Another year, another January, another AEE, another Internext—and another opportune time to speculate about what lies ahead for the adult industry. Here is a peek into the crystal ball.
Of long-term importance, it is very likely that President Barack Obama will have another shot at the Supreme Court this spring. Keep a retirement watch on Associate Justices Ruth Bader Ginsburg and John Paul Stevens, who will turn 90 this April. The smart money is on Justice Stevens, but one never knows. While comparatively young, turning 77 this March, Justice Ginsburg has had health problems. Neither justice has shown any lack of enthusiasm; Justice Stevens still plays tennis, and Justice Ginsburg had surgery for pancreatic cancer last spring but did not miss a day on the bench.
The signal from Justice Stevens was that he hired only one law clerk for next year, rather than the usual four, which often predicts retirement. Also, there has been talk about the fact that he shares a Chicago background with President Obama, often hiring law clerks from the University of Chicago Law School, where the president taught before his election to the Senate. Stevens might want a fellow Chicagoan to appoint his successor.
What does this potential change on the Supreme Court mean? The media will say that it will not represent a shift because Obama is certain to replace Justice Stevens with “another liberal justice,” not changing the vote count.
However, there is more to it than that. Justice Stevens is probably far more favorably disposed to the First Amendment and other rights important to this industry—like privacy, which is crucial to the issue of anti-dildo laws—than any likely replacement. The president did not exactly pluck Justice Sonia Sotomayor out of the ACLU.
Another subtle point is that Justice Stevens, the most liberal member of the court, is also the most senior. That means he is second in command after the chief justice; so, if the chief justice is not in the majority, Justice Stevens decides which justice will write the opinion. With Justice Stevens’ retirement, that position would go to Justice Scalia, who is a crafty conservative with formidable intellectual firepower. However, if the chief justice is in the minority, you can bet that Justice Scalia is voting with him, and the next in line is Justice Kennedy, who has been a good friend to the First Amendment.
So there is no threat that the retirement of Justice Stevens will trigger the type of radical change that occurred when Clarence Thomas replaced Justice Thurgood Marshall. The Court will remain right-leaning, with Justice Kennedy casting the deciding vote in most constitutional cases.
There are some extremely important issues that appear headed to the high court. For example, on the question of the government restricting the sale of sex toys, the Fifth Circuit has held the Texas statute unconstitutional but Texas state courts have upheld it—even though Texas is in the Fifth Circuit! And the Eleventh Circuit has upheld Alabama’s matching law. With those scattered results, there is a fair chance that the toy issue will reach the Court.
Recently, the Ninth Circuit held that national standards apply to online obscenity cases, notwithstanding the clear holding in Miller v. California that local standards apply to brick-and-mortar businesses. One can easily imagine a conservative circuit following Miller—and a conflict between two circuits creates the highest likelihood of Supreme Court review except where the lower court strikes down a federal statute.
Because, as we all know, distribution of content is destined to be exclusively via the internet, the local-versus-national standards issue is crucial. If the Court follows the Ninth Circuit’s conclusion—which was based upon counting Supreme Court noses—the government loses its ability to go forum shopping, seeking to apply the local standards of conservative communities like Oxford, Miss., and north Florida. (See last month’s column for more on that.)
The Supreme Court appointment is a long-term issue, since the appointed justice can be expected to serve for a generation. The shorter-term issues are, of course, federal obscenity prosecutions and piracy.
The biggest surprise is the continuing viability of the Justice Department’s Obscenity Prosecution Task Force (OPTF), which was created in 2005 under the George W. Bush administration, when Attorney General Alberto Gonzales—W’s longtime buddy—was a White House puppet. Unlike Janet Reno—who, upon replacing her Republican predecessor, promptly diverted the obscenity squad to focus on child pornography—Attorney General Eric Holder has changed absolutely nothing. The OPTF has continued to vigorously prosecute the existing cases and is aggressively stirring up new ones. The same religious zealots who were in place under W. still come to the same office every day and do the same thing that they have done for the last four years.
Notably, federal obscenity prosecutions have drastic consequences to the accused. Not only are there substantial jail sentences—à la Max Hardcore—but the indictments also uniformly seek the forfeiture of all of the defendant’s assets. Accordingly, a successful obscenity prosecution will wipe out an entire company and toss the owner in jail for several years.
The damage that obscenity prosecutions stand to do to the industry, however, pales in comparison to the piracy problem. Between the tube sites and file swapping, piracy has the entire industry circling the drain. The culprit initially was the Digital Millennium Copyright Act (DMCA), which facilitates the tubes. There is substantial pressure on Congress from Hollywood to change the DMCA because the studios are currently helpless against YouTube and its ilk. They also are in court against YouTube in a huge case in federal court in New York.
Now, as things were, a legislative or judicial victory over the tubes would leave file swapping as the only culprit. And the recording industry has demonstrated how to take on the file swappers, perhaps making a profit in the process.
However, the ultimately insurmountable problem will be the worldwide nature of the internet. While China turns a blind eye to patents, copyrights and trademarks, it also prohibits porn. But Eastern European countries are materially lawless in that realm, with no mechanism to enforce copyrights or deal with adult content.
Nobody seems to have managed to harness digital rights management (DRM), and the reasons are more in the technical realm than the legal one. Technical folks can talk about DRM endlessly, pointing to the apparent ease with which the codes can be cracked by people with relatively minimal skills. And even if DRM could be successfully deployed, there is endless content already out there without it; and there are many companies that would not embrace it, so it would become a losing proposition. Face it: Adult content is such that if you cannot get what you want from one company, there is another one out there that has something similar.
There obviously will be surprises to come. But that is why there is a new issue of AVN every month.
Clyde DeWitt is a Los Angeles and Las Vegas attorney whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected]. More information can be found at ClydeDeWitt.com.
This article originally ran in the January 2010 issue of AVN.
