Signs of the times: American Liberty Restricted. On Saturday, September 7, 2002, xxxlaw™ came to Philadelphia to speak with webmasters and other Adult Industry professionals about Freedom of Speech in that cradle of Liberty. On our first pilgrimage to the Liberty Bell and Independence Hall, we discovered them both locked down in a restricted-access area on the other side of metal detector screening. We find in this a pointed metaphor about the state of Liberty in our country; Photos © 2002 J. D. Obenberger and Associates

July 12, 2007 Update. Justice Department Promulgates Proposed Section 2257 Rule Changes in an Attempt to Bolster Arguments for their Validity.

Today the US Justice Department published its "Proposed rule" which would modify certain limited parts of the Regulations implementing Title 18 United States Code Section 2257. Comments may be submitted to Drew Oosterbaan at CEOS until September 10 by any interested person. Comments may be submitted by Email, fax, or mail and full particulars are found in the "Proposed rule" as published today in the Federal Register here.

I have prepared a Table that includes the existing regulations and which highlights the proposed changes in an adjacent column.

Several influences are manifest in the Proposal, including the determination of Judge Miller in Denver that the data-retention requirement for streaming video presented an unreasonable economic burden on streaming video and the language of HR4472, the Adam Walsh Act. The Proposal generally smells like bureauocratic tinkering and tweaking with an underlying intent of strengthening DOJ's arguments for the constitutional validity of the scheme. The courts will surely have a chance to decide validity; It's my opinion that huge portions of the mandated protocol unreasonably burden expression and cannot finally survive judicial challenge.

Here are the highlights of the Proposal, more or less in the order that I find significant:

1. 75.6 (b) (2) and 75.1 (m) would require the date of actual photography for Compliance Statement purposes. This is new. The existing regulations appear to state that a later date of issuance of a work, the date of its re-issuance, and the like would suffice for the Statement, and an authoritative DOJ letter from July, 2005 identified the DOJ position as being that the date of completion of the original work would suffice - a date that might be long after photography. Frankly, it never seemed to make much sense to avert the photography of minors that the date in the Statement might be later than the date of photography - my own Comments in 2005 to DOJ said so - and I would understand this change to bring the regulations better into line with their articulated purpose, in order to make them more defensible in court. This Proposal would, if adopted, probably become a major headache for some Secondary Producer webmasters as they scramble to obtain this information from the Primary Producers. In many cases, there may no longer be a record of the date of original photography.

2. 75.8 (d), if adopted, would excise language in the existing Regulations that permits the Compliance Statement to appear on a linked page. DOJ says Congress made them do that in HR4472, the Adam Walsh Act. That means that the actual Statement - and not just a link - must appear on every page of a web site that contains a covered depiction. This serves to exacerbate the torment of small, home-based webmasters, trying to keep their adult business a personal and private matter, by requiring them to post the home address where the records are maintained on every page of their site; It will tend to drive home-based webmasters out of the adult Internet and help to consolidate the power of larger producers.

3. 75.2 (a) (1) would REQUIRE maintenance of a HARD COPY of all identification documents maintained under 2257. So much for paperless Section 2257 Compliance in a Box, as has been marketed to the adult community.

4. 75.2 (b) permits a Secondary Producer to accept REDACTED identification documents, taking out social security number, telephone number, and address, should they appear on the document, but the ID maintained by a Secondary Producer must retain the ID number of the identity document, the name, and the date of birth. This is most certainly designed by DOJ as an end-run around certain privacy arguments advanced against the Section 2257 Scheme.

5. 75.2 (a) (1). This modifies the obligation to maintain a copy of the depiction with regard to live, streaming video, and is certainly the product of Judge Miller's concern that the economic cost of data retention for camgirls would tend to drive them out of their livelihoods. With live streaming video, the entire stream does not need to be archived for compliance, just a selection long enough to demonstrate who the performers are and to tie them to their ID records establishing their ages. The clear purpose here is to take away an argument of economic burden that has been used to attack the constitutionality of the scheme.

6. 75.2 (g) deals with images of merely "lascivious depictions of the genitals or pubic area" which were not covered by Section 2257 before the enactment of HR4472. The right to continue republication of such images that were created before July 23, 2006 is unaffected. The "lascivious depiction" language is not defined either in the statute nor in the proposed regulations and it creates special danger for webmasters, which is actually emphasized in the official commentary introducing this Proposal. That commentary cites to a number of leading cases dealing with lewd displays, all of which arose in child pornography context. One of those cases - cited in that introductory commentary - presents the danger that DOJ may likely interpret Section 2257 to include and regulate nonnude images that focus attention on a fully clothed pubic area. That's exactly the situation in which a child pornography conviction was sustained in United States v. Knox, 32 F.3d 733 (3d Cir. 1994), the leading case determining that fully clothed depictions can be lascivious exhibitions. The absence of a definition permits the DOJ to take the position that 2257 governs images depicting fully-clothed models not engaged in sexual conduct.

JD

 

July 28, 2006 Update. A Brief Explanation of the Effects of House Resolution 4472 as enacted.

Fourteen years ago, In 1992, the United States Department of Justice promulgated regulations to implement Section 2257 which included a class of persons called "secondary producers" who used explicit images but who had nothing to do with their creation. They were charged with the duty of maintaining the same records as though they were a photographer, with the obligation to provide a disclosure statement, and the the duty to make the records available for inspection. Certain constitutional objections to the statute and the regulation were rejected by the United States Court of Appeals for the District of Columbia Circuit in ALA v. Reno in 1995 and the regulations went into effect shortly after. Eight years ago in Denver, the United Stated Court of Appeals for the Tenth Circuit, in Sundance Associates v. Reno, determined that the "secondary producer" obligations imposed by DOJ's regulations went further than Congress had authorized and that the record-keeping obligation had been imposed only on those with a close connection to the creation of the content. This ruling was never followed by any other court, and as a result, it was only the certain law in the mountain states of the Tenth Circuit.

As a result of plenty of wishful thinking, many producers in the first generation of adult Internet commerce refused to provide Section 2257 records to webmasters, the webmasters frequently licensed the content anyway, and some tried to have it both ways by providing a disclosure statement referring to the original producer, as was permitted under the regulations, but not maintaining records as required by the regulations. Some webmasters thought they were fully in compliance with the law but they simply did not know that the regulations required them to maintain the records themselves.

When the Free Speech Coalition responded to the Attorney General's newly amended regulations in 2005 with a lawsuit in the Tenth Circuit challenging the secondary producer obligations - a claim it was bound to win in the Tenth Circuit as a result of Sundance - Congress reacted by introducing at least three bills making it clear that Congress presently intended to impose the record-keeping obligation on secondary producers. These bills were introduced both before and after Judge Miller in Denver issued his December, 2005 ruling which preliminarily enjoined enforcement of the secondary producer requirements - as a matter of authority rather than constitutionality -following the higher court decision in Sundance. (The Free Speech Coalition had also challenged the constitutionality of the entire scheme, including its effects on the creating photographers and videographers. With one exception relating to maintaining a copy of the depiction of streaming content, Judge Miller shot down every constitutional argument he reached concerning the scheme imposed by Section 2257 and the implementing regulations.)

Because Congress had the power to make its designation of authority to DOJ clear concerning secondary producers, Congress could fix the problem affecting enforceability of the secondary producer obligations. In fact, Congressional attention to Section 2257 was ripe because, through an oversight in the Protect Act enacted in Spring 2003, the definitions of sexually explicit conduct contained in Section 2256 were no longer in synch with Section 2257 and needed to be adjusted. Congress took advantage of that need for its attention, and in my view, directly responded to the Free Speech Coalition's lawsuit, by crafting a legislative fix for the situation in the Tenth Circuit that cleared both houses of Congress and which became law on July 27, 2006.

The term "secondary producer" never existed in Section 2257 and is not found in the recently amended statute, either. Instead, Congress has included the persons who insert images depicting actual, explicit sex and those who digitize them with a commercial interest into the expanded definition of the persons who "produce" such conduct. Congress has clearly legislated that secondary producers are, indeed, producers. The obligations of the law affect them as much as the guy behind the lens, assuming the constitutionality of the Statute. It is now clear that licensing/assignee webmasters must maintain the records and content, publish the notice, categorize the records, and make them available for inspection. The essential difference between the categories of producers remains as laid out in the regulations. The noncreative webmaster may accept as authentic those records tendered by the primary producer and must categorize them and maintain them for inspection, make them available for that purpose, and publish a disclosure statement, listing the primary producer or himself, at his option. He must also maintain a record of the name and address of the primary producer.

Given the commencement of inspections under the Section by trained teams of agents during the past week and their intimations of a sustained program of inspection, and in light of the five-year penalty provided for in the Statute, it would be foolhardy to continue the publication of covered images that are not documented pursuant to the statute and regulations. It would be unreasonably risky under these circumstances to license or acquire covered content that is not accompanied by the mandated records, in view of Judge Miller's wholesale rejection of the constitutional claims he considered. Those who have never understood their obligations, and those who never complied, now face the prospect of pulling content down at the risk of a jail term. Some who did not understand now do finally understand.

Congress went a bit further in responding to the situation in Denver. It included lascivious images depicting genitals and the pubic area with the other matters that had earlier triggered Section 2257. It specifically provided that this provision is prospective rather than retrospective, working only to impose the obligation on images, not otherwise governed by Section 2257, that were not produced in whole or in part before July 27, 2006. This is likely to have a restraining effect on the use of new genital images which are not accompanied by records, which is its intended effect.

It also created a federal felony in the refusal of a producer to permit the Attorney General or his designee to permit the inspections under Section 2257.

House Bill 4472 made it a federal crime to produce obscenity. Though any competent defense to such a charge will include constitutional attacks on the statute, this elevates content production to a matter which may implicate a federal felony for the first time.

Finally, Congress created Section 2257A dealing with simulated depictions of sexual acts, a provision which expressly extends a wide discretion to the Attorney General in fleshing out regulations that will precisely describe duties and exemptions, and which will not become effective until those regulations are promulgated.

On Saturday, August 5, at the hour of 1:00 pm, Joe Obenberger will conduct a two-hour legal workshop for content providers and webmasters as part of the AVN Online Internext show and under its auspices, at the Westin Diplomat Resort in Hollywood, Florida, in Diplomat Ballroom 1. The workshop will be free to Internext attendees with a Seminar Pass. The program will concentrate on the substance of the law of obscenity and the punishment and forfeiture provisions that apply to it - and Section 2257, including its recent amendments - and to the legal principles involving copyright, privacy, and the appropriation of images and performances.  This workshop is intended to provide essential legal information that should be in the possession of everyone involved in the online adult industry.

At the hour of 10:00 on Sunday Morning, August 6, he will participate in the Internext legal seminar together with other attorneys. Though we had predicted that no seminar held at 10 am on the last day of Internext, a Sunday, was likely to draw a substantial audience, the present circumstances suggest that a standing-room-only audience may appear.

July 27, 2006 Update.
President Bush today signed House Resolution 4472 into law, thereby effecting substantial changes in the Record Keeping Requirements imposed on persons involved in the creation and distribution of sexually explicit matters. Section 2257, as now amended, may be read here.  A Redlined copy of Section 2257 graphically illustrating the changes, prepared by Reed Lee of this office, may be found here.  A copy of the entire enactment of HR 4472 may be found here.

The most substantial practical effect of the amendment to Section 2257 is that persons who insert graphic sexual material into a website will now be embraced as producers under the statute - clearly establishing their duty to maintain the same records which the law has always required of the photographing producer - even if the webmaster had nothing to do with the creation of the images. This eliminates doubt that Congress intends "secondary producers" to maintain the records required of all producers, to make those records available for inspection, and to post a Section 2257 Compliance Statement. The amendment also eliminates an argument that DOJ's regulations concerning identity documents may conflict with the statute. The amendment criminalizes the refusal to permit inspections under the Statute.  (This website will post commentary concerning the amendment in the days to come. In the meantime, the "Webmaster's Primer" on Section 2257, available on this site, should be regarded as a historical document rather than a source of interpretation under the law as it presently exists. ) The House Resolution also established Section 2257A, dealing with the depiction of simulated sex, whose provisions will go into effect at a later time, under regulations to be promulgated by DOJ.

Our clients - and prospective clients - are encouraged to contact this office for guidance concerning compliance.

During the past week, the Department of Justice has conducted the first Section 2257 inspections ever undertaken - in Los Angeles. Comments of the Agents, reported in the press, suggest that further inspections are imminent. Section 2257 provides for term of five years imprisonment for its violation. All producers - including licensing webmasters - should prepare now for such inspections.

 

June 27, 2005 Update. We have posted an html copy of the stipulated order in FSC v. Gonzales. Prepared from the Acrobat .pdf original on file with the Court in Denver, it is the agreement between the Free Speech Coalition and the Department of Justice.

We have posted also a comprehensive five-column table, breaking down the original, proposed, and finally promulgated Part 75 Regulations (implementing Section 2257), section by section, subparagraph by subparagraph to compare changes, highlighting changes in color, and extracting from the official DOJ commentary those particular statements that seem associated with the respective parts of the regulation. Anyone who has read through the DOJ Commentary knows that there is no obvious order to the various treatments and that there is no handy way to correlate the DOJ comments to the Sections and their paragraphs.

It was obvious to us that the disorder of the DOJ Commentary interfered with understanding, and accordingly, we resolved to parse the Commentary out in an ordered fashion associating its text with the portions of the Regulation to which the text related. This table is the result of four weeks of work by four persons associated with this Law Office and we believe that it should help clarify the meaning and intent of DOJ as expressed in the various provisions of the new Regulation. Although it cannot eliminate the contradictions and inconsistencies among the various provisions of the final Regulation, it may clarify some as it more boldly highlight others.

We also maintain on this site our preliminary three-column table merely highlighting and identifying changes from the original and proposed regulations through the final regulation.

June 24, 2005 Update. Good news emerges from Judge Miller's courtroom in Denver today. The Free Speech Coalition brokered an agreement with the US Department of Justice which restrains the Justice Department from inspections of the records of FSC members under Section 2257 and prosecutions under the same Section. The period covered by the agreement extends to thirty days after the expected date of a hearing for a preliminary injunction, to September 7, 2005. Press accounts suggest that our friend and colleague, Paul Cambria, played a significant and central role in the negotiations, with the collaboration of other attorneys. Press accounts also suggest that the DOJ intends to clarify the intent of certain ambiguous or conflicting or confusing provisions in the regulations which seem to impose a heavier burden on expression than the already-burdensome regulations were intended to impose.

The Free Speech Coalition Press Release may be found here.

We most strongly encourage all adult webmasters to assure that their membership in the Free Speech Coalition is active, and that all business names are in the hands of FSC.

The stipulation will only relate to members of FSC as of 2:00 p.m. Pacific Time, June 25, 2005.

We have posted the Complaint filed by the Free Speech Coalition and the Government's Response to FSC's Motion for a Temporary Restraining Order. No other documents were available at the time of this posting from the FSC Website or the Court's online records system.

May 24, 2005 Update. Today's Federal Register publishes the eagerly-awaited final rule adopting revisions in the Justice Department's regulations in implementation of 18 USC Section 2257. We have compiled a preliminary table contrasting the existing regs, the proposals made last summer, and the final regulations promulgated today. We apologize for any formatting issues in lining up the parallel provisions. The regulations are surprising for both the changes that were made in response to numerous "Comments" submitted by the web community, and for the refusal of DOJ to change some of the most obnoxious provisions. The extensive commentary of Drew Oosterbaan, who heads CEOS, should be read carefully to understand DOJ's rationale. We were particularly troubled by the DOJ reliance on caselaw that is simply not on point to support the overreach of the provisions. Though we happy to see an expression - belated as it is - for the safety of the small businesses operating on the adult Internet, we are saddened that the rhetoric is not backed up by regulations that take the potential of harm into account. The regulations wholly ignore the massive economic cost of the warehousing of gigabyte upon gigabyte of streaming video. There is much more to say in careful analysis, but for the time being, it is important to quickly provide our clients, friends, and surfers with the information posted now. JDO

May 17, 2005 Update. The United States Justice Department announced this afternoon that Attorney General Alberto Gonzales has signed a final rule containing changes to the Justice Department regulations implementing 18 USC Section 2257. These changes will become effective thirty days after their publication in the Federal Register unless their enforcement is enjoined by a federal court. Until they are published, we cannot know how closely they resemble the changes proposed last June by the Justice Department. A table comparing the existing regulations with the June 2004 proposal is found here. A detailed article highlighting the differences, published last Summer in AVN Online, is found here.

Contrary to at least one GFY-posted account, the sky may not actually be falling. The promulgation points however to a present intention on the part of DOJ to actually enforce Section 2257 for the first time. Indeed, there may be something falling on the heads of those who have not taken the law seriously, but it will not be the sky. The press release does put quotation marks around the term "pornography producers", a term that does not exist in the present statute or regulations or the proposed regulation, and hints that the final version has been modified, probably in the direction of the so-called "secondary producer" requirements; Though at least one US Court of Appeals has found the provisions to work beyond the authority of the Justice Department, the existing regulations have always required web publishers who buy content made by others to obtain and retain and make available for inspection the original documents and alias information obtained by the original content producers. Substantial parts of the proposal made last Summer were unconstitutional on their face - notably the inspection requirement that mandated availability for inspection of the records from 8am to 6pm. The burden this onerous requirement would place on part-time webmasters would eliminate substantial constitutionally protected expression. The proposal also required the long-term archiving of terabyte upon terabyte of live, streaming content for many years - and the expensive segregation of this data from the working servers of sites. All of this was related to Justice by this firm during the comment period, and we will shortly know whether any of the hardship was taken into account in the final rule.

The Free Speech Coalition can be expected to take point at the forward edge of this battle by initiating litigation. Understand though, that an injunction against the enforcement of the changes alone will be of little value. The existing regulations provide the Justice Department with very effective tools for all of the purposes underlying the statute and regulation. It is my best hunch that Justice would not be promulgating the changes without plans to enforce in the immediate future.

All available information will be posted here as it becomes available. JDO

The Pace and Tempo Quicken:
Chronology of the Emerging Porn Offensive
Number Two on the DOJ Playlist with a Bullet

1. January 6, 2005. Alberto Gonzales nomination hearing, Senate Judiciary Committee: Mr. Gonzales stated six particular goals. Number six was "Obscenity"; The AG-to be explained, "I think obscenity is something else that very much concerns me. I've got two young sons, and it really bothers me about how easy it is to have access to pornography".

2. Fourteen days later, on January 20, US District Judge Gary Lancaster declared the federal obscenity statutes to be unconstitutional - at least as applied to the activities of Extreme Associates, Inc., Robert Zicari, and Janet Romano in shipping obscene material by mail-order and in selling access to a pay website containing material that was conceded by the defense to be obscene for the purposes of the motion. His decision rested strongly on the right to Privacy as articulated in Lawrence v. Texas, 539 U.S. 558 (2003) and Stanley v. Georgia, 394 U.S. 557, 564-6 (1969).

3. On February 14, 2005, Alberto Gonzales was sworn in as the eightieth Attorney General of the United States. He faced an immediate and urgent decision as to whether the government should appeal from the decision in Extreme Associates. One year, to the day, earlier, Bruce Taylor's appointment as Senior Counsel to the chief of the DOJ Criminal Division had been quietly announced in the LA Times.

4. Two days later, on February 16, the Justice Department filed its notice of appeal from Judge Lancaster's dismissal of the Indictment. "The Department of Justice places a premium on the First Amendment right to free speech, but certain activities do not fall within those protections, such as selling or distributing obscene materials," Attorney General Alberto Gonzales proclaimed in a written statement. "The Department of Justice remains strongly committed to the investigation and prosecution of adult obscenity cases."

5. Twelve days later, on February 28, 2005, the Attorney General spoke at the Hoover Institute and laid out a vision of his term: "Another area where I will continue to advance the cause of justice and human dignity is in the aggressive prosecution of purveyors of obscene materials. I am strongly committed to ensuring the right of free speech; the right of ordinary citizens and of the press to speak out and to express their views and ideas is one of the greatest strengths of our form of government, but obscene materials are not protected by the First Amendment, and I am committed to prosecuting these crimes aggressively."

6. Very quietly, a short time later, a publication named DOJ Obscenity Prosecution News made its appearance on the US DOJ Criminal Division web page, ominously describing itself as "Spring 2005, Volume I, Issue 1" of a new periodical edited by Bruce Taylor and apparently dedicated to chronicling a new wave of adult obscenity prosecution. AVN's Mark Kernes wrote an article detailing the newsletter, attributing the tip to XXXLAW. It may be found where it is discretely hosted on the DOJ Criminal Division page, at http://www.usdoj.gov/criminal/obs032604.pdf as well as on this site.

7. On March 16, Senator Brownback's Subcommittee on the Constitution, Civil Rights and Property Rights of the U.S. Senate Committee on Judiciary held a hearing in reaction to the decision in Extreme Associates. Senator Brownback first ridiculed the reasoning of Judge Lancaster's decision by observing: "Judge Lancaster cobbled together hand-picked strands of 14th Amendment substantive due process, decisions from Roe, Lawrence and others and ruled that the statutes at issue violated an unwritten constitutional right to sexual privacy."

8. On May 3, 2005, Attorney General Gonzales spoke to a group of prosecutors and law enforcement officers at a conference in Gaitlinburg, Tennessee and significantly addressed adult obscenity, listing the prosecution of obscenity second among his goals as Attorney General:

From street corners to websites, obscenity and child pornography rip at the heart of our moral values and too easily corrupt our communities. I've made it clear that I intend to aggressively combat the purveyors of obscene materials. . . Enforcement is absolutely necessary if we are going to protect citizens and children from exposure to obscene materials. . . I have directed Department officials to carefully review federal laws to determine how we can further strengthen our hand in prosecuting obscenity. Our goal is to assess all the law enforcement methods we use-and identify the tools we may still need-to more effectively investigate and prosecute these crimes.

9. Two days later, on May 5, last week Thursday, the Chief of the DOJ Criminal Division announced the formation of an obscenity prosecution task force composed of CEOS trial attorneys and dedicated exclusively to the prosecution of adult obscenity. Counsel to the task force is Bruce Taylor; The task force will obtain assistance from the Organized Crime, Computer Crime, and the Assets Forfeiture units. In the DOJ Criminal Division press release, the Chief explained that the global traffic in obscenity required a specialized response in the computer age. He pledged to enforce "the laws on the books".

10. Twelve days later, May 17, 2005, the Attorney General signs an order approving revised regulations implementing 18 USC Section 2257.

[The foregoing was extracted from an article by J. D. Obenberger that will appear exclusively in the July, 2005 issue of AVN Online, "True North and the Magnetic Declination in Alberto Gonzales's Moral Compass. Another article, "Pleasureboating on the River Rubicon" is nearing completion.]

Victory in Mike Jones Appeal

On April 28, 2005, the Illinois Appellate Court entered an order dismissing the State's appeal from an order of the Circuit Court in McHenry County, Illinois suppressing any and all evidence derived from the illegal seizure of evidence from the home and studio of longtime and respected Internet content producer, Mike Jones in 2000. The state may apply to the Illinois Supreme Court for review within 21 days. Mike Jones is not guilty of the obscenity and concocted child porn charges that have hung over his head for five years. We have represented Mike since from before the time of the search warrant and we were with him at night after the search left his home and studio in shambles.

Motions Filed by XXXLAW
to Invalidate Louisiana Obscenity Statute:
Potential Effects on the Internet

It is the privilege of this office to represent Le Video Store, Inc. and Emmette Jacob, Jr. in criminal obscenity charges pending in St. Martinville Parish, Louisiana, in the heart of Acadiana, an hour and a half west of New Orleans. Le Video Store and Mr. Jacob are not guilty of any crime at all and we will defend them with vigor and passion.

On May 1, 2005 we filed a 29-page Memorandum in support of our motion to quash the Bills of Information brought against each of our clients.

We have challenged the statute as being substantially overbroad, and therefore unconstitutional, because it aspires to restrain "electronic communication" and presumably tries to apply its laws to the Internet. This offends the First Amendment because of its effect on speech as was suggested by six members of the US Supreme Court in the last COPA case, Ashcroft v. ACLU and runs afoul of the Commerce Clause of the US Constitution because of the burden in places on interstate commerce in expressive materials. The Louisiana statute is unusual, too, because it includes depictions and descriptions of sexual conduct between nonhuman animals with each other as part of its predicate circumstances that trigger the statute. We believe that, in order for obscenity analysis to begin, some kind of human involvement must be depicted or described. (That's what I call the "Discovery Channel Argument.") In short, we think the statute goes beyond the power of Baton Rouge to legislate. The local ACLU executive director has agreed that the Louisiana statute is due for a challenge.

Louisiana's law is also unconstitutionally vague.

Louisiana law simply does not define the extent and dimensions of the "community" for the purposes of applying the community standards tests of Miller v. California. This hampers anyone intending to sell books, tapes, DVD's, or Internet content and wanting to conform to the law. It permits the capricious commencement of charges and it permits a conviction on a factor never in evidence, never proved, and in fact never established by the court. It provides no guidance or instruction for the jury to even begin to answer the question of "which community?". Accordingly, publisher has no meaningful way to assess the arrests and convictions of others for erotic material, to conduct surveys and interview community leaders, to see what's on the shelf in the library, to evaluate what other adult and nonadult outlets such as convenience stores and truckstops sell, to determine what's available in relevant cable TV systems and through pay per view in hotels.

In the course of preparing this motion, we looked at the laws of 51 American jurisdictions. Among the states and federal government, 29 jurisdictions define the community - usually statewide, but sometimes by county or judicial district. In the largest number of jurisdictions, the community is defined by statute (e.g. California, Illinois, Wisconsin) and in others by court decision. Seventeen jurisdictions, like Louisiana, have not provided a definition, though few have brought reported obscenity cases in recent years. We were unable to find an obscenity law of general applicability at all in five jurisdictions. In at least one jurisdiction, the state supreme court held precisely that a failure to define the community in an obscenity case was fundamentally unfair.

Louisiana's statute contains a seldom-seen provision that requires a civil proceeding before obscenity prosecutions are commenced - but which wholly exempts explicit depictions from the protection. The law seems to establish a category of state-law-preferred porn, or more accurately, it creates a category of the presumptively obscene. Though it has been challenged without success in the past, the statute stands in opposition to American jurisprudence that finds all expression to be presumptively protected until determined to be obscene in an adversary proceeding.

Finally, we advance an argument written by Reed Lee of our office that has already deservedly attracted national interest. It is addressed to both First Amendment freedoms and the right to privacy articulated in Stanley v. Georgia and Lawrence v. Texas, and it ultimately comes to the conclusion - inescapable according to Reed - that since R.A.V. v. Minneapolis, all of the existing obscenity laws - insofar as they regulate what is distributed among consenting adults and involving only consenting adults - have become invalid on First Amendment grounds.

This is a case that the adult Internet should watch closely along with the store owners because it contains significant issues they share.

 

US Supreme Court Denies Certiorari: XXXLAW client awarded $56,250 in legal fees for case overturning County Adult Zoning Ordinance

This comes from one of the most staunchly Republican, most solidly conservative, richest counties in the country, the birthplace of Billy Graham and Red Grange, just west of Chicago. On March 29, 2001, after several years of tough litigation, we obtained for our clients, Palmetto Properties, a substantial victory against DuPage County, Illinois, invalidating portions of its adult use zoning ordinance, which taken as a whole, had kept any Gentlemen's Club from opening in any part of the County under county zoning jurisdiction. In fact, there were no such clubs anywhere in the County. There are numerous seminaries in the county seat in Wheaton. Diamond's Gentlemen's Club opened and remains open because of this litigation. We applied for attorney's fees for the services rendered on behalf the client for the arguments which prevailed, so that our clients could be partially recompensed. The County fought tooth and nail against the $56,250.00 award granted by the US District Court in Chicago. The County of DuPage took appeal to the United States Court of Appeals for the Seventh Circuit, and they lost there, too. Finally, they sought review in the United States Supreme Court. The Supreme Court denied review by certiorari on January 18, 2005. Great work by Reed Lee of this office.

Speaking Engagements and Professional Meetings

Since our last Bulletin, it's been my privilege to attend - and to speak at - the Webmaster Access Shows in Santa Monica on November 19, 2005 and in Montreal the weekend before last, on May 6, 2005 and at Internext in Las Vegas on January 4, . These shows consistently draw some of the brightest and most talented Internet professionals, and it has been a joy to find a high degree of legal understanding in the attendees who ask questions during the Q and A. At the Santa Monica show, Greg Picchionelli and I went on with the questions for about two hours, turning it into a three hour seminar - though it had been scheduled for one - because we each so much enjoyed the dialogue with the very smart attendees. I wish to thank the event sponsors, Adult.com, (and Gamma Cash and Top Bucks in Montreal), and others for the opportunity to take part, and their many kindnesses. Montreal is an exquisitely beautiful city, and I share some of my photos from the trip here.

I was privileged to speak on one of the Internext Legal Panels on January 4, 2005 - and was delighted by the size and enthusiasm of the audience. We thank AVN Online and all of the sponsors of the Speaker Program.

Reed and I both attended the Winter meeting of the First Amendment Lawyers' Association in February. I took the experiences and insights of the distinguished attendees home with me - including an extensive eyewitness account of the shooting of Larry Flynnt - and was greatly enriched. The shared insights of the other First Amendment Lawyers were incredibly valuable.

I look forward to seeing many of you again (and meeting others) at Internext in Hollywood, Florida August 5-7. I will not be attending Cybernet Expo in San Diego. Reed and I are available to speak with Webmasters and other groups concerned with Freedom of Expression.

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The coming months and years portend to be a time of great change for the Adult Internet; Its practices and conventions are to likely be affected by legal developments - Now is an especially important time to listen to quality legal speakers - to read all of the regulations, statutes, and explanations of quality that affect what you do - to form a close relationship with an attorney - to get your site or program assessed - and to make such changes as may be necessary. The time is surely coming when some of you will find yourselves combatants at the forward edge of the battle area on the battleground of freedom. When the enemies of Free Speech approach, it will be without warning, and they will come armed and in force to seize images, computers, written correspondence, and they will seek to forfeit everything else of value. They will seek emergency orders over the tangible and intangible assets of their targets, and there will be little or no time then to prepare. It remains my advice - as it has been from the start - that the members of the First Amendment Lawyers' Association who specialize in the field in which you earn your living are the smart and logical choice for the times to come. It is also my hope that the members of the Adult Internet become more closely involved with -and join - The Free Speech Coalition. It exists to serve you and the freedom our society demands. The recent addition of Tom Hymes at FSC as Communications Director is a most positive step that I hope heralds an era of closer contact between FSC and the Adult Internet. JDO

Updated February, 2004. Reed Lee of J. D. Obenberger and Associates was re-elected to the Board of Directors of The Free Speech Coalition. Reed is currently serving as a Director of FSC and is also National Secretary of the First Amendment Lawyer's Association, an American national association of lawyers concentrating in protection of the freedom of speech.

Updated December 18, 2004. XXXLAW Bulletin. Several times each year, xxxlaw.net transmits a Bulletin of news significant to adult and Internet industry professionals and people in general concerned with the downsizing of Liberty in contemporary American society. These updates frequently deal with First Amendment Law, significant Supreme Court decisions, legislation, news developments, and new articles of interest. If you have not received an XXXLAW Bulletin in 2004, the odds are that your email address has changed, that your spam filter is blocking "xxx" or "adult". Please do email us indicating continued interest in receiving the Bulletin to assure that you will not be omitted. You are invited to forward copies of our Bulletin to all of your associates and friends. Simply send an email through any of the links on page and ask to be added or restored or confirmed. We invite you to join our email family. We never have and never will share our email list.

Updated August 18, 2004. Adult Internet Attorneys Larry Walters, Greg Piccionelli, and Joe Obenberger collaborated during the past two weeks to create draft/template paragraphs for the use of webmasters and content providers in crafting "Comments" to the Justice Department regarding the proposed changes to the Regulations implementing Section 2257. This joint effort for the good of the adult web community may be found, together with instructions for emailing you comments to DOJ before August 24 at the AVN Online Site.

Updated August 18, 2004. Since it first appeared online in 2000, our "Webmaster's Primer on Section 2257" has become an Internet standard in describing the history and in explaining the obligations of that federal law and the regulations associated with it. At the suggestion of AVN Online, we have thoroughly revised and updated the Primer to include and critically discuss the newly proposed DOJ revisions and how they will hit webmasters if adopted. We have not neglected to address some significant, thorny free speech issues associated with them, and for reference value, substantial parts of the legal history of Section 2257, and litigation it has generated, is also included. AVN Online has graciously agreed to run the farily massive Third Revised Primer uncut in its Internext Issue, in time to help webmasters compose their comments to the Justice Department. Those comments are due by mail, fax, or email to the Chief of CEOS at DOJ no later than August 24, 2004. Full address information is contained in the preface to the proposal, linked below, in our June 29 Update. That article is now running on the AVN Online website under "Features" (sans footnotes, which they have run in the print edition) and on this site under our 2257 Section. Click here for the full Primer.

Updated August 18, 2004. We've returned from Internext, having survived Hurricane Charlie together with the other attendees. It was - very sincerely - quite a delight to meet so many kind and thoughtful persons, including many clients. Thanks also for the wonderful and kind audience during the legal seminar. AVN did a particularly spectacular job structuring the seminar - even if it felt a bit like a police traffic stop to those of us on the platform because of the intense lighting. Thanks also to the reporters who covered and wrote about the seminar. It's hard to condense all of the points that were made by the speakers to a short article, but an excellent job was done of it.

Updated July 31, 2004. In connection with our preparation of comments for the Justice Department to read and consider in the adoption of new regulations implementing Section 2257, we invite your own comments concerning the newly proposed Regulations by email to us. Appropriate comments may be included by us, in our discretion, in whole or in part, in comments to the Justice Department prepared by us for one or more of our clients. We are particularly soliciting verifiable accounts of persons who have been stalked, harassed, or hurt as a result of compliance with the Notice requirement as presently written, and instances in which content producers and webmasters have discontinued web operations as a result of reasonable and well-founded fear of such hostile contact.

Updated July 12, 2004. Our table comparing and contrasting the existing regulations implementing Section 2257 and Mr. Ashcroft's proposal, laying them out side by side with indications of changed text in color, is posted for your reference here. More - a great deal more! - to follow.

Updated June 29, 2004. The United States Supreme Court today announced its opinion in Ashcroft v. ACLU, involving the Child Online Protection Act. By a 5-4 vote, the Court sent it back to Philadelphia, without ruling on its constitutionality, for trial. The Supreme Court refused to overturn a preliminary injunction that prohibits the government from enforcing the Act with arrests and indictments. This case amounts to a continuation of the status quo and not a substantive determination of the issues. It is a decision that avoided serious loss to the protections of the First Amendment, but it cannot be called a victory for its principles. Only two justices - Stevens and Ginsburg - would have invalidated the Act because it unfairly employs local community standards to determine what is obscene as to children. The decision may be viewed and downloaded from this site.

The four dissenting justices don't recognize the possibility that there may be a significant amount of material published on the Internet which may be erotic, nonobscene, and constitutionally protected at the same time, but nevertheless unsuitable for children: Justice Breyer, writing for three dissenters writes: "The Act’s definitions limit the material it regulates to material that does not enjoy First Amendment protection, namely legally obscene material, and very little more." The fourth dissenter, Scalia, in citing to Playboy Enterprises and Ginzburg, writes: "We have recognized that commercial entities which engage in ‘the sordid business of pandering’ by ‘deliberately emphasiz[ing] the sexually pro-vocative aspects of [their nonobscene products], in order to catch the salaciously disposed,’ engage in constitutionally unprotected behavior.” Breyer also writes regarding the prurience fork in Miller, "Insofar as material appeals to, or panders to, 'the prurient interest,'it simply seeks a sexual response." Accordingly, it seems to this writer that we were one vote away from a result that would view substantial portions of the adult internet as criminal obscenity, portions that we have long viewed as protected, nonobscene erotica that is nevertheless not generally suitable for children.

Updated June 29, 2004. Attorney General John Ashcroft and House Judiciary Chairman Jim Sensenbrenner (9th District of Wisconsin, R) have announced DOJ proposed revisions to the Justice Department regulations implementing Section 2257. The backdrop is that there have never been any 2257 Inspections because, it seems, the Attorney General has never designated any law enforcement agency to do so; Outside one reported Court Martial, there never has been a prosecution for its violation. Notwithstanding the absence of any investigatory attempts to determine whether Section 2257 was being complied with, in the absence of any attempt to learn whether its penalty provisions were ample to deter violations, last year, in the Protect Act, Congress increased the penalty for violation of Section from two to five years imprisonment as a maximum. Congress also required the Attorney General to furnish Congress "a report detailing the number of times since January 1993 that the Department of Justice has inspected the records of any producer of materials regulated". Several months late, it now looks like the Justice Department has provided Congress with the obvious answer, that no inspections have taken place, and it has dressed the report up with the proposal for changed regulations, quite possible as a matter of political cover. The proposed changes can be read and downloaded here. An account of the Report and announcement can be found at this link. Our Webmaster's Primer on Section 2257 and covering the ins and outs of the existing statute and associated regulations can be read here.

Updated June 17, 2004. Joe Obenberger quoted regarding proposed time, place and manner restrictions on adult entertainment in Buffalo Grove. The Daily Herald, June 17, 2004, "Village may limit adult entertainment."

Updated May 2, 2004. On Friday, April 23, 2004 the Provincial Court of British Columbia in Vancouver acquitted Randy Price in all 20 counts related to the making and distribution of obscene materials, chiefly of a BDSM nature. This is the "Sweet case". Under Canadian practice, the Crown (the prosecutors) may appeal, and it apparently plans to do so. Hearty congratulations to the capable defense team is in order. Sweet's lawyers presented a massive defense case, profiling the BDSM scene in Canada, the wide availability of BDSM materials in Canada and on the world wide web. (They brought a broadband connection into the courtroom, accessed google, searched for BDSM, and showed the Judge the apparently broad scope of interest, tolerance, and acceptance of the material.) Additionally, expert testimony was offered as to the reduction in violent sexual offenses in the US and Canada since Internet adult content took off, and they also highlighted the aggressive themes of mainstream cinema, including The Texas Chainsaw Massacre. A copy of the (very detailed) 25-page order, highlighting the evidence, is in our possession and is available for our clients.

Updated May 2, 2004. We've posted a transcript of Joe Obenberger's August 11, 2003 Fox appearance on "The O'Reilly Factor" dealing with the federal obscenity prosecution of Extreme Associates, and the rational of obscenity laws in general.

Updated May 2, 2004. Regarding the continuing debate - and unresolved issue - of what "contemporary community standards" are to apply to Internet publication, an issue definitely present in the government's mind in the Extreme Associates case, We have prepared a table comparing and contrasting the opinions of each of the members of the Supreme Court so that you may yourself view where each stands on "Community Standards".

Click Here for a list of events at which one or both of us will be speaking about Internet Law and Freedom of Speech.

Updated January 16, 2004. Defense Motion to Suppress Granted in Mike Jones criminal obscenity case. I am delighted to report that Circuit Court Judge Sharon Prather this afternoon granted our defense motion to suppress all evidence obtained and deriving from the search warrant executed against Mike Jones of L&M Enterprises (and founder of CD Babes) on October 28, 2000. As you probably know, Mike was indicted for obscenity and child pornography in 2001. Judge Prather found that the search warrant violated the First and Fourth Amendments because it authorized a "general search" for obscene and underage materials in the home and studio of Mike Jones, that it lacked particularity that might direct and limit the officers as to what they were to seize, that the search itself devolved into a constitutionally impermissible "general search" (in other words, a fishing expedition) and that it amounted to an improper prior restraint on speech without adequate judicial oversight. A copy of the Brief in support of the motion can be downloaded here in Acrobat format.

Updated January 16, 2004. adultinternetlaw.com joins xxxlaw.net.  Please visit our new (at least new to us!) site: Richard J. Chapo and Greg Geelan transferredadultinternetlaw.com to this firm in late 2003. Our plan at present is to maintain that site as a brass-tacks "business law of the adult internet" site and to retain the valuable articles it contains written by those two experts. We plan to keep our more topical legal news, cases, statutes, and political and Libertarian-oriented essays on these pages.

Updated July 18, 2002.  xxxlaw™ Links Page revamped with new and comprehensive listings for websites devoted to Liberty, Freedom of Speech, Privacy, Constitutional Government, Freedom of Information Act, Adult Industry News, Webmaster Resource Boards, and many other areas of interest to Internet and Adult Industry professionals and students.

"The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought." Ashcroft v. Free Speech Coalition, No.00-795, Slip Opinion at 15, April 16, 2002. Mr. Justice Kennedy writing for the Court.