The New Administration

Prosecutions of mainstream adult producers will dwindle under President Obama, says attorney Clyde DeWitt

Ever since the election, the industry has been abuzz over the question of the future of federal obscenity prosecutions. Everyone feels pretty comfortable in knowing that the end is in sight in terms of the mindset that erotic expression, which all is inconsistent with the Religious Right's way of thinking, should be extinguished at all cost.

However, several trends are clear: First, the new administration will move away from Bush's style of micromanaging the Justice Department and the local United States Attorneys' offices. Second, Justice will stop filtering job applicants with a Religious Right litmus test. Third, there will be a reduction if not elimination of targeting mainstream adult. Fourth, rather than a focus on what concerns the Religious Right, the Department of Justice will emphasize what really concerns mainstream America.

It is Number Four that should cause you to pause. Why? Won't Justice and the COEU re-focus efforts toward child pornography prosecution, as the Clinton administration did when Janet Reno took over as attorney general in 1993? Yes, but there is more. Sure, Americans for the most part are concerned about child pornography and its potential threat to children. That's a no-brainer. But parents also continue to be hysterical about the ease with which their grammar-school children can access hardcore adult materials over the Internet - the "Little Susie Factor."

Remember that many - hopefully the extremely conservative only - are still screaming about the fraction of a second during which Janet Jackson's breast was exposed during the halftime show at the 2004 Super Bowl. Notwithstanding that extreme, there is a broad base of people who are appalled at how easily just about anything can be accessed, given that the threshold age for computer use continues to drop. The Little Susie Factor!

And the problem is made worse because there is an unfortunately large number of single parents who need to rely upon childcare so they can work all day to support their kids and who are less computer-proficient than their 9-year-olds. So, since the days of the mid-1990's thumbnail sites, those parents have been screaming about what their children can find on the Internet, and not understanding computers themselves, urge the over-simplistic response of passing a law.

You will recall if you have been around long enough that the federal government's dozen-year effort to deal with the Little Susie Factor by requiring adult materials on the Internet to be password-protected has been a comedy of errors. The component of the Communications Decency Act (CDA) requiring passwords was enjoined as of its June 1996 rollout, and the injunction remained in effect until a year later when the Supreme Court struck the death knell to it, holding it unconstitutional. Congress tried to remedy the problem by enacting the 1998 Child Online Protection Act ("COPA"). Remember, all of that legislation was during the Clinton administration, albeit with a Republican Congress.

COPA has fared no better than did the CDA. It has been continuously enjoined since it became effective; and the government now has once again gone knocking on the front door of the Supreme Court building. American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3rd Cir. 2008), petition for certiorari filed, No. 08-565, 77 U.S.L.W. 3281 (Oct. 29, 2008).

There are better ways of dealing with the Little Susie Factor than defining more federal crimes. Hopefully, the new administration will have the common sense to take a step back and look at the bigger picture.

The reason why the government has been losing every time for the last 10 years in the COPA litigation is that filters work better than COPA. Why? You know the answer: Most significantly, COPA would not do a thing for websites that emanate from outside the United States. But the public at large certainly is not aware of that because politicians are unwilling to align themselves with any scheme that would approve of smut on the Internet, even if only willing adults had access to it.

Without making a specific proposal, there is a better approach to the Little Susie Factor. There must be a way of requiring computer vendors to make filters an opt-out choice when selling consumer computers. In other words, the vendor would be required to have already-installed filtering software available. At the point of purchase, the consumer would be required to choose from options: choices would be offered for each brand of filtering software, with an additional choice for no filter. Then, if one of the filters is selected, a second question asks whether it should be normally enabled or normally disabled.

Would such an idea have legs? It's doubtful - although there is no way that the computer hardware industry could diplomatically speak out against it. Would Congress screw it up? Almost certainly!

Clyde DeWitt is a Los Angeles and Las Vegas attorney, whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online's offices, or at ClydeDeWitt@Earthlink.net. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.

This article originally appeared in the March 2009 issue of AVN Online. To subscribe, visit AVNMediaNetwork.com/subscribe.