It’s always dicey scheduling a seminar where there’s no set topic, relying instead on audience questions to hold the crowd’s interest – but considering that this audience was almost entirely composed of adult retailers and producers, and the panel consisted of three of the most prominent industry attorneys, rapt attention was the rule of the day.
This year’s Arthur Schwartz Legal Seminar, titled “Questioning the Legal System,” brought together the current president of the First Amendment Lawyers’ Association – Reed Lee; one of its past presidents – Jeffrey Douglas; and one of the most prominent adult Internet specialists – Lawrence Walters – to comment on some of the most pressing issues currently facing the adult industry.
But while questions were being solicited from the roughly 150 attendees, moderator Sean Bersell asked each attorney to give a short presentation on some topics that that attorney felt was of particular importance.
Douglas began with two issues currently being dealt with by Free Speech Coalition, of which he is Board chair: the federal recordkeeping and labeling law, 18 U.S.C. 2257, and the anti-adult email laws currently on the books in Utah and Michigan.
Terming it “the bane of everyone’s existence,” Douglas focused on the most recent developments in the industry’s fight against 2257: The passage of the Adam Walsh Act, which added the “secondary producer” concept to the 2257 statute, extended its reach to images depicting “lascivious exhibition of the genitals,” and created a new section, 2257A, which supposedly would require softcore productions – think “Skinemax” – to keep identification records for mainstream actors performing simulated sex on camera. However, Douglas noted, the new law contains “an exception that’s larger than the category itself,” whereby if the softcore producer sent a letter to the Justice Department certifying that no hardcore sex was being shot, and that he/she had examined the actors’ identification records and noted the person’s information, that producer could avoid retaining and indexing the millions of pages of information that some adult companies are required to keep under 2257.
Douglas saw this as, in a sense, a victory, since the law doesn’t permit the government to discriminate between two legal forms of speech, requiring one to spend millions on recordkeeping and the other merely to send in a letter once a year – which should make Free Speech’s lawsuit against 2257 easier to win. The down side of the Adam Walsh Act, however, was that FSC’s lawsuit, first filed in 2005, was now essentially back to Square One.
Lee took up where Douglas left off, noting that the government’s recent attacks against the adult industry on multiple fronts means that “it’s a war,” where “a minority has declared a culture war on us.”
Lee tried to paint a “big picture,” explaining that the Constitution’s main purpose is to limit the power of the federal government over its citizens, not to “try to better the individual” by legislating morality. He also drew a comparison between the Utah and Michigan email laws, which require all emails containing adult material to be vetted (at company expense) against a “do not contact” list created by the offending states, to the recently resurrected attempt to create a .xxx top-level domain, whose supporters have now abandoned the fiction that the TLD is supported by the industry, and now claim, equally fictitiously, that the domain would protect children and is supported by anti-child-porn activists.
Larry Walters used his segment to speak about two of his recent obscenity cases, one involving the text-only site run by Karen Fletcher, which Walters said would determine “how low to set the bar” as to Internet obscenity prosecutions; the other involving the bust in Florida of Ray Guhn’s CashTitans sites, where the government added on bogus racketeering charges to attempt to force the defendants into a plea agreement. Walters also discussed the implications of adult liability inherent in celebrity photo privacy cases brought under the Communications Decency Act and the even more onerous Digital Millennium Copyright Act.
By the time the trio was done, dozens of questions had been collected. One involved the legal authority of a state to brand a retailer “adult” based on the percentage of adult stock in inventory, to which Lee responded that he believed that states would eventually have to strike a balance between how much land area of the community they would allow to be zoned for adult uses and how much adult stock each store in that community would then be able to carry without being adversely affected by the zoning laws. Douglas noted that as things currently stand, the lowest percentage of stock that has caused a store to be defined as “adult” has been 10%, with 25% being the norm.
Walters, the Internet expert, was then asked what issues he thought were most worrisome to adult webmasters, and he responded by noting that beyond 2257 regulation violations and the like, obscenity was still a big potential problem, as well as domain name infringement and site hacking. This gave Lee a chance to mention the Extreme Associates case, where the defense is asserting that the only time obscenity charges should be able to be brought is if the material is shown to children and/or unwilling adults, but that consenting adults should be able to exchange (and sell) sexual material of any sort with no legal barriers. That same point applied to a later question as well, which asked whether there was any benefit to an adult company putting its explicit content behind a firewall as opposed to having the material openly available on the site.
One questioner asked Douglas to explain the “Miller test” for obscenity, which Douglas described as “meaningless, opaque [and] bizarre” – but gave an often-humorous rundown of its tenets anyway.
Another topic on which all three attorneys had thoughts was the topic of “obscene devices” – vibrators and dildos used for purposes of sexual stimulation, which are illegal in some states. Lee answered by describing the Supreme Court’s journey regarding sexual privacy from Griswold v. Connecticut, where the high court first declared that a state could not prohibit the sale of contraceptives, to Lawrence v. Texas, which legalized consensual sodomy for all adults. Lee said he expected that the Court would eventually realize that vibrators, no matter for what purpose they were used, were equally worthy of protection – but that it might take several years for the court to figure that out.
Other questions involved liquor licenses and nudity, sexually explicit animation and the meaning of “contemporary community standards” as applied to the Internet – so any attendees who missed the presentation should resolve now not to miss next year’s.
The final question, however, asked whether the panelists thought the U.S. would ever get to a point where it would look back on obscenity laws with a sort of nostalgia, from an era where the government no longer attempted to meddle in its citizens’ sexual choices. Almost everyone thought that that would be the case – but no one even ventured a guess as to how long it would take.
Pictured: Douglas, Lee and Walters.