Legal Update: August, 2004: Part 2

Larry Walters
This conclusion of August's legal update by noted First Amendment attorney Larry Walters examines the latest obscenity prosecutions, lawsuits over gambling ads and more...

Obscenity Prosecutions
Phillip Beard and Chris Brown, former radio disc jockey’s, were charged with felonies for the alleged possession and distribution of hardcore obscene pornographic DVDs at the Conway Gay Pride Parade in Arkansas. The parade’s sponsors filed a complaint about the incident with police. Beard and Brown allegedly distributed hardcore gay pornographic DVDs to bystanders, including at least one minor, a 16-year-old boy. Each charge carries a maximum jail term between one and five years and maximum fines of $2,000, and additional charges could be filed as the case progresses.

Lawsuits Over Gambling Ads, along with a list of Internet firms such as Google, Alta Vista, Overture, and 100 John Doe defendants, were named in a class-action lawsuit filed in the San Francisco Superior Court, claiming that the companies sell rights to web advertisements that are illegal in California. The suit demands that the companies stop accepting the advertisements based on searches for terms such as “illegal gambling,” “Internet gambling” and “California gambling,” and requests that the companies give California consumers “millions of dollars in ill-gotten gains.” The plaintiffs seek restitution, forfeiture and disgorgement of illegal gambling proceeds, which would be distributed to spouses of gamblers who have had community property taken from them as a result of the gambling, as well as to California Indian Tribes, other licensed gambling businesses and to the state treasury. The plaintiffs also seek to enjoin the defendants from participating in, and continuing to market, sell, and display advertising for Internet gambling in California.

Another suit, filed in the Eastern District of Louisiana, by Casino City against the Justice Department, seeks a determination that online gambling advertising is protected by the First Amendment to the United States Constitution. The Supreme Court has suggested that such protection exists for gambling advertising as commercial speech.

Legislative Update
The House Judiciary Subcommittee voted 18-9 in favor of the Family Movie Act, which would allow filters to edit sex scenes and allegedly obscene material in films, and would eliminate copyright claims from movie producers for those companies that develop such technology. This vote follows the United States Supreme Court decision on the Child Online Protection Act, where the Court ruled that a law aimed to punish pornographers who give access to adult material to minors most likely constitutes an unconstitutional infringement on free speech. The Act’s sponsor, Representative Lamar Smith (R-Texas), stated, “Parents should have a right to show any movie they want and skip or mute any content they find objectionable.” However, Representative Howard Berman (D-Calif.) stated the Act is problematic in that the filters could next be used to automatically remove commercials from television programs and that it “gives for-profit companies the right to commercially exploit the copyrights of movies without input from creators.” The Act is currently awaiting approval by the full House.

FTC Votes On Wiretap Rules
The FTC voted 5-0 vote toward passing regulations intended to assist police and spy agencies in eavesdropping on all forms of high-speed Internet access, including cable modems, wireless, satellite and broadband over power lines. The vote came approximately five months after the FBI, the DEA, and the DOJ formally requested guaranteed wiretapping access to broadband networks. The FCC's five commissioners agreed that the 1994 Communications Assistance for Law Enforcement Act (“CALEA”) clearly covers VoIP services and walkie-talkie style telephone calls. Still, the FCC did not grant the police agencies' request to extend CALEA to cover instant messaging and VoIP programs that are not “managed,” meaning they do not use the public telephone network. FCC Commissioner Kathleen Abernathy stated that there is “no higher priority than promoting national security. All of us are in favor of doing all we can to assist law enforcement.” This vote constitutes public notice of proposed rulemaking and requests public comment before formal regulations are adopted. Final approval is expected. However, many groups including the ACLU, Americans for Tax Reform and the Center for Democracy and Technology suggest that the FCC's final decision may be vulnerable to a legal challenge since, because Congress did not explicitly include the Internet in the law when CALEA was enacted a decade ago.

Say What???
A group of 20 anti-pornography activists protested in the Farmingdale Home Depot, condemning a recent nude pictorial featuring “The Women of Home Depot.” They have threatened to boycott the company unless it issues an apology and institutes changes to its employee policy to ensure the photo spread would not happen again. Home Depot and representatives said Home Depot had nothing to do with the pictorial, which is displayed in a Web-only feature posted on Robert Lloyd, executive director of Long Island Citizens for Community Values, said, “We are asking Home Depot to get out of the porn business.”

In other news, the irukandji jelly fish, found only in the Queensland's Mackay-Whitsunday region of Australia, may provide a solution for treating male sexual dysfunction. Lisa-Anne Gershwin, a PhD student at James Cook University, said prolonged erections may occur after a man is stung by the jelly fish. However, Gershwin stated, "It's not the kind of thing that you'd want to say 'woo hoo, hot date tonight, jump into the water in Mackay.'” Gershwin noted, “The irukandji syndrome that it produces is dangerous, [and] could potentially be fatal.”

Also, when returning home from a Costa Rican vacation, Oscar Arela and his girlfriend, Tala Tow, were ejected at Miami International Airport from an American Airlines flight, after a flight attendant asked Arela to change his shirt showing a female breast. The couple alleges that the airline violated their First Amendment right to free speech. Regarding the shirt, Tow said, "It's a picture of a man and woman, and the woman's breast is showing. The flight attendant basically walked up to us and yelled, 'You have to take off that shirt right now."' Tim Wagner, spokesman for American Airlines, claimed that crew members acted properly and that the shirt was more graphic than the couple described. Wagner noted American Airline's policy clearly states that someone who is "clothed in a manner that would cause discomfort or offense to other passengers" can be removed from a flight. American Airlines gave the couple a refund. Dress codes in the air? So much for the mile high club.

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, or AOL Screen Name: "Webattorney."

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