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Give Me Liberty or Give Me Death

Give Me Liberty or Give Me Death

September 1, 2007
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" 'He must have done something, or they wouldn't be prosecuting him,' goes the popular refrain. "

Would any adult industry participant be willing to die for the privilege of continued involvement in the adult industry? Doubtful, but that's exactly the penalty that faces accused Iranian distributors and producers of websites in which pornographic works appear. Although the bill imposing the death penalty must still be approved by Iran's Guardian Counsel, it appears sure to pass since it was overwhelmingly approved, 148 to 5, in Iran's Parliament.

Paying the ultimate price for participating in one's occupation of choice seems somewhat barbarian in our civilized society, but some of those involved in the U.S. adult industry have come close. Reports have surfaced over the years of parents losing custody of their children as a result of their appearing in or producing adult films. Our firm has assisted some of these individuals in educating the court as to the constitutionally protected nature of their commercial erotic activity, but the prejudice remains. Participants in the adult industry continue to be vilified by angry ex-spouses, conservative politicians and power-hungry lawmakers.

We are now entering a new phase of obscenity prosecution where real individuals will pay a hefty price to defend the rights of others to engage in free expression. Karen Fletcher, Ray Guhn, Max Hardcore, JP Distributors and MoviesByMail.com are all facing state or federal obscenity charges as a result of their involvement in some form of commercial erotica. While they do not face the death penalty, any defendant dragged through an obscenity prosecution faces potential personal and financial ruin.

Suddenly, your former "friends" and business acquaintances don't want to have lunch with you because you may be "under surveillance." They express concern about being dragged into court as a witness. Your family starts to wonder whether your protestations of innocence can really be believed. "He must have done something, or they wouldn't be prosecuting him," goes the popular refrain.

Your income stream is usually halted, whether from a decision to avoid further involvement in the adult industry out of legal concern, or as a result of governmental seizure and forfeiture orders. It becomes hard to pay your employees when your payroll account is frozen — same goes for your defense counsel. The government knows that the best way to win these cases is to make sure that the defendants are forced to turn to the public defender, instead of a competent 1st Amendment attorney.

Sometimes that can be accomplished by impoverishing the defendant prior to a finding of guilt. Sometimes that little ploy backfires, and certain lawyers will put aside their financial needs for a time and take on those cases for a reduced fee, or even pro bono. Other times, the government simply picks defendants who do not have sufficient funds to afford high-end legal counsel. Case in point: Karen Fletcher and Max Hardcore. Fortunately, however, attorneys have stepped forward to represent both those individuals despite the apparent lack of substantial defense funds.

One must wonder in this age of uncertainty how many potential defendants would choose to stand and fight if selected for an obscenity prosecution. This undoubtedly would be an excruciatingly difficult decision given the personal risks to liberty and finances in the event of a negative outcome. The adult industry has been blessed with a number of freedom fighters who have chosen the path of most resistance over the years, in order to make law for the rest of the industry to enjoy at their leisure.

Legends like Larry Flynt, Phil Harvey, Joe Redner, Al Goldstein and others give hope to an industry in the crosshairs of the government. Some targets will certainly plead guilty to avoid a fight, and even give up information on friends and associates to reduce personal penalty. Perhaps that is human nature. But as obscenity prosecutions are on the increase, each and every businessman and woman in the industry needs to reflect on what he or she will do if caught in the crossfire.

The time will come in the not too distant future where the industry will desperately need its next freedom fighter. The courts have yet to rule on some of the key legal issues affecting modern freedom of speech — particularly in the online space. While it is often tempting to avoid conflict with those who can do you harm, a time for valor is upon us, and anyone reading this article may be put in a position of establishing constitutional precedent for decades to come. This is not an industry for the faint of heart or those looking to make a quick buck with no risk. The risks were evident from the start.

Some of our world's citizens create adult videos under the threat of death. While defendants in this country do not face death (yet) if convicted, the same cannot be said for cherished constitutional rights, which hang by a thread, pending the outcome of current obscenity prosecutions. Who will be next to demand liberty and freedom at all costs?

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, DeWitt & Walters, with offices in Orlando, Los Angeles and San Diego. Walters represents clients involved in all aspects of the adult industry. 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.


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