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Protecting Porn

Protecting Porn

October 19, 2012
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" The Simple truth is that adult entertainment industry in the U.S. will always depend, in large part, on the quantum of constitutional protection its products and services are accorded through future Supreme Court decisions. "

Many countries, like the U.S., have a well-established adult entertainment industry. Some countries, like Saudi Arabia, have no legitimate adult industry at all. Such dramatic differences between developed nations are usually the result of the respective countries’ laws regulating the creation, distribution and possession of erotic materials. In the U.S., erotic materials are fully protected under our federal constitution except for child pornography and works that have been judicially determined to be obscene. In contrast, pornography enjoys no legal protection whatsoever in countries such as Saudi Arabia and Iran, whose legal systems are based on the body of Islamic religious law known as Sharia. In these countries, the creation, distribution and possession of pornographic content are strictly prohibited and violators can be subjected to terrible punishments, including amputation or even death.

But even in the U.S., the rights to create, distribute and possess erotic materials are not explicitly provided in the constitution, nor were such rights expressly created under any specific federal or state statute. Sexual content, not comprising child pornography, enjoys protection under the federal constitution only because the U.S. Supreme Court has ruled that our First Amendment freedoms apply to such expression. Without such rulings, the disturbing truth is that our country would probably treat pornographers more as they are treated in Saudi Arabia and Iran, given the intolerance large numbers of Americans and their elected representatives have for sexually explicit content.

Unfortunately, what the Supreme Court giveth, the Supreme Court can taketh away. The simple truth is that adult entertainment industry in the U.S. will always depend, in large part, on the quantum of constitutional protection its products and services are accorded through future Supreme Court decisions. Because of this, the liberal-conservative composition of the Supreme Court justices regarding issues affecting the adult industry is a matter of great importance for every adult entertainment business.

The Supreme Court currently has four moderately liberal justices, Ruth Bader Ginsberg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagen, four extremely conservative Justices, Antonin Scalia, Clarence Thomas, John G. Roberts, Jr. and Samuel A. Alito, Jr. The remaining justice, Anthony M. Kennedy, has been something of a judicial “switch-hitter”, siding sometimes with one group and sometimes with the other. But because of the numerous extremely conservative rulings by Justices Scalia, Thomas, Roberts and Alito, joined by Justice Kennedy, the Supreme Court is now more conservative than at any time since the 1930s.

The current conservative configuration of the court has not resulted by accident. Five of the nine sitting justices were appointed by Republican presidents. Perhaps more importantly for the adult entertainment industry, however, is the fact that not a single justice on the current Supreme Court is what might be termed a “traditional liberal” justice. Because of this, many attorneys, myself included, believe that the absence of even a single such voice within the Supreme Court to counterbalance the extreme conservative bloc has severely distorted the Court’s internal dialog and its issued opinions.

One of the most important roles the Supreme Court plays in our governmental system of checks and balances is to ensure that the majority respects the rights of the oppressed, the unrepresented, and the disenfranchised. Historically, traditional liberal justices have been the Court’s protectors of these core constitutional values. Unlike the current archconservative justices, who aggressively use their power to interpret the Constitution to protect corporations, wealthy corporate donors, and “traditional values,” traditional liberal justices are aggressive in their protection of the rights of minorities, dissenters and parties that engage in disfavored forms of expression, such as adult entertainment entrepreneurs.

In fact, the court’s most liberal justices have been responsible in large part for many of the most important legal decisions protecting civil rights in our nation’s history. For example, the group that I call traditional liberal justices were the prime movers of Supreme Court decisions that ended racial segregation, guaranteed that every person has the right to counsel in criminal cases, guaranteed our political system would operate on a one person/one vote basis, and, of course, decisions that established that erotic depictions are constitutionally protected expression.

To our country’s detriment, and the adult entertainment industry’s misfortune, the deliberations of the Supreme Court have not been moved by such voices for quite some time now.

But while it may be a lamentable reality for the industry that there is not currently a majority of liberal justices on the court, the current Supreme Court composition is still far more preferable for the adult entertainment business than a majority of archconservative justices. But that could change depending on the outcome of the presidential election.

The current Supreme Court justices frequently render decisions, which are split 5 to 4 along ideological lines. That suggests that the next president could have a powerful impact on Supreme Court decisions if he is provided the opportunity to replace even a single justice of the opposing side during his term. This means that the outcome of this election could shape the court for decades to come.

But it is unlikely that it will take decades for the Supreme Court to issue rulings that will have a profound impact on the adult entertainment business. There are currently numerous criminal and civil cases working their way through the courts that involve legal issues directly affecting the adult entertainment industry. Many of these are likely to result in a petition for adjudication by the Supreme Court. For example, in the next few years the Supreme Court will likely be asked to decide the constitutionality of the 2257 regulations (18 U.S.C. §2257 and 28 CFR 75 et seq.), the constitutionality of laws requiring condom use in adult content productions, and even possibly whether, sexually explicit content should continue to be considered “protected expression” at all under the First Amendment.

The resolution of each of these issues will be a bet-the-farm matter for many adult businesses. But how the court will rule in these cases, should the court elect to hear them, will largely depend on the philosophical make up of the bench at the time the cases are decided. Historically, liberal-leaning justices have ruled much more favorably for the adult industry than conservative justices. During his first term, President Obama appointed two moderately liberal justices, Justice Sotomayor and Justice Kagen. While both are moderately liberal, the appointments have not yet substantially changed the ideological makeup of the court. This is because the new justices respectively replaced Justice Sandra Day O’Connor, a moderately conservative Regan appointee that voted increasingly with the liberal bloc before her retirement, and liberal Justice John Paul Stevens.

If Obama is re-elected, it is likely that he will continue to appoint liberal justices to the court if given the opportunity. This would likely bode well for the adult entertainment industry, particularly if the opportunity arises for Obama to replace a conservative or common swing vote Justice Kennedy with a liberal justice.

On the other hand, if Mitt Romney is elected, it is likely that he will appoint very conservative justices. This would be particularly problematic for the industry if a conservative Romney appointee replaced a liberal justice or the court’s swing vote, Justice Kennedy.

Regardless of who is elected president, it is, of course, impossible to predict when a Supreme Court vacancy will occur. Justice John Paul Stevens spent 35 years on the court and retired at 90, while Justice Robert H. Jackson, who served in the 1940s and 1950s, died of a heart attack at 62. A 2006 study in the Harvard Journal of Law and Public Policy found that the average retirement age for justices was 78.7.

Justice Ginsburg, a stalwart of the court’s liberal bloc, is nearly 80 years old and has been treated for pancreatic cancer. Justice Bryer, another member of the court’s liberal faction, is 74. Justice Scalia, the court’s most visible conservative, is 76. Justice Kennedy, the court’s frequent swing vote, is also currently 76 years old.

The advanced age of the court’s four elder justices means that, from a statistical perspective at least, the occupant of the White House on this coming Inauguration Day may well be provided with the opportunity to fundamentally change the ideological complexion of court for decades to come.

Every presidential election is an important event for the adult entertainment industry. The current race is no exception. But because the victor in 2012 may well be in a position to shape the ideological direction of the Supreme Court for a generation, the outcome of this election is, in my opinion, of paramount importance.

If Obama is re-elected, he will likely have the opportunity to create a court that is once again dedicated to the protection of free speech and other core constitutional values. If Romney is elected, it is likely that the adult industry and the rest of America will have to contend with decades of decisions rendered by the most conservative Supreme Court in history.

Gregory A. Piccionelli is an intellectual property attorney specializing in adult entertainment matters. He can be reached at Piccionelli & Sarno at (818) 201-3955 or greg@piccionellisarno.com.


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