Adult's New Math

Eric M. Bernstein
Who says politics and money are not important to all aspects of the adult entertainment industry? Anyone who does not believe that such plays little to no impact on this industry is living in a fairytale world. The November election show just how important politics are for the growth of every aspect of the adult entertainment industry and how money is a constant necessity for the industry to get its message across. This article also serves as a cautionary note: Some Democrats have adult industry baggage, and the adult world must get ahead of the curve or find themselves at the Democrats' mercy.

Their baggage, in fact, is potentially more problematic for certain aspects of the industry — most notably in the form of regulations and taxes.

On Jan. 4, Congress convened with Democrats holding the majority in both houses for the first time since 1994. The electorate, tired of scandal and little to nothing being accomplished in Iraq and the economy, gave the Democrats a significant majority in the House and, by virtue of several upsets in key Senate races, a 49-49 split with two Democratic-voting independents, Joe Lieberman in Connecticut and Bernie Sanders in Vermont, giving the Democrats a 51-49 advantage. The impact of this dynamic change will be substantial.

It is now extremely doubtful that a bill such as HR 4472 or its ilk will pass through Congress in the means and manner that Rep. Mike Pence and Sen. Orrin Hatch pushed it through in 2006. The pounding rhetoric of Pence, Sen. Sam Brownback and their like will be limited to minority reports since they will be unable to chair and/or call congressional subcommittee meetings on the ills of the adult entertainment industry. Strangely enough, those who scream the loudest about child pornography or the adult industry as a whole appear to do so in order to hide their own issues. Former Rep. Mark Foley's scandal during the last year's election campaign is a prime example.

Vacant High Court Seat?
If a Supreme Court vacancy opens up in the next two years, it will not see added to it a conservative ideology the likes of Justices Samuel Alito, Antonin Scalia or John Roberts. Individuals of that ideology will not be approved by the Senate Judiciary Committee or the Senate as a whole. More moderate possibilities, in the mold of Justice Anthony Kennedy or David Souter, will more readily receive approval, and it will now be the Democrats with their fingers on the so-called "nuclear option," eliminating the filibuster issue that former Senate Majority Leader Bill Frist waived every time it looked as if a Bush nominee to the federal bench was in trouble.

Kennedy and Souter both were nominees of Republican presidents. In fact, of the nine Supreme Court justices currently seated, only Beyer and Ginsberg were appointed by a Democratic president.

Furthermore, it will be equally difficult for the President to appoint ideologues to the federal district/appellate bench for the same reasons, especially since individual senators must sign off on judicial nominees in such states at Pennsylvania, Rhode Island, Virginia, Missouri, Ohio and Montana, where Democrats either hold both Senate seats or replaced a Republican in the Senate. More moderate and clearly less conservative types might likely will be the norm.

The notion that Democrats only exist on the East and West coasts has been debunked. Democrats hold more governorships now than they have in generations. Democrats won big in North Carolina, Ohio, Indiana, Iowa, Missouri, Virginia, Colorado, Florida, Arizona and Montana in the House and Senate races. The landscape for 2008 is now much more moderate, apparently less polarized and more likely to present a different cast of characters as potential presidential timber.

Who would have believed that Republicans would one day consider a moderate former- mayor of New York City as a possible front-runner, or that an African-American Democrat, female or male, could be the next leader of the free world? The names Giuliani, Clinton and Obama are certainly not sending Americans of either political party into the streets screaming for a candidate who speaks to God or shills for the Religious Right.

Who would have conceived that the voters in Scottsdale, Ariz., and Seattle would send a clear message to their elected leaders by voting against bans on gentlemen's clubs? The following examples should serve as a clear and convincing message to the adult entertainment industry that local politics and money do impact the way it is perceived by politicians. Politicians read statistics exceptionally well, so let us try some out for size:

Scottsdale Vote
By a margin of 53 percent to 47 percent, voters in Scottsdale voted down strict rules on the city's two exotic clubs.

The clubs raised almost $250,000 in political contributions to their cause, almost all of which was above the reporting threshold. They outspent their opponents almost 25-1.

By a margin of 63 percent to 37 percent, voters in Seattle rejected strict new rules on the city's exotic clubs.

The clubs raised almost $900,000 in political contributions to their cause, almost all of which was above the reporting threshold.

All of this prompted Seattle Mayor Greg Nichels to comment: "The defeat of the rules has created a financial motive to have strip clubs in the city."

There was a complete 180-degree turn once the voters spoke.

In that same vein, also in the guise of new math, who would have predicted the following, all of which are anathemas to the Religious Right and should serve this industry as beacons that when voters are given the chance to express their views, they are more moderate than politicians give them credit for:

Arizona, the home of Barry Goldwater, John Kyle and John McCain, voted down a ban on same-sex marriages.

South Dakota, a state that voted Tom Daschle out of the Senate two years ago by a margin of 56 percent to 44 percent for being a hero to the religious right, voted down a comprehensive ban on abortion, which was supposed to form a test case against Roe vs. Wade.

Missouri, home of former Attorney General John Danforth, amended the Missouri Constitution by approximately 50,000 votes by allowing stem cell research to occur within the state.

Finally, one cannot let this article go without some real words of caution regarding the Democratic majority and the concept of U.S. voter moderation.

First, the Democrats of the last Congress pushed for a .XXX sTLD, mandatory labeling and an adult tax. It is far from coincidental that the .XXX sTLD was resurrected less than 48 hours after the Democratic Congress was sworn in. Did ICANN take the opportunity to claim that, before Sen. Mark Pryor's and Rep. Spencer Bachus' proposed Internet legislation becomes a reality, that an adult "ghetto" should be implemented? Only time will tell. The Democrats want to be seen as strong on the issue of child pornography and while they do not believe in killing off adult entertainment — as the Republicans do — the possibility of further and more pervasive regulation and labeling clearly is on the horizon.

Second, with the Bush administration seemingly deprived of congressional opportunities to impose its will on the adult community, the industry likely will see more 2257 inspections as the Department of Justice tests the limits of Miller's decision and handles more obscenity prosecutions, depending on the outcomes of the COPA case in Philadelphia and the Extreme Associates case in Pittsburgh. The COPA case is on trial as this article is being written, while Extreme Associates is slated for trial later this year.

Third, there will be continuing attempts to regulate and restrict adult establishments by zoning or outright attempts to ban them, all under guise of the "secondary effects" test. The gentlemen's club industry has learned the lesson of politics and zoning, as described earlier, but there will be continued attempts at such, as long as people like Scott Bergthold can con politicians into believing that he holds the magic bullet when it comes to zoning and land use ordinances. Then again, maybe this will be the year that politicians realize they are spending more in legal fees than they are earning from the revenue and taxes created for municipalities in question.

Adult members believe that 2007 will shine a brighter, more positive light on all aspects of the industry and that, while members will always need to be vigilant, the industry seems to be grasping onto the tools and wherewithal necessary to solidify this billion-dollar business for many years to come.

Eric M. Bernstein, Esq., is the partner in the firm of Eric M. Bernstein & Associates, L.L.C. which handles 1st Amendment, corporate, land use, Internet, copyright/ trademark and employment law matters for businesses/clients in the adult entertainment and Internet industries.

Bernstein and his law firm can be contacted for legal advice/services at his website at and by email,

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