Regardless of our inability to predict whether there will be a prosecutorial sweep of the adult entertainment business similar in magnitude to those conducted under Reagan or Bush senior, I believe it is a time for increased caution, vigilance and preparedness. In that vein, even if you think the observations above are the opinions or characteristic of a Chicken Little, I will not take offense if you also think that the suggestions below are characteristic of those that might be made by the famed little piggy in the brick house.
If you have not taken steps to evaluate whether you are operating your adult entertainment business in compliance with all applicable laws, now would be a good time to do so. I strongly recommend that this process be undertaken with the assistance of a qualified and experienced adult entertainment attorney. If you have previously conducted a legal compliance evaluation, but it has been more than two years since you have done so, I recommend that you repeat the process because of recent changes in the laws that apply to adult content creation and distribution.
Because you can be criminally liable for the illegal actions of others, such as affiliate partners, if you are controlling, benefiting from or have knowledge of their illegal activities, you should also conduct an evaluation of the business practices of all other persons and businesses creating or distributing explicit adult content parties with which you are affiliated.
If you discover any legal compliance deficiencies in your business or in the business practices of other businesses affiliated with yours, seek legal counsel as soon as possible to evaluate the situation and help resolve the problem.
Legal Survivability
You may want to consider whether the sexually explicit content you are distributing could survive an obscenity prosecution. For example, does it lack serious literary, artistic, political or scientific value? If not, the material may pose a heightened prosecutorial risk.
Does your website take reasonable steps to exclude minors from accessing adult content? If not, you might be at risk of prosecution for distributing obscenity to minors.
Do you have proof that all the sexual content for which you are responsible (e.g., on your website or contained in the DVDs you produce) only depict persons who were adults at the time the depiction was created? If not, you could be in violation of one or more child pornography laws.
Are you in full compliance with both the record-keeping and the labeling provisions of 18 U.S.C. §2257 and 28 C.F.R. 75? It is likely that any prosecutorial sweep of the industry will include enforcement of the 2257 regulations.
Are you and all your adult entertainment enterprises members of the Free Speech Coalition?
If not, you and your companies should join immediately. Membership in the FSC may provide you with the benefits of injunctions restraining the enforcement of certain laws the FSC legal team challenges.
As we come up to the midterm elections, I think that it is not unreasonable to consider how adult entrepreneurs and the industry as a whole might be able to capitalize on the Republicans' current political predicament and might even play a role in unseating the industry's congressional enemies, particularly those in close races.
Simply put, adult entertainment content is very popular. Every day tens of millions of American voters purchase and enjoy adult content sold to them by the legitimate adult entertainment industry. That's a lot of eyes and ears. It's also a lot of people who would probably be unhappy to learn that the government is trying to take away their adult entertainment to enforce the moral agenda of religious fundamentalists.
As I indicated previously, one possible explanation why the Bush administration has not yet unleashed a massive attack on the industry might be that the political cost of doing so results in a net loss to the Republican Party. If that is the case, the changed circumstances cited above may be causing the administration to reassess that calculation. If so, the industry might be well advised to do what it can to increase the political costs of a broad-based attack on the industry by advising adult content consumer/voters of the potential costs of such an action to them.
Wasted Funds
For instance, I think there is a reasonably large segment of the American electorate that consumes adult entertainment that does not want the government to waste money prosecuting mainstream adult companies while there are so many national security and public health problems that are not being competently addressed.
Perhaps the industry can use its great communication resources from the web to the DVD player to satellite and cable channels to the mobile telephone devices to drive these points home.
As an example, I have created my own protest of this kind at www.doomsdaycurve.com. Through music and graphics, the mini-site makes the point that it is crazy to the point of species suicide that any government should be spending one dime to prosecute legitimate adult entertainment entrepreneurs while it fails to address the increasing dangers posed by terrorists and psychopaths who are obtaining every greater access to more and more destructive technologies. (You are welcome to link to www.doomsdaycurve.com or you may obtain a free license to use the Doomsday Curve by contacting me at greg@piccionellisarno.com.)
Like the midterm elections of 1994 that brought the Republicans to power for the first time in 40 years, the outcome of the fall election also may produce a pivotal realignment of power in Washington. The stakes are great for all concerned.
Many in the adult industry welcome the opportunity for change. Some are even rejoicing at the Republicans' reversal of fortune. But I caution against premature celebration and encourage continued caution and preparedness. Like wounded animals that can be exceptionally dangerous because of their injured state, the Republican Party and the administration may now pose more of a risk than ever to the industry.
Gregory A. Piccionelli 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 www.piccionellisarno.com.
