This month's legal update by attorney Lawrence G. Walters, Esq., examines several recent concerns over the legal issues surrounding adult sites. Here's the latest information that you need to know in order to protect yourself and your business...
Obscenity Update
“Today’s Internet is overwhelmed by obscenity – much of it illegal,” This quote summarizes our Opposition’s view of online erotica. Groups such as the National Law Center for Children and Families (NLCCF) are shouting: “It’s about time,” in response to the recent Justice Department’s obscenity indictments against a Texas couple who operated an online video business called the “Rape Video Store.” “The good lesson here is that the DOJ is starting to do obscenity cases again,” and said Bruce Taylor, President of the NLCCF. The case that’s got Taylor and company all in a tizzy involves a former Dallas police officer, and his wife, who allegedly sold rape fantasy videos through their website in the mid to late 90’s. Shortly before the statute of limitations ran out, the couple was charged – even after state obscenity charges were dropped.
One of the Defendant’s attorneys claims that the indictment is a crusade by the Bush Administration against people who enjoy legitimate erotica. “The Justice Department is running roughshod over my client’s First Amendment rights.” “These new indictments are evidence that the Department of Justice knows how to investigate (obscenity crimes) – they know how to find the criminals – and (also) the good guys are back in business and they know how to do their job,” Taylor added. The “good guys” as of yet do not include Taylor, who has been vying for a high level position in the Justice Department’s Obscenity Unit since Bush took office. Thus far, actual federal obscenity indictments have been scattered, although more intensive enforcement is anticipated by industry leaders now that the United States attorney’s have been trained in the lost art of prosecuting a federal obscenity case.
Some good news on the obscenity front this month: Jennifer Dute, who had been charged and convicted of pandering obscenity in Hamilton County Ohio, had her conviction reversed and obtained a new trial by the Ohio First District Court of Appeals. Dute had been serving a jail sentence pending appeal but is now entitled to a bond pending her new trial. The Appeals Court found that the Trial Court committed reversible error when it failed to admit other comparable interracial video tapes into evidence to demonstrate community acceptance of the videos alleged to be obscene. Secondly, the Court found that the trial judge should have made an individual inquiry of each juror as to whether they had been influenced by media reports broadcast during the trial which referenced Dute’s prior conviction for obscenity in 1999. Finally, the Appeals Court noted, the matter of sentencing, that there was no evidentiary basis for Trial Court’s finding that Dute was involved with some sort of criminal activity. Dute was sentenced to spend a year in jail.
Child Porn Explosion
In a continuing black eye for the Internet industry, police appear to be loosing the battle to close down child porn websites. It has been reported that approximately 90 new child porn websites open every week, making it difficult for law enforcement authorities to keep up. Surprisingly, the United States tops the list of countries where these sites originate, with 1,937 sites identified last year. Russian child porn sites have also skyrocketed within the last year, increasing 106 percent. The increase has been blamed on Russian mafia gangs seeking huge profits through child porn. “There is a huge demand for this material,” said detective Peter Spindler of the Mets Protection Group. Adult webmasters are again encouraged to join Adult Sites Against Child pornography, www.asacp.com, which is leading the adult industry’s initiative on this issue.
Patriot Act Update
As predicted, details are now beginning to emerge which confirm previous wide spread fears that the Patriot Act is being used in “non-terror investigations.” Official policy allows evidence gathered under the extraordinary anti-terrorism powers conferred by the USA Patriot Act to be used in prosecuting common criminals with no connection to terrorism. “We would use whatever tools are available to us, within reason, to prosecute violations of any law,” said Byran Sierra, a Justice Department Spokesman. In a recent report, the Justice Department also revealed that information that has been obtained from computer service providers under the Patriot Act and used in investigations unrelated to foreign terrorism.
Such investigations included a kidnapping, a bomb threat against a school, a hacker who extorted his victim, and a lawyer who defrauded clients. Much of the specific information relating to actual uses of the Patriot Act is still being withheld, based on security concerns. The government has still failed to answer the more basic question of whether we as a nation are safer as a result of these new investigatory powers now in the hands of the federal government. During the Clinton Administration, the adult industry enjoyed its heyday, and was essentially free from intensive federal regulation. That has all changed now that the baton has been passed to the Republicans...
Political Soap Box
Conventional wisdom holds that two of the most divisive issues of all time are religion and politics. Neither are discussed in Adult Industry Update on any regular basis. However, with the upcoming presidential election campaign just starting to heat up, the issue of politics is worth a mention. Initially, the adult Internet industry is made up of both Republicans and Democrats. Regardless of one’s political leanings on mainstream issues, it cannot be disputed that Republican Administrations are remarkably less friendly than Democratic ones, to the adult industry as a whole.
During the Clinton Administration, the adult industry enjoyed its heyday, and was essentially free from intensive federal regulation. That has all changed now that the baton has been passed to the Republicans, who quickly appointed John Ashcroft to lead an ultra conservative Justice Department. This industry is in a unique position to influence the next presidential election, given the vast number of potential voters it reaches with its products and communications.
This is not a political endorsement of the Democratic Party. Frankly, this author is of the opinion that both political parties are in need of reform and enlightenment, and he is a registered member of neither party. However, as a matter of industry survival, it is essential that adult webmasters and related service providers begin to organize and plan to influence the upcoming presidential election. It is in the industry’s short term interest to help elect a president who will replace the John Ashcroft Justice Department with one headed by a more enlightened, progressive legal thinker who will devout the country’s precious law enforcement resources to the detection and prosecution of real crime, and stop trying to influence the type of media adults read and watch.
Moreover, it is in the industry’s long term interests to ensure that any Supreme Court justice who decides to retire within the next several years is replaced by an individual who can bring balance and minority voices to the Court, instead of yet another ultra conservative who will tip the scales of every decision in favor of the right wing vote. As we saw with the Bush v. Gore decision, the Supreme Court is not immune to politics. The adult industry must therefore act to preserve its longevity by influencing the upcoming elections in such a way so as to give it the best chance of survival. More than ever, the fate of your business may well hinge on politics.
Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”
