educational

November Legal Update: 2

Lawrence G. Walters
In the conclusion of November's Legal Update, noted First Amendment attorney Larry Walters takes a look at the new US Attorney General, the status of 2257, and provides us with a look at current obscenity prosecutions:

Ashcroft Out, Gonzales In
As Bush's Cabinet departed in droves recently, the adult industry buzzed with speculation regarding how Attorney General John Ashcroft's replacement might approach regulation of erotic materials. The jury is still out, so to speak, as Alberto F. Gonzales has not been terribly vocal in regards to his views on sexually explicit content. It is clear that he falls squarely into the conservative camp, and was the chief architect of the justification for treating terrorists as enemy combatants, to whom the Geneva Convention does not apply, which led to the torture of prisoners at Abu Graib detention facility in Iraq. He was also instrumental in ending the American Bar Association's involvement in commenting on federal judicial appointments. The ABA was perceived as too liberal a group to have any viable role in the appointment process, and their recommendations are given very little weight. Fortunately, Gonzales' focus in the past has been on international issues such as terrorism, so it is hoped that domestic issues such as sex industry regulation remain out of the limelight for him, as the United States is still embroiled in fighting the War on Terrorism.

2257 Regulations... Where Are You?
The period for public comment on the proposed regulations pertaining to 2257 records keeping compliance closed on August 25, 2004, but the regulations have not been published in the Federal Register as of the date this article goes to print.

The adult industry remains on pins and needles as various groups posture to challenge whatever regulations are passed, and webmasters scramble to comply with perceived new obligations such as obtaining copies of age records compiled by primary producers. The adult Internet industry remains in limbo as to what is required to comply with 2257 until the final regulations are passed, and the anxiety level remains high in light of the results of the presidential election. A second term Republican generally spells bad news for the adult industry, as Bush is no longer concerned with re-election. Some will remember the Meese Commission which occurred in a second term Republican Administration.

Few webmasters have initiated full compliance with the proposed regulations before they are formally adopted, given the onerous requirements, instead choosing to wait and see what provisions actually make their way into the Federal Register. Now that the election is past the Bush Administration, they have little to fear, justifying any further delay in adopting a tough set of regulations.

However, given the industry's strong outpouring of criticism against the proposed regulations, Department of Justice lawyers may be reviewing and editing the proposed regs in the attempt to develop a more defensible version before they 'go live' with the amendments.

Obscenity Update
Two important obscenity cases progressed this month: Defense attorneys asked the U.S. District Court to dismiss the federal government's prosecution of Extreme Associates, arguing that the right to watch pornographic or even obscene materials in the privacy of one's home means nothing if the government can criminalize the means of getting that content in the home.

The court did not immediately rule on the motion; accordingly, many important issues remain undecided in this first case involving application of obscenity laws to the transmission of allegedly obscene materials across the Web. Parenthetically, Extreme Associates recently implemented this author's age verification device, the BirthDateVerifier to screen users from access to its free tour areas.

In another case, Barbara Nitke and the National Coalition for Sexual Freedom began its trial in New York in the case it filed against the Department of Justice, claiming that sections of the Communications Decency Act (CDA) prohibiting "obscene" transmissions are unconstitutional as applied to Internet content. The court is considering whether the failure to define the 'community' whose standards are to be applied in resolving the obscenity question, renders the CDA unconstitutional given the global nature of the Internet.

Obscenity cases continue to be filed throughout the country. The latest involved the owner of a video store in Bastrop, Louisiana, based on the sale of adult novelties (which, of course, are not protected by the First Amendment). The district attorney claimed, "State law is very clear about what constitutes obscene material," and "there is no question the merchandise... meets those requirements."

At Least It'S Not China
China shut down 1600 Internet cafes in the last few months, and levied over $12 million dollars in fines, against those cafes that allowed children to play violent or adult-only games and other violations. Thus far, Internet cafes in the U.S. remain open, but it's still early in Bush's second term.

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."

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