opinion

Top 10 Forces Facing Adult

Jeffrey Douglas
At a time in history when adult entertainment is facing some formidable opposition, XBiz World asked leading free speech attorney Jeffrey Douglas to list 10 of the top foes or forces currently posing a threat to the well-being and prosperity of the industry.

1.) U.S. Justice Antonin Scalia
U.S. Supreme Court Justice Antonin Scalia is the highest-profile member of a group of highly activist, political judges who conceal their political activism by accusing everyone else of being judicial activists. Scalia is the foremost advocate of branding any sexually oriented speech as second class. Under Scalia's version of the Constitution, the First Amendment should read, "Congress shall make no law abridging the freedom of speech, or of the press, except for matters relating to sex."

According to Scalia, it would be constitutional for Congress to bar sexually oriented materials from electronic media, and cities should be able to impose restrictions on time, place and manner with little, if any, justification. Ironically, this radical departure from the history of this country comes from a man who claims to be a strict constructionist. He argues that the Constitution should now be exactly what it was in 1786. He opposes an evolutionary approach to constitutional law, but for commercial sexual speech, he is the ultimate result-oriented judge. As far as he is concerned, the adult entertainment industry should always lose its case.

2.) Kangaroo Hearings
Consistent with the history of adult regulation, Congress recently held hearings calling only witnesses biased against the industry. These witnesses testify gravely that viewing erotic images causes permanent, measurable brain damage. Other witnesses have testified that erotica is as addictive as crack cocaine and that virtually all sexually explicit materials violate obscenity statutes.

The danger is that such distortion and deceit end up in congressional findings. Like the myths of "negative secondary effects" and the "addictive" nature of sexual imagery, these slurs are easier to establish than to eliminate. Nobody wants to waste money paying lawyers to "disprove" imaginary horrors and fallacious arguments associated with adult entertainment after they have been legitimized by congressional hearings.

3.) Acacia And Patent Abuse
Acacia Research purchased "suites" of patents that purportedly established ownership of basic business techniques and practices, including streaming technology. Many adult websites pay a license to use streaming technology rather than fighting this well-capitalized bully. Others have chosen to fight.

The first important hearings of this long-term war did not go favorably for Acacia. But a judge in Northern California has many issues before him. Although unlikely, if the judge grants Acacia's wish and creates an "adult industry defendant class," it could turn into a life-and-death battle for the Internet-driven adult industry, with the majority of players never getting their day in court.

The most prominent faces in this fight are Acacia executives Robert Berman and Paul Ryan and, on the other side, the Joint Defense Group, consisting of 12 online adult companies fighting for their rights. Other likely battles with patent claimants include a war with Acceris, which claims that its patents cover any technologies that allow people to make phone calls over the Internet.

4.) Attorney General Alberto Gonzales
While not as scary as the ideal bogeyman John Ashcroft, Attorney General Alberto Gonzales is the most dangerous threat to liberty in the executive branch. He is the ultimate "yes-man" in an administration of sycophants. This so-called "complete team player" already has caved into pressure from the most extreme voices in Congress and announced that fighting the adult industry would be a high priority for his administration.

Although there are hopes that this is mere pandering to the religious voter base, the power of the federal government to destroy can never be underestimated. Adult content manufacturers, producers, distributors and retailers face years in prison for violating anachronistic obscenity laws. The federal government's conviction rate in these cases is in the high 90-percent range. Targets in the last major sting operations were mainstream manufacturers selling ordinary, white bread content.

5.) Child Porn Spammers
"Fresh little pre-teens raped...," this — and worse — is spammed every day to the Internet community. The adult industry spent years establishing the impermeable wall between "child pornographers" and "adult entertainment." Yet, spammers are accomplishing what the censors failed at — merging illegal child pornography with constitutionally protected erotica in the minds of the American people. The exact same tactics and advertising presentation are being used to hawk child pornography "rape" films, bestiality and routine X-rated materials.

6.) Pseudo-Scientists
There are always "scientists" who will claim anything if the price is right: "Eroto-toxins emerge any time a person looks at an erotic image;" "Pornography is as addictive as crack cocaine;" "Adult businesses cause property values to go down and crime to rise;" "Exposure to X-rated material increases the likelihood of violent crimes like rape;" and "Pornography degrades women, children and the family."

The media reports these absurdities seriously and people believe what they fear. Typically, the "eroto-toxins" canard comes from a Ph.D. in communications, not a psychiatrist, biochemist or scientist. As long as the well-funded censorship groups (or worse, taxpayer dollars) pay for these studies, we will be subjected to such dangerous nonsense.

7.) Fake Feminists
Feminism was intended to bring women the rights and responsibilities that all human beings deserve. A handful of activists have tried to pervert it into an anti-sex movement. These pseudo-feminists characterize all sexual imagery as violence against women. One well-known academic actually characterized gay explicit material as violence against women, because the men being degraded are "stand-ins" for women.

8.) Fake Family Organizations
Whenever the words "family," "children" or "values" appear in an activist organization, you can bet that nary a penny of the millions raised goes to needy families or children. It is the equivalent to "new and improved" or "lemony fresh" in the mouth of an ad agency. In the minds of these activists, children are merely the excuse to ban whatever idea you believe to be impure.

Many of these groups take the narrowest of interpretations of scripture and pervert religion into an anti-sex manifesto. To these true believers, any sexual thought or activity outside of a reproductive urge is sin. And they call this "the heart of the American tradition," and as a way of "protecting women and children." Who will protect the women and children from them?

9.) Credit Card Giants
Credit card companies, like the phone companies before them, parasitically suck the profits from adult websites, then create abusive and arbitrary rules regarding chargebacks to make more profit. But like the best parasites, they leave just enough blood to keep the hosts alive. The credit card associations are essentially unregulated. They assist the government in violating adult business and consumer privacy, and they have deniability, because they don't create or distribute adult product, they just make the most money from it.

10.) Greed And Ignorance
"We have met the enemy, and he is us." Walt Kelly's "Pogo" recognized this basic sad truth, and it applies tragically well to the adult industry. Avarice causes short-term thinking and foolish risk-taking. We create our own vulnerabilities by spamming, putting unscreened content for minors to access and using inappropriate meta tags. We blind ourselves to risk by refusing to consult experienced lawyers regarding intellectual property and criminal issues. Childishness such as greediness and willful ignorance has no place.

Jeffrey J. Douglas is a criminal defense attorney in Santa Monica, Calif., and the Chair of the Free Speech Coalition. Chairman Emeritus of the First Amendment Lawyers Association, he has represented the industry as a lawyer and spokesperson for more than 20 years.

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