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Think: Be Careful What You Wish For

Think: Be Careful What You Wish For

February 15, 2015
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" At the end of the day, no matter what you might think of some of the people, ideas, works and expression protected by the 1st Amendment and the other facets of American law which serve similar purposes, we’re damn lucky to have them. "

Reading over the news about the U.K.’s Audiovisual Media Services Regulations 2014 and the Communications Act of 2003 that it amended, one thought kept reverberating through my head: Thank you, 1st Amendment!

As a three judge panel from the 9th U.S. Court of Appeals demonstrated recently with its ruling in Vivid vs. Fielding, the 1st Amendment does not shield adult entertainment from any and all manner of regulation. Make no mistake, though; it is the single most important and indispensable thing standing between Americans and the manner of irrational, senseless (and in some cases, simply bizarre) regulations being applied to adult companies in the U.K. and elsewhere.

While the court shrugged off the plaintiffs’ 1st Amendment claims a little too lightly for my tastes, the panel’s ruling was consistent with the predictions of most 1st Amendment experts and scholars I had spoken to about the case when the plaintiffs first filed the suit.

Now we know, from the rulings of two courts at least, the 1st Amendment can’t stop the government from requiring porn producers to use condoms in their films (although the requirements probably don’t of the government imposing restrictions as vague and baffling as those U.K. video-on-demand services must contend with now that the R18 rules now govern their offerings.

Of course, the protections afforded by the 1st Amendment and other instruments of American law don’t only protect things we cherish as an industry; they also provide cover for some things many of us are not too crazy about —like sites and people who flagrantly violate our copyrights.

In a recent conversation with a client of mine, she told me about a conversation she’d recently had in which an adult industry peer of hers said he knew what would finally bring about real change where tube sites are concerned.

“The first time a senator’s daughter shows up in a tube site video, the tubes will be outlawed the next week,” he told her, confidently.

My client seemed pretty impressed with this point, even encouraged by it. This is because she’s one of many, many adult producers who have reached the limit of her patience where content theft is concerned. There’s only so many DMCA take down notices you can send out before you start to feel like a gerbil on an exercise wheel; you keep the DMCA wheel spinning, but as you pump and peddle, you also know you’re not getting anywhere.

Given her position, I can certainly understand why the idea of an outraged U.S. senator bringing down his legislative hammer on tube sites is appealing — but it’s also a fanciful and fundamentally unrealistic notion.

You see, our hypothetical outraged senator doesn’t have a magic wand; he has a pen. Now, he can write down any fool thing he’d like with that pen, sure, but simply committing it to writing doesn’t make any old regulatory notion he dreams up Constitutional.

The other thing those fantasizing about a regulatory quick fix to their tube site headaches need to keep in mind is the old axiom: Be careful what you wish for, because you just might get it.

Even the most anti-tube “entreporneurs” I know use the hook of free content to promote their sites in some way or another. Whether it comes in the form of sample clips on their site tours, teaser pictures and screen caps, or even providing content to the very tube sites they spend the rest of their day cursing and decrying, they rely on free content to some extent as a means of drawing attention to their sites and building their brands.

Let’s suppose for a moment that Congress somehow pulls its collective head out of its massive, bureaucratic ass and manages to write a piece of legislation which imposes something like a surfer-age-verification requirement on adult websites. Let’s further suppose this legislation includes a “screen and block” provision allowing the government to block foreign adult websites which do not comply with the new law. Finally, let’s really go out on a hypothetical limb and assume this new legislation is, somehow, able to survive court scrutiny.

Having made all those assumptions, consider this question: Once finally inspired to bring down its Internet-porn-regulating hammer, do you really think Congress is going to take the time to differentiate one type of porn site and the next? Do you really believe they will think “copyright-violating pornographers bad, pornographers who only distribute their own content good”?

There are two things involved in the regulatory process as it applies to the adult entertainment industry in which I have faith: The court’s generally expanding view of the 1st Amendment’s scope over time and the abject inability of Congress to get much of anything done.

If Congress ever does reach a point where it decides to “do something” about our nation’s essentially unfettered access to online porn, it will face a number of serious questions, including how to make the legislation narrower than COPA or COPA II (both of which eventually were shot down by the courts), how to deal with the fact many of the sites targeted by the legislation are hosted and operated outside the U.S., and whether to request bagel sandwiches or pizza from the Capitol Hill catering service while they debate riders and amendments.

The good or bad news, depending on your perspective here, is Congress probably can’t come up with Internet porn regulations which would be simultaneously meaningful, effective, Constitutional and enforceable.

These are people who can barely pass a budget on which their own compensation relies, after all; how on earth are they going to communicate with each other rationally long enough to come up with regulations pertaining to technologies they hardly understand in the first place?

At the end of the day, no matter what you might think of some of the people, ideas, works and expression protected by the 1st Amendment and the other facets of American law which serve similar purposes, we’re damn lucky to have them.

Sure, we all want to beat the living shit out of those Westboro Baptist Church dickheads (you know, those lovely pricks who picket at the funerals of American soldiers?) and wish they would STFU and die, but if the 1st Amendment protects them, I probably don’t have to worry too much about getting arrested for having earlier referred to senators as incompetent, intransigent, crusty old duffers.

By the same token, as irritating as many of us might find tube sites, the same laissez faire approach to Internet governance that has allowed such sites to exist keeps the rest of us largely off the regulatory radar, as well.

So, the next time you find yourself wondering why Congress doesn’t do something about the tubes, or about the torrents, or about the filelockers, just remember: Be careful what you wish for.

A 16-year veteran of the online adult entertainment industry and long-time XBIZ contributor, Q Boyer provides public relations, publicity, consulting and copywriting services to clients that range from adult website operators to mainstream brick-and-mortar businesses.


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