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Hidden Dangers

Hidden Dangers

May 14, 2005
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" The problem for our industry is not necessarily the prosecution of obscenity "

Earlier this week, XBiz News reported that "Obscenity Prosecution News, a publication edited by federal prosecutor Bruce Taylor, has released its Spring 2005 issue, featuring the Department of Justice's take on the war on pornography."

The full document may be seen here and I encourage all of you to read the seven page text of this newsletter which outlines some of the department's thinking in regards to ways in which "obscenity" cases may be prosecuted – ways in which most affected parties do not yet comprehend.

An interesting side note is that while the inaugural document, "volume one, number one," is ostensibly presented as the "Spring 2005" issue – and indeed, contains some "current" news information – its naming convention alludes to an initial authoring of March 26, 2004. This indicates to this observer that some level of political machination delayed by over a year the intended launch of this newsletter. Whether a result of election year politics or of shifting priorities within a resource-limited department, "something" caused the timing to now be right for the release of this document; a release which I believe signals the opening salvo of a renewed assault on adult entertainment.

You will notice that I said "a renewed assault on adult entertainment" rather than "a renewed assault on obscenity." This to me is one of the most troubling aspects of the document, as it reflects a tone that makes no distinction between legitimate adult entertainment and that which is truly obscene, foregoing prudent tolerance by painting the issue with the light of puritanical outrage rather than using common sense judgements based upon contemporary community values.

Examples of this may be seen in the prevalence of quotes from 30-plus year old court decisions, as well as in the following statement: "As evidence that the Department and federal agencies are committed to enforcing federal obscenity statutes against all levels of corporate and individual offenders, as well as the use of various technologies and methods of trafficking in obscene materials, the 38 adult obscenity convictions adjudicated from 2001-04 involved large and small scale Internet-Web operations, mail-order fulfillments, and common carrier shipments, as well as the operator of several "adult" hard-core pornographic obscenity book + video stores."

The department, it seems, finds it convenient to lump all providers of adult entertainment together in one vile pile, and indeed, this is something that plays well in today's sensational headline-mongering media. The fact remains, however, that while a brick and mortar "porn shop" may in fact impact a community's quality of life, adult entertainment discretely delivered to the consumer's door via common carrier or direct into the privacy of his or her home via the Internet or other means such as cable or satellite, makes little to no impact on the surrounding community. Such distinctions are rarely made, however, when prosecutorial decisions are made based upon an ideological agenda rather than on common sense.

According to the newsletter, "Several of the initial cases involved extremely violent or deviant materials, which had become available in the marketplace since 2000 and could not be ignored, by the public or by law enforcement." While I praise the department for acting against providers of this type of material, attacking those legitimate interests that provide the type of constitutionally protected material sought after by mainstream Americans is a waste of its resources, with little improvement in the state of the social issues they are attempting to address in return.

The problem for our industry is not necessarily the prosecution of obscenity, however. Legitimate interests have undergone legal scrutiny and many have been quite responsible in eliminating potentially "obscene" materials from their offerings. This has unfortunately led to a false sense of security, where these providers, not fearing a prosecution based upon the material they actually offer, fail to realize that they could become the targets of prosecution simply for being bold enough to engage in "non obscene" adult commerce.

Indeed, the Obscenity Prosecution News hints at a number of measures a vengeful prosecutor might use to obtain a plea bargain on a case in which his or her chances of obtaining an obscenity prosecution are nil. According to the newsletter, "From calendar year 2001 through February 1, 2005, CEOS has obtained convictions in 11 obscenity prosecutions involving receipt, distribution, or transfer of images of adult obscenity, and related charges..." The mere fact that "receipt" of images depicting "adult obscenity" (not "child porn") is a serious offense should cause concern over the many "collectors" of pornography, much of which is obtained from the freely distributed material available of the thousands of gallery posts currently online.

Is your tax return 100 percent accurate? If not, and you filed your return via mail, then you could face federal mail fraud charges on top of whatever measures the IRS will impose upon you.

Do you have a hard drive or CD full of downloaded porn? Since you don't have 2257 docs for each and every model depicted in this material – and since someone, somewhere, could claim that a certain model "appears to be underage" – you could face a serious problem.

While you can't prove the age of the young-looking girl in that Ukrainian video clip, and neither can the prosecution, you might evade charges of possession of child pornography – but will you be able to evade the hell your life will become when your local newspaper reports that you were found in possession of "suspected" child pornography?

And speaking of making your life a living hell; unlike civil actions where the loser may be responsible for the winner's court costs and attorney's fees, you can bet that Uncle Sam won't be paying YOUR attorney's fees should you prevail in an obscenity prosecution. These fees (which should not be underestimated) could bankrupt you and leave you in eternal financial servitude to your attorney, so even if you "win" – you will lose.

In the end, there are renewed rumblings of activity against our industry emanating from the Department of Justice, and they should be taken as seriously as a heart attack. Look beyond your content to every aspect of your business and personal life to identify and mitigate any vulnerabilities. You can bet DOJ investigators will find any vulnerabilities you fail to address...


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