Legal

FSC will launch our 11th Celebrating Free Speech Lobby Day on April 20th and 21st in Sacramento. These events help to serve two purposes:

1. It introduces state legislators to the industry in a very personal way - they see the faces of the people who work in the industry.

2. We get the opportunity to tell California legislators the truth about our industry and the vital role it plays in the California economy, as well as in the lives of Californians.

Last year a number of industry leaders joined us as we lobbied against a multi-tiered tax on adult entertainment products and services. And we were victorious, providing enough pressure on the bill's sponsor Assembly Member Calderon that he never brought the bill to committee for a vote.

Legislation that is being bantered about this year includes additional taxes upon adult entertainment and additional government regulation of production sets. It is critical that our elected officials comprehend the vital role this industry plays in our economy so they understand that what's bad for the adult entertainment industry is bad for California.

SCHEDULE:

Sunday, April 20th 4:00-9:00 pm. Lobby Training

Monday, April 21st 9:00am-6:00 pm Lobby Legislators and Legislative Reception

WORKSHOP AND RECEPTION LOCATION:

Chops Steak Seafood & Bar 1117 11th Street Sacramento, CA

HOTEL:

The Sheraton Grand Hotel 1230 J Street, Sacramento, CA

The day's events will culminate in the highly coveted Free Speech Legislation Reception, sponsored by Wicked Pictures, in which lawmakers, staff, and advocates celebrate free speech.

To sign on or get additional information about the event call 818-348-9373 or email Keah at keah@freespeechcoalition.com.

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On Tuesday, Feb. 12, Texas' ban on the sale of sex toys was overturned by a three-judge panel of the Fifth U.S. Circuit Court of Appeals out of New Orleans. Special thanks go out to Louis Sirkin, the attorney for the case, and Reliable Consultants, Inc. and PHE, Inc, the plaintiffs. This decision contradicts the Eleventh Circuit Court of Appeals decision on the Sherri Williams case in Alabama. I asked FSC Board member and Legal Committee chair Reed Lee to prepare a brief analysis and Frequently Asked Questions piece for our members and the industry.

Free Speech Coalition Analysis and Frequently Asked Questions of the 5th Circuit Decision Overturning the Texas Ban on the Sale of Sex Toys

(Submitted for FSC by Reed Lee Esq.)

A panel of the United States Court of Appeals for the Fifth Circuit has invalidated the Texas statute banning the sale or transfer of devices designed or intended primarily to stimulate the human genitals. The ruling is grounded on the same constitutional privacy considerations which earlier led the Supreme Court to invalidate the Texas sodomy law (and similar laws in other states).

The panel majority's decision and reasoning are sound, and they deserve to prevail both in the Fifth Circuit and elsewhere. But conservative judges will likely be upset about the ruling (as they were about the Supreme Court's sodomy decision and about so many other decisions of importance to us).

So, just as the Sixth Circuit panel's recent 2257 decision is not likely to be the last word on the subject, we can expect more litigation about sex toys. In the end I think, both panels' decisions will be vindicated.

Frequently Asked Questions

1. Is now safe to sell novelties in Texas?

If the Fifth Circuit decides against rehearing, the Texas law will be invalid unless the U.S. Supreme Court steps in. But it will be a few weeks before we know anything about rehearing and several months, at least, if rehearing is granted.

2. What other states does this cover?

Texas, Louisiana (where the state Supreme Court already invalidated that state's sex toy law), and Mississippi.

3. What does this mean for Sherri Williams' case?

It means that Sherri Williams is a lot like Michael Hardwick. (Hardwick unsuccessfully challenged Georgia's sodomy law in the 1980's). They both bravely fought unconstitutional laws on constitutional privacy grounds. They both fought a bit ahead of their time. Unlike Mr. Hardwick, it looks like Sherri Williams will live to see her constitutional challenge fully vindicated. No one has struggled more assiduously than she has; and no one deserves vindication more.

4. Can Texas appeal?

Texas can seek rehearing in the Fifth Circuit or it can ask the Supreme Court to hear the case. In either case, the relevant court must agree. Neither move is a sure thing for Texas.

5. Can city and county jurisdictions in Texas impose sex toy bans?

If the current decision stands, local governments will not be able to replace the Texas statute. They too are subject to the United States Constitution.

6. Is this the beginning of the end for state sex toy bans?

More like the middle of the end, I think.

Other courts have struck down sex toy bans, so this most recent decision is less remarkable than it may seem. The real odd court out on this issue seems to be the Eleventh Circuit, which rejected Sherri Williams' constitutional challenge (identical to that which has prevailed in the Fifth) no fewer than three times over ten years.

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I received an email from The San Fernando Business Journal asking me to comment on who I thought would be the best presidential candidate for adult business.  Democratic candidate Mike Gravel gave an inspirational speech at FSC’s fundraising event last October.  Larry Flynt held a fundraiser for Dennis Kucinich.  However, no viable candidate has aligned him or herself with our industry.  We have a great deal of work to do before we will ever see a frontrunner embrace an endorsement from the adult entertainment Industry, but when considering who to vote for, consider the response I gave to the Journal:

The candidate who would be best for the adult entertainment industry is the one who:

*    Respects adults’ rights to be adults

*    Respects and upholds our Constitution

*    Does not impose his/her personal morality on others

Of the candidates left in this Presidential race, ask yourself, “Who do I think will respect my ability to make choices for myself about what products I buy, what I read and what movies I can watch?” – then you’ll know who is the best candidate for our industry.

We in the adult entertainment industry complain a great deal about government intervention and oppression--and rightfully so.  However, I have little to no patience for complaints from those who don’t vote.  Now, more than ever, when the races are so close, EVERY VOTE COUNTS!  We have an opportunity to do something other than complain.  Pay attention to what the candidates are saying, go to their websites keeping in mind the criteria I listed above and then…stop whining and VOTE!

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Earlier this month at FSC's membership meeting, FSC and Sureflixx announced a merger of efforts in our anti-piracy activities. Sureflixx's GAPA (Global Anti-Piracy Agency) and FSC have combined plans and are moving forward to help our industry address one of its most significant challenges, piracy.

Sureflixx presented a check to FSC for $25,000 at the meeting to fund the first phase of the initiative Anti-Piracy 101, a series of workshops designed to give participants information and materials that they can immediately use in their businesses. The workshops are:

* Filing Copyrights: Participants learn how to obtain the most basic protection content owners must have. Get the forms and procedures you need to do it yourself.

* Tracking Pirated Content: Participants go inside the world of bit-torrent and other file-sharing sites for a how-to on tracking your pirated content as well as tips on protecting your content from being pirated in the first place.

* Cease-and-Desist Letters & Takedown Notices: Participants find out how, when and to whom to send them. Get templates and procedures for both types of documents.

* Suing the Bastards: Participants learn how to gather evidence that will stick when taking legal action against pirates. Hear from attorneys and content owners who've been through the litigation process. Learn what it costs in time and money, your potential for success, and how to coordinate class-action suits.

These workshops will lead up to a Piracy Summit to be held in the fall. The summit will be a comprehensive collection of efforts to fight the negative effects of piracy on our industry as well as the motion picture and recording industry. FSC and Sureflixx understand that there is no quick fix to the issue of piracy. We aim to give information and tools to members of our industry so that we can make responsible, effective decisions for our businesses.

Sureflixx has demonstrated true philanthropy in understanding that the war against this global threat must be waged collectively. They hope to inspire others to follow in their footsteps to address this issue as an industry. Thank you, Sureflixx, for your insight and true leadership.

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2007 has come to a close and, as people do, on January 1^st I spent some time considering the ups and downs of 2007.  I'd like to share a few highlights with you now.

As a newcomer to adult, my real introduction to the industry came with the Adult Entertainment Expo of 2007.   It was like a study session for the industry-on steroids.  I learned a great deal and, of course, caught the obligatory AEE cold.

By March, Jeffrey Douglas and I were in Portugal, fighting Stuart Lawley and ICM to defeat a .XXX top level domain.  With the support of countless industry professionals, we were victorious and the ICANN Board voted against .XXX.  Upon our arrival back to the states we learned of the disappointing 2257 decision by Judge Miller--a loss of one battle, but the war on 2257 continued. 

No rest for the weary,  FSC hosted Celebrating Free Speech lobby days in April, which proved instrumental in keeping an 8% multi-use tax for all things adult off the books in California. By May, FSC released its three-year strategic plan, communicating to our membership and the industry a long-term strategic approach to member benefits, organizing the industry and protecting the rights of adult businesses and their consumers. 

Over the summer, FSC provided analysis and "Frequently Asked Questions" for DOJ's 2257 proposed rules and regulation; recruited Joy King of Wicked Pictures to our board; hosted a membership meeting with a distinguished panel of  FSC's Presidents (Nick Boyias, Scott Tucker, Gloria Leonard, Julie Stewart and Jim Everett) as well as keynote speaker Bruce David, editor of Hustler magazine. 

Late summer's activities focused on 2257 as FSC launched a public comment campaign for input to 2257's proposed rules and regulations.  Simultaneously, FSC commissioned a report by Georgetown Economic Services to show the negative impact 2257 has on the industry, providing a sound argument against the proposed regulations as well as a solid foundation for future litigation. 

Understanding that not all threats to our industry come from the government, FSC announced the creation of a task force to study and develop a plan to address an issue seriously threatening the well-being of the industry: Piracy. Watch for an announcement resulting from the task force at our membership meeting at AEE.

In October, FSC made a splash with Presidential candidate Mike Gravel speaking at our Red, White and Blue Bash, encouraging industry professionals to speak up and speak out.  Later in October, the industry realized a significant victory with the 6^th circuit decision ruling 2257 unconstitutional on its face.  FSC immediately analyzed the decision and provided a "Frequently Asked Questions" document, to members and the industry, deciphering the significance of the decision.  The 6^th Circuit decision, coupled with the public comment reports and statements prepared by FSC, has provided the most positive foundation for future litigation and all-out war on 2257 we have experienced to date.  Special thanks to Rondee Kamins and Mike Murray-their 6^th circuit victory has helped us all. 

In the fall, FSC made two visits to our nation's capital, lobbying on Capital Hill and building coalitions with national partners like the Library Association and the ACLU.  FSC conducted a membership survey  that asked what you want and need in a trade association and then we responded to your requests.  As a result, FSC has partnered with Lockton, one of our nation's largest insurance brokers, to provide members with health, worker's compensation, and property and casualty insurance. Additionally, we have worked with ZEI to provide software discounts to our members.  We will continue to survey and respond to the needs of our members.

The learning curve for me this year has been astronomical, but it pales in comparison to FSC's accomplishments, made possible by the extraordinary efforts of staff, board, members and industry volunteers.  This has not been an easy year, but it has been one of the most exciting and substantive years of my life-that's what living is all about.  I want to take this opportunity to thank all of the people in the industry who have helped me and FSC pave our road to success.  From generous donors to advisors to people who rolled up their sleeves and worked on the front lines, the industry has been good to FSC and to me and our staff, and board.  We will hold fast in our commitment of excellence to our members and the industry.   I am honored and proud to be part of this incredible industry.  Thank you all for your support.

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On Tuesday, December 18 at midnight, FSC’s elections for its 2008 Board of Directors will close. In my year of working for this fine organization I have learned that there exists no shortage of people with opinions about what FSC should or should not be doing. Yet I have been told that historically, just a fragment of FSC’s membership actually participates in the election. What’s that about?! Surely, an industry full of action-oriented, innovative mavericks who have unending opinions about FSC understand the importance of putting in place a solid board of leaders tasked with setting the organization’s course.

This year, we have made it particularly easy to vote. We have sent our members electronic ballots, and the whole voting process takes just minutes. If you are an FSC member in good standing, and have not received a ballot through e-mail or snail mail, contact me at diane@freespeechcoalition.com and I will make sure you get your ballot. If you haven’t voted yet, what are you waiting for? The next chapter in FSC’s history is in your hands.

As FSC’s executive director, I direct the operations of the organization, but I work with the Board’s direction to set priorities for FSC. I have to say I will have little to no patience for people who complain about FSC if they haven’t participated at this very basic, yet crucial level. If you aren’t part of the solution, you are part of the problem.

FSC is an incredible organization and works extremely hard to meet the needs of its membership and the industry. I welcome comments and even criticism as I believe that is how we get a better understanding of the issues. However, know this: The first question out of my mouth to complainers about FSC in the coming year will be…Did you vote?

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Thank you Rondee Kamins and Mike Murray!

As you undoubtedly heard, on Tuesday, October 23rd, the United States Court of Appeals 6th Circuit overturned 2257 as unconstitutional on its face. I called Mike Murray, counsel for the case, to congratulate him. “It’s taken us 12 years Diane,” he said. I know just from my short year at FSC, this journey has been a long one, filled with excitement and disappointments, culminating in a truly groundbreaking decision.

“It takes a village to safeguard porn,” a motto each and every industry professional should understand and live by. This decision is a perfect example of that motto carried out. We as an industry owe a debt of gratitude to Mike Murray and Rondee Kamins for their courage, commitment and persistence to pursue a case in which the outcome dramatically benefits everyone of us.

We have yet to see where the Department of Justice will go with the decision: if they will instruct the FBI to stop inspections in all areas outside the 6th Circuit’s jurisdiction, if it will appeal etc. For more information on the decision, see FSC’s FAQs on the 6th Circuit decision:

http://www.freespeechcoalition.com/webdocs/FAQs-Analysis_6th_Circ_Overturn_2257[2].doc

Once again, Mike, Rondee, thank you. FSC salutes you!

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What was so groundbreaking about Mike Gravel’s presence and speech at FSC’s event?

Jeff

Phoenix AZ

Dear Jeff,

As I write this I am on a plane back to DC. FSC has been invited to participate in a First Amendment Conference hosted by the Scripps Foundation and put together by the Thomas Jefferson Center. I am arriving in DC a few days early so that I can meet with some of our nation’s elected officials—or at least their staff--before the conference begins.

Just a few short weeks ago I was in DC for my first lobbying trip representing the Free Speech Coalition and the adult entertainment industry. I began the trip by meeting with our coalition partners, the ACLU, the American Library Association, the Woodhull Foundation and others. That was an extremely positive experience. However, when I met with legislative staffers it became obvious that we have a great deal of work to do. Everyone was very helpful and pleasant and everyone made it abundantly clear that it would be political suicide for any politician to stand up for our industry.

Until we begin to stand up for ourselves and encourage our broad base of consumers to join us, finding a political figure to stand up publicly for our industry will be almost impossible. That is why it was groundbreaking to have Mike Gravel at our event. That is why it was so inspiring for him to not only show the courage to stand up for true freedom, but also to challenge us to do the same.

We witnessed courage by one politician who I believe holds true to his convictions and a love of our country. I am inspired by a truly great man. This week, I will walk among the monuments of great men that came before Senator Gravel, I will return to Los Angeles inspired to join Senator Gravel and my fellow adult entertainment professionals to continue the fight for freedom, justice and liberty.

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Last week three Free Speech Coalition (FSC) board members, Jeffrey Douglas, Jim Everett and Nellie Symm-Gruender joined me in our nation’s capital to visit legislative offices on Capital Hill.  Although everyone was very friendly, we were met with mixed reviews.  Legislative staff were eager to speak with us, curious and attentive yet cautious and apprehensive.  They told us that these kinds of visits go a long way in opening doors for communication.  They also told us that we have a long way to go before any legislator would go to bat for us. 

Nellie and Jim spoke of the benefits adult businesses bring to a community from employment opportunities to additional revenue for the tax base.  Jeffrey and I discussed the importance of involving representatives from the adult entertainment industry in discussions when developing legislation that impacts the industry.  We also offered access to the Free Speech Coalition as a resource for lawmakers. 

By the end of the day, it was obvious that legislators don’t have the support to back our industry.  They suggested that we keep meeting with people on the hill but I know we have more work to do.  We have to create an environment where it isn’t political suicide to be allied with the adult entertainment.   We are nearly a $13 billion industry.  That translates into an enormous consumer base.  In order to prevent the enemies of the industry from defining our future through damaging legislation, the responsibility is on us to activate our consumers—our base, our future.

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I read about the 2257 software that is being offered at a discount to FSC members. Does it take the place of paper files?

As of right now, the proposed rules and regulations include the requirement of hard-copies, at least at the time of actual inspection. Basically, what the software does is make the job of assuring that the records are in place (not allowing overlooked items to get by), that the cross-referencing options are there, and that the records can be maintained in an easy way.

ZEI views their software as a total management information system for companies in this industry, allowing better records on everything from health records to 2257 record-keeping and age verification to marketing information, etc. It's the total package and their customers often purchase it with the idea that, in addition to its 2257 record-keeping aspects, it allows them to run and prosper as a business.

The software does allow for off-site inspections by one's own attorney as a "mock inspection." Some attorneys, for example, use this software for the many companies they represent, by going out to their sites in-person and walking clients through the inspection process to assure that they're able to comply prior to problems with the FBI ever coming up. It sounds like a good practice.

Both ZEI and FSC advocate vehemently that individual companies must seek and maintain legal representation so that they're as safe as they can be under this onerous law.

There are two versions: Standard ($795 - $150 for FSC members) and Enterprise, for the largest adult companies ($2995 - $300 for FSC members). The discount was negotiated by FSC with ZEI, after ZEI approached us to offer the software to our members in support of our work, for the benefit of our members. ZEI sells their software at full price to non-members every day of the week.

FSC does not receive ANY form of remuneration for this arrangement. It does not endorse the product, but recognizes the software as a tool already utilized by many of our members. It was done strictly and solely on behalf of our members in an effort to provide yet another member benefit discount.

If you would like to comment on this or any other FSC blog or issue, send your comments to blog@freespeechcoalition.com

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