For those all-too-few of you who attended the January Internext legal seminar, there are some add-ons that perhaps are worthy of note. Parenthetically, however, the sparsity of the turnout is worth mentioning. Why? Well, Topic Number One on the minds of all four speakers was the looming threat of a spate of federal obscenity prosecutions. The prediction here is that there will be an overflow crowd once Webmasters are being carted off in handcuffs.
As this author noted at the seminar, a comparison with the events of exactly 20 years ago provides a good history lesson:
On January 20, 1980, conservative Republican Ronald Reagan was sworn in, replacing middle-of-the-road Democrat, Jimmy Carter. During Reagan's first term, nothing noteworthy took place in the way of adult obscenity prosecutions.
It was not until Reagan's second term, beginning January 20, 1985, when "all hell broke loose." Emboldened as essentially a four-year lame duck and owing a huge re-election debt to the Christian Right, Reagan initiated an all-out assault on the rapidly growing X-rated video industry.
During the first month of his second term, "at the specific request of President Ronald Reagan," then-Attorney General William French Smith announced the Attorney General's Commission on Pornography, a traveling dog-and-pony show calculated to disapprove the last federal study on the subject, the 1970 Commission on Obscenity and Pornography, which essentially found that pornography was no big deal and containing it did not warrant any significant investment of governmental resources.
That same month, Reagan appointed Edwin Meese III as the Attorney General of the United States, a feisty, Christian Right, self righteous moralist, determined to execute his agenda, including an all-out assault on the exponentially growing adult video industry. By the third month of Meese's reign, he had assembled his hand-picked Commission that would spend the next year traveling about the country holding "hearings" and studying what it assumed from the outset was the "problem" of pornography. In July of 1986, the Commission released its Final Report, detailing the pornography industry and making a spate of recommendations on what federal, state and local governments could do to exterminate it. The recommendations, of course, all were fed to the Commission by the censorship arm of the Christian Right.
After that, Reagan's second term was consumed with prosecuting obscenity cases, including Operation Post Porn, designed to exterminate the mail-order erotica industry and Operation Woodworm, designed to exterminate the San Fernando Valley adult video industry. Reagan's entire second term also attempted to pack the Supreme Court with like-minded justices - elevating William Rehnquist to Chief Justice, installing the Court's most conservative justice, Antonin Scalia, and attempting to install Robert Bork, a move at which the Democrat-controlled Senate drew the line.
The point of all of the above is that, unless the public comes to its senses by November, and Bush is reelected, history likely will repeat itself. Indeed, the spring of 2005 stands to be profoundly worse for freedom of speech than was the spring of 1985. Worse yet, if the Republicans maintain control of the Senate, the voices of reason may not be able to beat back predicted efforts to elevate Justice Scalia to Chief Justice and pack the court with equally conservative associate justices.
Another topic that was briefly tossed around was COPA, which now has returned to the Supreme Court. As noted, an opening page to the effect that warns the Web surfer that upcoming pages are sexually oriented and inappropriate for minors is an excellent idea generally, but there isn't anything much dumber than relying upon that to screen out minors. Certainly, sexually oriented media should be identified as such in advance - surprising people with pornography is not very good public relations. But relying upon the warning page to screen out minors? Get real! When you were in college, were bartenders willing to take your word that you were over 21? Do you think the alcoholic beverage control folks would be satisfied with just a sign on the door of the saloon saying "you must be over 21 to purchase alcoholic beverages"? No way!
There are two reasons supporting compliance with COPA, which requires a valid credit card before allowing access to anything racier than the Sports Illustrated swimsuit issue. Reason number one is that it is required by law, although so long as there is an injunction against enforcing COPA, that admittedly is not a very compelling reason. However, that could all change with the forthcoming Supreme Court decision.
Reason number two, however, is more compelling. That is, it seems rather obvious that, in considering which of two otherwise identical Websites should be the target of an obscenity prosecution, the government would view one that does not comply with COPA as a much juicier target, notwithstanding the unenforceability of COPA. The whole trick of an obscenity prosecution, you see, is to generate the sympathy of the jury. If minors are excluded by precisely the means established by federal law, a jury is more likely to sympathize with the First Amendment and the right of adults to view what they want to. Consenting adults, mind you, is not a defense to an obscenity prosecution. But look at the other site; the trial will begin with the postal inspector explaining how easy it was to access the site, "so easy that a child could do it." It is virtually assured that no jury will consist of 12 people, none of whom ever was worried about teenagers accessing adult materials on the Web.
The last Internext item meriting a postscript is the CAN-SPAM Act and its effect. Unfortunately, the net result of it all likely will be that you will continue to be bombarded with spam every day, but you will not be able to utilize it yourself. Nothing will happen immediately. However, once the FTC has promulgated the regulations required by the Act and has compiled the contemplated "do not spam" list, legal spam - what little there will be of it - will be filtered. Spam just won't be a viable marketing vehicle, unless you do it illegally and/or offshore. Those who comply with the "do not spam" list, do not "harvest" e-mail addresses, and comply with the FTC regulations will find very few places to which they can send spam and, to the extent they find them, they will be filtered because the regulations will require a subject line that can be caught by filters. To be sure, spammers will do what they can to defeat the filters, as they do now with subject lines like "\\ /i@gra" - presumably the regulators will close those loopholes, at least eventually.
With respect to adult spams, however, which are the only ones subject to criminal penalties, conspiracy and aiding-and-abetting laws will allow prosecutors to indict to those providing the advertised product. The only real question is whether anyone is willing to devote the resources necessary to track down all of the illegal spammers, a very tall order.
This stands to be a very interesting year.
Clyde DeWitt is a partner in the Los Angeles, Calif.-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025, or at [email protected]. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
