Are Those Your Breasts on that Billboard?

Frederick S. Lane III

Fred Lane returns with another legal update to help keep you well informed of the important issues affecting Adult Webmasters and society today. As always, keeping "abreast" of these issues is one of the most important responsibilities we face. Check it out:

Pornography & Obscenity in the Courts
Well. It was bound to happen sooner or later. Webmasters and video producers have long viewed the New Orleans Mardi Gras celebration as a bountiful source of material, thanks to the large number of inebriated young women willing to flash their breasts in exchange for cheap plastic trinkets. The producer of the well-known "Girls Gone Wild" series, M.R.A. Holdings, LLC, was sued in September 2001 by Becky Lynn Gritzke, a business major at Florida State University.

Ms. Gritzke admits that she was in New Orleans for Mardi Gras and that she did in fact voluntarily remove her top. However, she claims in her lawsuit that M.R.A. Holdings invaded her privacy by including her image in its videos and in advertising for "Girls Gone Wild" (including, allegedly, a billboard in Italy). M.R.A. Holdings has moved to dismiss the lawsuit, arguing among other things that the videos are protected noncommerical speech and that they are protected under the First Amendment because they depict matters "of public interest."

Coincidentally, a group of women have filed suit in Brevard County, Florida, for the right to go topless wherever and whenever men have the ability to do so. Florida recently enacted an amendment to its state constitution which reads that all "natural persons, female and male alike, are equal before the law." The female plaintiffs argue that under the revised Constitution, men should be required to cover up or they should be allowed to go topless. Two lower courts have disagreed, but the women are appealing the case to the Florida Supreme Court.

The art of parody received a boost recently when a federal judge in San Francisco ruled that George Lucas was not entitled to a permanent injunction against "Star Ballz," a sexually-explicit, animated parody of "Star Wars." Judge Claudia Wilken had originally imposed a preliminary injunction against Media Market Group, the producer of "Star Ballz," but after viewing the animated feature and hearing the arguments, she concluded that there was "little likelihood of confusion" between the two works.

... in the Legislatures
In Utah, well-known anti-pornography czar Paula Houston (in reality, the assistant attorney general designated to assist Utah communities with pornography issues) is in the unusual position of advocating for a more relaxed pornography statute. Houston is asking the Utah Legislature to eliminate penalties under the state's "harmful to minors" statute for material that has "serious value." Houston argues that the law as it exists now is unconstitutional, since it does not track the language of the Miller test; as a result, many Utah prosecutors are reluctant to bring actions under the statute for fear that they will be reversed on appeal. Houston's efforts are being strongly opposed by the Eagle Forum, a highly conservative organization founded by Phyllis Schlafly.

A bill is currently moving through the Indiana legislature to increase the penalties for child pornography. Under the new provisions, exploitation of a child would become a Class C felony, with penalties of up to 8 years in prison and up to a $10,000 fine. The penalties for possession of child pornography would be increased to a maximum of a year in prison and a $5,000 fine.

... in Politics
In Janesville, Wisconsin, an anti-pornography group called People Advocating Decency has started using a new tactic: videotaping customers as they enter and leave a new strip club. The club's owner has complained to police, but has been told that there's nothing that can be done, since simply videotaping people on a public street is not illegal. (What one does with the videotape afterwards is a different question ...). People Advocating Decency was formed after the strip club opened in December and is pushing for strict regulations on adult businesses in Janesville.

In a silly but telling action, the Justice Department spent $8,000 for blue drapes to cover two semi-nude statues in the Great Hall of the United States Capitol Building. The Art Deco-style statues, one female and one male, are known respectively as the "Spirit of Justice" and the "Majesty of Justice." Due to the configuration of the hall, the statues frequently serve as a backdrop for press conferences and other public gatherings. Attorney General Ashcroft allegedly had nothing to do with the decision to cover up the statues, but it is widely known that he was upset by a widely-used Associated Press photograph last November that featured a large aluminum breast over his right shoulder. A similar thing happened to Attorney General Ed Meese during the press conference to release the findings of his Commission on Obscenity, but at least he never committed statuary drape.

... in Business News
The 900 business community was rocked by the news that AT&T is dropping the controversial service by the end of 2002. In fact, the telecommunications has already stopped accepting new 900 billing clients, and will be completely discontinuing its 900 billing on December 31. AT&T is reportedly frustrated with the high level of chargebacks and uncollectable bills, conveniently overlooking the fact that its own policies and customer promotions have been a major contributing factor. Like the credit card companies, AT&T has made it very easy for consumers to completely disclaim responsibility for 900 charges. MCI, AT&T's chief rival in the 900 business, has said that it has no plans to change its services. Swain, appropriately enough, is best known for her role as Lolita in the 1997 remake of the Kubrick classic.

Lying in the embers of Enron's recent implosion is a proposal by the energy company to diversify its services by distributing adult content. The company was in the process of building a high-speed network, and approached both General Media (the publisher of Penthouse) and Playboy to discuss possible arrangements for distributing their content. However, the company was behind schedule in constructing its network, and the company's collapse overtook its efforts to branch out into porn.

... in Culture & Society
As if the issue of child pornography were not sufficiently serious, there are increasing numbers of reports of children themselves producing and in some cases distributing pornography, including child pornography. In West Boca, Florida, four teenage boys produced a sexually explicit video with a 14-year-old female. The girl signed a written contract with the boys, who had plans to distribute the video to other high school students and were considering entering the video in a High Society home video contest. In Kenton County, Kentucky, a 15-year-old is facing nearly 700 felony counts for running an Internet child pornography ring.

Reports circulated recently that rock legend Mick Jagger had an unintentional starring role in a amateur sex video with an 18-year-old Las Vegas lap dancer. Those reports were followed by quick and emphatic denials from Jagger's legal representatives; more telling, perhaps, was the decision of the British tabloid The Mirror to pass on an offer to buy the video for $100,000.

One of the on-going problems with child pornography is that the themes have so thoroughly infiltrated mainstream culture. The latest example is the newest poster for People for the Ethical Treatment of Animals (PETA), which features 21-year-old Dominique Swain standing naked in front of school chalkboard, writing "I'd rather go naked than wear fur." Swain, appropriately enough, is best known for her role as Lolita in the 1997 remake of the Kubrick classic. The poster was scheduled to be unveiled at Venice High School in Los Angeles, but the sexual undertones of the piece caused the event to be canceled.

Frederick Lane operates, an online library of news, legislation, and court cases relating to pornography and obscenity and the Porn Industry Observer. He is also the author of "Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age" (Routledge 2000).