucking stupid. Who, I ask you who, what webmasters has [sic] the government put in jail? You can throw your money away, not me."
As a free speech lawyer I have dedicated my career to defending a person's right to publish colorful opinions such as the one above. Consequently, it doesn't bother me much that the writer irrationally attacks an excellent organization of which I am a part. I have confidence that free speech sorts that kind of thing out. As Woodrow Wilson put it, "The wisest thing to do with a fool is to encourage him to hire a hall and discourse to his fellow-citizens. Nothing chills nonsense like exposure to the air."
However, at this time, while the industry is under attack, before unloading on the boards one might want to consider the fact that the government is monitoring the industry's public communications. An example of this turned up in the government's brief in opposition to our motion for a temporary restraining order.
To support its arguments, the government quoted passages from an online article that appeared on several adult news sites and then attached the article as an exhibit to its brief. If that is the use the government can make of a well-written article, consider what they can do with the juicy stuff on the boards.
I have always thought that the boards and the industry gossip columns could be freebie treasure troves for the Justice Department investigators, now I am sure they are.
Taking this a step further, consider what someone who posts their passionate opposition to the FSC may be implicitly telegraphing to a federal investigator or prosecutor.
First, remember that pursuant to the stipulation, the government is currently barred from commencing an action against an FSC member. Also, recall that a government prosecutor also cannot know in advance who is or isn't on the FSC membership list without consulting the special master appointed by the court.
With all that in mind, I'd say the colorful language quoted above functions like a big bright beacon in the shape of three concentric circles with a dot in the middle that shouts, "Over here, I'm not an FSC member . . . and it's a safe bet that I also haven't invested a lot of time or money to learn about the law pertaining to adult entertainment, or I just don't care about the law."
It is likely that no matter how successful we are in our challenge of the 2257 regulations, there will be at least some sacrificial lambs offered up to the religious right in response to their demands on the government for porn prosecutions. For example, there is a fairly good chance that the government will, at least, commence inspections against at least a few targets to try to convince the court that such searches are useful and necessary "to protect children" and that the court should not restrain the enforcement of the 2257 regulations.
Who are those targets likely to be? I don't know with specificity, but I can tell you that they are likely to be those that have made themselves easy targets and, until at least August, they won't be FSC members. Look out Mr. Colorful.
Gregory A. Piccionelli is one of the world's most experienced Internet and adult entertainment attorneys. He is also a member of the Free Speech Coalition Legal and Government Affairs Committee. He can be reached at Piccionelli & Sarno at (310) 553-3375 or www.piccionellisarno.com.