Legal Concerns Unique to Adult Entertainment Companies
It is no coincidence that the adult entertainment industry has an abundance of skillful attorneys who devote much of their time to advising the industry. From 2257 to billing matters to California Assembly Bill 332 to obscenity prosecutions, the adult industry has an abundance of legal and regulatory concerns that need to be addressed. And five sectors of the industry that have much to discuss when it comes to laws and regulations are membership pay sites, live webcams, the gay sector, billing and dating.
“Each industry segment has its own unique cross to bear with regards to regulations which effect and often threaten them,” explained veteran webmaster Colin Rowntree, who has been publishing the popular BDSM-oriented Wasteland. com since 1995. “Membership and live webcam sites are primarily concerned with 2257 compliance. Studios bear the additional burden of mandatory condom laws. DVD distributors as well as the pleasure product sector are always working their way through the maze of ‘what can be shipped where’ due to local and state definitions of obscenity as well as some conservative areas that downright ban the shipping of sex toys into their regions.”
Mandatory condom use in erotica is a concern both inside and outside of Los Angeles. In January 2012, the Los Angeles City Council passed a law mandating that male performers wear condoms in any porn that is produced within the city limits (which includes most of the San Fernando Valley). Porn companies responded by threatening to move outside of the city limits, but there have since been moves to expand mandatory condom use to porn produced in other places. Measure B, passed by voters in November 2012, expanded that idea to all of Los Angeles County — and California AB 332, if passed, would make condom use in porn mandatory all over the state. That would affect California-based adult membership and cam sites if actual sex is involved, and it would apply to both heterosexual and gay erotica. However, voluntary condom use has been the norm in gay erotica; thus, most gay companies making content in California are already adhering to what AB 332 would mandate.
“Gay sites introduced condoms long, long ago,” noted Andy Fair, president of the gay-oriented DirtyBoyVideo.com. “In fact, condom use in gay sites became so standard that scenes without condoms became their own fetish. Nowadays, the issue has settled down, and I believe no one really cares if a scene is bareback or not. What matters is if the guys are hot.”
Fair quickly added, however, that although voluntary condom use is the norm in the gay sector, gay membership sites and gay cam sites should be concerned about the freedom-of-choice aspects of Measure B and AB 332. “Requiring producers to include condoms gives antirn forces a new weapon against our industry and free speech,” Fair asserted. “They are using ‘performer safety’ as a weapon to neuter erotica and couldn’t care less about the actual performers. It’s easy to say, ‘We’ll just shoot someplace other than L.A.,’ but legislation is already looking to bring condom regulations statewide [in California]. How long before they try to make it national? They will continue to push their agenda and look for ways to regulate the sex out of porn. How hot is oral sex with condoms or cunnilingus through dental dams?”
Fair continued: “If we apply all mainstream workplace regulations, what about sexual harassment? Bullying? Sexism? Equal opportunity employment? Will the producers of BigBlackCocksXXX have to consider (having) white men in the lead roles?”
The membership, cam, gay and dating sectors of the adult industry have a mutual concern: billing. An ongoing question in different adult sectors is, “How are customers going to pay online?,” which is not an easy question to answer because billing preferences can vary considerably from country to country. If a dating site is catering to the U.S. market, most billing will be done with credit cards. But if that dating site has customers in European countries, the billing preferences could be anything from debiting to cell phone/mobile payments to prepaid e-wallets. The dating, membership porn, cam, gay and billing sectors need to be knowledgeable of alternative billing methods, and they need to keep abreast of credit card-related rules if they are doing business in the U.S..
Rowntree observed: “Billing companies always have and always will have to deal with the ever-changing yet often poorly documented set of compliance rules placed on them by the credit card associations, who develop these in order to keep themselves off of the radar of government regulation of credit card processing.” And Fair pointed out: “Billing companies are always in a tight place when it comes to content issues. As the financial face of the industry, VISA/MasterCard leans on them to enforce a blurry set of ‘rules’ regarding sensitive content and even vocabulary that would qualify as censorship if VISA/MC were a government. VISA/MC effectively do what the government cannot and should not do. If VISA/MC (add) mandatory condom use to their rules, the entire face of adult entertainment will change regardless of whatever comes of government condom regulations.”
With President Obama having won a decisive reelection victory in 2012 and started serving his second term in January, the adult industry is facing a different legal and regulatory landscape than it faced during George W. Bush’s two terms as president. Federal obscenity prosecutions were a high priority for the Bush Administration, but 2012 GOP presidential hopeful Rick Santorum and other extreme social conservatives have attacked Eric Holder (attorney general in the Obama Administration) for not aggressively pursuing obscenity prosecutions at the federal level. However, obscenity prosecutions at the state level remain a concern for the membership site, cam, gay and adult dating sectors.
“Obscenity prosecutions continue under the Obama Administration,” Fair explained. “Yes, these prosecutions and convictions are for truly extreme imagery, but where does that line get drawn? It wasn’t that long ago that any portrayal of gay sex was by definition considered obscene. Sexual acts and performances that challenge people’s perceptions and ideas is what free speech is truly about. BDSM, fisting and other expressions of fetish should be defended by everyone in the industry, even if they find certain portrayals leave a bad taste in their mouths.”
In the Obama era, the federal 2257 record-keeping law remains a major concern for the membership, webcam and gay sectors. Dating sites are affected as well if they are publishing nude photos. Failure to maintain age verification records on nude models can result in up to five years in prison for a first offence and up to 10 years in prison for a second offence. And politicians who support aggressive 2257 enforcement can be either Democrats or Republicans.
Although the Democratic Party doesn’t have the strong ties to the Christian Right that that the GOP has, many of the California politicians who have been pushing for mandatory condom use in adult content have been Democrats. At the same time, some people on the right or center-right (including the more libertarian Republicans and members of the Libertarian Party) consider mandatory condom laws to be an unfair burden on adult companies. In fact, L.A. City Councilman Mitchell Englander (who voted against mandatory condom use in porn) is a Republican, while the council members who voted in favored of it were Democrats.
Rowntree stressed that when it comes to mandatory condom use and 2257, people in the membership, webcam, gay, dating and billing sectors need to look to friendly or relatively friendly voices regardless of their party affiliation. “At the forefront in ongoing efforts to prevent, remedy or erase both Measure B, AB 332, as well as our 800-pound gorilla in the basement, 2257, is the Free Speech Coalition and its various actions and lawsuits at local, county, state and federal levels,” Rowntree asserted. “This involves a powerful coalition of studios, attorneys and activists that in a rare instance of unity in an industry of generally individualistic entrepreneurs to fight the good fights to protect our businesses from punitive and cumbersome legislation. In a rather new development, the Free Speech Coalition has been joined by the Libertarian Party in these efforts. We are even seeing some elements of the Republican Party adding their voice and support, making for a rather unique set of odd bedfellows.”
The No on Government Waste Committee, a coalition of Californians who oppose Measure B, has included Republicans and Libertarians as well as Democrats. The Los Angeles County Republican Party and Los Angeles County Libertarian Party have both voiced their opposition to Measure B, as have the Los Angeles County Log Cabin Republicans (Log Cabin is a gay GOP organization). Meanwhile, The Los Angeles County Democratic Party declined to take a position either supporting or opposing Measure B.
In the U.K., an ongoing concern for the membership paysite and gay sectors has been Section 63 of the Criminal Justice and Immigration Act of 2008. Colloquially known as the “extreme porn law,” Section 63 criminalizes mere possession of porn if it depicts any of the following: sex with a human corpse, violent acts against male or female genitalia, an act threatening one’s life, or sex with an animal. Violation of the extreme porn law can result in up to three years in prison, and BDSM membership sites (both gay and straight) have complained that the law can be applied to consensual BDSM acts. The U.K.’s extreme porn law would not be possible in the U.S. because it would be a violation of the Supreme Court’s 1969 ruling in Stanley vs. Georgia, which said that mere possession of consensual adult material is not a crime even if that material is obscene. But for BDSM membership and gay sites that have customers in the U.K., the extreme porn law is a major source of frustration.
These are interesting and eventful times for the membership site, webcam, gay, billing and dating sectors of the adult entertainment industry. And when it comes to laws and regulations, all of those sectors will no doubt have much to think about in the months to come.