Bush's Second Term

Daniel Terdiman
President Bush's tight victory on Nov. 2 is likely a harbinger of some very tough times ahead for the adult entertainment industry, and in particular adult companies. That's because, many legal experts say, the Bush administration has been waiting until its second term to commence a widespread ideology-driven campaign of anti-porn prosecutions.

It's uncertain exactly what strategy the administration will take in trying to signal to the public — and its friends on the religious right — that it is going to give the campaign high importance. But it does appear that with four more years at its disposal, there is little urgency to begin handing down indictments anytime soon.

Still, it's going to happen, say adult industry attorneys.

"With a virtually uninhibited second-term president that is free to enforce whatever moral agenda he wants, the adult industry really has something to worry about," said Lawrence Walters, an attorney with Weston, Garrou & DeWitt.

Further, adult entertainment lawyers say that because there have been few porn-related prosecutions in recent years, many in the industry have been living dangerously, neglecting to take appropriate care to ensure their businesses are legally safe from obscenity or the so-called 2257 record keeping and notification charges. And they say that with the coming wave of prosecutions, now is a good time for those with potential legal liability to undergo steps to protect themselves.

"You have to put aside a war chest to prepare for prosecution," said Jeffrey Douglas, a First Amendment attorney and a member of the Free Speech Coalition's litigation steering committee. "You have to form a close relationship with one of the tiny number of lawyers who are well-versed in 2257 and ideally who have had experience with federal obscenity prosecutions."

The problem, said Douglas and other experts contacted for this story, stems from the Bush administration's determination that attacking pornography is one of its chief remaining social priorities.

"In order to make an obscenity prosecution, it pretty much requires a convergence of an ideological commitment and a political payback," said Douglas. "Under the Bush administration, there's both. That is, John Ashcroft is the most ideologically Christian attorney general in American history. If Ashcroft turns a blind eye to the fact that someone out there might be masturbating, [he believes] he's endangering his immortal soul."

Ashcroft And Adult
That might sound extreme, but there's broad agreement among adult entertainment attorneys that it is Ashcroft's fundamentalist views that are leading the administration's program of attacking the adult business across the board.

"The groups that are in favor of constricting adult entertainment are the evangelical right and other parties that have the belief that many of the problems we see in society all come down to a permissive attitude, and that permissive attitude is nowhere better exemplified than in the liberalization of sex," said Greg Piccionelli, a Los Angeles constitutional and intellectual property lawyer.

But regardless of the reasons for the administration's stance on porn, there is little doubt among those experts that an attack is coming.

The question then becomes what methods the Bush administration will take in trying to bring down the industry?

By all accounts, there are several avenues that could be pursued. Among them are obscenity, child pornography, "virtual" child porn laws, laws prohibiting the distribution of material harmful to minors and 2257 regulations.

Many experts agree, however, that the Justice Department is likely to focus mostly on obscenity and 2257 largely because the mainstream adult entertainment industry has worked hard to disassociate itself from child porn.

But one of the best signs that trouble is on the horizon is that the Justice Department has recently hired 25 new attorneys for its Child Exploitation and Obscenity section. That section previously had 10 lawyers.

And since the Internet is the broadest distribution method for adult material, those new prosecutors are likely going to be busy targeting adult businesses.

Douglas predicts that to maximize the effectiveness of its prosecution campaign, the Justice Department is likely to begin by focusing on small to midsize businesses with little or no understanding of what a federal prosecution is like, let alone the financial means to fight back.

Small-Fish Target?
In the previous major round of obscenity prosecutions, during George H. W. Bush's presidency, Douglas said, the average cost of a defense was a quarter of a million dollars. And since then, the costs, which few could handle at the time, have risen. Because the government is highly skilled at maximizing the public relations effects of any prosecutions, the targets are likely to be the industry's small fish.

"Even if they get websites that are a microscopic percentage of the traffic," Douglas predicts, "it will be marketed to the general public that somebody that made $100,000 last year is a major player in the adult industry."

To some, however, it is not the obscenity rules that pose the biggest immediate threat to the industry. Rather, it is the possibility that new 2257 regulations, proposed by Ashcroft in June and beefed up to more readily apply to the Internet, will become the basis for much of the anti-porn crusade.

Among the many provisions in the proposed regulations to which industry attorneys object are record-keeping requirements that could be nearly impossible to meet — as adult businesses often have almost limitless quantities of material — and those new rules mandating the meticulous keeping of paper copies for all records could prove impossible to satisfy.

"Unless a good deal of generalization [not contemplated by the proposed rule] were permitted, these computer sites face truly awesome record-keeping burdens," the Free Speech Coalition argued in its public comments to the proposed new 2257 rules. "Those burdens might remain acceptable if the required records could be generated, maintained and inspected in digital form, but it is altogether unrealistic to expect that such records be printed onto paper in their entirety and then physically sorted and cross-indexed."

There are several reasons that the Bush administration may choose to use 2257 as its chosen path for crippling the adult entertainment industry, despite industry claims that the proposed rules are unconstitutional.

The first one, said free speech attorney J.D. Obenberger, is that the administration has already missed a deadline for reporting to Congress on its law enforcement actions under the 2257 rules.

Thus, said Obenberger, "any administration at this point is going to continue to have pressure from [Congress] to prosecute under 2257."

'There's No Defense'

In addition, while obscenity might be easier for the general public to understand, the bar for a successful prosecution in an obscenity case is far higher than for violations of 2257.

That's because the 2257 rules are straightforward, and carry penalties of five years in federal prison for a first violation and 10 years for a second.

"2257 is a terrific one for them," said Douglas. "There's no defense. Either you did it right or you didn't. They don't need to convict anybody on obscenity. They can just completely destroy your life on 2257 violations."

And, given the fact that almost every adult entertainment website likely runs afoul of the proposed 2257 rules in one way or another, industry attorneys say there is little time to lose in working to get in compliance.

"Your lawyer will keep you in business," said Walters. "Individuals who decide they want to take the risk of getting into the adult industry without a lawyer are exposing themselves to tremendous legal risk and they really should be looking at some other form of moneymaking venture."

Editor's Note: while John Ashcroft is no longer the threat to our industry that he once was, the warnings about the need for 2257 compliance are serious, and must be heeded. Stay safe!

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