LAS VEGAS—This year's Arthur Schwartz Legal Seminar featured some of the country's top First Amendment attorneys giving attendees the low-down on the latest threats facing the adult industry, as well as some of the victories scored over the past year.
The seminar was moderated by Jeffrey Douglas, a criminal defense attorney who's become an expert on the federal recordkeeping and labeling laws, 18 U.S.C. §2257 and 2257A, and who, as chair of the Free Speech Coalition's (FSC) board of directors, donates at least 10 hours per week to free speech causes affecting the industry, noted FSC executive director Diane Duke.
Douglas first introduced Paul Cambria, who discussed the current state of the obscenity laws—a topic he knows well, having been part of the team that, in July, secured the acquittal of Evil Angel owner John Stagliano on obscenity charges in the District of Columbia. (AVN's day-by-day coverage of that trial can be found on AVN.com.)
"That case started here," Cambria noted, referring to the fact that the FBI had sent agents into the Adult Entertainment Expo in 2008 to photograph Stagliano working at the Evil Angel booth.
Cambria focused on the fact that Department of Justice prosecutor Pamela Stever Satterfield had tried to make the jury think that the case had been about "providing [adult] material to minors," since FBI Special Agent Dan Bradley had downloaded the trailer to Fetish Fanatic 5 to his laptop "in public" while sitting in a bar in Washington, D.C.—but Judge Richard J. Leon later ruled the trailer inadmissible as evidence.
"It was our great pleasure to defeat their 'A Team'," Cambria announced, adding that he'd heard that Satterfield had resigned her position after the trial was over.
But while there have been no new federal obscenity indictments since the Stagliano acquittal, Cambria warned of a new threat: Targeting websites that accept ads for adult services.
Cambria spoke specifically of the recent bust of Escorts.com, whose offices were raided by over 100 Philadelphia police and FBI agents in October, although no federal indictments have yet been issued, and Cambria's own sources have indicated that the Justice Department has no interest in the case.
"It's really new [legal] ground," Cambria said of the raid, observing that courts around the country have held that advertisements posted on a host website are merely "republished" material, with the host having no responsibility for the ads' contents.
However, he noted, the FBI has taken the position that allowing such ads to be posted on the sites amounts to "facilitating prostitution," and that the web host could be charged with criminal facilitation and even money laundering—both very serious federal felonies.
Finally, Cambria voiced his concerns about the resurrection of the Religious Right—notably Morality In Media's newly-appointed CEO, former DOJ prosecutor Patrick Trueman, who is "raising funds like televangelists," and who has planned two anti-porn conferences, the next in February, which will take place in the Capitol building itself.
The next speaker was J. Michael Murray, the attorney in charge of Free Speech Coalition's lawsuit against the recordkeeping and labeling law.
"The battle over freedom of expression never sleeps," he began, reiterating Cambria's point that although the federal government has not brought any new obscenity prosecutions, state and local governments have picked up some of that slack.
Murray then gave some of the background of the 2257 law, calling it "one of the greatest threats to liberty." He talked about how U.S. District Judge Michael Baylson had dismissed FSC's complaint, then refused to reconsider his ruling, forcing FSC and the other plaintiffs to appeal that decision to the Third Circuit Court of Appeals, which he thought might reverse Baylson's rulings.
The Third Circuit, he said, has a good track record of First Amendment issues. They were the body that originally invalidated the "anti-crush video" law enacted by Congress, a decision which the Supreme Court validated in mid-2010 in U.S. v. Stevens; that ruled, in Conchata v. Miller, that a law prohibiting nude dancing in alcohol-serving establishments was unconstitutional; and that struck down the Child Online Protection Act (COPA) —twice.
His appeal to that court in the 2257 case is due next month, but he warned that the FBI could restart 2257 inspections at adult companies at any time.
On a more positive note, he noted two Seventh Circuit victories against onerous "hours of operation" restrictions in Annex Books v. City of Indianapolis and New Albany DVD v. City of Indianapolis, upholding preliminary injunctions against implementation of those laws. He also related how studies had found that during the time when stores and clubs had to cut back their hours of operation, crime in the city actually went up, suggesting that the adult businesses had helped keep crime down during those hours.
After Murray finished speaking, Douglas added a cautionary word to secondary producers, who he said face an "overwhelming burden" in trying to keep proper 2257 records on all the adult material they distribute—and urged them to join FSC's fight against the law.
Attorney Karen Tynan, who represents the Adult Industry Medical Healthcare Foundation (AIM) spoke next, summarizing the several meetings held by Cal/OSHA regarding forcing adult producers to force their performers to use "barrier protections" (condoms, dental dams, goggles, face shields) during sex scenes. She traced the beginnings of the controversy, with the discovery of HIV infection in "Patient Zero", a porn star attempting to return to work after a hiatus in June of 2009, and spoke of the pressures put on the Los Angeles Department of Public Health by such groups as the AIDS Healthcare Foundation, the Pink Cross Foundation and the UCLA Reproductive Health Interest Group.
Tynan noted that Cal/OSHA has never won a court case against a company not following state health regulations, and urged performers and producers to get involved in the issue and attend the Cal/OSHA meetings, the next one scheduled for February 8 in Oakland.
"You can have a voice in these meetings," she stated.
Douglas added that the fight is on two fronts: Free Speech is attempting to create workable health regulations for the industry, since the current ones were developed for high-risk hospital personnel, as well as to help companies push back against OSHA inspectors who, he said, will cheat and lie to get the "cooperation" they want.
The final speaker was Gill Sperlein, formerly house counsel for Titan Media, and now an independent practitioner specializing in anti-piracy. He described the work of the Anti-Piracy Action Plan (APAP) which he helped to create, which targets content infringers and attempts to get them into compliance with copyright laws by helping them host some free content which gives the "customer" the ability to link back to the copyright owner and purchase full scenes from the company.
"If we're going to survive, we have to learn to make money from this [process]," he said.
Sperlein also described the problems faced by attorneys who have attempted to mount lawsuits against large numbers of infringers, only to see judges dismiss all (potential) defendants except those within the jurisdiction of the court in which the suits were filed. He noted that it will probably be five years before the problem reaches the U.S. Supreme Court.
Douglas then opened up the floor for questions, with one attendee pointing out the disparities between how the gay and straight sides of the industry handle condoms and testing: Few condoms users but near-mandatory testing on the straight side; little testing but common condom use on the gay side. Tynan answered that the industry really only has two alternatives—barrier protection or testing—and that neither is really enforceable by either side as the laws currently stand.
First Amendment attorney (and AVN columnist) Clyde DeWitt noted that three of his clients—all distributors—had been inspected by Cal/OSHA, looking for health code violations in their productions—even though none of them produces any sexually explicit material. But it turns out that didn't matter; the OSHA inspectors found minor, non-sexually-related violations anyway. Tynan agreed that that's a problem.
Other attorneys in attendance at the seminar included law partners H. Louis Sirkin, Jennifer Kinsley and Scott Nazzarine; Stagliano defender Allan Gelbard; constitutional expert Reed Lee; First Amendment attorney Marc Randazza; and adult entertainment attorney Greg Piccionelli.
CORRECTION: The situation regarding Clyde DeWitt's clients who were inspected has been corrected.