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From Marble Halls to Multiplexes: The Porn Industry in November 2001

From Marble Halls to Multiplexes: The Porn Industry in November 2001

December 7, 2001
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" After concerns were raised by First Amendment lawyers, Dalton sought to change his plea and go to trial. "

In the post-September 11 world, our economy and our psyches remain unsettled, but the societal forces that shape the adult industry continue to roll along. Here are some of the more important developments for the industry that occurred during the month of November 2001.

In the Courts
Pornography received an unusual amount of attention in Washington, D.C., last month, as the U.S. Supreme Court heard two adult-related cases. At the very end of October, the Court heard oral arguments in the case of Ashcroft v. Free Speech Coalition (No. 00-795). The Court was asked by the Justice Department to overturn a ruling by the Ninth Circuit Court of Appeals that held that the Child Pornography Prevention Act (which bars simulated and computer-generated child pornography) is unconstitutional.

A month later, on November 28, the Supreme Court heard the Justice Department's appeal of a Third Circuit decision that concluded that the Child Online Protection Act is also unconstitutional. That case, entitled Ashcroft v. ACLU (No. 00-1293), is particularly significant for the adult industry, because in issuing its decision, the Third Circuit essentially stated that the Miller test for obscenity is unworkable in the online world. If the Supreme Court concludes that the Third Circuit was wrong, the effect may be to create a national standard for obscenity based on the most restrictive jurisdictions. The irony of that conclusion is that the Miller test was created in part to avoid the de facto creation of a national standard based on more liberal sexual standards, and to give communities the ability to enforce their own sexual standards within their borders. Come early summer 2002, that doctrine may be stood on its head.

State courts were also busy, with the most significant decision occurring in Ohio. In October 2001, Brian Dalton plead guilty to charges of pandering obscenity based on the contents of a private journal he kept. After concerns were raised by First Amendment lawyers, Dalton sought to change his plea and go to trial. The Franklin County Court of Pleas refused to let him withdraw his plea, and the ACLU is appealing that decision on Dalton's behalf.

In Nevada, the Supreme Court refused a request to reconsider its decision stating that casinos have the right to bar allegedly pornographic pamphleteers from the private sidewalks in front of their businesses. In Rhode Island, a gay strip club won a federal court battle over Providence's refusal to issue operational licenses. Strippers also took to the courts in Utah: six nude dancers are suing South Salt Lake City, arguing that a city ordinance requiring the wearing of pasties is a restriction on their freedom of, um, expression.

The Politics of Pornography
With much of the nation's attention focused overseas and on the on-going battle against terrorism, the adult industry received relatively little attention in the political arena, at least directly. However, a couple of developments will merit close watching.

On the international level, more than 30 countries have now signed the Convention on Cybercrime, a treaty designed to make it easier to prosecute various online offenses across national borders. Included among the various targeted crimes is the production and creation of Web sites containing child pornography.

In Washington, Attorney General Ashcroft and the administration successfully pushed through their anti-terrorism bill. Although not directly aimed at the adult industry, the bill does have some features which may cause concern down the road. One particularly troubling feature is that the bill purports to give the Justice Department greatly expanded capabilities to prosecute individuals outside of the United States if any aspect of their online business passes through the U.S. With a significant portion of the world's Internet traffic traveling across U.S. systems, that puts the federal government in the self-appointed position of the Web's policeman. At the state and local level, skirmishes continue to be fought over adult business ordinances.

At the state and local level, skirmishes continue to be fought over adult business ordinances. Daytona Beach, frustrated in its effort to shut down adult businesses, has threatened to accomplish the same result by levying steep fines. In Louisville, Kentucky, the adoption of an ordinance creating a wider buffer zone between strippers and customers was delayed due to legal challenges to the ordinance's constitutionality. And in Biloxi, Mississippi, the City Council is considering the adoption of a comprehensive adult business ordinance. Final action on the ordinance is expected in December.

Pornography in Society & Culture
In an effort to pump its ratings for sweeps week, ABC joined forces with Victoria's Secret to broadcast the lingerie company's annual fashion show. Among the various things showcased by the prime-time special was the growing influence of the Internet on contemporary culture: the Victoria's Secret special has been a smash hit on the Internet for the last three years, attracting millions of viewers despite its choppy, postage-stamp size display. There were predictable expressions of dismay over the network's bosom-fest, but the network defended its decision, saying that they cut out all of the really good stuff before putting it on the air.

A new genre, docu-porn, may be slowly developing. In mid-November, the movie "Porn Star: The Legend of Ron Jeremy" opened in 50 cities across the United States. "Porn Star" tells the true-life story of a former Long Island high school teacher who during the course of a long-standing career, starred in more than 650 adult films. The widespread release of the film is remarkable enough, but even more startling is the fact that Jeremy was interviewed by Barbara Walters on November 27th as part of the publicity for the film.

Also underscoring the changing attitude towards sexuality in this country is the growth of the nude calendar phenomenon. Where once civic groups sold cookies to raise money, they now offer cheesecake. Ranging from a group of Southern Belles to a number of chilly northern Vermont men, a variety of organizations have discovered that the nude calendar is a highly popular and successful fundraiser. Of particular interest is the number of older individuals who have gladly doffed their duds for a good cause; while the sample is small, it may indicate a changing attitude in our culture towards body image in the elderly.

Pockets of resistance still exist, of course. One of the nation's most beautiful nude beaches is being challenged in Maui, Hawaii; a similar battle was fought over a nude beach in Provincetown, Massachusetts this past summer. And in Savannah, Georgia, the local school board concluded that the cheerleaders had crossed the line and barred the school's squads from including sexually suggestive moves in their routines.

Frederick Lane operates SexBizLaw.com, an online library of news, legislation, and court cases relating to pornography and obscenity, and is the author of "Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age" (Routledge 2000).


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