2017 Outlook: Legal Matters Around the Corner
The adult entertainment business’ legal community recently weighed in the top issues that companies and the industry, as a whole, should be concerned about.
XBIZ asked industry attorneys to discuss what lies around the corner for the online adult entertainment industry in 2017. Here's what they had to say:
Lawrence G. Walters
Here in the U.S., we’re sensing a high degree of fear and trepidation in the adult industry for 2017.
Some of that concern may be justified, however the truth is we just don’t know what changes a Trump administration will bring for those involved in adult entertainment.
While Trump signed the standard RNC pledge to vigorously prosecute obscenity, during the campaign, we’ve seen that many of his more extreme views have softened after the election. The pledge was not mentioned during the campaign, and pornography does not seem to be key issue with his supporters.
That said, the appointment of Jeff Sessions as attorney general, and inclusion of old school hard-liners like Edwin Meese on the transition team is enough to send a chill through the adult industry.
As to whether DOJ prosecutors will actually spend their time and resources putting together a rash of federal obscenity prosecutions in 2107 — that seems unlikely.
Today’s jurors have been exposed to hardcore erotica for many years, so convictions may be hard to come by. The DOJ values its 99 percent conviction rate, and obscenity cases are unpredictable. If obscenity prosecutions are renewed, they would almost certainly be reserved for fringe content and have minimal impact on the established adult industry.
However, the industry is facing other legal challenges besides obscenity. Legislative efforts to require ISPs to install porn filters will continue to percolate at the state level. This legislation is purportedly based on efforts to fight sex trafficking. Claims have been made that porn fuels sex trafficking.
That kind of thinking, along with allegations that porn is a public health crisis, has the potential to gin up all kinds of opposition to the adult industry.
ISPs and online service providers are on the front lines as the media gatekeepers. Expect increased calls for “responsibility” and monitoring of user content. Private censorship by the media gatekeepers will become increasingly important and challenging.
The lengthy litigation over the constitutionality of 18 U.S.C. § 2257 will drag on in 2017, although it will not likely be resolved any time soon.
The change in presidential administrations may result in decreased FTC consumer protection enforcement against website operators. The incoming Republican administration will likely focus on other priorities, if history is any guide.
The new procedures for designating a DMCA agent with the U.S. Copyright Office will create some havoc for service providers who are not paying attention. The current protocol requires that, in order to maintain DMCA safe harbor, all service providers must re-register their DMCA Agent. Also, two separate DMCA agent directories now exist on Copyright.gov, which will generate confusion and inconsistency for years to come.
Finally, credit card associations and payment processors will continue to dictate industry standards for the adult, dating, and cam businesses. Their influence will be more extensive than any governmental regulation that is likely to pass. Increased concerns about money laundering and fraud will force online businesses, including adult websites, to become more transparent in their operations and identity.
With the defeat of Michael Weinstein’s Proposition 60, industry professionals are wondering what’s next? Will AIDS Healthcare Foundation go away and lick their wounds? What kind of legal harassment can AHF do? What will Cal/OSHA do?
AHF still has a pending and competing Cal/OSHA petition for new adult industry specific standards requiring condoms, vaccines, and detailed record keeping. That petition competes with the Free Speech Coalition’s own proposal for industry specific regulations that would recognize the efficacy of the testing protocols, protect performer privacy, and encompass new and updated technologies and processes in the future.
There is a Jan. 31 Cal/OSHA Advisory Committee meeting in Oakland currently scheduled. FSC is coordinating attendance, evidence, experts, and documentation for that meeting. Of course, AHF will push their competing agenda and proposal. A proposal will eventually work its way back to the California OSHA Standards Board for a vote, likely in late 2017.
At present, there are continuing Cal/OSHA inspections and legal actions against industry producers. 2017 will see some court cases involving citations issued against producers for not requiring the use of condoms. We can likely expect continued harassment by AHF utilizing Cal/OSHA resources and inspections to attempt to punish the adult film industry. Cal/OSHA is legally required to initiate an inspection after any complaint. Don’t forget to have your own safety programs, your Cal/OSHA 300 Log, and keep your insurance and premises documentation and records updated!
As far as other regulatory impacts on the adult film industry, the crystal ball is a bit foggy, but the menacing image of Mike Pence and Donald Trump seem to be coming in to focus. The religious right has Mike Pence and other ultra-conservatives in the Trump administration to push anti-pornography regulations or enforcement actions. In 2017, stay vigilant and be prepared.
Allan B. Gelbard
The adult industry has much to be concerned about in 2017.
While, as far as I know, the Trump hotels still offer pay-per-view pornography, the president-elect has a vice president and an attorney general nominee who both are extremely conservative Christians and who openly oppose pornography.
The Republican platform contends porn is a public health issue. I suspect we will see a large-scale attack on adult entertainment of all kinds over the next four years.
Industry companies would be well advised to plan accordingly.
Online adult: the Trump administration and the Republican Congress are coming after you.
Jeff Sessions should sail through the Senate as Trumcoreyp’s attorney general nominee.
The Alabaman is publicly in lockstep with the Evangelicals on every social issue on which he has weighed in, and you can bet that he will come after pornography.
Look for an effort to revise 2257 to comport with the 3rd U.S. Circuit Court of Appeal’s opinion and for inspections to begin.
Obscenity prosecutions are a virtual certainty. And online porn is what gets fussed about most, so that should be in the crosshairs.
Corey D. Silverstein
Looking back at 2016, its truly incredible how fast the year flew by. It feels like only moments ago I was writing my predictions for 2016.
2017 is going to be a very interesting year with the entire world watching the substantial changes in U.S. politics. On Friday, Jan. 20, Donald Trump will be inaugurated as the 44th person elected president but the 45th president of the U.S. (43 people have served as president of the U.S. but Barrack Obama is most often listed as the 44th president because Grover Cleveland is counted as both the 22nd and 24th President). If President-elect Trump lives up to his promises, the U.S. is going to see changes in many areas including, taxation, foreign trade, health care, immigration and foreign policy.
In 2017, we are surely going to see the nomination and probable appointment of a new U.S. Supreme Court justice, a new attorney general and new heads of the various federal law enforcement entities.
The Obama administration had little interest in obscenity prosecution but that could change with President Trump and his cabinet at the helm.
Contrary to President-elect Trump’s campaign promises, change does not happen overnight and 2017 may be more of a year that Trump uses to lay the ground work for his future plans.
Outside of politics, 2017 should be a very interesting year, as virtual reality producers continue to aggressively push their products to consumers. Unfortunately, patent litigation related to VR technology will most likely escalate in 2017 and I suspect that adult businesses will find themselves as targets.
The Free Speech Coalition’s battle against the constitutionality of 18 U.S.C. § 2257 will also see some action in 2017; however, I do not expect 2017 to be the year this war concludes.
Finally, just as I have predicted the last three years, data privacy and data breaches will continue to dominate world headlines. Lawmakers will continue to aggressively pursue this area of the law and all online business operators need to pay close attention to data privacy compliance requirements.
J. D. Obenberger
Without doubt, the biggest news story of 2016 was that a broad and diverse movement among Americans elected Donald Trump to the presidency.
In keeping with the best voting traditions of our people, and just like the battle formations of the Minutemen, the movement that elected Trump — including impressive numbers of minority voters — kept its opinions largely under wraps till the polls closed.
Perhaps they were more clever than the press, perhaps the press was too clever for its own good in “adjusting” survey data that it was unwilling to accept, and perhaps the Trump supporters kept their choice private because they were sick and tired of being accused of bigotry, bias and fascism by people who claimed to be smarter, fairer and more decent.
We may never know what brought so many people together, all over the country, to elect Trump, but some were happy to accept the label of “reprehensible” if it meant that American cultural values should be a product of authentic, home-grown American attitudes rather than agenda positions imposed on them from people who claimed to be their betters.
The outsiders elected an outsider who rejects social transformation by state action. His voters, in the main, watch porn, too and Trump knows it.
For better or worse, we’ve elected a president whose sale of pay-per-view porn in hotel rooms for decades makes him an actual member of this industry, a man who introduced a softcore Playboy video (“Playboy Video Centerfold Playmate 2000”), whose earthy rhetorical style found him punctuating a nationally televised debate by comparing the size of his generative organ with that of Marco Rubio, who is proud of the publication of the undraped allurements of his Slovenian model wife, and who privately speaks about how celebrity acts as a pussy magnet that invites the grabbing thereof.
He’s almost certainly banged Playmates. Despite all of that, some in this industry are claiming that we should brace for a new wave of antagonism to adult video and the re-establishment of an obscenity task force in the DOJ. I think you have to be some special brand of paranoid to find a Bible thumper in Donald Trump.
These same people ignored the signs of the times in 2016 and they ignore the obvious signs, still, of where this is all headed — out of leftist bias and bigotry — as though only Marxists value freedom of speech or the right of online privacy. This demonizing is the product of a failure to accept reality more than logic or facts.
No, I think we’ve elected a member and friend of this industry who has no problem with your share of the same revenue stream he drinks from.
I think his administration — especially because of attorney general pick Jeff Sessions’ own history concerning copyright protection — is likely to be sympathetic to efforts to take down the pirate domains by Justice Department action.
We have a president who maintains and values his direct Twitter link to the people who elected him and who is smart enough to listen to them rather than to corral and cage them into anyone’s utopian dreams. That’s exactly why progressives hate him.
This industry, better than others, know what its broad customer base really wants to see in private, unvarnished, and what it’s willing to pay for. Anti-porn feminist activists who despise what appeals to us in private and who wish to re-wire human brains won’t have much of a handhold in this administration.
The two data points most cited by the fear mongers are 1) the anti-porn petition which Trump signed and 2) Sessions’ opposition to selling Playboy in the PX.
They should read that petition; it contains few words about obscenity (a lesser paragraph in the preamble among many others which dominate and five words in the text), but nine pages devoted to children’s accesses to hardcore, using words that would find significant sympathy even in this crowd.
Given Trump’s attitude toward prosecuting Hillary and building The Wall lately, I’d not be too much concerned about those few words, never repeated in public.
President Obama brought no new obscenity prosecutions, but his DOJ tried hard to get convictions on several cases that were pending. They put Ira Isaacs on trial three times till they got a conviction. One gets the sense that if any porn at all gets prosecuted under Trump, it will be of the kind that has as few friends as Ira’s coprophilia, but even that is doubtful.
That remote possibility aside, it should be noted that Larry Flynt offered $1 million during the campaign for video footage of a sexual nature that would embarrass Trump.
I don’t know whether Trump is personally vindictive, but if he is, and if a selective prosecution improperly ensues, I know that Larry will be able to take care of himself, and might personally enjoy the attention which he invited.
In fact, for my adult clients, I’m kind of relieved that Trump won — and that the radical feminists and social do-gooders who supported Hillary are left to roll over cars and block the 101 instead of sifting through job applications to fill out the administration.
My concern over Hillary is that the combination of radical feminists and general do-gooder sympathy for workers would have resulted in the use of administrative agencies against porn producers in states subject to immediate federal regulation, steps that would have destroyed the ability of the producers to make porn. I saw that as inevitable. I believe that the adult industry dodged the most dangerous bullet it ever faced. Look forward to less regulation in the workplace for the small businesses I serve.
The 3rd U.S. Circuit Court of Appeals’ decision in the FSC’s 2257 case is back in the district court — to enter a judgment concerning the Fourth Amendment privacy issue — relating to inspections — and to explore whether the substantive requirement of the law, record keeping and the rest, meet a strict scrutiny standard.
Look for a decision by roughly June, and then expect this matter to come to the attention of the Supreme Court.
By then, I’d expect at least one Trump appointment, but it would much surprise me to see this case decided on any basis that follows Republican appointment/Democrat appointment lines. It’s just not that kind of an issue.
Melania Trump is, by far, the hottest woman to serve as first lady. She might even be the hottest woman to ever visit the White House. I definitely have a thing for Melania Trump. She’s hot as hell and speaks five languages. So, what does 2017 bring? Aside from Melania Trump being in my spank bank, I can’t possibly even try and predict what the fuck could happen in 2017!