Passing the Torch: 1

Gregory Piccionelli
When viewed from a legal perspective, there is no doubt that 2006 has been a tough year for adult entertainment businesses and the cherished free speech rights that protect every American's right to obtain and view sexually expressive materials. It was a year in which the adult entertainment industry was once again shut out of the legislative process and constrained to witness an election year tidal wave of new federal and state regulations that threaten to drown those cherished rights. Driven mostly by Republicans seeking to curry favor with religious right wing voters, many of the new "anti-porn" laws demonstrate a truly shocking level of legislative disregard of our constitutional guarantees of expressive freedom.

By the end of last summer, it was clear that the adult industry was confronting a seemingly unstoppable onslaught of onerous new anti-porn bills, ridiculous new 2257 regulations, FBI inspections, threatened obscenity prosecutions, the risk of lengthy incarceration, massive fines, and miscellaneous other acts of injustice and hypocrisy aimed at adult entrepreneurs.

But just about the time it seemed that the industry would have to resign itself to at least two more years of relentless legislative harassment by a Republican-controlled Congress, a great miracle was provided to the adult entertainment industry, astonishingly by the very people who would love to destroy the adult business.

The miracle was, of course, the Republicans' surprising loss of control of both the House of Representatives and the Senate. But in fairness, it should be acknowledged that a politically seismic event of this magnitude simply could not have occurred without the full assistance of many of the adult industry's Republican enemies. For example, a good amount of adult industry gratitude for the midterm election rout of the Republican Party must go, of course, to President Bush for, among other things, his inspired management of the Iraq war, the Katrina disaster, border security, etc.

More Tolerance
Predictions regarding how the transfer of Congressional power to the Democrats will affect the adult entertainment industry are difficult, if not impossible, to make at this early stage. While only time will tell whether the new Democratic Congress will be the industry's friend or foe, Democrats have historically been much more tolerant of adult entertainment than Republicans. Consequently, when Democrats take control of Congress, we will not likely see the enactment of more of the religious right's harebrained morality legislation. Hopefully, for the industry, this will mean fewer freedom-robbing laws like the absurd amendments to the 2257 regulations that Congress, under Republican control, enacted earlier this year.

Many hope that Democratic control of Congress might decrease the probability that the government will unleash a broad wave of prosecutions of adult businesses and their principals. While that may happen, it will not be the result of any congressional action. Congress does not have the authority to directly control federal law enforcement policy. Any decisions regarding obscenity or 2257 prosecutions are made at the Justice Department, which is an executive department under the control of the attorney general and, ultimately, the president. Consequently, any attempt to assess how Democratic control of Congress may change the risk of prosecution faced by an adult business must take into account the fact that next year's change in Congressional control will not be accompanied by a corresponding change in power at the White House or on the Supreme Court.

Unfortunately, it is also possible that Republican loss of control of Congress might actually increase the likelihood of prosecutions of adult entertainment businesses by Justice. Remember, for the next two years, virtually the entire federal law enforcement bureaucracy, including Justice and the FBI, will be under the control of President "damn the Constitution, give the evangelical Republicans anything they want" Bush. First, despite the fact that the Bush administration has been at least as hostile and threatening toward the adult industry in its rhetoric and support of anti-porn legislation as any previous administration, the industry has yet to see anywhere near the number of obscenity prosecutions that were brought under any of the previous four Republican presidents.

Regs in Effect
Yet during this administration, more regulations targeting the adult industry have gone into effect than during the tenures of all his Republican predecessors combined. These seemingly inconsistent actions have left many in the industry, including its attorneys, both concerned about the prospect of a merciless morality-motivated wave of prosecutions, and puzzled over the question of why it hasn't already happened.

Assuming, however, that in the Oval Office politics is everything (which, of course, it is), the following is one explanation regarding why the administration's rhetoric has not yet matched the actions it has threatened.

Voters identifying themselves as religious conservatives account for roughly 30 percent of the Republican Party. In most House and Senate races, as well as most presidential elections, Republican candidates generally require a large percentage of the votes of this core constituency in order to win. Surveys and polling data indicate that the religious conservative wing of the Republican Party is most likely to be motivated to turn out and vote for the Republican candidate in elections where the Republican supports conservative cultural positions. These generally include support for legislation banning gay marriage, protection of unborn children and measures to reverse what is perceived as the moral corruption of youth caused by excessive sexual permissiveness. For the last two decades, many successful Republican candidates have effectively cultivated the votes of religious conservatives by expressly advocating aggressive enforcement of obscenity laws against persons and companies that create or distribute pornography.

But implementing an aggressive policy against the adult entertainment industry where the aim is to incarcerate numerous producers and reduce the amount of obscenity available to consumers also carries some potential political risks. For example, many Republicans identify themselves as "libertarians." Libertarian Republicans generally do not support measures that condone governmental intrusion into what libertarian Republicans often regard as matters of personal choice.

As such, this group generally reacts negatively to candidates advocating aggressive governmental actions to restrict adult viewing of adult entertainment or the use of government power to vigorously prosecute the producers or distributors of mainstream adult content.

Aggressive anti-porn campaigns also run the risk of alienating Republican voters who are more motivated by fiscal conservatism than cultural conservatism. This group generally does not support the use of government resources to advance the social agenda of evangelical Christians or any other group.

Moreover, Republican voters who are primarily motivated by economic issues and fiscal conservatism also often object to the notion of vigorous prosecution of companies or their principals for nonviolent or "soft" crimes that do not involve harm to persons or property, particularly when the penalties include lengthy sentences. As such, this part of the Republican Party is likely to object to aggressive and costly prosecution of companies and their principals for creating or distributing nonviolent adult entertainment because to do so would be seen as economically counterproductive.

Aggressive prosecution of the legitimate adult entertainment companies is seen as primarily an exercise in futility that is likely only to produce numerous negative fiscal consequences, such as diminished tax revenues, diminished exports, and increased unemployment.

Perhaps the most important and least quantifiable risk of prosecuting distributors of adult content may well be rooted in the fact that adult entertainment is now a generally accepted, if not outwardly favored, part of our culture. As such, there are a large number of "average Joe" and "average Jane" Republicans who are regular, satisfied consumers of adult entertainment and who would not be happy to see their porn disappear or become more difficult to obtain. Even more important, from a political perspective, is the fact that there are legions of average Joe and average Jane Independents and Democrats who vote for Republican candidates who, likewise, do not want the government to take away their erotica.

In part two, we'll look at the dilemma over enforcement and election year politics.

Gregory A. Piccionelli is an Internet and adult entertainment attorney. He can be reached at Piccionelli & Sarno at (310) 553-3375 or www.piccionellisarno.com.

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