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A National Initiative

Gregory A. Piccionelli
"Let's do it." With those three words Diane Duke, President of the Free Speech Coalition (FSC) granted my request that FSC invite Democratic presidential candidate Sen. Mike Gravel, D-Alaska, to speak for a few minutes to the audience attending the organization's "Red, White and Blue Bash" scheduled for the following weekend. Now, you may think that requests of the type above would be fairly commonplace and should hardly be considered industry news, much less the topic of XBIZ's monthly legal column. After all, given that the U.S. adult entertainment industry is often reported to be a huge business with annual revenues exceeding $15 billion dollars a year, and, well, politicians being politicians and always needing campaign contributions, it would be reasonable for you to expect that presidential candidates must always speak at significant adult industry functions. And you'd be wrong.

In my recollection, no serious presidential candidate has ever attended, much less addressed, an adult entertainment industry audience at any public or private venue. In fact, politicians at every level and affiliation have traditionally shunned the industry for fear of being politically tainted by any positive association, no matter how attenuated, with the one substance they have all treated like political kryptonite: porn. That's why when the Senator responded favorably to my suggestion that he speak at the FSC event if invited, I was struck by the fact that, maybe, just maybe, I was witnessing what we might someday look back upon as the first courageous step on a journey that I hope will not only change America's perception of the adult industry, but change America itself. Let me explain.

It should come as no surprise to anyone with even a rudimentary understanding of the numerous laws pertaining to the creation, performance, distribution and exploitation of adult entertainment that the industry is one of the most highly regulated in the country. A point that I stress in a continuing legal education presentation I make to fellow attorneys entitled "Adult Entertainment, More Regulated Than Nuclear Waste." Yet despite what one might term a "legal pornucopia" of laws at every level of government, virtually every law passed to control the activities of entrepreneurs and performers in the business has been enacted without any consultation — much less constructive input — from the industry. Despite the fact that conservatives and liberals alike often point to the so-called "influence" the industry has on our culture, even the tiniest of conservative interest groups, a thousandth the size of the industry, wield greater power to influence the decisions of those who can determine the very viability of adult entertainment businesses.

More than 2,000 years ago, Marcus Cicero, a famous Roman lawyer observed: "Freedom is participation in power." By that measure, the adult entertainment industry is indeed severely "freedom-challenged," to say the least.

But what is perhaps even more amazing about the unique relationship, or lack thereof, between the adult entertainment business and those who regulate it is that fact that even in this most politically corrupt of times, where more than ever money talks in power politics, the adult industry cannot even buy influence because politicians will often refuse to take campaign donations from an adult entertainment source. This has created an interestingly ironic situation in that what many politicians self-servingly term a "dirty" business may well be the cleanest business of its size when it comes to the filthy business of present-day money-driven American politics.

Democracy?
It is a gross understatement to say that the adult entertainment industry has been treated unfairly by the political process in this country. Democratic principals of majority rule and representing the will of the public that we all learned in civics class just don't seem to apply to the government's treatment of this industry. Consider the fact that a very large percentage of Americans willingly consume adult entertainment products and services and clearly would like to continue to do so. Americans, like most of the civilized world, have unambiguously voted their general acceptance of adult entertainment products and services with their dollars. In fact, contrary to the positions of most politicians, time after time, polls have shown that the American people overwhelmingly have a "live and let live" attitude toward the sale of adult erotica to willing adults. Yet despite a widespread and growing acceptance of mainstream adult content by the public, our politicians ignore the majority's opinion and continue to pass some of the most frighteningly punitive and constitutionally repugnant laws on the books. The history of the regulation of the adult industry to date is sadly a story of the shameless exchange of our cherished free speech rights for dollars and votes by self-serving politicians to further the morality agendas of the religious interest groups that support them.

But participants in the adult industry are not the only ones who have been screwed by a political system that has grown so corrupt that it only seems to serve the interests of the rich and well-connected. The polls also indicate that Americans in greater numbers than ever are losing confidence in their government. It should not surprise us that far from our historic position as the world's beacon of democracy, America is now being viewed globally as a beacon of hypocrisy as it attempts to export democracy by force to other countries when less than 30 percent of its own voters turn out for national elections and lesser contests are lucky to break single digits.

It has often been said that the adult entertainment industry leads the rest of the country in the adoption and development of new communication and entertainment technologies and cultural trends. Unfortunately, it is beginning to appear that the disenfranchisement of the industry was also a leading indicator of what would soon happen to mainstream America.

So is there anything that the adult entertainment industry and mainstream America can do to take back our country from the special interests? Definitely yes. Enter Sen. Mike Gravel and the National Initiative for Democracy.

Initiative Process
You may be surprised to learn that our federal government is not a true democracy. In a true democracy the people are the government. Instead, in our system we elect representatives to run the federal government for us. Unfortunately, this has led to the situation in which the representatives do not, for the most part, run the country in a manner that is responsive to the desires and interests of the people, they run it in a manner that furthers their own interests, particularly as those interests pertain to raising money for their re-elections. So we, the people, have become increasingly alienated from the process of governance and increasingly frustrated that important problems like dependence on foreign oil, illegal immigration, a failing education system and a decaying transportation infrastructure are all ineffectually addressed year after year as they worsen to crisis proportions. This leads to what Gravel has called "an extreme imbalance of power in the government versus the people." To solve these problems and create a true balance of power, The Democracy Foundation with the assistance of Gravel has created a plan called the National Initiative for Democracy (NationalInitiative.us).

Simply put, those advocating a national initiative propose that our federal constitution be amended to provide for an initiative process that would allow the people to directly create laws, thereby creating an important — and much needed — ability for the people to check, balance and when necessary override the currently exclusive power of the congressional and executive branches of the federal government to make law. Twenty-four states, including California, currently have a process through which the people make laws by initiative. Property tax limitations, campaign finance reforms and even women's right to vote are but a few examples of the progressive legislation initiated by the people.

Like Gravel, Ralph Nader and others, I am strongly in favor of a properly drafted constitutional amendment providing for a national initiative, especially now, as I believe that the industry and our country needs such a corrective advancement in democracy now more than ever. In fact, I personally believe that a carefully drafted national initiative amendment preserving our inviolate existing civil rights may be the only means of preventing what precious civil rights we have left from becoming casualties in the Terror War and other conflicts, real and imagined, that our country will face in this century.

The present time is also perhaps the first time that a national initiative process could realistically be implemented. Internet technology now provides an inexpensive means to quickly initiate and sustain a substantive interactive national dialogue amongst millions of Americans while the E-sign Act recently passed by Congress provides the legal basis for using a digital means to procure qualifying signatures for a national initiative. But getting a constitutional amendment out of Congress and securing its ratification by three-quarters of the states has heretofore been a Gordian Knot that no one has been able to cut. Enter a most unlikely Alexander: the adult entertainment industry.

At my dinner with Gravel, I explained that between its Internet, DVD distribution and brick-and-mortar market segments, the adult entertainment industry reaches an astoundingly large audience that easily dwarfs any single TV network or newspaper chain. I invited the senator to consider the possibility that the industry might be motivated to perform the task of introducing the concept of a national initiative and potentially even furthering the dialog related thereto. After all, who more than the adult industry has been screwed by the political status quo?

But, knowing the entrepreneurs of this business as I do, for as long as I have, I knew that perhaps additional "motivations" might help the industry decide that the issue of a national initiative amendment to the constitution would be worth space on their websites, DVDs and retail shelves. Now, enter what has been called "the third prong" of the test used to convict persons of violating the obscenity laws.

Serious Political Value
Simply put, an obscene photograph, video clip, DVD, live show, website or other matter is an expressive work that has lost the protection originally afforded to it by the 1st Amendment of the U.S. Constitution. That means that pretty much everything short of child pornography (which has no constitutional protection) starts out life as protected free speech.

Expressive material is stripped of its constitutional protection, however, only after a criminal trial in which a jury, applying a three-part test to the charged subject matter, determines the material to be "obscene." That three-part test was first announced more than 30 years ago by the U.S. Supreme Court in the case of Miller v. California, and is now known simply as the Miller Test. It requires that for any material to be obscene it must be shown that:

1. "The average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest;

2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

3. The work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Note that if the work when taken as a whole contains serious political value (i.e., it does not lack serious political value), it cannot be obscene. Consequently, if properly presented as an integrated part of an explicit adult entertainment work, the discussion promotion and/or advocacy of, or the fundraising pertaining to the creation of a national initiative might well cause the adult entertainment work to be properly characterized as not lacking serious political value.

So, if adult websites and explicit DVDs contained such integrated content regarding the need for a national initiative process, not only would millions of Americans be exposed to the idea, potentially igniting a grassroots movement to make the initiative a reality, but webmasters and other adult content producers might well also be doing themselves a favor by increasing the defensibility of their works.

Let's Do It
"Let's do it" is an elegantly simple phrase. But no sooner had Diane spoken the words than I knew she had communicated a lot more than just a granting of my request to provide the senator a podium for his national initiative proposal. Her words seemed to hang in the air for a moment as if to let us know that they should be remembered and repeated. I clearly remember the feeling that her words struck me as a simple, yet powerful call to action. Todd Beemer rallied a group of everyday American citizens to become the first to fight back against the evil that attacked our country on September 11th with the simple phrase: "Let's roll."

His words captured the hearts of Americans everywhere and became the battle cry for our troops in Afghanistan. Perhaps, if we are lucky, Diane's would be the first utterance of what hopefully will be destined to become a rallying cry for all who have realized that our so-called leaders have put freedom's future in serious jeopardy and that it is again time for the common folk to take some commonsense action.

In J.R.R. Tolkien's masterpiece "The Lord of the Rings," the evil entity Sauron was illprepared for the unlikely event that his mind-enslaving Ring of Power would be destroyed due to the work of the most unlikely of Middle Earth's creatures: the hobbits.

Similarly, I suspect that the forces of evil at work in the world today would similarly be ill-prepared to combat a grassroots movement to insist on the adoption of a national initiative process initiated by such an unlikely foe as the adult entertainment industry. Wouldn't it be poetic justice?

So my fellow adult industry Americans, a great and noble opportunity to ensure that freedom shall not perish from this earth has been presented to the most unlikely of heroes: you. Here's your chance to stick it to those who have been sticking it to you all these years and help realize the greatest of American dreams: government of the people, by the people and for the people.

I say: Let's do it.

Gregory A. Piccionelli, Esq. is one of the world's most experienced Internet and adult entertainment attorneys. He can be reached at Piccionelli & Sarno at (310) 553-3375 or at greg@piccionellisarno.com.

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