A Retrospective on the Adult Industry’s Tall Climb
As certainly the oldest member of the current adult-industry Fourth Estate, and having written for many adult publications, some of which no longer exist, I write this in the first person which, if you have read my articles in the past, isn’t usually my style. The reason I do so is that I’m telling a story of a history of which I have been part — for some 35 years. Most of what I write has consisted of how-to cookbooks, analysis of current events and political issues. This is a story of a legal journey.
If you have been in the erotica business as long as I have, little of this will be news; although it may prove an interesting journey into your past. But if you are new in the business — meaning that you entered it in this millennium — you are a relative “newbie.”
I became conscious of censorship in the 1960s. My father was an insurance underwriter, and one of his clients was Playboy. So I was exposed to it in middle school. I didn’t know it then; but movies were governed by the Hays Code. (Look it up if you are curious.) TV “standards and practices” contained that industry. (Back then, television consisted entirely of CBS, NBC and ABC, along with PBS and, in big markets, maybe a local independent station.) Playboy could get you arrested. (Parenthetically, Hugh Hefner is my hero. I have a picture with him from the 1990s that I proudly display in my office.)
In the early 1970s, after the Mickey Mouse generation and Hugh Hefner did their thing in the ’60s, two things set the country on its ear — “Deep Throat” and Archie Bunker. When “Deep Throat” — a movie shot by known mobsters for $25,000 — had customers lined up around the block to generate a weekly box office of 10 times its production cost. Even Time Magazine reported all about it. And “All in the Family” touched topics that were verboten on TV before then.
In 1973, the Supreme Court handed down the Miller decision, an aberration that still stands, in response to which obscenity prosecutions ramped up around the country. Then, in my other life, I was an assistant district attorney in Houston, where after two, failed prosecutions of “Deep Throat,” the district attorney called off the prosecutions.
As a prosecutor, I managed to avoid getting involved in obscenity cases, even after the prosecution-moratorium was lifted, by just dodging them — until 1979. Then, I was ordered into combat against legendary adult attorneys Arthur Schwartz and John Weston, who had led an organized attack on a new amendment to the Texas obscenity statute. (The federal judge appointed me lead attorney for the dozens of governmental defendants, a position for which I definitely did not volunteer.) To make a long story short, I won, felt bad about it, and went to work with Weston, moving to Los Angeles not all that long thereafter.
That was the beginning of my decades of representing the adult industry, which has been a cool ride that isn’t over yet. Shortly after I moved to Los Angeles came the Meese Commission. Weston testified at the hearing in Los Angeles, along with the likes of Bill Margold (look him up if you don’t know who he is) and an array of “victims” of pornography. The whole thing was a big dog-and-pony show, in the image of the Army-McCarthy hearings and the Kefauver Commission; although Meese’s gang drew far less notoriety than either of them.
The release of the report of the Meese Commission was most humorous. Ed Meese was President Reagan’s attorney general, appointed to pay back the Evangelicals (nee Religious Right) for their support for Reagan’s reelection. So here comes Meese to announce his Commission’s 2,000-page report detailing the evils of the pornography industry and recommending scores of remedies for its alleged problems (which publication instantly became a Government Printing Office best seller) — in the Department of Justice in front of a bare-breasted “Justice” statute. Paul Conrad, the late, great political cartoonist for the Los Angeles Times (arguably the best ever) jumped all over it, drawing a cartoon of General Meese proclaiming that there would be no censorship because of the Report. Two of my buddies in the First Amendment Lawyers Association somehow managed to get me a copy of the cartoon a few years back; it’s wonderful!
After the Meese Commission Report, however, it got serious. During the remainder of the Reagan Administration and Poppy Bush’s continuation of it, the adult video industry — VHS was the method of distribution then — was on pins and needles every Friday for fear that the FBI would show up with a search warrant, leading to an expensive-to-defend prosecution and maybe a stint in the hoosegow.
That era was horrible. Those administrations were determined to put an end to the adult video industry. (You can see how successful they were!) It thankfully ended when Bill Clinton was sworn in. At the end of that era, I was president of the First Amendment Lawyers Association. (If your attorney is not a member, he/she should be.) The clientele of the membership was jubilant.
When Clinton was sworn in, I published an article sort of expressing glee over the end of the religious right White House. Some anti-porn group — I don’t remember which one — quoted the article, demanding that the Republicans fight back. I was flattered, although the Republicans clobbered the Democrats in the 1994, off-year election.
During the Clinton Administration, interesting things happened, mostly the internet. Internet porn started in the mid-1990s. However, the existing adult video industry did not embrace the internet.
Let me make an analogy. The Baldwin Locomotive Works was an industrial powerhouse before it failed to embrace diesel-electric locomotives. The great airlines of the U.S. should have been New York Central, Santa Fe and Union Pacific; but they were convinced that long-distance passenger travel by rail would go on forever.
What happened with the internet was interesting. Early internet porn was developed by technical kids; they had no connection with adult video. I remember clients coming in with copyright infringement suits against them, saying something to the effect of, “How can I get sued for these pictures? They are all public domain because they were on the internet.” I defended quite a few claims of that nature. These technical kids had no clue about intellectual property or porn. Nor did they have a clue about the threat of criminal prosecution.
In 1998, there was a meeting in Cancun, Mexico, of all of the heavy hitters in the adult video industry. I, along with three (I think) other industry attorneys, was asked to go there and speak, which I did. The other attorneys talked about topics (indeed, important ones) like 2257, obscenity prosecutions, and so on. Having watched the evolution of Napster (thanks to my brother, who is a musician), I decided to talk about the looming threat of internet piracy.
My point was that, once computer access speed increased (it was largely dial-up then) and storage space grew, adult video stood to be free over the internet, and the industry would fall victim to the same internet piracy that was then plaguing the recording industry. Gene Ross, who was covering the event, said that he was bombarded with detracting emails, including “equations” trying to prove that I was wrong. Dreamers!
I was convinced that I was right. With my undergraduate degree in electrical engineering, I embraced computers long before other lawyers did, and slid right into the internet era. The rest is history.
When George W. Bush was elected, he appointed John Ashcroft as attorney general — a dyed-in-the-wool evangelical. His zeal to go after the adult industry — 2257 and obscenity prosecutions — was deflected by 9/11. “W” had the sense to know that, in light of 9/11, using government resources to attack dirty movies would be viewed as stupid. However, a few years later, the “W” administration geared up with the Adam Walsh Act and other attacks.
What’s above is nothing more than some highlights of what’s happened over the years. It could be a book that several people have encouraged me to write. But I’m not through fighting the detractors.
One last note: The Supreme Court is missing a justice. President Obama has nominated a relatively conservative replacement for the late Justice Scalia. Donald Trump has declared that his favorite justice is Clarence Thomas. Do you want another one of those? VOTE!
Clyde DeWitt is a Las Vegas attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at firstname.lastname@example.org. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.