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FALA Defends Our Rights

John Stuart
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

These lines from the First Amendment of the United States Constitution also highlight the web page of the First Amendment Lawyers Association (FALA), an organization that has been fighting to uphold those sentiments in the courts since the early 1960s. Founded by a visionary attorney named Stanley Fleishman, the architect of freedom of expression in adult entertainment, FALA made the first arguments in courts that established the right of free expression and erotic speech. This was during a time when lawyers simply assumed the government could criminalize all erotic material.

Fleishman was the first president of FALA. Last July, Lawrence Walters became the new president of the association until his term ends in August 2009. Although he only has a year, Walters has big plans.

"I hope to give FALA some good exposure," he says. "They haven't sought out publicity for their efforts, and as a result very few people know they exist. I want to put them on the map so people understand their contribution.

"Our biggest concern is that there's not enough new blood coming into FALA to take the place of the older lawyers. One of my goals is to get out the word to new lawyers so they'll consider First Amendment work as a practice area. There's an old myth in the legal field that you can't make money doing civil rights or First Amendment work. I believed that for the first few years of my career until I met Dick Wilson, an Orlando, Florida lawyer who represented strip clubs. He showed me you can make a very profitable business out of doing First Amendment work."

Currently, FALA contains 180 lawyers spread throughout the entire nation in nearly every state. This gives the association several important advantages over all other law firms.

"We have a referral network in place," Walters says, "so people can get lawyers who are licensed to practice wherever these prosecutions occur. It's like a machine, a strategic defense initiative in response to the threats from the government. I don't know of any other group that is in position to prepare something like that on a moment's notice as we do.

"People may not realize that when they hire a FALA lawyer, they're not just getting the expertise of one lawyer. They're getting the expertise of 180 lawyers who have been practicing in these areas for decades. Very few other industries are fortunate enough to have such a close, collegial group of attorneys sharing their knowledge.

"And we're very non-competitive. Even though we're technically in competition with each other for clients in an adult industry that really is not huge, our lawyers try to help each other develop their client bases. We refer clients to each other without fear.

"There's a very good reason for this. As First Amendment lawyers, we have a higher calling. While we're doing this to represent clients and make money, we're also protecting freedom of speech. That takes the competitive sting out of the practice because we're all fighting for the common good. The last thing we want is for a lawyer to argue issues on which they have no experience, and make a bad case that we have to deal with as precedent when we go into court for our clients. That's why we make sure our lawyers go into court with the benefit of the group's collective knowledge."

Each FALA lawyer has an area of expertise — in Walters' case, Internet law — so the organization acts as a huge database for its clients and their attorneys. FALA also has the advantage of being an "amicus curia," a friend of the court, in many cases over the years, including the ZG Gifts case heard by the U.S. Supreme Court. This puts the association in the unique position of being able to bring arguments to court that the litigants cannot.

"We can argue to the court from a broader perspective regarding the impact of any decision in certain cases," Walters says. "We can point out that if the court upholds a certain decision or allows a certain statute to be constitutional, how that will affect the industry and society negatively in the future. We can make broader based arguments that litigants simply cannot make legally."

Walters says that many adult webmasters have been turning to legal counsel recently due to the spate of obscenity cases filed by the federal government. The prosecutions of Max Hardcore, Karen Fletcher, Ira Isaacs, McCoy and Extreme Associates have caused webmasters to take a second look at their content and policies, and seek legal counsel. The problem is that most have turned first to their corporate, divorce or even DUI lawyers, only to learn that those attorneys either can't or won't handle obscenity cases.

"Many clients learn this after an arrest," Walters adds. "That's the wrong time to start looking for a lawyer. I would suggest the absolute first place to go is FALA. This is a talent-rich organization of lawyers in just about every state, all of whom are familiar with adult entertainment issues and First Amendment issues. Just in terms of referral, FALA is one of the best outfits in this industry. Webmasters only need to go to our website.

"Webmasters need to understand that the Miller Test for determining legally what is obscene is complicated. Even if they know what the Test says, the cases interpreting the Miller Test would take years to read, let alone understand. A FALA lawyer will understand the Test, and help webmasters develop content that has a better chance of surviving an obscenity prosecution."

Walters suspects that the recent spike in obscenity prosecutions by the federal government has a dark objective, even though the cases are all over the board.

"There's no specific target," he says. "That's the scary thing. There's no way to divine an area of the country or a specific type of content the federal government is targeting. The Stagliano case with Evil Angel features somewhat mainstream vanilla content, and yet he's facing a very substantial indictment by the feds in Washington, D.C.

"My guess is that prosecutors are trying to set the bar as low as possible by selecting material you wouldn't think they'd target. It's to scare the industry into thinking if they can get a conviction on that, they can get a conviction on anything. Karen Fletcher's and McCoy's stuff are just written material, erotic stories with no pictures. Nobody thought the feds would go after text, and now it has a ripple effect on the industry.

"It's anybody's guess why this is happening now, after eight years of a conservative administration. Some theorize that it's a parting shot."

Since the current administration will be replaced by a new one next January, the upcoming Presidential election takes on vital importance to the future of the adult industry and to First Amendment cases. Although FALA is a non-profit organization that prevents its members from active participation in the election, Walters has strong opinions about it.

"I believe this election is the most important in my lifetime," he says. "It will be critical for the adult industry in general. The concern of FALA is what will happen to the U.S. Supreme Court. It's fairly easy to divine what will happen if one or the other candidate wins, because they have made their positions known as to what kind of judges they plan to appoint to the Supreme Court. FALA is very sensitive to the makeup of the Court, and the fact there needs to be some balance in it."

Still, Walters remains optimistic in his new position as president of FALA, an appointment that has "humbled and honored" him.

"To be leading a group like this is a little intimidating," he says. "It's a rare opportunity."

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