Legal Update for March, 2004: Part 2
In the conclusion of this month's Adult Industry Update, noted first amendment attorney Larry Walters takes a look at the federal crackdown on indecency, Paris Hilton, spam, sex, and more.
Federal Crackdown On Indecency
Culminating with the now “infamous” Janet Jackson exposure, the federal government has decided that it has had enough of Americans deciding what they want to watch and listen to and is set to come down with new regulations aimed at accomplishing just that goal. Never mind the fact that the event at the Super Bowl has been the most-searched in the history of the Internet, receiving more than three times the number of hits than as the 2000 election received on the day after voting and five times as many searches as the day the Space Shuttle Columbia exploded. Parent groups and the moral majority are pushing Congress and the Federal Communications Commission (“FCC”) to come down on broadcasters over indecency law violations and the revocation of licenses. The House of Representatives overwhelmingly voted, 391 to 22, to increase penalties to $500,000 for the holders of broadcast licenses and performers who violate federal standards at times when children may be listening, between 6 a.m. and 10 p.m., and also supported the revocation of licenses of repeat offenders. The Senate version of the bill proposes to increase fines to $275,000, with a maximum fine of $3 million for a 24-hour period for corporations and a maximum fine of $500,000 for a 24-hour period for individuals. The passage of the House bill, H.R. 3717, which encompasses only content broadcast over public airwaves and not cable or satellite programs, bars the transmission of obscene, indecent, and profane material. The measure was strongly supported by the White House, which. The White House said in a statement, “This legislation will make broadcast television and radio more suitable for family viewing.”
This measure may make television safer for children, but what about those adults who use their brains and want the right to choose what we watch or who we listen to? Howard Stern fans across the country did not have a choice when their favorite disk-jockey was pulled from Clear Channel Communications’ programming recently over allegedly “indecent conduct” aired during the broadcast. A campaign designed to oppose this new decency push by the FCC is circulating, and can be found here: StopFCC.Com - The campaign for free speech. Free speech is an essential liberty provided to Americans, yet it is one that we must fight the most to preserve, as evidenced here.
Hilton Co-Owner of Sex Tape?
A February court hearing revealed that Paris Hilton not only debuted in her first adult film with ex-boyfriend, Rick Solomon, but she also directed and shot the film. In response to a $10 million copyright infringement lawsuit filed by Solomon, Seattle-based Marvad Corp., which is owned by Solomon's ex-roommate, argued that Hilton played a big role in the production and shooting of the film, she is the co-owner of the film's copyright, and that Solomon's failure to acknowledge her on the copyright registration renders the registration invalid. Solomon's attorney stated, “When an actor appears in a motion picture and may help direct scenes… that doesn't change ownership.” The Court has yet to decide on this issue.
In an unusual joint effort, some of the United States’ largest Internet Service Providers are teaming up to file lawsuits against hundreds of people who have been accused of violating the CAN-SPAM Act for sending millions of unwanted emails known as “spam.” Much like what the Recording Industry Association of America did to combat song swapping, Microsoft, America Online, Earthlink and Yahoo! targeted mostly “John Doe” defendants in the suit and plan on working together for future lawsuits.
Since However, since its commencement in January of this year, the Act has yet to meaningfully reduce thea significant amount of spam being sent to user’s inboxes. According to Brightmail, a spam filtering company, the volume of spam has grown continuously since the Act took effect, with spam taking up as much as 60 percent of emails in January up from the 58 percent in December. Consequently, the Federal Trade Commission (“FTC”) has decided to post a Web forum at www.regulations.gov to gather public thoughts and input about the “war on spam.” The FTC is soliciting comments on modifications of the Act, its application and whether the public feels like more regulations are necessary. The FTC also seeks public input on what other questionable online practices should be added to listings of “aggravated violations,” like e-mail harvesting and dictionary attacks.
Acacia has done it again. Disney Enterprises, Inc., which owns ESPN, Disney, and ABC News, entered into a license agreement with Acacia Technologies Group for the Digital Media Transmission technology. Acacia has licensed more than 116 companies for its technology in all industries, including online music, adult entertainment, movies, and news industries. Resolution of the Acacia digital media transfer technology issue is still pending in the courts. However, until the courts resolve the validity of the claims, Acacia will continue compelling users to license its technology.
In other news, Playboy Enterprises, Inc., entered into a multimedia venture with France-based men’s lifestyle publisher 1633SA to start an adult Web site featuring young men called Playboy.fr, which will be launched in March of this year. The venture also includes a deal for Playboy to supply content to cellular phones, which would allow users to download such things as wallpaper images and streaming video. Playboy currently operates many other international Web sites in Germany, Taiwan, Brazil and the Netherlands.
Also, Harvard’s Committee on College Life approved a plan to distribute and publish its first edition of an adult-oriented student run magazine, which will be called the “H Bomb.” This magazine will be an official Harvard publication and distributed during its May commencement ceremonies. Although the magazine was approved by Harvard, it will not necessarily be funded by the college. The magazine will feature articles concerning sexual issues as well as naked pictures of Harvard undergraduates, with the stipulation that no naked pictures may be taken inside Harvard buildings. Now that is what you call a Harvard education.
Arrested For What?
Elizabeth Book, 42, of Ormond Beach, Florida, planned a nationally publicized political protest for “decriminalizing the female breast” for the last day of Bike Week in Daytona Beach. She filed a federal lawsuit seeking an emergency restraining order against the City of Daytona to allow the protest to occur without arrests or harassment, but the federal court denied the request because since it did not have enough time to hear from the city. The protest went on as planned, but Book was arrested during the protest when she bore her breasts, which violates Daytona’s public nudity ordinance that states a “full and opaque covering” of the nipple and areola is required, along with half of the outside surface of the breast below the areola. She will take her ordinance violation case to court, with the assistance of the author as defense counsel. Book faces a fine of $253 and the possibility of one year in jail. Book will fight for her First Amendment right to protest and said, “Do you think for one minute I would pay them? Never!”
Also, a driver in New York was arrested for breaking New York state law prohibiting watching television while driving, as well as another law barring the display of sexually explicit material in a public place. The driver was arrested after cruising by police playing a DVD entitled “Chocolate Foam,” which was visible from his passenger-side sun visor and on screens located in the car’s headrests. Depending on a motorists’ location, he or she could face fines and even jail time for the display of X-rated images. Regarding the penalties involved, supporters of the state law believe, “Those restrictions would apply if the content is located in a vehicle. You have effectively moved beyond the privacy of your own home,” stated Jeff Matsuura, Director of the Law and Technology Program at the University of Dayton.
Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”