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A New Hope for Tolerance

A New Hope for Tolerance

December 17, 2008
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" One cannot predict with certainty what all this will mean for the adult entertainment industry. "

The adult entertainment industry has great reason to celebrate this holiday season and the reason why can be summed up in three words: President Barack Obama.

Adult entertainment businesses traditionally encounter substantial governmental hostility under conservative Republican regimes. This has particularly been the case over the last eight years as the Bush administration and Republicans in Congress passed numerous exceedingly oppressive and often unconstitutional "anti-porn" laws. In addition, in recent years the administration augmented its legislative attack on the industry with a number of obscenity prosecutions and the commencement of 2257 inspections.

In each case, the government's acts were promoted by the administration and conservative Republicans in Congress as necessary steps to "protect children" from dangers the Republicans themselves had created out of whole cloth.

Over the last eight years, each violation of the industry's and its consumers' free speech rights by Bush and his buddies have been justified by fabricated claims of linkages between the mainstream adult entertainment industry and child pornography or nonsensical claims that pornographers promote the sale of porn to kids.

Thus, the administration's strategy to gain support for regulation of the adult entertainment industry has, not surprisingly, been essentially the same strategy it has used to obtain support for other half-baked actions from the Patriot Act, to the war in Iraq, to the massive socialist bailout of Wall Street.

Simply put the strategy is: (1) create fear, (2) nurture and build fear, (3) exploit fear. And for a long time George W. and his cronies have been pretty successful at this political version of a Mafia protection racket applied on a grand international scale.

But as Abraham Lincoln observed "you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time." Good advice from that great Republican to the miserable slime-ball Republicans of our day. Too bad for them that they did not heed Honest Abe's advice. Because on Election Day 2008, America spoke ... loudly. In fact, I'd say it roared, as if with one loud and thunderous voice directed at George W. Bush and the Republican party: "ENOUGH IS ENOUGH!"

But perhaps of even greater importance than the resounding repudiation of all things Bush is the fact that, thanks in large part to Obama, one unmistakably and undeniably American theme rooted in the very DNA of our country made a big and stunningly bright comeback on Nov. 4.

For on that day, our countrymen, in record numbers, undeniably reaffirmed one of our nation's core beliefs and loudly proclaimed to the world that hope and not fear will guide the U.S. through these difficult times, just as it has through every challenging period since her birth.

Moreover, by electing Barack Obama, I think America also signaled to the mean-spirited, intolerant, conservative fear-mongers on the right that tolerance and civility also have made a comeback. It was clear that voters were greatly impressed that Obama never lost his cool and responded to his opponent's despicable mud-slinging by simply waging what was arguably the cleanest and most positive campaign in recent history.

One cannot predict with certainty what all this will mean for the adult entertainment industry. Nevertheless, I confidently believe that Obama's blow-out defeat of the McCain-Palin ticket and the Democrats' expansion of their majorities in the House and Senate clearly provide good reason for optimism and celebration.

Here are some of the reasons why:

A Bullet Dodged
Because of Obama's defeat of John McCain, the adult entertainment industry can celebrate the fact that it has dodged a potentially lethal legal bullet. Had John McCain been elected, he would likely have followed through on his frequently stated campaign promise to appoint a least two conservative justices to the Supreme Court with "strict constructionist" views of the Constitution similar to those held by Justice Antonin Scalia. This would have been disastrous for the adult industry because Justice Scalia's strict construction of the Constitution includes the view that sexually explicit content is not a form of "speech" the founding fathers intended to be protected under the First Amendment.

A Supreme Court more conservatively configured to reflect this view would likely rubber-stamp virtually every oppressive regulation of the adult entertainment industry brought before it. As a result, challenges to the 2257 regulations and the obscenity laws would, for example, likely be doomed to defeat.

We can reasonably expect that Obama will almost certainly appoint new, and relatively young, justices to the Court that will preserve for many years to come the current majority view that sexual expression is in fact protected speech. As a result, the adult industry will continue to enjoy the constitutional protections it simply must have to survive. Also, if a first-Obama-term leads to a second, Obama may even have the opportunity to replace Justice Scalia himself. From the adult industry's perspective, that, of course, would be a very good thing indeed.

A likely champion for free speech. One of the many reasons why I am elated that Obama was elected to be our 44th president is the fact that there is every indication that he and his administration will be exceptional advocates and protectors of our freedoms of expression. A former constitutional law professor himself, Obama has consistently demonstrated a true understanding and profound conviction that governmental regulation must not violate our civil rights, including those rights protected by the 1st Amendment. In this regard, I believe that Obama and his administration will champion our civil rights in stark contrast to the reprehensible disregard of them by Bush and his administration.

Because of this, it is almost certain that Obama's administration will discontinue Bush's hostile and adversarial policies towards the adult entertainment industry. I am elated by the prospect that we will at long last see reason replace religion as the driving force in the regulation of the adult entertainment. As such, I am hopeful that the following will be a good approximation of how regulation of the adult entertainment industry will change under Obama:

2257 regulations under Obama. The Justice Department under Obama will likely prioritize enforcement of 18 U.S.C. ยง2257 and 28 CFR 75 (the "2257 regulations") the same as President Clinton's Justice Department. That is, no priority. As a result, I would be surprised to see any 2257 inspections or indictments during the Obama administration. Further, I am hopeful that the industry will at last have the opportunity of working with Congress to replace the ridiculous, unconstitutional and horrifically punitive 2257 regime with a simple, fair and more effective means of assuring that no minors are used in the creation of sexually explicit content.

Obscenity prosecutions in an Obama administration. I expect federal obscenity prosecutions to cease entirely under President Obama as they did under President Clinton.

Interestingly, such a prosecutorial hiatus might have the effect of permanently hampering federal obscenity prosecutions involving mainstream adult content because continued sale of such content into virtually every community in the U.S. during such a four- or eight-year prosecution break may well leave obscenity prosecutors under a future Republican president with few if any communities in which such mainstream adult content could be deemed to be outside of their community's standards.

Keeping kids out of online adult content. Obama has always favored parental filtering as the preferred means of solving the problem of keeping online adult content away from kids. I am very hopeful that the Obama administration and democratic lawmakers will work with the Free Speech Coalition, ASACP, and other members of the adult entertainment industry to develop effective means of filtering explicit adult content at the users' end.

A New Hope
Republicans, after receiving a royal ass-kicking from the Democrats in the last election are publicly debating the issue of how they find themselves in their current position. While the state of the economy certainly played a role, increasingly more and more moderate and fiscal conservative Republican leaders are openly attributing their stunning defeat in part to the influence social conservatism has had on their party under Bush. Many Republican leaders are openly stating that the future of their party depends on a return to the principals of less government that many moderate and fiscal conservative Republican leaders stress once meant, and must again mean, getting the government out of the business of regulating what people do in their bedrooms.

While I am not convinced that the social conservative segment of the Republican party is in any danger of immediate extinction, it is instructive, and frankly, personally satisfying, to see that an increasing number of Republicans are blaming their party's problems on that wing of the party.

But above and beyond the Republicans' internal finger-pointing problems, many political scientists believe that the recent election has signaled nothing less than a major political realignment that could favor the Democrats for decades.

If they are correct, perhaps the most important reason why the adult entertainment industry has cause to celebrate Obama's victory is that it is emblematic of a shift to a younger, more liberal and more tolerant American culture that is more accepting of adult entertainment than any that has come before.

If that is the case, the recent election may indeed have marked a turning point in which the worst of the governmental oppression of the industry is forever behind us.

I certainly hope so. Because it strikes me as somewhat strange that as America celebrates the fact that it has come far in its efforts overcome racial intolerance in the election of Obama, it still condones the imprisonment of its citizens for merely publishing erotic images.

Clearly, we have come a long way and we should celebrate. But equally clearly, we have a long way to go.

At the time of this writing there are 75 days, 12 hours and 19 minutes until the end of the Bush administration. a

Gregory A. Piccionelli is an adult entertainment attorney. He can be reached at Piccionelli & Sarno at (310) 553-3375 or at greg@piccionellisarno.com.


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