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Mainstream Prosecutions?

Alex Henderson
Adult entertainment is not only a huge moneymaker for many of its manufacturers but also for many of its distributors — and in 2007 those distributors include Comcast Cable, Time Warner, DirecTV, Marriott and a long list of other large mainstream corporations that have been offering sexually explicit erotica to those who want it.

None of those mainstream companies is actually creating adult entertainment or specializing in it, but they are certainly profiting from it — which is a fact that Christian Right pressure groups like the Family Research Council (FRC), the Christian Coalition of America, James Dobson's Focus on the Family and the Cincinnati-based Citizens for Community Values (CCV) are well aware of.

CCV repeatedly has called for legal action against mainstream companies that carry erotica, and during the summer their main target was the Sioux Falls, S.D.-based LodgeNet Entertainment Corp.

Headed by far-right Christian fundamentalist Phil Burress, who describes himself as a "former porn addict," CCV has been urging the U.S. Justice Department as well as Marty J. Jackley, the U.S. attorney for South Dakota, to investigate LodgeNet for obscenity. LodgeNet (which acquired its former competitor, the Denver-based On Command Corp. for $380 million earlier this year) is North America's leading supplier of pay-per-view films for hotels. According to its website LodgeNet is bringing PPV material to "1.8 million hotel rooms representing 9,300 hotel properties worldwide."

When CCV held a press conference in Sioux Falls in August, Burress lambasted LodgeNet for "selling hardcore pornography in all 50 states." LodgeNet's official response was that the adult material they offer is perfectly legal and that erotica is only part of a wide range of programming that also includes everything from sports to mainstream Hollywood films. It appears that LodgeNet — which reported revenue of $134.9 million for 2007's second quarter — has no intention of caving in to CCV's demands.

Clearly, CCV and other Christian Right groups would love to see LodgeNet or another major mainstream company prosecuted for obscenity — or at the very least, intimidate them into giving up adult entertainment altogether — but how realistic is this idea? What are the chances of corporate powerhouses such as Comcast, Time Warner and Holiday Inn facing obscenity prosecutions for distributing sexually explicit material?

According to 1st Amendment attorney Gregory Piccionelli of the Los Angeles-based firm Piccionelli & Sarno, it is "very doubtful" that LodgeNet, DirecTV or any other major mainstream corporation will be battling federal obscenity charges anytime soon. Federal prosecutors, Piccionelli stressed, like to win cases — not lose them — and what Piccionelli describes as the "standard vanilla adult entertainment" that mainstream corporations are distributing (that is, material by Club Jenna, Vivid Entertainment, Wicked Pictures, Larry Flynt's LFP/Hustler empire, Adam & Eve, etc.) is very easy to defend under the Miller test for obscenity established with the U.S. Supreme Court's historic ruling in Miller vs. California in 1973.

That is why, Piccionelli said, the adult material that the federal government has been going after for alleged obscenity during the George W. Bush era has tended to be extreme material dealing with subjects like scat/defecation and urination — which is definitely not the sort of adult material that mainstream companies such as DirecTV, Marriott, Comcast and Time Warner have been offering.

Piccionelli said that while he doesn't expect to see any mainstream CEOs being carried away in handcuffs for offering a Hustler or Club Jenna title, the federal government does have a formidable weapon that mainstream corporate America needs to be aware of: 2257. Piccionelli said that because vanilla erotica has become harder and harder to prosecute for obscenity, 2257 laws can be an effective backup plan for prosecutors — and it is possible that a mainstream company could hear from the federal government if it is offering material by an adult company that ends up facing a combination of 2257 and obscenity charges.

"I've been very concerned that 2257 might be the way to leverage obscenity prosecutions," Piccionelli said. "In other words, they can bring obscenity counts that they can't win and join them with 2257 counts that they can't lose — and then, somebody is facing a long period of incarceration or a plea bargain that would take them out of the business."

That "somebody," Piccionelli said, probably wouldn't be a mainstream corporation, but rather, an adult company that — although not guilty of obscenity — was not fully 2257-compliant. Piccionelli envisions one possible scenario that could inspire a mainstream corporation to drop its adult programming, at least temporarily.

"Let's say you have adult company X that has title Z on LodgeNet's systems," Piccionelli said. "The federal government brings an obscenity prosecution with 2257 counts in jurisdiction A — and in jurisdiction A, LodgeNet is also distributing that very same title via the in-room hospitality entertainment system. The defendant, adult company X, feels that it would be able to win an obscenity prosecution, but there are two or three 2257 counts that adult company X is facing — maybe not with respect to the same material, but because of a record-keeping problem or whatever — and the indictment references those as well.

"The defendant's attorney says, 'I can get you off on the obscenity count, but I can't get you off on the 2257 count because you are missing the compliance statement or you didn't have the record for this ID.' So the prosecution says, 'We'll give you a plea bargain: you go out of the business, pay a million-dollar fine, avoid prison and admit that in this jurisdiction, title Z was obscene.' Now, next target: LodgeNet. The prosecutor says to LodgeNet, 'We have an admission that this thing that you were running on your entertainment system in this jurisdiction at this point in time was obscene. Now, we don't really want to prosecute the hell out of you, LodgeNet, but you know, it might be a good idea if you toned down the stuff on your system.'"

Piccionelli added, however, that in the above scenario, it would be only a matter of time before LodgeNet would re-add its adult programming — probably after the George W. Bush administration leaves office in January 2009. There is simply too much money in adult entertainment for mainstream corporations to stay away from it permanently if they don't have to, Piccionelli said, and he predicted that if the next presidential administration does not go out of its way to make life difficult for adult companies, there will be even more mainstream corporations looking for ways to profit from erotica and make deals with adult companies.

In the meantime, Piccionelli warns that if the Republican Party plays the family values card in the 2008 presidential election, adult entertainment could be a convenient target. He also said that no sane person in the federal government really wants to shut down a bunch of mainstream, publicly traded corporations that are in so many Americans' retirement portfolios.

"The federal government isn't going to go after mainstream corporations in any significant way," Piccionelli said. "They'll rattle sabers and say, 'Look, we put these people away, and you are distributing the same kind of material. Maybe you might want to stop.' There will be a lot of nods and winks behind the scene, but I don't think you're going to see the Hilton Corporation or any of the other major hotel chains being forfeited in a RICO forfeiture action resulting from obscenity prosecutions for distributing adult material."

Diane C. Duke, executive director of the Free Speech Coalition (FSC), noted that by harassing LodgeNet and other non-adult companies, CCV is harassing what has traditionally been a major constituent of the Republican Party: big business. Duke doubts that CCV's anti-LodgeNet campaign will result in any federal obscenity prosecutions of mainstream corporations, and she said that the Christian Right's "bully" tactics may end up driving a lot of traditionally Republican businesspeople away from the GOP. If corporate businesspeople on Wall Street decide that the Republican Party has become bad for business, Duke said, they may quit voting Republican.

"The Republican Party lost its way a long time ago when it was co-opted by religious extremists," Duke said. "But Republicans sold the party to the extreme Religious Right for the voting block that came with their fear-mongering and Sunday-morning organizing."

If mainstream businesses get into adult entertainment and are concerned about possible legal risks, it would make sense for them to consult 1st Amendment attorneys who have a long history of representing clients in the adult industry. But Piccionelli said that the number of adult-industry attorneys who have also represented a lot of mainstream companies is limited.

"There are a few of us who have a substantial interface with mainstream businesses and a substantial interface with adult businesses, but it is very rare," Piccionelli said. "

First Amendment attorney Jennifer M. Kinsley (of the Cincinnati-based firm Sirkin, Pinales & Schwartz) pointed out that the willingness of Comcast, Time Warner and other large corporations to offer adult entertainment is a prime example of supply and demand; there is a huge demand for adult entertainment, she said, and profit-minded corporations are happy to supply it to those who are willing to pay for it. Nonetheless, mainstream corporations on the whole tend to be very discreet about their involvement with adult entertainment and don't go out of their way to publicize it.

"Mainstream companies definitely do what they can to hide the fact that they are profiting from the adult entertainment industry and the extent to which they are profiting from this industry," Kinsley said. "That's because they are answering to shareholders with differing views on what is acceptable and what is not acceptable.

"There is also the element of competition; the big companies know that if they don't offer adult entertainment, somebody else will. If Comcast decided to drop their adult cable channels, it isn't as though that programming isn't going to be offered by DirecTV or some other satellite network. The market for adult entertainment will continue to be there, and it is a question of who is going to best corner the market."

Kinsley echoed Piccionelli and Duke's assertions that it is most unlikely that CCV's campaign against LodgeNet will lead to any mainstream corporations being indicted on federal obscenity charges. However, Kinsley did note that some hotels have quit carrying pay-per-view erotica as a result of pressure tactics from Burress and his allies. In the Cincinnati area, those hotels include a Red Roof Inn, a Travelodge and some Marriotts.

"One of the fallback tactics of CCV has been boycotts," Kinsley said. "When they have been unable to coerce the government into prosecuting in areas where they believe the government should be prosecuting, their fallback tactic has been boycotts. They try to exercise more localized pressure. When they pressured a Red Roof Inn, the hotel actually caved and decided to remove adult entertainment features.

"While that doesn't accomplish the broad nationwide goal that would be accomplished by a federal obscenity prosecution, local boycotts are a tactic that they try to use — and I think individual businesses are subject to that kind of pressure. Those kind of local campaigns are much more likely to be successful for CCV than a big nationwide campaign to try to get somebody like LodgeNet prosecuted for obscenity in a federal court. That's just not going to happen."

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