LAS VEGAS—Despite the change from a Republican to a Democratic administration in Washington, things have not improved much, legally speaking, for the adult industry, and some of the industry's top attorneys were on hand to explain both the facts and the implications of the current federal and state actions to the audience of about 150 retailers and fans.
Top First Amendment attorney Paul Cambria led off the discussion at the Arthur Schwartz Legal Seminar with a report on his and other industry members' interactions with the California Occupational Safety and Health Administration (CalOSHA). Cambria reported that several adult producers (none of which he named, but said there were "many" under investigation) had been cited by the agency for failure to have accident and injury plans posted on sets where hardcore sex was being performed, and for failing to follow the agency's model blood-borne pathogens plan, which if implemented in its most virulent form would require actors to use condoms, dental dams and to wear goggles when performing most on-camera sexual acts.
Specifically, Cambria described the dilemma facing producers who had been cited and fined by CalOSHA: Either pay the tens of thousands of dollars in fines, or argue the case before an Administrative Law Judge—that latter course being one which Cambria thought it best to avoid.
Cambria recounted some of his interaction with CalOSHA officials, describing their position on the use of condoms in sex scenes as "immovable," even though he conveyed to them the very real possibility that adult producers might move their companies out of California (or even out of the country) rather than comply—and that the result of such a move could possibly put performers at greater risk than they face with the current STD testing regimen.
Cambria urged industry members who had had friendly interactions with California legislators to contact those lawmakers and lobby for legal protection for the industry from the onerous (and often useless) CalOSHA requirements.
AVN legal columnist Clyde DeWitt had been scheduled to speak first, but deferred to Cambria because he knew what the eloquent barrister would say ... and DeWitt wanted to let adult producers know that they might fare better by moving to Nevada, since the Nevada branch of OSHA "doesn't do anything; they leave it all to the feds."
However, DeWitt admitted, there might be reason not to relocate to California's eastern neighbor, one being that Nevada has no state supreme court decision comparable to California's People v. Freeman, which legalized adult movie production by denying that sexual actors were prostitutes, and their producers pimps. He also noted that it didn't even make sense for adult companies doing business primarily in California (or elsewhere) to incorporate in Nevada, because although the cost of incorporation is about half what it would be in California, the requirement to maintain a corporate presence in the state could easily outweigh the savings.
DeWitt also touched on the growing federal concern over human trafficking, and specifically sexual trafficking of women, reporting that the Bureau of Immigration and Customs Enforcement (ICE) seems to be convinced that most trafficked women end up as strippers and prostitutes—two professions of which Nevada has no shortage. He noted that conservative religious groups such as Focus on the Family had received over $80 million in federal funds to track down traffickers at strip clubs ... but that adult movie producers are lucky, in that the current recordkeeping and labeling law, 18 U.S.C. §2257, requires performers to have either state- or federally issued photo IDs—and that, DeWitt said, is good enough to satisfy investigators for ICE.
But that may be the only benefit the adult industry gets from 2257, and prominent First Amendment attorney J. Michael Murray was on hand to detail the problems with the law, and to report on Free Speech Coalition's (FSC) recently filed lawsuit to overturn the onerous regulation. Murray spent much of his time recounting the law's history, beginning with the presidential election of 1980 which brought conservative actor Ronald Reagan into office—and Edwin Meese, of the infamous Meese Commission, into the attorney general's seat. Murray traced how the Meese Commission's recommendations led to the enactment of 2257 in the first place, of how its regulations were virtually ignored for more than a decade, and how with the election of Republican majorities in Congress in the late '90s and the Bush administration in 2000, the law became steadily more invasive and restrictive, and its penalties more severe.
Murray also talked somewhat about the FSC lawsuit, which was filed with 15 plaintiffs in early November, noting that for the first time, challenges to the statute under the First, Fourth and Fifth Amendments were incorporated in one lawsuit. The Justice Department has already filed a motion to dismiss the suit, and Murray announced that a hearing on that motion will be held in March in federal court in Philadelphia.
"It's been a tough year, 2008-2009, for obscenity prosecutions," intoned the next speaker, veteran First Amendment advocate H. Louis Sirkin.
Sirkin went on to catalog the number of adult industry members currently serving time in federal prisons: Extreme Associates' Rob Black, sentenced by Judge Gary Lancaster to a year and a day in prison, who is expected to be released to a halfway house in June; his wife, Lizzy Borden, similarly sentenced, who rejected the halfway house offer and will complete her sentence in early August; Max Hardcore, currently serving his 42-month sentence at the Federal Correctional Institution La Tuna in New Mexico (where Black is also incarcerated); agoraphobic online storyteller Karen Fletcher, sentenced after her guilty plea to one year home detention with a term of probation to follow; Michael and Sami Harb, also serving a year and a day for mailing adult movies to Utah; and Jay Loren Adams, whose case, handled by a federal public defender, resulted in a 90-minute trial where none of the movies which Adams was charged with mailing were played completely for the jury. (Later, Sirkin was reminded that adult retailer/distributor Tom Gartman is also serving time.)
Sirkin also touched on the Barry Goldman case, so far the only federal obscenity indictment of the Obama administration, due to come to trial this spring, and on producer/online retailer Ira Isaacs, whose bid to avoid a retrial on double jeopardy grounds was recently denied by a Ninth Circuit appeals panel. He also mentioned the John Stagliano case, where at a recent hearing during which he turned down Stagliano's motions to dismiss, Judge Richard Leon suggested that he might look favorably on an interlocutory appeal of some of the bases on which he had made his decision, including the question of what "community" is served by the internet, and whether the Supreme Court decision in Lawrence v. Texas should be applied to sales of adult material to consenting adults.
Finally, Sirkin noted that there are also currently a number of pending state obscenity prosecutions targeting retailers in Arkansas, Kansas, Louisiana and Florida.
"The battle is getting more difficult," Sirkin said, noting that the law now allows for sentences to be increased for unrelated crimes (like Hardcore's DUI conviction) and for the defendant's lack of involvement in community activities.
Sirkin also briefly discussed one of the requirements of the Adam Walsh Act, which requires persons convicted of selling obscene materials to be required to register as sex offenders—a requirement that Sirkin is currently challenging in federal court in Ohio.
Next, prominent adult entertainment industry attorney Lawrence Walters reported that his sources have revealed that there are several ongoing federal obscenity investigations, most against online retailers and content providers. Walters provided what he termed "five legal essentials" for adult webmasters, including making sure that they are covered with up-to-date agreements with the owners of the websites they supervise, and that those agreements are implemented correctly; that webmasters become familiar with Section 230 and Digital Millennium Copyright Act (DMCA) requirements, especially the safe harbor provisions of the DMCA; that webmasters make sure that all material is properly copyrighted and trademarked; that they carefully choose new domain names so as to make sure they don't inadvertently conflict with existing domains; and that webmasters should run their online businesses separately from any other businesses which they may also own.
The final speaker, defense attorney and FSC Board chair Jeffrey Douglas, assessed the first year of the Obama administration as it relates to the adult industry. He concluded that while a Democratic administration in Washington should have made life easier for adult industry members, in fact what changes there have been have been "slow and subtle"—and in some areas, non-existent.
Douglas noted that many in the industry had predicted that there would be no obscenity prosecutions begun under new Attorney General Eric Holder, but the Goldman case proved that prediction incorrect. He also noted that while former counsel for Playboy David Ogden had been approved as Holder's chief deputy, Ogden has tendered his resignation for reasons still unclear—but that former U.S. Attorney Brent Ward, brought in by Alberto Gonzales to oversee the Justice Department's Obscenity Prosecution Enforcement Unit, was still fulfilling that position and there's been no talk of his leaving.
Douglas also assessed that while Obama's choices for new federal judgeships are certainly an improvement over Bush's, he was troubled by the fact that Bush's nominees (John Roberts and Samuel Alito) were looked upon favorably by the far-right political fringe, while Obama's choices, rather than dyed-in-the-wool progressives, have all been more moderate, and it's unclear which of them, if confirmed, would look favorably on adult industry issues.
All in all, Douglas said, the current legal/political environment is "not significantly less hostile" than it was under President Bush, and that it will require increased resources of time and money from the industry to make its views heard in both state and federal legislatures. He lauded GVA-TWN president Rondee Kamins' commitment to her decade-long fight against 2257 in the Sixth Circuit (ably prosecuted by Murray), but said that much more will be required from many more industry professionals.
"You need this industry to be as vibrant and healthy as possible," Douglas concluded, urging all present to join industry trade association Free Speech Coalition if they weren't already members.
About 40 minutes remained for audience questions, ably fielded by moderator Sean Bersell. Among the issues of concern to various audience members were in what states it's legal to film XXX content (California and New Hampshire); whether it's okay to keep 2257 records in a bank safe deposit box (it isn't, but third party recordkeepers can be employed); and whether retailers can be held liable for injuries caused by products they sell, such as vibrators (possibly, but liability insurance is available).
One question inspired Sirkin to discuss some of the factors that go into the determination of a sentence for an obscenity conviction. He noted that the federal sentencing guidelines are now advisory, but that obscenity starts out at a level 10; that if the obscene material was produced for commercial purposes, that adds five guideline levels; and if the material contained sadomasochistic material, that would be good for an additional four levels—and even more depending on other factors like how much money the defendant made from his "crime."
A question about the alleged secondary effects of adult businesses inspired DeWitt to talk about the recently concluded Alameda Books case, which had been remanded to a Los Angeles federal trial court from the U.S. Supreme Court over five years ago. DeWitt noted that that Supreme Court ruling had established that claims of adverse effects of adult businesses were now open to challenge from defendants, and that in more than 20 states, adult businesses in existence before adverse zoning regulations were adopted were required to be "grandfathered in" at their current locations.
This discussion led Murray to note one of his recent Seventh Circuit cases, involving an Indianapolis anti-adult ordinance, where a federal appeals panel struck down a requirement that adult businesses to be closed daily from midnight to 10 a.m. and all day Sunday, finding that the government's own statistics had shown that crime actually went up during the hours the businesses were required to be closed.
Also mentioned was the recent Supreme Court argument in U.S. v. Stevens, where the defendant had been accused of violating the law by selling videos of dog fights. Walters and Sirkin both expressed dismay at this attempted new restriction on First Amendment expression, and Sirkin noted that an adverse outcome in the case could have devastating effects for both the video gaming industry and violent Hollywood movies.