AEE Legal Seminar Covered All the Right Bases

LAS VEGAS—AEE's Legal Seminar was scheduled for one hour on Saturday morning, but it easily could have used a second hour to cover more topics in more depth. As it was, however, convention attendees learned most of what they need to know about the ongoing fights against Los Angeles County's Measure B, the federal recordkeeping and labeling law, 2257, online piracy—and the real possibility that much of the adult industry may migrate to Nevada within the next year or so.

The seminar, which was moderated by veteran First Amendment attorney and AVN columnist Clyde DeWitt, began with Cleveland-based attorney J. Michael Murray updating everyone on the status of Free Speech Coalition's lawsuit against 2257, which recently survived the government's Motion to Dismiss before U.S. District Judge Michael Baylson.

"Elections have always mattered when it comes to the Constitution," Murray began, "particularly when it comes to freedom of expression under the First Amendment, and particularly and especially when it comes to the freedom of erotic expression. The reason for this is, it is the President who nominates judges to the Supreme Court, judges on the federal courts of appeal, and district court judges. And the differnce between justices and judges appointed by President Obama and those that would have been appointed by President Romney, had he won, is the difference between night and day."

Murray referred specifically to the case of City of Los Angeles v. Alameda Books, a case that has wound through the courts for more than a decade, but which generated a favorable 5-4 decision when it reached the Supreme Court in 2002, thanks to a liberal bloc of justices appointed by Democratic presidents, and the often-liberal Justice Anthony Kennedy. It was that decision that prohibited municipalities from passing anti-adult ordinances based on shoddy data.

"Threats to freedom remain, however," he warned. "The liberty-bashers have not gone away or given up or retreated from their goal of imposing their version of morality upon your industry and upon society and taking away your freedoms."

One of those lost freedoms, he noted, was the imposition of 2257 upon adult expression.

"Let me remind you, although it probably isn't necessary since you face these burdens every day, but let me just remind you what exactly that statute requires. Every producer, and this includes secondary producers, it includes internet producers, of any sexual image, and now it even covers simulated sexual images—originally, it only covered explicit sexual conduct, but now even simulated sexual images demand that 2257 records be maintained. You've got to make sure to demand government-issued photo IDs from every performer participating in any such sexual image; you've got to make a copy of it; you've got to find out all the other names that performer ever used, including maiden names and nicknames, and you've got to record that in the record. You've got to make a copy of every depiction that is associated with those performers, including the date of production. The records have to be organized by name and cross-referenced with every other name and title involving that performer. You've got to maintain the records for seven years, and you have to affix a label to every publication or depiction identifying where the records are being maintained. The government is authorized to appear without notice, unannounced, without a search warrant, and demand entrance into your business premises, or even your homes, for those smaller producers who actually work out of their homes, and without delay, they're entitled to enter the premises, search through the records, copy any records they want—they can even seize any evidence without a warrant that they claim is evidence of a felony, and they can use all of those records that they have seized and copied to prosecute you, not just for deficiencies under 2257, but they can use them to prosecute you under the federal obscenity laws if they want to."

He went on to describe the burdens placed on retailers by 2257, including making sure the labeling, which the retailers themselves did not create, is accurate and placed in the proper section of the DVD and its packaging.

"Violation of this statute is a felony, punishable by up to five years in prison for a first offense, and up to ten years in prison, with a minimum prison term of two years, for a second offense," he said.

With that as background, Murray went over some of the causes of action in Free Speech Coalition's lawsuit, noting that the suit challenges the statute on both First and Fourth Amendment grounds. He also noted that in Judge Baylson's dismissal of the government's Motion to Dismiss the lawsuit, he required the government to turn over to the plaintiffs all records relating to the 29 inspections the FBI had made on adult businesses so far, and ot take those agents' depositions under oath regarding their actions and discussions regarding 2257.

"It's the freedom of all Americans that hangs in the balance when you challenge the forces of censorship," he stated. "So never, ever give up your unbending commitment to those values and freedoms."

Cambria spoke next, giving first the background of what became LA County's Measure B, beginning with CalOSHA's inspections of adult sets, the committee that organization formed to look into whether condoms should be required for all sex acts on-screen—they had always maintained that condoms were universally required, but after discussions with Cambria and other adult industry representatives, seemed willing to grant some exceptions to their use for oral and possibly even vaginal sex with enforced testing procedures. He went on to "credit" AIDS Healthcare Foundation for pressing the issue in two referendums: One which was adopted by the LA City Council without a public vote, that required condom use on all sets specifically permitted by permit authority FilmLA, and the other LA County measure which became known as "Measure B," which would require that adult producers obtain a publc health permit in order to shoot anywhere in the county, which permit could be withdrawn at a moment's notice if the company violated any part of the California Health Code, which requires "barrier protections" from condoms to hazmat suits for people having on-camera sex.

I'm not going to go through all the nunaces [of the case]," Cambria said, "but let me say this: In the First Amendment area, the law has always disfavored a prior restraint...something that prevents you from expressing yourself in a particular way, whether it be speech or a movie or a picture or a magazine, and it is something that restrains your expression before it happens. Usually, what happens is, you can express yourself, and if it turns out it's defamatory, someone can sue you and get money, but you got your say. And/or, if you put out a movie that's obscene, you still get to put the movie out and then go off and then the law comes in and if they find it's legally obscene, you're punished for it. But the initial expression isn't restrained before it happens. This law does that...What it does is, it says if you're a production house, you must first obtain a permit. The permit will cost no less than $2,000; it'll be good for two years...So they start off with, you cannot produce a movie, you're restrained from doing so, until you first buy this permit. The law with regard to how they set the fee is something we are challenging because we say it's arbitrary and it amounts to a tax on speech...and without standards, they can come in and say, 'You're violating the provisions of the law and we're revoking your permit,' with no process; they just take it...and if they do take it, you not only are prevented from producing that movie that they took it, while you were producing that, but any other adult movie."

Cambria framed the overall issue as one where the government is claiming that it is imposing these regulations to protect performers, but seems to have no understanding that it si those very regulations that is driving the industry out of California, thus possibly creating even less protection for those performers. He also lauded industry leaders like Steve Hirsch for "putting their money where their mouth is" in supporting the Measure B lawsuit, and he encouraged all industry members and fans to do likewise, and also to donate to Free Speech so it can continue to litigate the 2257 suit.

Building on the thought of industry relocation, attorney Marc Randazza noted that it was his law clerk, Jordan Tucker, who had first approached Las Vegas officials to support the industry moving to Nevada.

But Randazza's main theme was piracy, which he said was mainly carried out by three types of entities: Tube sites, peer-to-peer and cyberlockers.

"Are any of you running your company as a charity here?" he asked rhetorically, later adding, "I've had clients look at their sales, and they have one sale for every 1,000 thefts. I don't know any business that can sustain itself on that basis."

He advised any producer who's approached by an attorney suggesting filing a lawsuit against an alleged pirate to contact a member of the First Amendment Lawyers Association, which he said "talk[s] about these issues every six months."

After a short explanation of how cyberlockers work—and how they make their money—Randazza noted that although many of these business think they're safe because they're located outside of the U.S., there are several tools that can be used to fight them, most notably a "Mareva injunction," which prevents a company from placing its assets offshore so as to avoid paying a judgment.

"The lesson is, you gotta hit 'em where it hurts," he stated. "You've got to take away their domain names and shut that down...but their money is always going to have to flow through some country where you've got some recourse. So the lesson is, make sure you're not looking at piracy from onlly one direction, and make sure you find a way to follow the money."

Randazza also said, and the rest of the panel agreed, that it's vital that companies register their copyrights to their works with the government.

"If you haven't registered your copyrights, you've got nothing," he said. "You can't even walk into federal court without a registration, and registration is pretty simple. I think there's a $35 filing fee, and it takes 15 minutes to do it."

"The thing about copyright registration is, if you register your copyright within three months of the publication of the movie, you're guaranteed protection," DeWitt added. "Otherwise, you can't file a lawsuit without registering your copyrights. If the registration doesn't happen until after the piracy starts, you can't get attorneys fees or statutory damages."

A short question-and-answer period followed, with sex-positive activist Maxien Doogan noting that under the recently-passed California Prop 35, obscenity defendants could also be charged as sex traffickers. This inspired Randazza to caution attendees to look closely at candidates in state and local elections because they are the ones who propose and vote on such restrictive laws, and because they're the elected officials most likely to listen to their contributors.

"You members of the adult industry, each one of you needs to participate in your community," Murray added. "You need to be involved in the organizations. If you're a brick-and-mortar store, you've got to contribute to the AIDS Walk, you've got to make sure your signage is not garish, you've got to advance your cause and sell the notion that you are a generous, decent, law-abiding citizen who gave from the bottom of your heart. Let me say this: You guys have come a long way because when you were beiong targeted by the obscenity laws of the '80s, your industry was not respected nearly as much as it is today. You have won, in many respects, the battle over the mainstream establishment. Just look at how many jokes there are about pornography, and how many situational comedy shows have the actors and actresses having parties involving pornography and sex toys. You have won acceptance by millions and millions of Americans. You need to take advantage of that by vocalizing and participating in your community, and letting the politicians know that the majority of adult citizens are on your side because they are the people that value and actually purchase your products."

The session concluded with a discussion of where it is legal to shoot adult content, with the attorneys pointing out that while only California and New Hampshire have actually gotten court decisions cementing that legalization, there are no other states that have ruled on the issue one way or the other, so that technically, one can shoot adult content anywhere.