July 8, 2010 Update.
A table illustrating the currently effective DOJ Regulations implementing 18 United States Code Section 2257 is found here: two-column table.
John Stagliano's obscenity trial is underway in Washington with opening statements expected July 12, 2010.
Two speaking engagements, one in Las Vegas regarding escort advertising and the law, and another legal panel at The AVN Show 2010 in Hollywood, Florida have been booked. Times, dates, and registration links are provided in the Speaking Engagements part of this site.
Massive Changes in Section 2257 Regulations.
We previously posted a redline two-column table illustrating the amendments enacted by the DOJ that affect Section 2257 Compliance. (See the December 19, 2009 Update, below.) They became law on January 20, 2009. We have transmitted to our clients an overview of the 23 most significant changes. Each publisher of sexually explicit online content is most seriously urged to consult with a knowledgeabe and experienced attorney fully familiar with Section 2257. This site includes the current text of the statutes and regulations - it also includes some old articles about Section 2257 for historical value, but those old articles, dated before 2009, DO NOT reflect the current state of the law and should not be relied upon as reflections of the law now.
The following notes briefly highlight the very most significant changes in the regulatory scheme, but they are not comprehensive; in other words, these merely skim over dozens of changes, any one of which, when violated, amounts to a federal felony carrying with it a five year prison term for violation. These notes merely summarize: They, themselves are not the law. The Statute and Regulations must be consulted to assure compliance, and this is best done with a legal professional.
1. DATE OF ORIGINAL PRODUCTION" DEFINED TO BE THE DATE OF PHOTOGRAPY.
The "Date of Original Production" for Primary Producers is now the first date of sexually explicit photography/videography. Producers are now, for the first time, required to create and maintain a record of that date. Primary Producers must also create a record of the first date of actual photography/videography of any performer who turns 18 during the time of production and specially maintain a record of that performer's first date of sexually explicit performance.
2. THE DATE OF ORIGINAL PRODUCTION MUST BE RECORDED WHEN THE FIRST IDENTIFICATION DOCUMENT IS EXAMINED, BEFORE IMAGES ARE CREATED.
Records must be created on the date of original production: The date of original production must be recorded when the first ID document is examined and copied. The identification documents must be examined before production begins.
3. CONTENT OF SECTION 2257 COMPLIANCE STATEMENT: FEWER DISCLOSURES REQUIRED: NEITHER THE DATE OF ORIGINAL PRODUCTION NOR THE ACTUAL NAME OF THE CUSODIAN NEED BE SET OUT IN THE STATEMENT.
It is no longer necessary to disclose the Date of production in a Section 2257 Disclosure Statement. Additionally, the name of the individual who is the custodian of records is no longer necessary in such a statement, merely his title. Clients should seek particular guidance regarding rewriting their notices. Neither of these changes affects the nature of records which must be maintained.
4. DISCLOSURE STATEMENT TO BE INCLUDED ON EVERY PAGE OF A WEBSITE THAT INCLUDES SEXUALLY EXPLICIT DEPICTIONS.
5. RECORDS MAY BE MAINTAINED BY THIRD PARTIES.
Under the new changes, both Primary Producers and Secondary Producers may discharge their obligation to maintain records and make them available for inspection at the offices of an independent custodian. It is my opinion, based on a close reading of the commentary and regulations, that this obligation is not met when a Secondary Producer merely points back to a Primary Producer's records, and that such a practice amounts to a crime.
7. REDACTION OF RECORDS TRANSMITTED TO SECONDARY PRODUCER.
Records maintained by a Secondary Producer may be redacted. However, they may not be redacted to eliminate references necessary to show the authenticity of the identification document nor to confirm the age of the model on the date of production should doubt exist because of her youth - accordingly, only sometimes is it necessary to render the full date of birth, but it is always necessary to render the year of birth.
8. THE SCOPE OF SECTION 2257 IS LIMITED TO IMAGES CREATED FOR COMMERCE OR TRADE.
9. IMPLEMENTED SECTION 2257A, WITH A SIMILIFIED CERTIFICATION PROTOCOL FOR PRODUCERS OF SIMULATED SEX DEPICTIONS AND IMAGES COVERED EXCLUSIVELY BECAUSE THEY DEPICT GENITALS OR PUBIC AREA OR BECAUSE THEY ARE REGULATED BY THE FCC OR ARE DISTRIBUTED IN A MANNER DISSIMILAR FROM CHILD PORNOGRAPHY, WHEN THE ENTITY REGULARLY MAINTAINS EMPLOYMENT IDENTITY RECORDS.
En Banc Reversal in Connections Case.
We previously reported that, on October 23, 2007, a three-member panel of the Sixth Circuit sitting in Ohio invalidated Section 2257 and its supporting regulations, determining that they violated the First Amendment. None of the judges saw the case quite the same way, but two of them agreed that it was wholly unconstitutionally and that they could not fix it by interpretation. The third judge, too, who dissented from the determination of invalidity, agreed that serious constitutional defects existed, but he felt that the court could fix the statute by limiting it to commercial situations. (Even that dissenter proposed excising out language applying to Secondary Producers in the statute to save its constitutionality, thereby undoing an important part of the Adam Walsh Act.) The others disagreed with the dissenter for a variety of reasons, including a legislative history that plainly shows that Congress intended to reach non-commercial distribution , because that's where the bulk of child porn is made and moved.
The Government sought and obtained review en banc, that is from all of the judges appointed to the 6th Circuit, and on February 20, 2009, the 6th Circuit reversed the three-member panel, affirming the constitutionality of Section 2257's regulatory scheme. The only place left to go now is the Supreme Court of the United States - and the Connections team is sure to knock on that door. It's anyone's guess as to whether the Supreme Court will take the case, but if it does, it will be the first time that Section 2257 has been before the high court.
It seems obvious enough to this observer that the initial decision of the three judge panel was the direct and immediate catalyst causing the Government to take the position (in its new regulatory amendments) that Section 2257 does not apply to images created without an intent for sale, commerce, or trade, and because no commercial child pornography exists within the United States, the Statute now cannot meaningfully be said to relate very well to fixing the problem which justifies its existence. That development may become the very undoing of Section 2257.
December 19, 2008 Update. Yesterday, the Department of Justice published its amendments to the Section 2257 Regulations in the final, declining days of the Bush Administration. Ten pages of changes are accompanied by more than 150 pages of official commentary. This site will have a great deal to say about the changes during the days ahead because the changes are massive, but we are still assessing each change and its potential consequences. For the time being, we are posting a two-column table comparing and contrasting the existing regulations with the changes which will swiftly become law.
December 3, 2008 Update. AVN Online has announced that it will host a one-hour version of the J.D. OBENBERGER LEGAL WORKSHOP SEMINAR at 9:00 am, Tuesday, January 13, 2009 at the Palms Casino Resort in connection with Internext, the greatest online adult internet show in the world. This will be his fifteenth speaking engagement at Internext and the fourth time he has conducted this solo seminar on the law of obscenity, the Section 2257 changes, Copyright, and the rights of models and performers. Put your seatbelts on and prepare for a highspeed traverse through all of the legal principles you need to understand to succeed in 2009.
August 4, 2008 Update. Max Hardcore, Hints about the Vitality of Obscenity Law, the Supreme Court on youthful content, Section 2257 Status, and Ira Isaacs.
1. What Happens Next to Max Hardcore?
2. Hints From the Supreme Court About the Health of Obscenity Law.
3. US v. Williams – Ban on Distribution of Material Dressed as Child Porn Upheld.
4. Connections Distribution v. Keisler – The Status of Section 2257.
5. The Ira Isaacs Mistrial.
1. WHAT HAPPENS NEXT TO MAX HARDCORE?
As you are certain to know, Max Hardcore and his distributor were each convicted of ten obscenity offenses on June 15, in a Federal prosecution in Tampa. (Mark Kernes wrote a series of high-quality daily trial dispatches for AVN that can be read at http://www.avn.com/video/articles/30477.html .) All of the charges involved distribution because, at the time the video was created, there was no federal statute criminalizing the production of obscene content. There is one now; the federal offense of production of obscenity was created in the Adam Walsh Act in 2006.
The indictment included counts concerning both physical mailed delivery of five DVD's in two mail orders to a Tampa address and Internet distribution of five short clips via maxhardcore.com, including one, me20europromo.wmv, only 1:47 in duration. The government did not allege that maxhardcore.com or any other website operated by Max was an obscene work as a whole, but it charged individual clips instead, continuing the pattern established by DOJ in the Extreme Associates case. The DVD titles named in the indictment are “Max Hardcore Extreme 20 – Euro Edition,” “Pure Max 19 – Euro Edition,” “Max Hardcore Golden Guzzlers 7 – Euro Edition,” “Fists of Fury 4 – Euro Edition” and “Planet Max 16 – Euro Edition. The content was described to have included urination, fisting, vomiting, and hard anal . The judge presiding in Max's trial was Susan C. Bucklew. You may remember her as the judge in the Voyeurdorm case who determined the Voyeurdorm studio location to violate Tampa's adult zoning ordinance, and you may also remember that she was reversed in that case by the 11th Circuit on non-First Amendment grounds. She is not the kind of judge who can easily be accused of having any inclination to provide the defense any favors in an obscenity case.
Among other arguments, Jeff Douglas of the Free Speech Coalition unsuccessfully argued that, because the Max videos depicted women in a politically incorrect manner, some manner of socially-important commentary existed, adorning them with that kind of serious value that constitutionally protects them against criminality under the third fork of the Miller Test and the First Amendment. The jury didn't buy it. Published accounts indicate that from the first vote, the jurors stood 9-3 for conviction. Word from the backroom suggests that the only point in which the dissenters disagreed with the majority was whether Max should be convicted for the offenses arising from distribution of the DVD's - not because of any doubt about obscenity - they all agreed from the first poll that the material was legally obscene - but because of doubt about his responsibility for the manner in which orders were fulfilled. After hours of argument, the three jurors favoring acquittal on any counts backed down and the jury unanimously convicted. Beyond convicting Max and the distributor on all counts, the verdict granted forfeiture to the government of three domain names, including maxhardcore.com. This jury declined to forfeit Max's house, but it is unclear to me whether the government may continue its efforts to take his house through an independent action for civil forfeiture – which was pending long before this indictment - and get another bite at the apple.
The court apparently instructed the jury on local community value instead of any special “Internet” or national community; the only nexus specially connecting the Internet distribution to the Central District was the location of Max's servers in the locale, a circumstance that Max seems not to have known about. The record will be full of issues preserved for appeal covering the spectrum, from the nature of a "work as whole" in obscenity law to the identity of the community whose standards are to control. Daniel Ruth, a Tampa newspaper columnist, reported the next day that jurors had decided to pursue a proposed book deal about the case. In the same category of defense-suggested jury conduct issues, it appears that an Assistant US Attorney made a crack in the elevator about all the porn - to a juror who wasn't wearing a jury badge. Also, during deliberations, one of the jurors, employed by a lawyer, got fired in a telephone call. Her employer said it had nothing to do with jury service, but the juror, who had the name of a lawyer she wanted to consult, wasn't so certain and sent a note to the judge about the firing that wasn't disclosed until after the verdict was in, and after the judge urged the jury to come to verdict. The defense team feels passionately that the judge erred to Max's prejudice, though it would seem that after the firing, the horse was already out of the barn. The defense lawyers filed motions for a new trial or alternatively for a judgment of acquittal, and all of their arguments were rejected by Judge Bucklew on July 28. Sentencing is scheduled for September 5.
What will Max face on Sentencing? Prior to sentencing, a report will be prepared by staff to aid the judge in sentencing, and the defendants and their counsel have the opportunity to provide information that will be included in the report. The pre-sentence report will include a recommendation based on a point system contained in the Federal Sentencing Guidelines Manual. Though, in this case, its provisions are not mandatory upon the judge, the judge is obliged to consider those guidelines in sentencing a defendant and the large majority of sentences imposed by Federal courts comply with the Guidelines. Though I have not been involved in this case, I have undertaken a computation of the sentencing range recommended under the guidelines based on public information. With the sentences running concurrently, if sentenced under the Guidelines without a downward departure, my computation is that Max will be sentenced to the max, 60 months incarceration. (I will gladly make my computation available on request.) Please remember that Max was not convicted on the basis of creating the material, but for merely distributing it, and distributors of these titles and other videos like them put the distributor in the path of the same federal criminal charges and penalties faced by Max. Distribution of Max material is also at the center of the Harb/Movies By Mail case in Salt Lake.
Beyond the lessons about the dangers which inhere in extreme content, an additional point illustrated in this case is to know where your servers are located, and in every business decision, to place them and conduct all business activities in jurisdictions clearly tolerant or accepting of your material.
2. HINTS FROM THE SUPREME COURT ABOUT THE HEALTH OF OBSCENITY LAW.
Signs of the Times. The lawyers of the First Amendment Lawyers' Association continue to fight hard for the reversal of obscenity laws in the United States, and they deserve commendation for keeping the flame of Liberty alive. But to suppose that victory will come any time soon is probably not an accurate reading of our times and the developments which define them. It is wise to consider that in Phoenix, a city far outside the Bible Belt, two trials were conducted during 2007 involving different defendants and different materials, and that obscenity convictions resulted in each case. Meanwhile, in Pittsburgh, Extreme Associates is still pending, Harub/Movies by Mail is still pending in Salt Lake, and John Stagliano was indicted in April for distributing “ Milk Nymphos ” , “ Storm Squirters 2: Target Practice ” , and the trailer for “ Fetish Fanatic Chapter 5 ”. Ira Isaacs in LA faces either a new trial or a continuation of his trial for his extreme content centering on sex, animals and things that usually go on in a bathroom or deep in the woods, which is actually not a bad description of where he finds himself. An assortment of obscenity charges are pending in Kansas and Virginia. Michael and Sharon Corbett (“ girlspooping.com ”), Chris Wilson (“ nowthatsfuckedup.com ”), Karen Fletcher (“ Red Rose ”), and the Cum on Her Face defendants (each and every one of these four defended by the same well-known firm) each took a plea. And, in San Jose, in the Northern District of California, of all places, Robert Allan Thomas was just recently indicted on three counts of mailing obscene (bestiality) videos and one count of running an obscenity business. This is the same Thomas who was indicted in Memphis, Tennessee, arising out of the operations of a California BBS in 1994, giving rise to one of the earliest online obscenity cases.
In short, there have not been so many obscenity-related prosecutions brought – and so many results disheartening to the Industry in such quick succession - in many years. Something in the air feels different to this observer, and while a large-scale campaign may never come, the chill we feel may be the first signs of a cold front moving in during the waning days of the Bush Administration.
Hints From the Supreme Court? In each of the cases I've mentioned, the lawyers have challenged the constitutionality of the obscenity statutes or they will. Some lawyers have found grounds for hope in Lawrence v. Texas , the 2003 right to privacy case that overturned Texas's sodomy statute, a case that is all about the legitimate scope of government regulation of private sexual practices. The lawyers in Extreme Associates convinced one judge that the sexual privacy holding in Lawrence doomed the obscenity statutes, but he was reversed by the Third Circuit. The Supreme Court declined to review that reversal – which is always said to mean nothing about the merits of the request – and it did so rapidly. Though the United States Supreme Court has not directly tackled the constitutional scope of the obscenity statutes in about twenty years, the High Court has twice quite recently alluded to obscenity law - in comments that suggest its continuing health and vitality. First, in United States v. Williams , concerning pandering for Child Pornography and decided on May 19, 2008, Justice Scalia, writing for a seven member majority, began his analysis by noting that “ We have long held that obscene speech—sexually explicit material that violates fundamental notions of decency—is not protected by the First Amendment .” Slip Opinion at 1. Five weeks later, on June 26, 2008, Justice Scalia again, writing for a five member majority in Heller v. District of Columbia , a case that for the first time comprehensively assessed the Second Amendment and declared the laws of the District of Columbia that banned private handgun ownership in the home unconstitutional, could not resist the urge to mention the obscenity exception to the First Amendment in support of his position, noting that “ The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity , libel, and disclosure of state secrets . . .”. Slip Opinion at 63. These statements passed without comment in any dissent or concurrence. Other lawyers may try to dilute the significance of these texts by calling them impertinent asides regarding inadequately briefed issues that were not central to the decisions, but, after assessing the placement and purpose of each, my hunch is that Justice Scalia used these words to telegraph the position of the Court with regard to the continuing vitality of obscenity law. I don't see the Supreme Court enlarging the holding in Lawrence to invalidate obscenity statutes any time soon.
3. US V. WILLIAMS – BAN ON DISTRIBUTION OF MATERIAL DRESSED AS CHILD PORN UPHELD.
On May 19, 2008, the United States Supreme Court, in United States v. Williams , reversed the Eleventh Circuit and upheld the constitutionality of a law related to pandering material as “child pornography” even if it wasn't really child pornography. The law, contained in Title 18 United States Code Section 2252A, criminally penalizes the knowing advertising, promoting, and distributing (among other activities) of material – or “purported matter” in a manner that reflects a belief that the material is child pornography or is intended to cause another to believe that it is child pornography. This statute has the power to reach material that 1) does not actually even exist (“purported material”) 2) obscene material made exclusively with adults who are depicted as minors engaging in actual, explicit sex, and 3), last but surely not least, minors depicted in actual, explicit sex. This is all punishable between five and twenty years in prison.
Congress passed this law in reaction to the decision in Free Speech Coalition v. Ashcroft (2002) which invalidated Congress's earlier attempts to proscribe materials put forward as child pornography. The Free Speech Coalition opinion was grounded on the proposition that a flat prohibition of material depicting underage sex can be banned, when it is not obscene, only when real children were involved in the creation of the material. The Williams case highlights that the statute invalidated in Free Speech Coalition banned possession of such materials without regard to whether real children were involved, while the more recent statute relates exclusively solicitations and transfers rather than possession. The Court held that the law was neither constitutionally overbroad nor impermissibly vague.
An important principle articulated in Williams is that speech which proposes illegal transactions enjoys no constitutional protection. It is not important to the Court whether the material exists or whether or not it depicts underage performers; Justice Scalia writes that Congress may properly create crimes that involve fraudulent offers and also those which propose an illegal transaction. The Court views this statute as including both, such as a fraudulent offer to enter into an illegal transfer, making it doubly punishable.
At the root of prosecutions under this statute, there must be a transactional statement, conversation and/or circumstances from which it is evident that the defendant either believed or intended others to understand that the material transferred or to be transferred was:
1) Actual child pornography or -
2) An obscene and sexually explicit depiction of a minor having sex, performed by an adult.
Accordingly, webmasters need to scour their sites and promotional materials and otherwise positively act to assure that they 1) do not appear to express a belief that the materials depict minors, 2) do not appear to lead others to understand that the materials depict minors, 3) do not appear to express a belief that the materials are obscene, and 4) do not appear to lead others to understand that the materials are obscene. An appopriate Notice may be of tremendous help and all producers and webmasters should consult an attorney if youth has anything whatsoever to do with the material in order to formulate that Notice.
4. CONNECTIONS DISTRIBUTION V. KEISLER – THE STATUS OF SECTION 2257.
On October 23, 2007, a three-member panel of the Sixth Circuit sitting in Ohio, invalidated Section 2257 and its supporting regulations, determining that they violated the First Amendment. None of the judges saw the case quite the same way, but two of them agreed that it was wholly unconstitutionally and that they could not fix it by interpretation. The third judge, too, who dissented from the determination of invalidity, agreed that serious constitutional defects existed, but he felt that the court could fix the statute by limiting it to commercial situations. (Even that dissenter proposed excising out language applying to Secondary Producers in the statute to save its constitutionality, thereby undoing an important part of the Adam Walsh Act.) The others disagreed with the dissenter for a variety of reasons, including a legislative history that plainly shows that Congress intended to reach non-commercial distribution , because that's where the bulk of child porn is made and moved. My sense is that, were the statute limited to commercial photography and commercial distribution, this panel would have come to a different result upholding Section 2257, because the most serious unconstitutional obnoxiousness they found in the statute related to personal and private images that enjoy an expectation of privacy in the home. They were concerned with the chilling effect upon the creation of noncommercial images when the age of the model was actually known by the photographer. The court seemed appalled that a government inspector could come in under the law to view video records of the most intimate moments of a married couple. There is not a syllable in the decision suggesting that the compliance obligations are impermissibly overburdensome on commercial producers, but this is not a case involving images made for profit: It is a swingers case.
This comes in the wake of the determination in the United States District Court at the tail end of 2005 in Denver, in the case brought there by the Free Speech Coalition, that essentially none of its constitutional arguments broadly attacking the regulatory scheme held water. In contrast with Connections in Cincinnati, the Denver case was all about commercial producers - and the burden of their compliance requirements occupied center-stage. The judge found just a couple of its provisions to be unduly burdensome, most notably the requirement that camgirls expensively archive all of their presentations. The court did follow the much earlier decision of its own supervising Tenth Circuit in invalidating the Secondary Producer obligations on non-constitutional grounds of statutory interpretation. Since the time of that decision, the case has been in a kind of stasis. The FSC might have appealed to the Tenth Circuit and risk losing again on the constitutional issues. But they gave the impression of being immobilized by fear or apprehension without any significant public explanation of why the case was in the doldrums. The following Summer, Congress responded to the FSC's lawsuit – and the Tenth Circuit - with provisions contained in the Adam Walsh Act that demonstrated its resolve to impose the burdens on Secondary Producers, and thereby eliminating the non-constitutional arguments.
Meanwhile, back in Cincinnati, April 10, 2008, the Government's Petition for rehearing en banc was granted by Sixth Circuit. This means that all of the active judges of the Sixth Circuit will reconsider the three-judge panel's result. While they might affirm, the granting of en banc review suggests that a number of the other judges are troubled by the decision, and that's not good news. A decision should come in late 2008 or in 2009 . Regardless of outcome, this decision marks only the third time that Section 2257 will have a chance to come before the Supreme Court. The last time that happened, in the Tenth Circuit many years ago, when the Government lost, it did not seek review in the Supreme Court.
Since the Connections decision was announced, the FBI has suspended records inspection. The adult industry has had many opportunities to get its records in shape. It would be prudent were webmasters and producers to use this time to review their records and correct any defects.
The Connections decision is not the law of the land. Even in the Sixth Circuit, the granting of a petition for rehearing en banc had the legal effect of vacating the opinion and judgment , which now has no legal effect (6 th Cir. Rule 35 (a.)); It would be a serious mistake, even within the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee) to treat the opinion as anything more than a tentative analysis, which, for the time, has been overtaken by events. 2257 remains the fully enforceable law of the land. You should also understand that no injunction or other order exists that compels the Government to suspend 2257 Inspections. DOJ may conduct inspections without prior notice under the law – and seems to forbear from doing so because, so long and uncertainty about the validity of the statute exists, it assesses some risk to itself in doing so. That judgment is subject to change without any prior notice to you, too.
5. THE IRA ISAACS MISTRIAL.
In one of the most mucked-up situations ever to arise in an obscenity trial, the presiding judge of the Ninth Circuit, Alex Kosinsky, somehow got himself designated to act as trial judge for Ira Isaacs, he began the Isaacs trial, then he got “outed” - probably by someone with a personal or philosophical animus against him – as having some soft but definitely “adult” images on a server under his control and associated with a personal web site, and then he recused himself from further proceedings in the case, declaring a mistrial. The trial began on June 9, 2008 and Judge Kozinski suspended it on June 11th after the jury was empanelled and heard a couple of technical witnesses. The legal effect of all of this is unclear, and his attorney, who opposed the recusal, is taking the position that no mistrial is necessary and the trial which was begun simply should proceed to its termination. He has filed a motion objecting to the setting of a new trial date, contending that Double Jeopardy bars anything but the trial which was begun.
Judge Kozinski got out of the kitchen just as soon as the temperature went up a few degrees, doing so even before the Government had taken a position on the subject . It got clouded further when, after the judge acknowledged his responsibility for the material, his grown son started clamoring to take responsibility for the materials stored in the judge's server space.
The recusal itself is highly controversial. I wrote an article for AVN Online a few years back (“Here Cum da Judge!”) taking the Kansas Supreme Court to task for removing a judge – for the third time in Kansas history - because he watched porn in chambers. http://www.avn.com/video/articles/25063.html . What message about community acceptance and toleration is communicated to potential jurors and to other judges when someone is prohibited from acting as a judge because he/she looks at porn? How is a trial judge to assess contemporary standards without knowing what is out there? No one could imagine a judge disqualifying himself from a DUI case because he drives a car. Or because he drinks. Or because he is a drinker sometimes who drives a car. How is the appearance of impropriety to the public to be judged? By the loudest, most intolerant and repressive and tight-assed voices? The recusal makes no real sense to me and it seems to be one of those quiet defeats for liberty that Americans seem to accept with alarming regularity in this age. The mistrial makes even less sense.
Now Mr. Isaacs is slated to go to trial with U.S. District Court Judge George King presiding, who as a federal prosecutor in the late '60s won a conviction against adult producer William Pincus, a conviction that was later overturned by the U.S. Supreme Court. It seems mildly ironic to me that no one sees an appearance of impropriety in that!
Ira Isaacs was indicted in the United States District Court for the Central District of Florida in Los Angles. The February, 2007 indictment relates to video titles described as
"Gang Bang Horse”, 'Pony Sex Game", "Mako's First Time Scat", "Hollywood Scat Amateurs No. 7", " Laurie's Toilet Show " and "Bae 20" . The tapes were apparently promoted at the following sites, whose domains the government seeks to forfeit criminally: www.scatmovies.com, www.scatcinemax.com, and www.stolencarfilms.com.
Isaacs and his lawyer have been characterizing the coprophilic- and equine-interest videos in the media as “shock art”. Paul Thomas at Vivid is having none of it. He was quoted on the LA Weekly website, in an article written by Steven Mikulkan, as stating: “" We at Vivid applaud his prosecution. Freedom of speech carries with it responsibility. It was never intended for there to be videos of people shitting in each other's faces. " Isaacs shot back: "What Mr. Thomas fails to realize, is the US government is not only coming for me, but will soon becoming for him and Vivid as well as others in the adult industry. This is made evident by the obscenity prosecutions of Extreme Associates, JM Productions, Max Hardcore and most recently John Stagliano from Evil Angel. Vivid may feel they're safe in Los Angeles; however, community standards in places like West Virginia, Utah and Mississippi may not be so understanding of his brand of porn - and I'm sure Vivid's product and Websites go to those places. The Internet goes everywhere; no one can hide from these ultra-conservative venues."
No work can be determined to be obscene in an American court if it possesses serious artistic value. The assessment is made objectively by juries and judges. It is not enough that a producer calls his work serious art. It's not enough even if he really means it. Society makes the call through its juries and judges. In the end, a jury will determine whether it finds a serious artistic purpose amidst the feces .
Isaacs was initially indicted with two counts alleging violations of 18 United States Code Section 2257 , but those counts were dropped without explanation in Spring, 2008. It is likely that the DOJ does not wish to see the Ninth Circuit weigh in on Section 2257 if it can be avoided.
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.
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.
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.
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.
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.
information will be posted here as it becomes available. JDO
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.
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.
* * *
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. 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.
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
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".
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.
January 16, 2004. adultinternetlaw.com
joins xxxlaw.net. Please
visit our new (at least new to us!) site: Richard J. Chapo and Greg Geelan
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.
Updated October 25, 2002: Attorney General Ashcroft Gearing Up Justice Department for Prosecution of Adult Obscenity, Including Internet sites. The Justice Department convened a National Obscenity Law Enforcement Conference at a DOJ facility, the National Advocacy Center in Columbia, South Carolina, on June 6-7, 2002, to map a policy and guidelines for the prosecution of materials, including online materials, described as "obscene". On May 7, Mr. Ashcroft transmitted an invitation to all 94 US Attorneys under his own signature, stating, "[T]he proliferation of obscenity, both via the Internet as well as through more traditional channels, has become a pervasive and destructive element in our society. I am committed fully to dedicating the resources necessary to combat this burgeoning problem." Mr. Ashcroft himself spoke to the gathering on June 6, 2002, asserting that the adult industry has ties to organized crime and invoking the right of the nation to "maintain a decent society." A full report of these and other related matters, including links to source documents, is running currently in AVN Online's online edition under the name Just Speaking Freely in Montreal: The Words of the Prophets. We believe this article to be mandatory reading for everybody who makes a living in adult erotic materials in online, video, and print media. Current clients have been provided our 24-hour pager numbers in the event of any legal emergency. UPDATE: "The Words of the Profits" appears in the October, 2002 print edition of AVN ONLINE.
Article 6/28/02: Some
Practical Tips on How to Succeed in the Adult Internet While Staying Out of
Jail Part One: The Multifaceted Risks of Obscenity Law.
in Adultnetsurprise and AdultBuzz.
New Article: 7/4/02: Some Practical Tips on How to Succeed in the Adult Internet While Staying Out of Jail. Part Two: The Keys to Risk Avoidance in Webmastering. Appearing Exclusively in Adultnetsurprise and AdultBuzz.
"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.
May 13, 2002. United States Supreme Court issues long-awaited decision on COPA in Ashcroft v. ACLU, A majority of the Court agreed that the statute is not unconstitutionally overbroad just because it relies on a notion of "community standards" in some sense, it preserved the existing injunction against enforcement of COPA, and remanded the case for further consideration of whether COPA is unconstitutionally overbroad or vague or otherwise infirm when that statute is examined in view of all of its provisions and in light of their cumulative effect on expression. The issue of how and whose community standards ("national" v. "local geographic" v. undefined) can fairly be applied to Internet prosecutions has not been squarely answered by a majority of the Court in this case: A majority of the members of the Supreme Court did not join Mr. Justice Thomas in Part III of the opinion, which would apply the standards of local geographic/political "communities". 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". Justice Thomas's view, that if a speaker does not wish to incur criminal liability under the varying standards, he or she should avoid using the Internet or other national means of expression, did not obtain support from the majority of the Court. A three-member plurality of the Court would apply "local" geographic community standards to the Internet in determining what material is "harmful to minors" and apparently what is obscene as well. Six members of the Supreme Court oppose applying such local standards. The lack of majority support for Part III of the Opinion leaves open many further possibilities as this and other cases continue to be litigated and decided and stands as a hallmark of the Opinion. This case is available in Adobe Acrobat™ format for reading and download here.
May 13, 2002. The United States Supreme Court reverses and remands CITY OF LOS ANGELES v. ALAMEDA BOOKS, INC. The decision clarifies the burden municipalities must bear in justifying their "time, place, and manner" regulations imposed upon adult land use restrictions when those restrictions are challenged in court. It broadly expands the playing field on which the adult operator can engage and challenge the factual predicate for the land use restriction, and this can only be good news for all adult entertainment and expression. This case is available in Adobe Acrobat™ format for reading and download here.
April 16, 2002. United States Supreme Court declares the "Virtual Child Porn" Provisions of the Child Pornography Protection Act to be unconstitutional. This Opinion sustains the Ninth Circuit ruling in Ashcroft v. Free Speech Coalition; In doing so, the High Court highlights the distinction between the legitimate power of government to regulate conduct and an impermissible attempt to regulate thought and ideas.This well-written, significant 6-3 First Amendment Opinion is available in Adobe Acrobat™ format here together with the concurrence and dissents.
Article - "The Emperor's Clothes at the Supreme Court" - Concerning the implications of the Free Speech Coalition case which was published in Klixxx Magazine 7/2002.
Tom Hymes at AVN Online displays uncharacteristically discerning judgment in his review of the Newbie Legal Seminar at Internext 2002-A . This is a classic must-read. "The Dream Team", April, 2002.
- - Additional Items - -
DuPage County Adult Use Ordinance Unconstitutional: Federal Court Orders and Our Briefs and Pleadings, Downloadable in Adobe Acrobat Format.
"Morpheus in the Underworld: Free Speech at its Freest (And Most Dangerous)" An article exploring the dimensions of Morpheus, KaZaA, Gnutella, and the other P2P file sharing protocols in relation to society, erotic expression, copyright, privacy, and the law of obscenity.
"The Seven Circles of Internet Content Hell"A Summary of the Internext Talk
"No Mail Getting Through: Trouble in the Copyright Office" For Ynot News
YNOT: A Question About Obscenity"
"The Ten Legal Questions Most Asked by Webmasters and Content Providers in 2001"
"Not Guilty: Your Day in Court and Why Illinois Supervision Might Not Be Such a Good Deal"
"America on Lockdown."
"Under Silent Skies: A Dialogue with Frederick S. Lane III" for Klixxx Magazine
"Inquisition, Intercourse and the Internet" for AVN Online Magazine
"9-11 and the Fate of the Republic"
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Notice: The links provided are only for the convenience of the general public in locating organizations supporting Free Speech, Liberty, and Privacy and to help members of the public at large in finding news and reference materials relating to free expression. Use of the names of groups or associations in connection with links or otherwise does not suggest any endorsement of this law firm or website, nor the association of any of them, with this law office or website, or ours of or with any of them, nor does the inclusion of these links suggest our approval with any and all positions taken or statements made by any organization or group. Online Internet Freedom of Speech, Freedom of Speech in Expression, and Freedom of the Press are the foundation of a free society: To support the right of free expression of unpopular and repressed content is to assure the security of a free society; To ignore the repression of unpopular and repressed messages and to fail to work for its protection assures the eventual destruction of a free society and the Liberty which nourishes and preserves it. We believe that Internet Free Speech is the forward edge of the battle area in preserving Liberty in American Society. As Benjamin Franklin noted during the generation of the Founders, those that would sacrifice essential Liberty for temporary security deserve neither Liberty nor security. This website and the materials it contains are written to generally inform the public and none of them provide legal advice nor establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement, consent to nothing, and contact a lawyer immediately. However, offer no resistance. Copyright 2001-2002 J. D. Obenberger. All rights reserved under the laws of the United States and under all International Conventions and Treaties. adultinternetlaw, adultinternetlaw.com, XXXLAW, XXXLaw, xxxlaw, and XXXLAW.Net and each of them as incorporated into logos, designs, and devices appearing on this site are service marks of J. D. Obenberger and Associates, a sole proprietorship. XXXLAW® is a registered trademark of J. D. Obenberger and Associates. J. D. Obenberger and Reed Lee are licensed to practice law in the respective jurisdictions listed for each in the Biographies Page of this site only. No copyright is claimed on the decisions of any court, statutes or administrative regulations, nor on any link or banner or incidental graphics associated with another site, nor for the photographs appearing on this site, which are public domain images except as expressly credited herein. Various articles contained on this site first appeared for publication in YNOTnews, AVN Online Magazine, Klixxx Magazine, XBIZ, Chicago's Gentlemen's Pages, The Adult Chamber, Adultnetsurprise, and elsewhere. Personal Information provided by site email links to this firm will be used only in conformity with the provisions of the Illinois Code of Professional Responsibility, and not otherwise, to assure the privacy of correspondants. Information concerning professional fees will be provided upon request. Information provided by trackers may be used for statistical purposes. Every case depends on its own merits and the results reported on this site for any particular case do not and cannot predict the outcome of any other case. The members of this firm are available to speak by prior arrangement with this office at all gatherings focusing on Free Expression, Liberty, and Privacy, from Adultex, AWE, and Internext to local gatherings of Exotic Dance Club Owners and Webmasters. This site was entirely composed within the territorial limits of the United States of America with Macromedia Dreamweaver MX ™, Swish 2.0™ and Anfy 1.4.5™. God Bless the United States and its First Amendment. (Back to Top of This Page)