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'Young Guns' Discuss Legal Shootouts at AEE Seminar

First Amendment attorneys talk shop to adult industry crowd

'Young Guns' Discuss Legal Shootouts at AEE Seminar

LAS VEGAS — It was strange to see an AEE legal seminar that had more attorneys in the audience than on the stage, but as Jennifer Kinsley, Marc Randazza and Cary Wiggins spoke on a variety of topics important to the adult industry, their mentors, including H. Louis Sirkin, John Weston and Lawrence Walters, looked on with approval.

Panel moderator Sean Bersell introduced each of the "young guns," all of whom, it turns out, did their undergraduate work at the University of Florida, then handed the microphone to Kinsley, who spoke on a topic that's consumed a large part of her career as a newly-minted associate at Sirkin, Pinales & Schwartz: Obscenity prosecution.

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Describing an obscenity bust as "the least likely legal problem you will face but probably the most scary," Kinsley noted the U.S. Department of Justice's "aggressive enforcement" of federal obscenity laws since President Bush took office, the most high-profile of which have been Extreme Associates, Max Hardcore, Evil Angel and JM Productions.

"This administration is 100% opposed to this industry," she declared.

All relied, she said, on the Supreme Court's "Miller test," which she termed "very fluffy and very gray" regarding what is considered obscene, but warned that the main targets of federal prosecution are those companies with an Internet sales presence, rather than brick-and-mortar retailers. Those, she claimed, face more danger from state and local prosecutors.

Among the questions that Kinsley said have arisen during the obscenity prosecutions with which she has been involved — most recently, the Max Hardcore case which ended in a 20-count conviction in Tampa —  reflect the Internet's impact on obscenity law and the Miller test; namely, "what is 'the whole'" when dealing with a website, and what community standards apply to material that exists mainly in cyberspace?

 Kinsley also touched on an issue that has formed the basis of several Motions to Dismiss filed by Sirkin and herself: Substantive due process, which she described as "the right to make private decisions about private matters" — including what people do in their bedrooms, what novelties they buy and use, and as the pair argued in the Extreme case, what sexual materials consenting adults can sell to other consenting adults. Kinsley called substantive due process "the next frontier of adult litigation."

Marc Randazza,  newly a partner with Weston, Garrou, Walters & Mooney, and proprietor of the well-respected legal blog The Legal Satyricon, spoke mainly about the Justice Department's new regulations regarding 18 U.S.C. §2257 and 2257A, the federal recordkeeping and labeling law.

Stating that the law's "ostensible purpose is to keep minors out of adult video," he wryly noted that the incident upon which the law was based — the Meese Commission's outrage that actress Traci Lords had been performing underage  — would not have prevented Lords from appearing in her videos: She had presented a legal (though fraudulent) driver's license to her employers.

Randazza also warned that producers and retailers should not believe anyone who tells them that 2257 had been struck down permanently by the Sixth Circuit Court of Appeals; that decision by a three-judge panel was appealed to an en banc panel of the entire Circuit, and they have yet to come to a decision on the rehearing.

Randazza went on to describe various changes to the 2257 regulations since their last iteration in 2005: Lascivious display of the genitals now triggers the recordkeeping requirement, and even such material that might have been exempt under the old regs may fall under the new ones if the producer republishes or remasters it; all performers appearing in a covered video must now provide proof of age, even those who don't perform sex;  a definition of "original date of production" has finally been added; performers' personal information suchb as home address and/or Social Security number can now be redacted from the copies of photo IDs which primary producers provide to secondaries; and third-party recordkeepers are now allowed to index and store a company's 2257 records — though Randazza added that since the producer itself would be responsible for any substantive errors committed by the third-party recordkeeper, possibly resulting in a large fine and prison term for the producer, that if he wer a producer, he would be wary about using an outside agency to handle his records.

 Piracy also figured into Randazza's presentation. He suggested that although the mere creation of a work imbues it with copyright protection, only by registering the work with the Library of Congress allows a content owner to obtainmonetary damages and legal fees against an infringer.

The final speaker, Cary Wiggins, noted that his practice focuses mainly on protecting adult nightclubs and bookstores, but he was moved to comment on some trends he had noticed over the past few years. Among those: That more adult stores are locating in the suburbs in order to be closer to a part of their customer base, though their adult content is usually limited to whatever percent seems acceptable to prosecutors and city councils in the area; that FBI agents and postal inspectors  are now buying their potentially bustable material from websites rather than brick-and-mortar stores, and the material being targeted is the most extreme depictions they can find; that the government is beginning to bring obscenity cases in large urban areas like Pittsburgh and Tampa rather than the more rural and secluded areas that saw earlier obscenity cases. In that regard, he had two pieces of advice: Don't taunt the Justice Department to "come and bust me," as the Extreme defendants had done on CBS's "48 Hours" TV show several months before their arrest; and put a webwsite's more extreme video offerings in a "Members Only" section of the site.

 The audience, which numbered more than 200, were then asked to write questions on 3x5 cards to be submitted to the panel for answers. Among the topics covered were recordkeeping by individuals posting sexual material to social networking websites; photo ID requirements for foreign performers; how to deal with zoning ordinances that only allow a certain percentage of a store's content to be adult; whether disclaimers on the home page of websites can head off possible obscenity busts (Answer: NO!); whether female-friendly adult boutiques receive better reception in communities than traditional adult stores; and whether putting adult servers offshore can prevent obscenity prosecutions.

The panel's allotted 90 minutes flew by, and at its end, more than two dozen audience members remained to ask additional questions of the panelists, making it one of the AEE's most successful legal seminars in several years.






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