Free Speech Coalition Reaches 20-Year Milestone Fighting the Good Fight
LOS ANGELES — It may not be the first thing that springs to mind when people think of the adult industry, and it’s certainly not the sexiest, nor the most titillating part of the business. But the Free Speech Coalition has fought the battles that made the very existence of adult possible for the last 20 years and has proven it’s every bit as crucial to the industry as porn’s next huge star.
And that’s no easy task in a society that embraces porn but “not in my backyard,” that mounts attacks from an army of anti-porn zealots from the government and the religious right and fosters organizations outside of adult trying to push their own business models.
Since its inception, the FSC has tackled the hot issues affecting every corner of adult and has been a bulldog litigator when it came to taking the fights to court that has included the evergreen and ever niggling 2257 record-keeping debacle, among others.
It’s also created a number of programs to address the needs of adult including its Anti-Piracy Action Program (APAP) and PSA videos, the formation of Adult Production Health and Safety Services (APHSS) in the wake of the closing of AIM medical testing and challenging the acceptance of the .XXX sTLD.
But as beneficial as the programs are, what has put the FSC on the map is its legal chops, including milestone cases like the Ashcroft v. FSC – the U.S. Supreme Court ruling that struck down an expansion of the phrase “child pornography,” eliminating from the definition the requirement that the material contain children or be pornographic. It was a decision widely characterized by legal scholars as one of the best U.S. Supreme Court First Amendment rulings in decades.
And there was FSC v. Ashcroft, that FSC board chairman and attorney Jeffrey L. Douglas explains was “when the organization successfully challenged the unlawful effort by the Bush 2 Administration to add hundreds of thousands of 2257 record keepers without seeking required Congressional approval (Denver Federal trial court).”
The FSC took on another challenge during the usually quiet Clinton era, when Utah Senator Orrin Hatch successfully snuck in an amendment to a spending bill which radically redefined child porn, criminalizing simulated child pornography, such that neither minors nor sexually explicit images were required. Douglas says the FSC chose to fight when no one else would, winning in the 9th Circuit and ultimately in the U.S. Supreme Court.
And although the group’s ready to sit back and celebrate two decades of hard work, the fights continue to this day. The FSC is embroiled in the required condom controversy between Cal/OSHA and crusading anti-porn groups, the acceptance and ongoing debate over the .XXX sTLD, content piracy and you guessed it… the still unresolved issue of 2257 regulations.
These battles and others have kept the FSC glued to its war room seats, led by Executive Director Diane Duke who has been on board since 2006 and has no intention of backing down.
Duke came to the FSC after serving as senior vice president for Planned Parenthood of Southwestern Oregon for 12 years along with a resume that includes community service efforts and fundraising for the Oregon Social Learning Center, a United Way Women in Philanthropy Steering committee member and Eugene Human Rights commissioner.
And the director is steadfast when it comes to her organization’s ongoing efforts. She says, “We will continue our critical work on anti-piracy, our program to continue adult health and safety services and guidelines and educating adult businesses about the real threat of purchasing .XXX domain names. Additionally, we will be looking into helping adult businesses cut health insurance costs by taking advantage of economies of scale and looking into the looming patent troll that is Lodsys.”
The group’s copyright protection APAP program — that provides education and sophisticated tracking software technology to block content from being stolen — has met with considerable success according to Duke, who says most of the biggest tube sites are agreeing to comply and the program has gained momentum. She notes that APAP will be introduced in September at the XBIZ EU conference in London.
The FSC produced special PSA videos in 2010 with adult stars including Ron Jeremy, Joanna Angel and others to educate the industry and the public about copyright infringement.
Duke says, “Pirating of adult content has become commonplace and widely accepted. As part of FSC’s anti-piracy campaign we felt it important to call piracy of adult content what it is — stealing. We did not expect a societal change but felt it important to get the discussion started. Apparently we hit a nerve with well over 500,000 hits on YouTube.”
If that’s not enough, there’s always fundraising to contend with. Non-profit organizations have it tough enough, but add defending the sex trade to the mix and raising funds becomes a one-source pipeline — the industry itself, and although some might be generous, the FSC ain’t getting rich from mom-and-pop porn.
But despite the obstacles and challenges to provide for an “outlaw” industry, the trade organization has proven to be strong in its stated mission to “lead, protect and support the growth and well-being of the adult entertainment community.”
Its roots as an organization date back to 1968, with its first convention in March of that year in the Sheraton Universal Hotel, according to industry maven Bill Margold, one of the organization’s early pioneers. It began as a group that would protect free expression of adult-themed works. It even had its own awards in 1977 at The Wilshire Ebell Theatre called the EROTICAS.
And although some of the pieces of the puzzle may not fit exactly, the organization itself, and those who were the pioneers agree that the FSC grew out of a national group called the Adult Film Association of America (AFAA) made up mostly of theater owners. But with the advent of inexpensive home video, the AFAA morphed into the Adult Film and Video Association of America (AFVAA).
Margold, who is widely known for the creation of the group’s iconic “Fighting for Your Freedom Poster” that mimicked the Marine’s flag raising on Iwo Jima with girls in military uniforms, can trace the current FSC’s roots back to 1987 when the AFVAA included industry icons like David Friedman, Ron Sullivan and performer and publisher Gloria Leonard among others.
The group’s first Night of the Stars benefit opened in the summer of 1988.
“We needed an organization that would watch over the business,” Margold recalls. “I felt really good about being part of it, but I never felt it was really established as it should have been and it hadn’t reached its potential.”
But what then defined the group as a true industry trade organization and galvanized the members can be attributed to the arrest of producer Hal Freeman in 1987 for pandering. Prosecutors wanted to prove that paying performers to have sex on film was prostitution. But Freeman took the fight to the U.S. Supreme Court and won, opening the doors to making porn production legal in California and establishing the need for an organized group to advocate for adult.
The decision allowed for production, but the proliferation of adult home video being sold in suburbs and smaller cities saw retailers become the target of “obscenity” charges by law enforcement yahoos. In 1990, under the first Bush administration, the Federal government attacked most of the major manufacturers of adult video with a sting operation designed to destroy the industry.
Search warrants against approximately 30 manufacturers of adult product were executed. Most of the cases were surprisingly settled favorably and very few saw jail sentences, with the notable exception of VCA’s Russ Hampshire.
Changes in forfeiture law and the departure of some Department of Justice (DOJ) personnel resulted in the cases being resolved through cash payments called “liquidated forfeitures” to the Child Exploitation and Obscenity Section.
That scenario provided the impetus that gave birth to the Free Speech Legal Defense Fund (FSLDF), formed by industry leaders to protect the rights of members in all areas of adult entertainment.
But the group later decided to select a name more reflective of its broadened role in the adult community. During the 1991-92 timeframe, the FSC as its known today was born in the office of Doc Johnson novelty king Ron Braverman along with New Beginnings’ late Lenny Friedlander, according to Margold, who was then its creative director and a member of its board of directors.
Margold lists the first FSC Board in its Nov/Dec 1992 newsletter as including: Al Bloom, Ron Braverman, Charlie Brickman, Sheri Freeman, Lenny Friedlander, Russ Hampshire, David Kastens, Bill Margold, Jim South, Bill "Pinky" Stolbach, Bob Tremont and Chuck Zane — names that echo through the halls of adult to this very day.
The revamped FSC then began its mandate to become more closely aligned with other organizations representing the rights of free speech and civil liberties.
Douglas, who began as Board Chair in 1994 and briefly was its executive director in 1999, recalls that the group had only paid employee, and a budget around $100,000. “We had no programs, no clear purpose and a membership disheartened by three years of frantic fundraising but nothing to show for it. Slowly we transformed into a true trade association.”
He says that he helped the fledgling group by initiating the California lobbying and performer health screening programs, the World Pornography Conference, the hiring of professional executive directors (Bill Lyon in early 2000) and filing the lawsuits resulting in the successful Supreme Court challenge to the Federal Simulated Child Pornography law, the challenges to 2257, and opposition to the .XXX sTLD.
“It is very gratifying that some of FSC's most important programs, such as the successful APAP anti-piracy program, thrive almost entirely without my involvement, thanks to my outstanding fellow Directors over the past few years and the truly extraordinary Diane Duke and her dedicated staff,” Douglas says. “Since none of its predecessor organizations lasted as long as five years, the twentieth anniversary of the Free Speech Coalition is deeply gratifying, and a tribute to the commitment and talents of numerous adult industry leaders.”
FSC communications director Joanne Cachapero, an ardent defender of free speech and personal liberties who joined the group in 2008 after a stint at XBIZ, says her experience as a journalist got her interested in experiencing the industry from a different perspective.
“I grew to understand the importance of protecting the rights of adults to have access to adult entertainment,” Cachapero says. “Especially coming from a journalistic background, to me, freedom of speech is the cornerstone of a real democracy — and it's like Larry Flynt said: popular speech doesn't need protection. It's unpopular speech that needs to be fought for. With some conservative activists, adult entertainment is as unpopular as it gets.
Cachapero continues, “The FSC started as a legal advocacy group for the founders of our industry, who were doing business in the days when much adult industry activity was still considered illegal and they fought in those early years, so that present-day industry members have the right to be here, doing business. Unfortunately, we still see obscenity prosecutions as a constant threat. [John] Stagliano's victory last year was profound, but without a clear definition of obscenity and arcane anti-adult entities pushing their moral agendas, the adult industry is always a target for being blamed for society's ills.”
She recalls hearing the stories about “old school guys” like Eddie Wedelstedt and Harry Mohney. “I remember attending my first FSC bash and watching them joke about being in jail together, charged with various violations having to do with their businesses. Al Bloom, of course... Larry Flynt is an iconic supporter of free speech in the media, and has always lent his support to FSC. Phil Harvey, who famously experienced a long, drawn-out obscenity trial in the early years and who has also supported FSC, among many causes that he supports. It was a different business back then,” Cachapero says.
Different indeed. Since it’s grown from a group of adult business people watching out for each other’s backs into a full-fledged action group, the FSC has been confronted with issues that affect not only the adult business but the rights of every citizen in the country to view sexually-oriented material.
And although it views litigation as a last resort, the FSC took off the gloves in 1994 with the retention of a lobbyist in Sacramento that took on a “wildly unconstitutional” excise tax on adult products and services disguised to aid victims of domestic abuse and rape, when in fact most of the money was earmarked for tax collection and law enforcement.”
The FSC argued that Constitutional law had long forbid the targeting of a content-defined tax and led a coalition of affected businesses and industry groups in fighting the tax. The organization’s literature says, “The FSC demonstrated that the tax was not only a dangerous, unconstitutional precedent, but that it would be bad for the state’s economy. During the course of the ensuing debate, the economic influence of the adult entertainment industry was established in the minds of the zero votes in support. The bill was defeated at its first committee hearing.”
The organization proudly points out that during this period it proved itself an effective “player” in the legislature. “Adult entertainment was no longer an easy target for an ambitious legislator. It established that regulation of the adult industry without dialogue with its representatives was, as with all other industries, a foolish and dangerous undertaking.”
But things are never clear-cut in this business. As Douglas points out, the industry and the FSC were placed in a difficult position by the amendment of the Federal Child Pornography laws in 1997, which included “simulated” child pornography within the definition of child pornography.
The FSC’s blog says, “The redefinition of child pornography to include adults ‘appearing’ to be minors, engaging in actual or simulated sexual activity was extremely controversial. The Senate Judiciary Committee (the committee of origin) never even held a vote on the bill, yet it was signed into law, following Senator Orrin Hatch (R-Utah) attaching it during the Conference Committee to the October 1997 Spending Bill.”
The group maintained that the “extraordinarily all-encompassing definition” even included mainstream films like “Midnight Cowboy,” “A Clockwork Orange,” “Fast Times at Ridgemont High,” “The Exorcist,” “Risky Business,” “The People vs. Larry Flynt” and more that were now subject to prosecution, with the possibility of five-year mandatory imprisonment.
“When these concerns were brought to Senator Hatch’s staff, they responded by conceding that such films could be charged, but that ‘legitimate’ movies need not fear prosecution,” the FSC says.
And even though no group, including those traditionally in the vanguard of "First Amendment" rights, was willing to challenge the constitutionality of the law, the FSC stepped up and for the first time since it adopted its new charter, it challenged the constitutionality of a Federal statute and won in the Supreme Court.
Things were pretty quiet during the Clinton administration as Attorney General Janet Reno viewed “obscenity” as a victimless crime. But in 1996, the "Communications Decency Act" (CDA) was enacted to protect children from viewing online porn, followed by The Child Pornography Protection Act (CPPA) that sought to criminalize the depiction of minors in sexually explicit video or online content, even if those depicted in the material were over 18 years of age.
Once again the FSC rose to the occasion, filing suit against then-Attorney General John Ashcroft in Ashcroft v. FSC — the so-called “virtual child porn case” — charging that the CPPA abridged First Amendment rights by defining protected speech as “obscene” or as “child pornography.”
In the 2002 landmark case the FSC won its battle in the U.S. Supreme Court that the ACLU described as “the most important victory for the First Amendment in decades.”
And there’s more. The trade group’s ongoing challenge to the second Bush administration’s 1995 Federal Labeling Law (also known as 18 U.S.C. § 2257) under the guise of detecting and deterring child porn, would have eliminated producers and performers privacy in the creation of sexual images.
The law proposed — without any legislative authorization — that hundreds of thousands of businesses had to maintain 2257 records and be subject to warrant-less inspections. A temporary restraining order was agreed to by the DOJ pending a hearing but it contained a proviso insisting that it only be applied to businesses that belonged to the FSC and slapped on a 10-day deadline.
This saw nearly every producer in adult flocking to join the FSC as the only knowledgeable safe haven.
The FSC was the source for information, conducted seminars and prepared compliance documents and uniform exemption labels for producers. It also negotiated with the DOJ for relief from some of the more burdensome and unreasonable components of the law.
“Regrettably, the FSC lacked the infrastructure to handle thousands of calls from potential new members seeking to join in that 10-day period,” Douglas recalls. “So while membership briefly mushroomed, FSC was not able to benefit as much as we would have wished from the explosion in membership.”
Fast forward to 2005 when the FSC filed a complaint against the DOJ and then-Attorney General Alberto Gonzales, citing that 18 U.S.C. § 2257 regulations endangered the privacy and safety of performers by allowing private information to be accessed through the record-keeping process; also that 2257 regulations were complicated to the extent that adult producers would be unable to fully comply with the record-keeping system.
The controversial regulations have been an ongoing issue for adult industry producers and FSC. A revised set of 18 U.S.C. § 2257 regulations was released in December 2009, prompting another complaint against the DOJ and Attorney General Eric Holder in 2010.
Today, the fight goes on. Duke says the FSC is in the appeal stage “with a solid argument and stellar representation by Michael Murray and Lorraine Baumgardner.”
But as the FSC evolves, new, more pressing issues are being attacked. Cachapero describes it as “a perfect storm that’s recently besieged the industry,” pointing to content piracy, the “.XXX online ghetto” and concerns for workplace health and safety for performers that are continually changing.
Duke comments on .XXX, “As the program unfolds, it is becoming more and more apparent that .XXX is not about providing a valuable product for the adult entertainment industry, rather a money grab on the backs of adult businesses already struggling in a tough economy. ICM’s .XXX has missed numerous deadlines as identified in their ICANN contract and seem to be struggling. Interestingly enough they have expanded to mainstream demanding $300 trademarked name to block the selling of their .XXX domains. I suspect that they plan on recovering their investment by scaring companies — both adult and mainstream — into blocking or defensively registering domain names to protect their brands.
“No sTLD has ever succeeded and previous sTLDs have had support from their sponsoring community (.XXX clearly does not) and previous sTLDs have not been blocked by entire countries.”
There’s also the current controversy over proposed mandatory condom use being put forth by AIDS activists like the AIDS Healthcare Foundation (AHF) and Pink Cross Foundation that’s pressuring Cal/OSHA to crack down on unprotected sex scenes.
The FSC has been a strong advocate for the industry and constantly urges all involved to make their voices heard. Cachapero notes, “For me, the attendance of more than 60 industry members at the June Cal/OSHA meeting was particularly satisfying. OSHA had not had an opportunity to hear from industry members. But the adult community was loud and proud on that day — and their concerns at not being included in the process are now a matter of public record.”
She adds, “It made me very happy to see the performers have a chance to speak to not only OSHA, but also the mainstream press, to knock down the stigma and stereotypes attached to adult industry performers. The kind of prejudice that they face just to be able to do the job that they love doing is a thousand times more harmful than what they experience on an adult set. And they explained in their own words, what they wanted people to know about their perspective. There was a lot of adult community love in the room that day and I was very proud to be part of it.”
And since the closing of the AIM medical testing facility, the FSC once again addressed the needs of the adult community with its APHSS program that it said is designed to address issues including STD infection testing protocol and standards, providing a choice of facilities for reliable testing, follow-up health care for performers and the creation of a secured database with limited access for producers and talent agents in order to ensure user privacy as much as possible.
The swift implementation of the APHSS program, the FSC says, will provide services that were provided by AIM, and build from there, for an improved system of self-regulation and increased resources for industry members.
Duke says, “We have identified and vetted the testing facilities; have had conversations with numerous doctors; the database will be complete and running by the end of June; performers are signing up and we hope to have the advisory council in place by month’s end.”
At a recent meeting for industry stakeholders, FSC board member and Evil Angel general manager Christian Mann cited several adult producers that have agreed to support the APHSS program, including Wicked Pictures, Reality Kings, Evil Angel, Jules Jordan, Vivid Entertainment, Hustler and Girlfriends Films — testimony to the organization’s dogged dedication to adult.
Industry veteran and FSC board member Mara Epstein, who has been with the group since its early days and has worked for many of adult’s top companies, says that although the glory days of the annual Night of the Stars benefits when the FSC could raise six figure amounts are in the past, the organization is needed now more than ever.
“There are still people who say the FSC does nothing,” Epstein says. “But they don’t realize how important it is. They take for granted their right to watch any kind of porn they want — it’s a luxury to them. They weren’t around in the days when folks went to jail in defense of their freedoms.”
But if the current board of directors is any example of industry types who take the organization’s goal seriously, the industry is in good hands. Besides, Duke, Cachapero, Douglas, Epstein and Mann, the board of directors includes an impressive cross-section of industry luminaries including Peter Acworth (Kink.com), Larry Garland (Eldorado Trading), Sid Grief (AAA News), Alec Helmy (XBIZ), Tom Hymes (AVN), Joel Kaminsky (Good Vibrations), Mark Kernes (AVN), Reed Lee (attorney), Theresa “Darklady” Reed (Darklady.com) and Lynn Swanson (Topco).
Epstein makes the point that similar to most business scenarios, 20 percent of the people do the hard work and the remaining 80 percent enjoy the efforts. “The FSC and Diane work really hard. And we’re planning a really cool anniversary party this summer. But we hope we’re remembered for a lot more than just that,” she says.