When, over one hundred years ago, the titans of newspaper and magazine publication began their enterprises, investing huge sums in presses, distribution vehicles, the salaries of writers and printers and advertising salesmen, the very size of the venture and of the capital investment loudly announced to each of the moguls that, to protect the investment, these publishers needed get the advice and services of lawyers. That’s exactly what they did and their enterprises prospered.
Today, the humblest webmaster with the most modest out-of-pocket investment easily and conveniently reaches an audience that would make William Randolph Hearst jealous. But that webmaster faces potential liability for defamation, for copyright infringement, for the violation of people’s rights, just as great as Hearst faced—as well as other potential hazards unknown to Hearst, such as obscenity and Section 2257. Actually, considering that nudity and the most intimate human activities are involved in a wide part of adult content—and because of far-reaching developments in the law of privacy since that time—the potential risks of liability for violation of privacy rights you face is much greater that Hearst’s. The very quiet way in which online adult businesses develop fails to ring any bell suggesting when it’s prudent and necessary to get legal support.
Stealing terms of service or model releases or Section 2257 notices puts you at risk of copying the mistakes made by others, lawyers or otherwise. When adult entertainment lawyers meet, a light-hearted conversation sometimes takes place regarding the strangest, weirdest and most clueless 2257 notices that we’ve read, sometimes using language that hasn’t been close to compliant since 2006. But there’s nothing funny about the penalties and liabilities this feeble kind of self-help legal writing may generate. Lives can be destroyed by long prison sentences and crippling judgments.
Adult entertainment businesses share many of the same needs for legal services encountered by any other kind of business—the establishment of a legal business organization, employer/employee relations, contract disputes, and the like. But aside from the legal issues that are considered unique to the adult world—such as obscenity and Section 2257—the nature of adult enterprises makes even ordinary business issues more complicated. Perhaps there will be a special need for anonymity in the creation of a business entity, or more complications with zoning and licensing laws.
Don’t get me wrong: I believe that it’s essential and fundamental that the owner of every adult business should have a general business lawyer close to him or her, admitted in his or her jurisdiction, physically able to appear whenever there is an interface with official authority, knowledgeable about corporate organization, taxation, and local business and zoning regulations. I’d also hope that lawyer would also have at least some knowledge about what gets prosecuted for obscenity at the local level from some experience handling at least small criminal matters and from membership in the local legal community.
You can most easily find such a lawyer by talking with the owners of other small businesses in your own community. This kind of general business lawyer is an essential part of what even the smallest web entrepreneur needs. He’ll be good at the kind of things that are driven mainly by local legislation—and at the tasks that are often far removed from the issues that interest, drive and motivate First Amendment lawyers. Lawyers who concentrate of the defense of erotic publication sometime choose that field precisely to get away from work that can be repetitive and boring. (Finally, your First Amendment representation is materially enhanced if you also have a lawyer who can get to your place of business promptly when a search warrant is executed or a records inspection conducted, and who can work in close coordination with your free speech lawyer by phone.)
But there really are some parts of the law that are special to online publications in general and adult entertainment sites in particular, and they lie far outside of the knowledge and experience of most business lawyers. These include the law of obscenity, compliance with Title 18 United States Code Section 2257, copyright law, the right of publicity and the rights of models and performers, the laws associated with the protection of children from adult content material, the potential application of adult use restrictive zoning and licensing, child pornography and the laws that deal with simulations of sex, and certain areas of employment and taxation law.
Even in the smallest online business, there should be a legal team of a primary local business attorney generalist who is local to you and an adult entertainment lawyer.
On a practical level, it is necessary for an online adult business to bring in an experienced adult entertainment lawyer to guide, counsel and, if necessary, defend the very special issues, usually issues chiefly concerning federal constitutional and statutory law, unique to the adult sphere. While no certification for adult entertainment law specialist exists in any jurisdiction—and, in fact, the ethics codes that govern attorney conduct and advertising in every jurisdiction prohibit lawyers from publicizing that they are “specialists” or are better at performing some legal tasks—the truth is that only a comparatively small number of attorneys have any substantial experience and knowledge broadly concerning the operations of online adult businesses. It is impossible in most parts of the United States to find a local lawyer who possesses much experience and knowledge in the issues distinctive to adult online businesses outside of California and Florida. Outside of those states, the qualified lawyers are dispersed widely and thinly. This creates very practical problems for content producers and webmasters, who are also dispersed widely through the country.
How do you find such an attorney?
I’d start with the First Amendment Lawyers’ Association. I would never advise anyone to hire an adult entertainment lawyer from outside the ranks of this group—and I base that on nearly 10 years of acquaintance with members of FALA, and 10 years having sporadic contact with lawyers who do not belong to that group. FALA is an organization of about 200 lawyers across the country who—individually, and sometimes in collaboration with other members—handle the large bulk of the most important cutting-edge cases concerning adult entertainment. It’s not a law firm; it’s an association of lawyers. The lawyers for each of the best-known names in adult entertainment essentially all belong to FALA.
Twice per year this association meets, and some members prepare and present elaborate presentations to the other members on the most recent legal developments on cases in each of the areas important to adult entertainment and new statutes and regulations. And practically on a daily basis the FALA members communicate online about news and cases, sharing ideas and information with each other. Members are able in this way to keep a finger on the pulse of legal developments as they happen, often communicating directly with the lawyers handling the matter.
While I am told that once upon a time FALA was highly selective and membership was a strong indication of competence, it can’t be said that membership now guarantees any such thing. It is not a substitute for certification. What membership in FALA does establish, though, is that the attorney is seriously committed to this branch of law, that he is part of a community with the best adult lawyers in the country, that he is in contact with highly competent lawyers who frequently will go far to help a brother or sister member, and that he or she is oriented at protecting expressive rights rather than stifling or repressing or prosecuting them. My own experience is that some of the very finest, most competent, and most dedicated lawyers I’ve ever known are committed members of FALA. That being said, only a comparative handful have had direct experience with the creation of content for online use and its publication on websites. Your first task in screening is to identify lawyers whose experience and knowledge qualify them to advise you through the rapidly changing currents of internet law, and the membership roster of this organization is where you should start.
It is critical to find a lawyer who aims to serve and protect his clients as his primary professional and personal purpose, and you should closely keep this in mind, even when you charter an attorney from FALA, the finest stable of adult lawyers in the world. It’s my opinion that your chances of doing so are far greater among the ranks of FALA than outside of it. Your lawyer must be deeply committed to personal liberty, free choice and personal privacy, and these values must be fused to every nerve and sinew of his being. However, this also introduces the need to provide you with two cautions.
First, it takes a special and nonconformist personality type to stand alone in a courtroom proudly and sometimes defiantly representing clients who are viewed by most of society as opportunistic vermin, exploitative, low-life pornographers. Whatever may be the reasons driving these lawyers, much of what they argue is likely to seem outrageous and unsupportable, at least at first blush, to other lawyers and to judges. While the ethics books preach to lawyers that they should never reject any client because he is unpopular or distasteful, the truth is that many lawyers lack the courage or inclination to represent unpopular and nearly universally derided clients and causes. So, the odds are that the lawyer who handles the kinds of cases for which you need him is going to be a maverick nonconformist at root.
The American tradition finds some kinds of mavericks attractive and actually admires them—original thinkers with strong vision fighting long odds for their ideals. Individuals such as Edgar Allen Poe and Thoreau and Thomas Edison and even General Patton come to mind. But our society doesn’t find people at war with the world very attractive. Think about Eugene Debbs and Charles Manson and Jane Fonda. Because your lawyer will become your fighter in the ring, your potential spokesman in court and out, your future, your liberty, and your success may ride with him. While it is important that he is maverick enough to stand next to you and proudly protect you with all that he has, it may not be prudent to chose a protector who looks, talks and walks as though he is alien to the culture from which judges and jurors are drawn. Perhaps it is reasonable to say that the more extreme the content you may need to defend, the more conventional your legal representative should appear to be.
A client of mine who has engaged in many legal battles over 30 years against many governmental restrictions on erotic entertainment once told me that he’d allow only one personal eccentricity in his lawyer’s appearance in court—long hair, a mustache, or perhaps a beard; an earring or a piercing—but never more than one such eccentricity, for fear of alienating a jury. It’s a commonly believed wisdom that a man charged with sexual assault benefits his chances by hiring a woman to defend him. Thirty years as a lawyer have taught me that looks, bearing, and style count in close cases, that a jury trial requires that bridges be built between defendant and jury, and that it is hard sometimes to build them from a shore too distant. As an example, I think it is for that reason that the state’s attorneys prosecuting serious felonies in Chicago all wear white shirts. It has to do with establishing solidity and inspiring trust among the jurors. Obviously this varies from region to region, and it may be that Los Angeles or San Francisco juries are made up of people who are not so much affected by eccentricity as juries in less cosmopolitan places. The eccentricity factor, however, becomes especially important when you need a lawyer to go to places like Louisiana or Kentucky or Kansas.
Second, consider that some attorneys in this arena are driven primarily because they wish to serve as a motive force to transform society in “progressive” directions, and they practice law chiefly to find vehicles to advance their own philosophical agendas. There can be some danger in becoming the client of a lawyer who sees you a means to his philosophical end, especially if his agenda and your personal needs are not entirely congruent. Whatever a lawyer’s personal beliefs and ideals may be, they must take a back seat to advancing his own particular client’s interests. It requires a competent and truly professional lawyer to argue positions for you that oppose what he believes; he must be able to do that without evidence of insincerity for even one second. It doesn’t take much professionalism at all to argue what one agrees with, but it is the distinctive mark of a true professional that he can enthusiastically and zealously argue as your needs require. Your attorney must believe that your protection comes first, foremost, and as his sole interest throughout his representation.
You should try to hire a lawyer who loves his clients as himself, and gives to them the fullest measure of his ability and support. I’ve said those words to large numbers of lawyers in continuing legal education seminars since 1982, and they remain startling to many members of my profession. These words sometimes cause lawyers to laugh when they hear them, because so much of professional legal culture emphasizes maintaining professional distance. In my opinion, there is no disharmony between caring about your client—using every part of yourself to protect him—and professionalism.
In my view of things, professionalism requires a lawyer to do for his client exactly what he would want done for him were the positions reversed, and to do it with zeal, determination and a sense of personal fulfillment. Without a human connection, your attorney can never understand you and you will never understand him. Some professionals affect an icy and distant detachment designed to impress their clients and patients, but I think this approach to be corrosive to a solid attorney-client relationship. If your lawyer doesn’t understand you as a person and care for you as a person, I think, given the imprecision of language, that there is serious risk that he will misunderstand important things you need to communicate to him.
You need a lawyer who understands that no legal right really exists until he or she brings it to life in a court of law; your lawyer must be willing to boldly make the words of the law breathe in court on your behalf. Legal rights are not just the abstract musings of law review articles or mere verbiage.
He must not steer you into pleading guilty because he’s afraid of a fight. Every defense lawyer has a duty to fully investigate charges and to fearlessly explore every avenue of defeating the charges. He cannot and must not propose a guilty plea until, after such investigation, and thorough deliberation, he has excluded every avenue of an acquittal as a reasonable prospect, and only then finds it in your best interest to plead. Every defense lawyer encounters unbeatable cases, and sometimes it is a lawyer’s toughest job to convince his client that a guilty plea is his best option. But it is not his choice; it is yours. And if the truth be told, sometimes the lawyer is wrong. Sometimes a defiant client will demand trial against advice; the lawyer, if he is professional, will fight like all hell for him. And in the end, with an acquittal in hand, the defense lawyer is the most surprised person in the courtroom. I guarantee you that this happens. Lots of surprises take place every day in every courthouse in the country because trials depend on people and can’t be predicted with precision any more than any other human institution. I would caution you against lawyers who are not fit to try your case; you should seek a lawyer who will enthusiastically advocate for you, even if the decision to try the case is against his or her advice.
Finally, you need a lawyer who is not too full of himself. Clients tell me that some lawyers insist on retainer clauses that assure reimbursement for first-class air transportation and other such amenities. I don’t know if that’s true, but the information came from credible sources. Many lawyers, including this one, are proud of what they do, and proud of the long years and difficulties that each surmounted to become a lawyer. But all of this makes a lawyer no better than anyone else. Lawyers should be judged as to whether they can advance the interests of their clients and hopefully, make a significant and positive change in the client’s life. A lawyer who descends from Olympus and condescends to represent clients, no matter how capable he may be, presents an image to your adversaries that makes him a singularly interesting target.
It’s speculated that some lawyers hire media consultants to book appearances for them in the media. A lawyer who beats his own drum overmuch should probably give you some pause. A good reputation is a thing of inestimable value, but in the end it is not created by the media; it lives and breathes in the lives he’s touched and turned around—and in the ideals of freedom that he’s upheld against opposition. I like a lawyer who answers his own phones. It tells me that he isn’t trying to avoid bill collectors and disgruntled former clients. I like a lawyer who worked his way through school laboring shoulder to shoulder with a construction crew or in a factory, or who served a stint in the Army or Navy, or even who scrubbed toilets. A good trial lawyer needs to understand people to win cases, and nothing taught in any law school teaches you as much about people as working hard with ordinary people, sharing their dreams, hopes, and fears.
J.D. Obenberger is the founding partner of J.D. Obenberger and Associates, a Chicago Loop law firm specializing in First Amendment and adult entertainment issues. He may be reached through his website, XXXLaw.net.
This article originally appeared in the August issue of AVN.
