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Free Speech Coalition Tackles “Monumental” .XXX Issue

Free Speech Coalition Tackles “Monumental” .XXX Issue

The Free Speech Coalition on Thursday night held a general meeting to knock around the issues surrounding the establishment of a voluntary .xxx top level domain (tld). The meeting’s specific purpose was to gauge from the audience whether the FSC should throw its official support behind the current effort by a Canadian company, ICM Registry, to apply for such a tld. ICM registry is seeking the Coalition’s support. 

The meeting was held to a packed house comprised three-to-one of members of the adult Webmaster community, and ran over its regularly scheduled time due to the number of questions by the audience and the high level of passion the subject produced. It was, in fact, a rather volatile exchange of sophisticated legal opinion and visceral philosophical perspective, and all differing opinions aside, several audience members and speakers voiced the opinion that the evening’s discussion would long be remembered as “monumental.” One attorney described the core debate as a “battle for the mainstream of the Internet.” 

Speakers included Jason Hendales, president of ICM Registry, Bill Lyon of the Free Speech Coalition, and attorneys Joe Obenberger, Greg Piccionelli , Larry Walters and technology expert Len Bayles of SnapNames.com, a Utah-based domain registrar. One side argued that a new .xxx tld would demonstrate to the government and world that the adult Internet community is finally doing something about protecting children from adult content on the Net, and would provide new business and marketing opportunities to the industry. The other side’s contention is by that establishing such a tld, the industry would be doing the work of the its enemies for them by “ghettoizing” adult sites from other content on the Web, making it easy for governmental or non-governmental entities to make effectively compulsory what would begin as voluntary. In a worst case future, they could eventually, either by carrot or stick, deny access to all .xxx domains. It is from these basic points of view that the evening’s zealous discussion developed. 

Another general observation is that the few video representatives in attendance, having lived through the years of government persecution of adult companies in the 1980s, are far more suspicious of the government than the “naïve” younger turks of the Internet, who are only beginning to experience the agony of criminal prosecutions or the duplicity of government. Bill Lyon effectively summed up the former point of view, by saying, “Before you make a deal with the government, talk to an American Indian.” Others countered by arguing that this fight is not against the government, but for the hearts and minds of the mainstream of America, which will ultimately either support or condemn widespread persecutions of adult content. If the public perceives that the industry can “self-regulate,” it was argued, then it might possible avoid what is seen as an imminent wave of prosecutions by an administration bent on curtailing sexual content on the Internet. 

Not all the speakers saw the issue as black and white, however. Greg Piccionelli, a patent attorney who represents many adult companies, said that he had been wresting with the issue and had come down on the “slightly pro” side that the FSC should support the effort. But his support, he said, was conditionally predicated on certain requirements: that .xxx not be directly or indirectly forced on anyone, that there be priority registration for those who already own top level domains, and most important, that the FSC not commit itself to supporting one tld over any others, but instead should, and must, support multiple ways for the adult community to self-regulate. He laid out several pros and cons to supporting a .xxx tld, but ultimately came to the decision that not doing anything would be the worst thing an industry under fire could do. 

Larry Walters, another attorney who supports the effort, said that 100% of his clients are adult Webmasters, and he has seen first hand how the government interacts with adult companies. He argued that the Internet changed around the turn of the century, and that unlike the old days, when you had to go and find what you were looking for, now you are bombarded with messages and links to Websites you don’t want, and the government has taken notice. He said we are currently engaged in a clash of interests – how to protect the young while enabling free expression – and that this industry should take a cue from others, like the RIAA and the MPAA, which voluntarily instituted labeling or ratings systems. If this industry did something similar, he argued, it would be a powerful argument and provide effective legal protections in future cases. “Voluntary censorship is never a good thing,” he said, “but it might be better than an extreme position of never regulating anything.” The zoning or “ghettoization” argument, he said does not apply to the Internet, because unlike the brick and mortar world, “every Web space is equally desirable.” 

Chicago attorney J.D. Obenberger did not support the .xxx idea and received a rare round of applause after enumerating his comments. The question, he said, is whether the industry will voluntarily sequester itself from the mainstream of society. He walked the audience through a few details found in the Fed’s complaint against Extreme Associates, specifically some counts that mention short video clips that they say contain obscene material. What happened, he mused out loud, to taking the work as a whole, which must be proven when seeking an obscenity conviction? “They [the Justice Department] don’t care about the last 100 years of American jurisprudence.” The point, Obenberger said, is that, in this particular case, they are cleverly trying to combine local community standards to national ones that as yet don’t exist, and so effectively create one. In light of their tactics, he did not believe that it would be wise to set up zones that regulated the location of certain content,, and that even though it might seem unlikely that the government would, or could, make that sequestering permanent, he cautioned, “Just because it’s unthinkable now doesn’t mean it won’t come to pass.” He also strongly endorsed the idea that, rather than the government or industry, it is the parents’ obligation and responsibility to regulate their children’s behavior.

Jason Hendales, who has over time developed a very tough skin, spoke first briefly, and then added his responses after each speaker’s comments. Because ICM Registry is in the middle of a long application process, and has yet to become an official non-profit entity, he was unable at this meeting to fully enumerate many financial details regarding the ultimate make-up of the organization and its relationship to the FSC. This caused some members of the audience to state that any decision at this time would be premature and very unwise. But Hendales did state categorically that his was a “no-lose” proposition for the FSC in that it would benefit financially by sharing the .xxx domain fees, and would inevitably enjoy increased membership. 

In defending the idea of a .xxx tld, Hendales argued that it would have to always be voluntary, since mandatory inclusion would never survive legal or technical scrutiny, and that it was an extraordinary opportunity for adult Webmasters to secure new high quality domains. The benefits of those newly coordinated domains would include enhanced search engine placement, increased security, a greater level of surfer privacy, better statistical and market research, and a way for the adult community to more effectively support free speech. He said ICM registry would actively encourage members to join the FSC, which would also benefit from a more established adult online community. 

“This is a means,” said Hendales, “for responsible Webmasters to provide their content to adults without fear, and a way for them to clarify the truth about the responsible Webmaster community.” 

Bill Lyon countered that while a .xxx tld could help build grass roots political efforts by the adult community, “Money must not be the driving force in [the FSC’s] decision. What we’re talking about is what’s good for the adult Webmaster community.” He warned that the prime activity of government is to regulate, and proposed a scenario in which the new tld is established, it’s successful and lots of adult Websites go there, and  then Congress says, good work, we’re going to all Websites in that domain safe harbor from credit card company abuse. “Now,” he said, “you’re in the same zoning situation as the video companies. In the end, do we fight the devils we know, he added, or fight the devils we don’t?” 

The morning after the meeting, Hendeles said he believed enough people still believe today's world is still the world of the 1980s. "Adult content is mainstream," he said, "it's become a real business, a real industry. I don't think anyone needs to be anything but thrilled about it. Mainstream companies are making substantial revenues from adult entertainment…

"But part of the concern here is that there was this…talk about hiding on the Internet and the benefits of anonymity," he continued. "It would take two days for every single adult Website to be plugged into a filter and identified. Some of the arguments were more emotional than practical. This is an industry that consumers want, we're talking the next Las Vegas, building something that celebrates adult content, and the adult Webmaster community knows that.  They're having a tough time, they need new product, they need new services, they need innovation, they're looking for leadership, this is a real business and if you can overcome some of these other obstacles – like the so-called Truth in Domain Names Act, the chargeback problems with Visa, the spam issues, all of a sudden here is a means with which you can grow and innovate and build new traffic and really liven up your industry." 

Also commenting the morning after the meeting, Lyon said FSC's leadership and membership still has to think very carefully about all the actual and potential ramifications of a separate adult Internet domain. “We have to really do due diligence on this,” Lyon said.  “There may be legal ramifications for FSC that need to be carefully considered in order for us to honor our nonprofit status and be able to lobby effectively for the industry."

Lyon also said a final, binding ballot from among FSC's membership was likely to take place after thirty days, during which time FSC planned to mount an information campaign, giving all sides of the .xxx issue, to further inform its membership before that vote is taken. 

The debate over this issue is not over and any final decision regarding the FSC yet to be made. The comments from two attorneys in the audience, Jeffrey Douglas of the FSC and Reed Lee, a first amendment attorney out of Chicago, proved beyond a shadow of a doubt that interested parties are just beginning to weigh in, and that the level of legal contest is very high. For those who missed last night’s meeting, Hendeles said that the vote was approximtaely 45 for and 30 against and ICM registry would soon have a Website where people could go to further educate themselves.

AVN.com will continue to provide a forum in which the very important arguments surrounding this issue will be disseminated.

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