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The Balancing Act: 1

The Balancing Act: 1

October 25, 2005
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" exactly how narrow is that tightrope we are walking on? "

These are perilous times for legitimate adult web operators as they try to understand and manage the huge array of new regulations as well as the hostile political environment they now find surrounding their livelihood. Massive changes are often wrought with unplanned work, procedural uncertainty, and let's face it, sleepless nights in many cases. I've often likened it to the high wire act, walking the tightrope eyeing the floor below trying to determine, that if you must fall, which would be the easiest way to go? There is no such thing as easy way to hit the bottom, and frankly who would even want to contemplate that? So it would seem prudent, to replace that tightrope with a wider plank so that at least in that analogy you have more solid footing from a legal perspective.

If you were to read the newsletter put out by Bruce Taylor entitled "Obscenity Prosecution News," you'll get the sinking impression that there is very little that is not on the government's target list. In an interview with Frontline, Bruce Taylor gives us a glimpse into the legal mindset of pornography crusaders as he goes through the history of prosecutions, defines where we have been and were we are going. A topic that sticks out in my mind the most is that the man does not seem to want to separate the words 'Pornography' and 'Obscenity,' and the word 'Erotica' doesn't even come up. It becomes painfully apparent that everything but the most vanilla softcore erotica is on their hit list, and even that, according to Mr. Taylor, needs to be evaluated on a case-by-case basis.

Add to all of that the formation of the 'Obscenity Prosecution Task Force' that involves field offices of the FBI along with the array of existing elements of the DOJ dedicated to anti-pornography and we are looking at a tough way to go. Industry experts and attorneys have been warning for years that the war is about to escalate, and the changes in 2257 were simply the starting gun for that brewing battle.

Therefore to the legitimate industry operators, we have to begin to wonder exactly how narrow is that tightrope we are walking on? Can we really afford to continue to wait and see how hot the fire will get or are there some proactive precautions that we can employee to shield ourselves from whatever is getting ready to come down? One way or another that tightrope must be turned into something a little more stable.

It is important to note that I am not an attorney, and the following is simply a layman's views based on common sense as well as reading the huge assortment of legal speculation written by industry attorneys.

It would seem to me that at the very heart of the issue of survivability is public exposure. Many an attorney has written about the possibly of running web sites in a protected environment, the practice of 'Site Hardening' and one such descriptive characterization was to equate this concept to that of a "tortoise shell." Meaning, of course, no public facing free anything that involves imagery. The industry at large balks at this suggestion because conventional marketing wisdom is to get your product out there for the customers. Operating in this "Tortoise Shell" would mandate text based tours and virtually eliminates affiliate programs, as we know them today unless of course, they too operate in some AVS protected environment.

Other proactive considerations would be to enhance your defensibility in light of the Miller three-prong test. Sites that consist only of erotica are much harder to defend than sites that are lifestyle based. This of course addresses elements of the Miller test directed at artistic or literary values.

There is no combination of proactive cautions that will guarantee that you won't wind up in the cross hairs of a hotshot prosecutor looking to score a few political points. However, there are many ways that you can harden your site to the point that the next guy on the hit list is a much easier target than you are. And in today's political environment, it would seem that is the best we can hope for.

In a follow up article we pin down a noted attorney for specific details on what you can do to make your site less vulnerable to easy prosecution. As a rule of thumb, attorneys do not like to get that specific on these issues in part because each and every site must be evaluated on an individual basis for effective results. That is completely understandable given the fact that the opposition is doing exactly that when they visit your web site.


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