Surviving Porn Wars
Borrowing from nature's example, one intelligent strategy for increasing the likelihood that your company will survive the "Porn Wars," if they come, is to make your business a hardened target by complying with the law and availing yourself of all the defenses and prudent practices that will make your business an unattractive prosecution target. While admittedly a bit Machiavellian, this strategy directs the government away from your company and encourages the prosecution of competitors who are not in compliance with the law.
While many webmasters may reject the "turtle strategy" out of hand because of perceived negative short-term economic impact to their businesses, I believe that it is important to consider that given the almost certain future of an enormously larger worldwide adult entertainment market, the benefits of surviving Bush II may well also include the opportunity for a bigger piece of a much bigger pie. The "hardened-target" strategy been successful for turtles, armadillos and porcupines for millions of years. It has also traditionally been a proven successful strategy for adult entertainment entrepreneurs in previous periods of hyper-law prosecution of the industry. It has been, and continues to be, the strategy of choice for many large recognized companies in the business.
At this point you might be wondering how you can make your website a "hardened target." Every website is at least a little bit different, so I strongly suggest that you first engage competent and experienced counsel to review your site and discuss any legal problems or deficiencies that you may have. A good adult entertainment lawyer can often show you how to shore up your defenses in a manner that least affects your business model.
Regardless of the type of adult site you have, however, there are a few basic requirements all such sites should meet to reduce the likelihood of prosecution. Specifically, these are the following:
- Minors must not have lawful access to potentially obscene material on your company's websites, directly or otherwise (such as via mobile phones). Also, minors must not have access to potentially obscene material through the company's email or email sent by others advertising the company's website(s) or other goods or services. While the methods used by your company to prevent such access need not be perfect, your efforts nevertheless must at least comprise acceptable methods of obtaining the legal defenses associated with prosecution for distribution of harmful matter to minors. Obtaining payment by a credit card prior to distribution of the sexual content is one such defense cited in a number of federal laws (e.g., 47 CFR § 64.201).
- The content in, or linked to, the "Adults Only" only areas of the company's websites must not be of an extreme type. For example, the materials do not depict bestiality, necrophilia, mutilation, excretory functions, fisting, etc. Remember, the determination of obscenity by a jury essentially requires the jury, in part, to determine whether the material charged is within their community's standards. The more extreme the material the more likely a jury will find it to be outside of their community's norm.
- The content in, or linked to, the company's websites must not lack serious literary, artistic, political or scientific value. Political commentary, music or informational content thematically woven into the material can save the content from being deemed obscene.
- All of the company's distribution of depictions of actual sexual conduct, either directly or through third parties, must at all times, and in all places displayed, be fully compliant with the federal record keeping and labeling laws (18 U.S.C. §2257 and 28 CFR 75 et seq.).
- Neither the company nor any party promoting the company's goods or services may send email in violation of the Can-Spam Act.
- The website must not provide access to potentially obscene content though a URL that could deceptively attract minors to such materials. For example, "whitehouse.com" would be an inappropriate sex site domain name.
If your websites do not meet the requirements above, you are, at least in theory, in greater danger of being prosecuted than another party whose sites are. If so, to put it bluntly, you may be in danger of becoming the cannon fodder in the coming Porn Battles of Culture War.
The reason why can be boiled down to one word: "children" and one concept: "protect the children." I have a legal mantra I teach all my adult entertainment clients: "Keep Kids Out/Keep Kids Away." This is a simple admonition to (1) keep kids out of the material, i.e., do not create or have anything to do with child pornography, and (2) keep kids away from adults-only content.
The reasoning that underlies the Keep Kids Out/Keep Kids Away mantra is rooted in the fact that the basic criminal laws regulating the online adult entertainment business primarily focus on matters directly or indirectly pertaining to children. In fact, if you look closely at the major criminal laws regulating online adult websites, i.e., child pornography laws, the federal record keeping and labeling laws, the obscenity laws, the harmful matter laws, such as the Child Online Protection Act (COPA), the Protect Act, the Can-Spam Act, you will note that all are principally or partially directed to the purpose of protecting children from encountering pornography or from sexual exploitation by adults.
Only obscenity typically deals with the "protection" of adults and their communities from materials depicting sexual conduct engaged in by consenting adults. However, even in the case of the obscenity laws, there are laws expressly prohibiting the distribution of obscenity to minors. In fact, while enforcement of COPA remains enjoined, it is possible that, in the absence of an explicit federal harmful matter law, the government may seek indictments for distribution of obscene material to minors.
There is widespread concern and anger being expressed to politicians by parents across the political spectrum regarding the easy availability of hardcore adult material to their young children. Moreover, given the general consensus among political analysts that voters motivated by moral issues, such as gay marriage, were a key component of Bush's and the Republicans' victory, it is now very unlikely that the adult entertainment industry will be able to avoid being drawn directly into the Culture War. In fact, that near inevitability is what has made strange bedfellows of a liberal like Hillary Clinton and a conservative like Sam Brownback, two people who would not otherwise agree about virtually any other issue. These are developments everyone in the business should note. Moreover, online adult entertainment entrepreneurs should also note that it is likely that, if and when the Porn Battles begin, the Internet will be on the front line.
I am aware that many webmasters view the "hardened target" strategy as one which is economically unappealing if it means loss to the bottom line. Well, there is an old saying, "It ain't what you make, it's what ya keep." Given the sweeping forfeiture provisions of the obscenity and racketeering statutes, the costs involved in criminal defense, and the loss of liberty involved in doing time, do you really want to be a rabbit?
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.