We go to press a week before the election. So, when you read this, you will have the benefit of knowing who will be sworn in on January 20, 2001. In either case, what follows will dramatically increase the number of webmasters that will find themselves carted off in handcuffs.
In short, once again the federal government has used the protection of minors as a vehicle to tell other adults what is not good for them. There is much precedent for both that and for commissions, as you will see.
You may not recall that the Child Online Protection Act of 1998 ("COPA") - which included the credit-card gatekeeper requirements that were held unconstitutional - also established the "Commission on Online Child Protection," a temporary, 19-member commission composed of members of industry and government - no adult webmasters need apply - which was chartered "to study methods to help reduce access by minors to material that is harmful to minors on the Internet." 47 U.S.C. �231 note. The Commission was to study the problem and report its findings by October 21, 2000. (This is a good example of what routinely happens when Congress takes its typical blunderbuss approach to things - October 21 was a Saturday. So the Commission's admittedly flimsy results were released on the last weekday before the deadline, Friday, October 20, 2000.) You can see the whole 95-page report for yourself on the Web - in case you want to argue with this author, or are a masochist and would rather read a 95-page report than a short article. Check out www.copacommission.org/report.
First, a little background is in order. On October 3, 1967 - when the computer equivalent of a Palm Pilot took up a whole building - Congress established the Commission on Obscenity and Pornography "to recommend measures for regulating the traffic in obscene and pornographic material without interfering with the individual's constitutional rights." Imagine that: Congress concerned about individual rights. This was in an era when the Supreme Court could not muster a majority to define the line between what could and could not be prosecuted under the First Amendment (which it did in its 1973 Miller v. California decision). Playboy was not showing pubic hair then, to put the era in another perspective. Pre-video "stag" movies, nudist magazines and 32-page glossies were the art of the day.
In any event, the Commission on Obscenity and Pornography generated its report on September 30, 1970, saying that pornography was relatively harmless. In the process, the Commission generated 64 linear feet of records which, to this day, can be found in the National Archives. They really did some empirical research! And, since it was an objective commission which engaged in serious research, not beholden to anyone, the results were what seem obvious (especially considering the era):
"(1) A massive sex education campaign should be initiated, encompassing biological, social, psychological and religious information; (2) There should be continued open discussion, based on facts, of issues relating to obscenity and pornography; (3) Additional factual information should be developed through long-term research; (4) Citizens should organize at local, regional, and national levels to aid the implementation of these recommendations."
The Commission also recommended that legislation "should not seek to interfere with the right of adults who wish to do so to read, obtain, or view explicit sexual materials" and that it is "inappropriate to adjust the level of adult communication to that considered suitable for children." In other words, let adults do what they want but take sensible measures to protect children. The Commission actually thought that adult obscenity laws should be repealed.
By this time, however, Nixon was president. Notably, LBJ had appointed the original members of the Commission. Nixon replaced the one member who could not serve out the term with one Charles Keating, then head of Citizens for Decent Literature, later changed to Citizens for Decency through Law ("CDL"). Keating, of course, later would be carted off to jail in the wake of the 1980s' savings and loan scandal.
Nixon predictably denounced the report, and the states generally ignored it. Keating tried to stop its publication, typical of his views about free speech.
During the 1970s, the states did exactly the opposite of what the report recommended, by embracing CDL, the newly-formed Morality in Media and other organizations which have rather a skewed view of sexuality. They enacted obscenity statutes that cut to the constitutional edge and imposed harsh punishment. So much for the findings of the Commission to the contrary.
The stage for the next obscenity commission was set in 1980, when America elected a right-wing movie star as president. Ronald Reagan swore that he would put an end to all those liberals, garnering great support from the Religious Right. His first shot at a Supreme Court seat was Sandra Day O'Connor, an obvious response to the prevailing (and correct) sentiment that it was high time that a woman be appointed to the Supreme Court. But Justice O'Connor, although very conservative, was not conservative enough for the Religious Right.
When Reagan set the table for his reelection campaign, however, he really hadn't delivered what the Religious Right wanted: A Supreme Court that would overrule Roe v. Wade so that abortions could be abolished. Remember, this was the era when the South was in a transition from Right-Wing Democratic to Republican - the South had been "Democratic" ever since the Civil War, which it still was fighting. Reagan needed the southern states, the hotbed of Religious Right conservatism. He fought hard for that vote (though he probably didn't need it), and he owed them, big time.
Reagan was sworn in for his second term on January 20, 1985. The Religious Right received its first big payback the following month: Edwin Meese III was sworn in as Attorney General of the United States. Meese was to reign for more than three years of scorched-earth combat against both sex and the First Amendment, a vendetta unmatched in the history of the United States.
A few short months later, Meese proudly announced the formation of the Attorney General's Commission on Pornography, which would become known as the "Meese Commission," and its stacked-to-the-right membership. The Meese Commission was asked to "determine the nature, extent, and impact on society of pornography in the United States and to make specific recommendations to the Attorney General concerning more effective ways in which the spread of pornography could be contained, consistent with constitutional guarantees." In other words, the Meese Commission was called upon not to decide whether steps should be taken to address pornography but rather to instruct the Attorney General and Congress as to everything they could get away with to stop it.
The Commission traveled around the country, putting on a dog-and-pony show designed to justify what most of its members already had decided to do, giving only lip service to the opposition. When the Commission came around to Los Angeles, adult film vet Bill Margold aptly described the witch-hunt proceeding as "Salem of the West."
On July 10, 1986, Meese proudly released the hefty two-volume, 1960-page Final Report, better known these days as the Meese Commission Report. The report was all that was planned to issue from the Commission, and although not perfect in Meese's eyes - apparently some of the members on the Commission were not screened carefully enough because they found that non-violent pornography was not really all that harmful - on the recommendation side, it was everything the Religious Right wanted and more.
What was so amusing was how out of step the report was with the prevailing mood of the country. Between Reagan's election and the release of the report, the adult video industry had grown from the relatively insignificant one that it was in the late ?70s - $100 tapes and $1000 VCRs - to hundreds of millions of $5 rentals and dizzying growth. Acceptance of this was evidenced by the June 1986 referendum in the State of Maine, where voters were asked to approve a new statute designed to "make it a crime to make, sell, give for value or otherwise promote obscene material in Maine." It was rejected by over 75\\% of the voters! The public did not want any obscenity laws at all, much less stepped-up enforcement of harsher ones.
A month later, and against that background, Meese stood before the bare-breasted Spirit of Justice statue to announce the release of the report. Political cartoonists had a field day with that! And to top it off, the report, with all its explicit exhibits, became the best selling publication in the history of the Government Printing Office. The Meese Commission was roundly criticized for having such a small budget and thus doing a superficial job and failing to engage in any empirical research as the 1970 Commission had done, as well as for having been stacked from the start. But what happened after that wasn't nearly as amusing.
In response to the Meese Commission Report, the Department of Justice set up the National Obscenity Enforcement Unit, which would spearhead prosecutions of dozens of mail-order companies around the country, followed by most of the major video manufacturers in Los Angeles (there weren't so many of them then). Of course they were prosecuted in places like Oklahoma City, Tallahassee and Memphis, not Los Angeles. A substantial number of very good people went to jail.
Congress responded as well, if a bit belatedly, enacting the labeling and record-keeping statute, cranking up the penalty for obscenity violations and other miseries. Notably, these new, high-powered statutes did not become fully effective until after Clinton was elected and the focus of the obscenity-enforcement department was realigned to target child pornography - it had much earlier been renamed the "Child Protection and Obscenity Enforcement Unit" so as to make its colossal waste of governmental resources expended on prosecuting adult obscenity cases more palatable to an unsuspecting public. And, all along, Reagan and Bush had been stacking the Supreme Court and lower federal courts with very conservative jurists.
Things have been quiet for a while now. But we have a new administration and yet another committee.
The COPA Commission was chartered "to study methods to help reduce access by minors to material that is harmful to minors on the Internet." But by including members of government, you know it would do more.
This Commission got off to a slow start. First, it was not established until late 1999, and did not meet until March 7, 2000 - little more than seven months before its report was due. This Commission held only three dog-and-pony shows, this time in Washington, D.C., Richmond, Va. (which is about two hours away) and San Jose, Calif. "We had too little time and even less money," one commissioner emphasized in his personal report.
The Commission created some screwy formula for each possible solution to the query that had been propounded to it. They broke down into seven categories the various technologies and methods: Common Resources and Education, Filtering/Blocking, Ratings (like MPAA), Top Level Domains (like ".kids" or ".xxx") and "Other."
Under the Category "Other," Topic Number 17 of the 18 total topics was "Increased Prosecution." More money to "investigate and prosecute online activities that are unlawful." Granted, this would not regulate anyone outside the United States, the report admits, but it would have a deterrent effect. "Costs to consumers of targeted prosecutions against clearly unlawful content would not be substantial.
Sources of harmful to minors and lawful adult content could bear significant costs due to need to assess lawfulness of materials." Given the mandate to the Commission, it sounds like they are talking about prosecuting people who supply minors harmful materials, right? One would think so, but then get ready for the recommendations.
The 18 topics for potential remedies which were examined generated 12 recommendations in five categories: Public Education, Consumer and Responsible Adult Empowerment, Law Enforcement, ISP Industry Self-Regulation and Adult Industry Self-Regulation. Check out Recommendation Number seven:
"Government at all levels should fund, with significant new money, aggressive programs to investigate, prosecute, and report violations of federal and state obscenity laws, including efforts that emphasize the protection of children from accessing materials illegal under current state and federal obscenity law."
This must be a typo; the Commission was charged with recommendations about protecting minors from inappropriate materials, so they must be talking about statutes prohibiting distribution of harmful materials to minors, right? Nope!
The recommendation goes on to talk about "new money... to allow the investigation and prosecution of obscenity, child pornography and exploitation" so as to "supplement the government's existing effort to investigate and prosecute child sexual exploitation, sexual abuse and child pornography."
Recommendation Number 10 adds the "international aspects" of Internet crime, "including obscenity and child pornography."'
Still think they simply meant to prevent minors from accessing harmful materials? Read on. One of the commissioners, who happens to be Senior Counsel for the National Center for Children and Families and a former prosecutor, obviously is the driving force behind the obscenity thing, as he seems to admit in his personal statement:
"The Commission recommends launching an aggressive effort to address obscenity on the Internet because it is clearly linked to the problem of [harmful to minors] material. This effort may be initiated using existing laws, is targeted at a narrow category of material, and sends a significant deterrent message. As a former prosecutor, I believe that without a credible threat of prosecution the distribution of illegal obscenity on the Internet will not diminish."
Credible sources would predict, given the National Law Center's approach to things, that he is not talking about animal pictures as the "narrow category of materials" against which obscenity prosecutions would be targeted. No; this outfit is against what most consider mainstream eroticism. Any photograph explicitly displaying sexual contact outside the context of a medical textbook is in that "narrow category." Challenge the "Children and Families" fanatics to disagree. They will not. And if they claim to be after only "fringe" material - heavy bondage, waters sports or whatever - they consider that Omaha Beach. They are headed for Berlin!
Another commissioner noted that he "was appalled at the almost total lack of enforcement of existing obscenity law. The adult entertainment industry is almost boastful about the neglect of law enforcement officials that they currently enjoy."
A third noted, "Testimony and submission to the Commission's record was clear on two points. First, vigorous prosecution of Internet content under existing obscenity and child pornography laws does not have a high enough priority. Secondly, law enforcement, especially at the state and local levels, lacks the tools and skills to investigate such crimes. Significant new resources will have to be provided at all levels, especially state and local."
These are adults who think they know exactly what's good for other adults - better than those who rent over a half-billion explicit videos every year, or who surf the millions of adult websites, they have this industry in its cross-hairs. And if the money is there for prosecutors of obscenity cases, only the National-Law-Center types will apply for the jobs at the DoJ. Folks, it's 1986 all over again! Does the word "censorship" come to mind?
This superficial report should be taken with a grain of salt. Unfortunately, the National Law Center element will seize upon it as a reason to incarcerate as many readers of this publication as they can. Circle the wagons!
Finally, there is one thing in the report worth taking to heart: self-regulation. If this industry fails to regulate itself, it is asking for prosecution. But if the industry does consistently manage to keep minors off the sites, it will garner the favor of a vast majority of Americans who think that adults should be allowed to think for themselves.
To do otherwise, however, is to pour gasoline on the COPA Commission fire. Keep your X-rated mousetraps, your unprotected "free pic" directories and your other practices which stir up the public, and you will go down hard - and take the industry with you.
Take a page from Hollywood. In the 1960s, threatened with federal regulation, the Motion Picture Association of America created its rating system - then G, M, R and X. Congress backed off. This industry needs to do the same kind of thing.
If everyone uses AVS's or other barriers to youthful entry to an adult site - and keeps the adult stuff behind those barriers - minors will rarely get in and the public may calm down. Otherwise, you should become acquainted with your local bail bondsman.
Clyde DeWitt is a partner in the Los Angeles, California 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 over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. 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.
