The End of the Beginning?

Tom Hymes
When I saw attorney and Free Speech Coalition Board Chair Jeffrey Douglas recently at a Los Angeles trade event, where he was speaking on a panel after having just returned from Phoenix and the just-concluded JM/5 Star obscenity case, he was like a new man.

With an irrepressible Cheshire cat grin and eyes glinting with glee, he leaned into the microphone and recounted in withering detail (and palpable satisfaction) how miserably deficient the government's case had been, and how important the victory had been for the plaintiffs and the industry.

But like all experienced lawyers, Douglas knows that benevolent tidings for an outlaw industry can never be counted on to last very long. Indeed, when we win big victories, they seem to inspire dreadful overreaction by an assortment of enemies at all levels. The result is that we seem to be the boy forever sticking an insufficient number of fingers into the holes of the dyke.

The problem with this perception of uncertain advancement is that it may be less accurate than it appears. The big picture reality, which is so hard to glean when dealing with a battlefield so vast and disjointed, could be that the tide truly is starting to turn regarding the ability of adult companies to stay in business without having to always keep an eye over their shoulder for the next insufferable zoning law, dancer/performer regulation, township ordinance, obscenity charge, 2257 inspection, etc.

The justification for optimism is not just the JM victory, but also the ruling in October by the 6th U.S. Circuit Court of Appeals that overturned the 2257 record-keeping regulations in Kentucky, Michigan, Ohio and Tennessee. That ruling came in the Connection Distributing vs. Gonzales case, brilliantly litigated by Connection attorney J. Michael Murray, which has been underway since 1995 and has taken a public back seat to the more widely-publicized FSC vs. Gonzales lawsuit brought in 2005 in U.S. District Court in Colorado.

In the Connection case, the government had argued that 2257 was aimed only at conduct and not speech, but Judge Cornelia G. Kennedy said in the opinion, "This argument is unpersuasive. While the government is indeed aiming at conduct, child abuse, it is regulating protected speech, sexually explicit images of adults, to get at that conduct."

We do not know at this time if this ruling will be appealed by the Justice Department, first to the full panel of the 6th Circuit and then if affirmed to the U.S. Supreme Court, but hopes are high that the sound reasoning of the court will prevail across the board. If so, it will be a stunning victory for the industry and the federal courts, which will have upheld an essential legal right that is also one of the cornerstones of democratic jurisprudence.

The Justice Department has only just had its new attorney general confirmed by the U.S. Senate, so we have no clue whether it will continue to play hardball with the industry. Neither do we know if the final year leading up to the presidential election will bring an avalanche of anti-porn accusations and demands for action from both Democratic and Republican candidates, but I would not doubt it.

What I do know is that these victories could not have come at a better time. We needed them because we needed to see that we are not alone and have "friends" in high places. The question now is whether we can we get our act together to build on those victories?