opinion

Lessons From History: How We Arrived at Where We Are

Clyde DeWitt

Attending one of the recent trade shows reminds anyone there of the broad diversity of the members of this industry. The attendees ranged from entrepreneurs barely old enough to gain entry to those whose hair, what might be left of it, is snow white; from “newbies” to seasoned veterans; from those who are in this industry as a side job to those who are executives in major corporations; and with many other ranges of diversity. What follows, from one who has been through most of it, is designed to educate the newbies as much as to perhaps offer a different perspective to the veterans. History always is a valuable lesion.

“Pornography” — loosely derived from words meaning depictions or descriptions of prostitutes — has existed since long before Johannes Gutenberg invented the printing press in the Fifteenth Century. Paintings and manuscripts were accused of being blasphemous because of sexual content, a reminder that governmental censorship of erotica was imported from the church.

The appetite for erotica has not dwindled at all; but the ability to profit from it has profoundly dwindled.

In 1925, the Free Speech Clause of the First Amendment was first held applicable to the states, although materially every state constitution has always included its own right of free expression. However, neither the state nor federal right to free speech had much impact on governmental efforts to censor erotica until the 1950s. It was 1957, a brilliant, polio-impaired Hollywood lawyer named Stanley Fleishman went to the Supreme Court, squarely arguing that the First Amendment forbade government from punishing the citizenry for distributing “obscene” materials — whatever that meant. The Federal Criminal Code had included felony punishment for mailing obscene material since the 1873 Comstack Act, rammed through Congress by a do-gooder named Anthony Comstack, who went about the country championing his anti-vice agenda.

In 1957, however, the Supreme Court did not strike down the Comstack Act, rejecting Fleishman’s claim that pornography was fully protected by the First Amendment. In rejecting the argument, however, the Court erected substantial barriers in Justice Brennan’s plurality opinion. Now, remember what this was all about: those censorship controversies surrounded books including a handful of passages euphemistically describing philandering, challenging Victorian Era morals.

In the ensuing 16 years, courts and the public wrestled over the kerfuffle brought about by the Supreme. Moreover, the 1960s brought The Pill, the insurgent Baby Boomers, hippies, the Summer of Love and media to match, including skyrocketing circulation of Playboy. The courts — including the Supreme Court — struggled to interpret the complex obscenity formula written by Justice Brennan in 1957.

Miller vs. California was the bombshell in 1973 — a 5-4 decision bringing the obscenity test that remains in effect today. It was no more coherent than the 1957 version delivered by Justice Brennan — who, in the Miller case, changed his mind, complaining (along with three other justices) that there was no test that divided obscenity from constitutionally protected speech that was sufficiently understandable to be workable or fair.

Miller, interestingly, was decided the year following the premiere of “Deep Throat” — a movie containing 90 minutes of hard-core sex that had people lined up around the block to watch. Although as explicit as a stag movie, people proudly bragged about having seen it.

Obscenity prosecution was hit-and-miss over the decade following Miller, primarily by local district attorneys. In Houston, for example, the district attorney gave up on obscenity prosecutions for years after being unable to obtain a conviction for “Deep Throat.” The same thing happened in Abilene, Texas — not exactly a center of liberal thinking — the same result obtained after failure to secure a conviction on the unedited version of “Around the World with Long Johnny Wadd” in the early 1980s. (The author modestly takes credit for that result.)

Enter the affordable VCR and the home-video industry, led by porn. And as the consumption of adult video skyrocketed, President Reagan delivered a payback to the Religious Right by creating the “Meese Commission”, the namesake of newly appointed attorney general Edwin Meese III, an avowed religious conservative. The Meese Commission undertook a coast-to-coast dog-and-pony show, holding hearings in cities around the country, resulting a pre-ordained (based upon its composition) Final Report, listing dozens of recommendations on how federal, state and local governments could quash the “scourge of pornography,” a non-problem in the minds of most.

The resulting Department of Justice Obscenity Task Force set out to extinguish the entire adult mail-order industry in Operation Post Porn and all of the San Fernando Valley’s adult video companies (there were only a couple of dozen) in Operation Woodworm using federal criminal prosecution. You see, of course, that it was a resounding success (tongue firmly implanted in cheek here) — by the time the task force was effectively extinguished by the inauguration of Bill Clinton in January of 1993, the number of companies had increased dramatically. However, Reagan’s efforts did leave the legacy of 2257.

With the federal government out of the picture, adult motion picture companies thrived, as did technology. But the technology that was the Internet brought about a paradox. Pornographic websites popped up — not operated by the existing adult video companies; but, rather, by people with technical training. Those folks were wizards at building websites — then TGP galleries — that garnered a mountain of money. However, electrical engineers typically were not particularly well-versed in either obscenity law or copyright law. Web site operators were shocked to discover that they faced prison sentences for sending bestiality to Memphis and that material was not in the “public domain” just because it appeared on the Internet. When Web site operators found themselves defending criminal prosecutions and copyright infringement suits, they woke up.

In 1998, this author was invited to speak at a summit of adult video heavyweights in Cancun, along with three other attorneys. That speech, somewhat inspired by an undergraduate degree in electrical engineering, explained that the biggest threat to the adult video industry was not government; it was the specter of Internet piracy. The response of the room full of VHS/DVD company executives was the functional equivalent of laughter. A digital motion picture is 500 megabytes, larger than the hard drive capacity of most personal computers in those days; and with most surfers using dial-up connections, downloading a file that size then could tie up a computer for a day.

The answer, of course, was that hard drives were growing at an exponential level; and high-speed Internet connections already had been invented, although expensive. When does advancing electronics ever do anything but become faster and less expensive? And so it did. Between the late 1990s and the early 2000s, Napster and its progeny brought the recording industry to its knees. A half-decade later, the video version of Napster destroyed the adult video industry.

The appetite for erotica has not dwindled at all; but the ability to profit from it has profoundly dwindled. During the 1980s Consumer Electronics Show (the predecessor of AEE) and the late 1990s Internext (formerly ia2000), attendance was risky for fear you would be hit with flying cash. No more!

Clyde DeWitt is a Las Vegas attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at clydedewitt@earthlink.net. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.

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