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Surviving Porn Battles

Surviving Porn Battles

May 18, 2005
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" While there is no reason to panic, there are good reasons for concern. "

When I sat down to write this article, I had just returned from the Phoenix Forum, where I was one of the participants on the Legal Update panel. Judging from the questions directed at the panel and my discussions with webmasters throughout the event, it became clear to me that there is a growing sense of angst and uneasiness amongst webmasters resulting from the widespread belief that the federal government will soon commence some kind of prosecutorial crackdown on the industry.

While there is no reason to panic, there are good reasons for concern. Over the last few years, Congress has enacted a number of new laws that provide the Bush administration with an arsenal of new weapons to wield against the online adult entertainment industry, including:

  • The Protect Act, which criminalizes deceptive domain names and enhances the penalties for violation of the federal record keeping and labeling laws (18 U.S.C. §2257 and 28 CFR 75 et seq.), otherwise known as the "2257 regulations";

  • The resurrection of a virtual child pornography law that attempts to criminalize, as child pornography, content that contains no minors;

  • The enactment of the Can-Spam Act with its numerous provisions directly aimed at the online adult entertainment business; and of course

  • The Draconian augmentation of government power and corresponding loss of rights against wiretapping, Internet activity surveillance and secret searches of our homes and businesses resulting from the enactment of the Patriot Act.

Add to this...

  • The onerous changes to the 2257 regulations recently proposed by Department of Justice;

  • Recent Senate hearings conducted by adult entertainment archenemy Sen. Sam Brownback of Kansas designed to convince the public that porn is an addictive substance that is psychologically and sociologically harmful;

  • Sen. Hillary Clinton's co-sponsorship of a bill with Brownback to study the effects of sexual content in the media, including the Internet, on children;

  • Cal/OSHA's fining of two California adult movie companies for failing to require the use of a condom in production, and Cal/OSHA's policy suggesting that producers use — in addition to condoms — gloves, eye protection and dental dams in the production of pornography if other precautions are not sufficient to prevent employee exposure to "hazards." (See document.);

  • The 23-count indictment filed against Edward Wedelstedt, six other individuals and Colorado-based Goalie Entertainment Holdings Inc., on racketeering, obscenity and tax charges related to the operation of dozens of video arcades featuring pornographic materials across the United States; and,

  • The recent activities of various alliances of conservative religious groups that are using economic pressure tactics to inflame the public in furtherance of their anti-pornography agenda. For example, one such group recently took out full-page ads in USA Today, the Washington Post and other newspapers to try to frustrate the acquisition of Hollywood Video by Movie Gallery simply because, unlike the former, the latter rents X-rated content in their stores.

When you consider that all of this has been reported in the industry press and expounded upon by the industry attorneys in various legal panels, it is not hard to understand why many people are beginning to feel like they are in a room full of gas and someone is about to light up a cigarette.

While it is, in fact, true that the "prosecution of pornographers" is now a stated objective of both the Bush administration's "Culture War" zealots and several potential democratic presidential candidates, I do not believe that the government is about to destroy the adult entertainment business, or even that it could.

As Norman Mailer commented in "Inside Deep Throat," a recent documentary about one of our client's famous films, "Sex is a force, it's a force like lava... and there haven't been too many successful engineering projects about diverting the flow of lava." The adult entertainment business is a multi-billion-dollar industry that transcends international borders, cultural and language differences and reaches virtually every socio-economic stratum in the world. One might even argue that porn is rapidly becoming a kind of universal language.

But the fact that the adult entertainment industry as a whole is too big to be destroyed does not mean that some, perhaps many, people in the industry will not be the subject of federal investigation, indictment and serious criminal prosecution that could subject them to lengthy incarceration and forfeiture of everything for which they have worked.

The real issue, therefore, is how one avoids becoming a casualty in what is likely to be the upcoming "Porn Battles of the Culture War."

The federal government has enormous legal resources to devote to the prosecution of targeted persons or companies. In the context of a federal prosecution of a typical adult webmaster, the power differential is not unlike that of a wolf and a rabbit. However, in nature, animals such as turtles, armadillos and porcupines have evolved outer protection that makes them unattractive and difficult prey for larger and stronger predators. By evolving physical disincentives to be devoured, they also encourage predators to prey upon other easier targets, which often just happen to be their competition.

Stay tuned for part two, "Surviving Porn Wars."

Gregory A. Piccionelli Esq. is a senior member of Piccionelli & Sarno, one of the world's most experienced law firms specializing in Internet and adult entertainment matters. He can be reached at (310) 553-3375.


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