As the Senior Attorney for Morality in Media's National Obscenity Law Center it had come to my attention that on September 22-24, 2000, the Adult Internet Industry trade show was going to be held in New Orleans. After a little research on what this conference was to be about, my boss, Robert Peters, decided that it would be worthwhile for me to attend several seminars that were to be given by attorneys who represent pornographers. Attending this conference was of particular interest to me because it would give me the opportunity to respond, in kind, to a three-part article that was published in Adult Video News (AVN), the pornographers' trade magazine, regarding the "National Pro-Family Conference on Pornography, Sexually Oriented Businesses and Material Harmful to Minors" which was held last April.At that conference, I presented a workshop entitled "Holding Those Accountable Who Promote Public Indecency." In attendance at my workshop was a reporter from AVN who was at the conference to engage in an undercover investigation to "find out what the anti-porn people say to each other when they're not talking for media consumption and putting a nice (dare I say 'sane'?) face on their madness?" I thought it would be only fitting to do the same, with one difference -- there would be no going "undercover" for me. Instead I would wear the MIM badge proudly (both literally and figuratively).
The conference consisted of two parts: the exhibition of porn booths and seminars. In attendance were mostly Web professionals, including: dot-coms, technology firms, Web hosts, service providers, charge card processors and other firms who were looking to do business with adult sites. Before going into some detail about the seminars, a few words about the exhibition.
As expected, there were lots and lots of strippers who were entertaining the business professionals in various ways such as wrestling, hot tub bathing, dancing with firehouse poles, signing autographs and posing for photos with the attendees. At the booths (thankfully not ones of the peep show variety) all sorts of free merchandise was distributed, not to be unexpected, considering that the porn industry is thriving in America. Promotional items included content on computer CDs and in magazines that I considered contained hard-core pornography. Also in abundance were bumper stickers, T-shirts, pens, pins, shot glasses, cigarette lighters, squeeze stress relievers in the shape of breasts, etc. And let’s not forget the extraordinarily loud music and free flowing, all-you-can-drink booze for the attendees.
Personally, I found two booths worthy of mention. First, the Free Speech Coalition, which had a prominent stripper asking for donations and who was quoted saying, "We’re really pushing free speech…We wouldn’t even be here without free speech. But we’re doing very well here, we’re getting the word across better here." Second, Dennis Rodman, former Chicago Bulls star and now the star of his own videocam presentation filmed from his southern California home, had a booth advertising this upcoming event.
After having experienced the exhibition and feeling fortunate to have made it through the chaos in one piece, it was time to now sit back, relax and listen to the seminars being given by some of the most prominent porn attorneys in this country.
The focus of this seminar was to encourage attendees to persuade their various audiences to vote for the Democratic Party ticket. The point was made that providers of "adult" content have tremendous traffic on their sites, giving them the ability to reach many people, and that this power should be used "to encourage voting in such a way that the next regime that comes in will embrace the First Amendment and not try to eliminate the erotic messages that are here and are available to consenting adults."
I was flattered that not even five minutes had passed when “First Amendment” attorney Paul J. Cambria mentioned Morality in Media. He stated, "Some of the pressure groups, like MIM, really have as their goal to stamp out all erotic entertainment. If they were honest about it they would admit it. That is their goal. It’s funny, MIM folks and all these other self-appointed cleansing groups take the position that they are not trying to shut off anyone's computer in their home and not trying to control your VCRs. All we want to do is stop you from renting or buying adult tapes or stop you from getting adult material over the Internet. What sort of fool does not see that it is exactly the same thing? That’s exactly what they want to do, they want to come in and turn the switch off and decide for you as an adult what your content should be in your own home."
Mr. Cambria spelled out what he saw was the difference between the two parties regarding the "adult" Internet industry. As for the Democrats, "If Gore is going to pick up in any way from Clinton, which one must assume since some judges will hold over and some other political appointees will hold over, what may follow is the Clinton regime's total non-prosecution of any adult obscenity at any time, their focus being and should be child porn…The big message from the Gore camp has been that there should be no control over the content of the speech but control over access of this speech by individuals who are under age and if history teaches us any thing about Clinton and if Gore maintains any of that, we see no federal prosecutions."
Giving a brief history lesson, Mr. Cambria recalled the targeting of "adult" uses by George W. Bush's father and President Reagan and maintained that if there was cyberspace back then, these administrations would have certainly targeted it. He also mentioned that Governor Bush "issued a proclamation supporting the enforcement of anti-porn laws apparently issued in connection with some sort of White Ribbon Against Porn Campaign by the MIM group."
All in all he tried to impress upon the pornographers that they have a much better chance of carrying on businesses as usual if the Democratic Party gets elected in November.
This seminar was designed to dispel the belief that child pornography and legitimate adult pornography spring from the same source. The speakers called for action by the industry to come together with law enforcement and other agencies to put a stop to it. Meanwhile, next door in the exhibition hall women were dressed up like school girls promoting content on the Internet. Also on display at several booths and offered for free were magazines entitled Barely Legal and Virgins.
Gregory Piccionelli, Esq. told the pornographers how to avoid a fight with the government, advising them to refrain from suggesting that performers were underage with promos like "Hot Pre-Teens", and to put unavoidable disclaimers everywhere that state "No person in these pictures is under 18" and "No intention to depict any one under the age of 18."
Andrew N. Edmond, 26, the founder and CEO of Flying Crocodile, Inc. (the parent company of the "adult" Internet statistical analyst, SexTracker) and one the most successful entrepreneurs in the adult industry, proposed the adoption of industry-wide use of Qcheck (Internet Quality Check), a program to help abolish child pornography and other illegal content from the net. Mr. Edmond explained the problem that he has faced in trying to eradicate child pornography and stated, "When you have domestic abuse at your next door neighbor's house, you call the police and expect that if a crime is taking place an arrest will be made. I was sending 80 reports a week to law enforcement showing the abuse that was going on and the cops, no matter how loud we scream and yell, are not coming-no one was responding."
Another speaker, Parry Aftab, a lawyer who specializes in technology law and who is the executive director of Cyberangels warned the attendees that she and the Federal Trade Commission will be coming after them if they advertise "pre-teens."
Discussed was an overview of some of the federal laws that could affect their distribution of "adult" content on the Internet and how they could protect their business from liability. Topics included: consumer regulations relative to fraudulent and deceptive credit card transactions, marketing of materials that are inappropriate for minors, the Child Online Privacy Protection Act and the federal anti-spamming law.
Mr. Cambria stressed to his audience the difficult legal times that the adult industry had faced during the Reagan years stating, "All hell broke loose…prosecution after prosecution, combat zone, knife in the teeth, warfare. The last eight years have been peaches and cream as far as prosecutions, some state cases but, by-in-large, no federal cases." Whether or not this lasts, he believes that the government will have a tougher time prosecuting obscenity because "the community now a days is much more educated about adult material." He warned his audience to be smart, educated, and not greedy.
This seminar focused on how Internet pornography is changing the "local community standard" that has governed obscenity prosecutions since the 1973 Miller v. California decision.
Frederick S. Lane III, a writer and attorney specializing in Internet legal issues, explained how the community standard has been applied to the emergence of different technologies over the years. Beginning with the phone sex industry, he discussed the case of Sable Communications, where in 1989 the Supreme Court disagreed with the pornographer's argument that because this type of communication was going directly into people’s homes, the local community standard of what constitutes obscenity, did not apply.
He said the community standards test was similarly applied to video distribution. Distributors of videos to adult stores, located in particular communities, like adult theaters, had to pay close attention to the Miller test community standards.
But with the Internet, Mr. Lane saw "slippage with the Miller test." He explained that for the first time an appeals court has questioned the viability of Miller, speaking of the Third Circuit's decision in the COPA case, where they recently upheld an injunction based on the rationale that there is no real way, with regard to the Internet, to determine community standards and therefore the law was found to be unconstitutionally vague. Lane believeed "the future is bright…unlike adult bookstores that are being zoned out, the adult businesses on the web are wining the battle."
Holding up a copy of the Meese Commission’s Report as an example of the low point for the business, Lane stated, "It is certainly fair to say that the last eight years have been a remarkably free prosecutorial period for this industry…It has been perhaps partly because of who is in the White House, largely a free ride for this industry, and that is almost certain to change when a new Attorney General is appointed by either by Bush or Gore, but there are one or two pieces of comfort to take out of this. An Attorney General who comes in is going to come into a very different cultural and social landscape than even Janet Reno did eight years ago. Thanks in large part to the Internet, our society, in its dealing with sexual materials, has changed pretty dramatically."
He does believe some caution is advised because, "There are people like Steve Largent in Congress, who are very committed to persuading U.S. attorneys around the country to get more aggressive. And another group to watch is Morality in Media which has a web site where they have logged the decrease in number of obscenity prosecutions by U.S. attorneys since Clinton became President. So there are groups out there that are very committed to this and, more importantly, know the buttons to push, not necessarily at the national level, but it’s the local U.S. attorneys who can be pressured into getting more aggressive about this stuff which is where the community standards continues to be relevant."
As an attorney who specializes in obscenity law, I must comment on the issue of "community standards" in cases involving the transmission of obscene materials by means of computer. This issue came up several times during the different seminars. Morality in Media disagrees with the argument advanced by these attorneys, that it is impossible to enforce obscenity laws in cyberspace because of an inability to define the relevant community.
In 1996, the Court of Appeals for the Sixth Circuit in United States v. Thomas, was presented with the issue of defining “community” in order to determine whether materials that had been transported over the Internet were obscene. Defendants, a husband and wife, operated a computer bulletin board system (BBS) from their home in California. A postal inspector in Tennessee became a member of their service and subsequently received images by means of a computer and by mail which depicted a wide variety of sexual conduct, including bestiality, torture and excretory fetishism. They were convicted in the Western District of Tennessee for violating 18 USC 1462 and 1465 in connection with their operation of their BBS.
In upholding the convictions, the Court of Appeals rejected defendants’ argument that the materials should have been judged by the community standards of California rather than Tennessee because it was the inspector who, without their knowledge, accessed and downloaded the files and caused them to enter Tennessee. The Court stated, “Federal obscenity laws, by virtue of their inherent nexus to interstate and foreign commerce, generally involve acts in more than one jurisdiction or state. Furthermore, it is well established that there is no constitutional impediment to the government’s power to prosecute pornography dealers in any district into which the material is sent."
This is an important case because it states that the relevant community can be the community of the federal judicial district to which the obscene material is transmitted via a computer. Defendants appealed the Thomas case to the U.S. Supreme Court, which refused to hear the case.
There are three other matters that came up during the seminars that require a brief response. First, it is not true that MIM is trying to "stamp out all erotic entertainment." MIM's focus over the decades has been the illegal hard-core pornography not "erotica."
Second, whether the pornographers like it or not, the Supreme Court has held that there is a difference between the sale of obscenity in the marketplace and the viewing of obscenity in the privacy of the home. The former can be prohibited.
And third, the Supreme Court has also held that "consenting adults" is not a defense in any obscenity case. -- Robin Whitehead
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