The U.S. Department of Justice has created an "Obscenity Prosecution Task Force." Attorney General Alberto Gonzales has spoken several times in the last month about his "commitment" to fight obscenity. The new 2257 regs have been published, and are due to go into effect on June 23. Legal briefs have now been filed in the appeal of the dismissal of the charges against Extreme Associates, meaning that a hearing is likely to occur sometime this summer. At least two states are considering or have passed repressive anti-adult legislation. Meanwhile, producers' and distributors' sales staffs are taking orders from retailers, warehouse personnel are filling them, and retailers are stocking product on their shelves.
Does anyone see a "Clash of the Titans" in the near future?
"Welcome to 2005, folks," assesses H. Louis Sirkin, attorney for Extreme and a 25-year veteran of obscenity prosecutions. "One of these days, stuff's gonna happen; they're on a roll, and you can see how important, at least to the right wing and the Christian Coalition, the adult business is, and how ripe they feel it is to start making the demands for prosecutions, and I've got to believe that they're coming. A lot of people don't."
It's an old story: The phone rings here at AVN, or at the offices of Free Speech Coalition, or of any number of First Amendment attorneys around the country; a voice says, "This is Jack from XXX Video Productions; the feds just left here after raiding my warehouse and seizing a bunch of my titles," or "I'm a retailer in Baton Rouge; the police say they've received a number of complaints of prostitution taking place in the neighborhood, and they want to shut me down as a public nuisance."
The next words invariably are, "And I don't have a lawyer; can you recommend one?"
Sure – but the very question itself signals a problem that far too many adult businesspeople have: The lack of a business plan that includes preparing for the worst eventualities.
"It's like I've always said: Censorship is like the worst form of cancer, because it spreads rapidly, and it's really beginning to do that now," Sirkin continues. "Eternal optimist that I am, maybe it's to our benefit that this stuff is happening rapidly, because now this will get us into the courts, and at least over the next several years, the Supreme Court's as good as it's going to get; it ain't gonna get no better. We can afford a replacement for Chief Justice Rehnquist; we can't afford replacements for Justice Stevens, Justice Ginsburg, and even O'Connor, so I think this is something we have to sit back and say, yes, it's going to be a difficult couple of years, but it may be a very, very important time for us, and it may be a blessing that some of these things are coming now while the Court is still what it is. Because it's only going to get worse."
"It might not be a bad idea for companies to start, just as a precautionary measure, striking up relationships with attorneys," suggests Paul Cambria, who has offices on both coasts, and has handled defenses across the country, "because we only have a handful left who have any significant jury trial experience. Unlike 14 years ago when the last slaughter was attempted, this time around, there isn't even a fourth of the trial lawyers, obscenity-experienced trial lawyers that there were then."
But nearly every First Amendment attorney agrees that in the coming months, even having an attorney on retainer may not be enough.
"What I think a lot of people in the adult business have to understand is that money needs to be put aside to pay for quality legal services in these cases and quality studies of secondary effects if they need to be done," Sirkin says. "I really appreciate the lobbying efforts that Kat Sunlove has been doing; it's been magnificent what's been accomplished in California. The sad part of it is, not every state is this receptive to the attempted lobbying efforts that have gone on... They've spent a lot of money here in Ohio on lobbying [but] they should really have a litigation fund as well, and should realize the importance of the battles that us lawyers have been undertaking."
This isn't a Rodney Dangerfield "I don't get no respect" plea; it's a looming supply-and-demand problem. Among their other work – none of the First Amendment experts limit their practices exclusively to adult speech cases – Sirkin and associate Jennifer Kinsley are busy preparing for the appellate argument in the Extreme case; Cambria and associate Roger Wilcox have been deeply involved in advising their clients on specific problems and strategies related to the new 2257 regulations, and more than a dozen attorneys are working on the Free Speech Coalition's impending challenge to those regulations.
"There may be conflicts," Cambria warns. "There may be several defendants in a chain, for example, that need representation, and it will be first come, first served. I obviously have a stable of companies that I've represented for years and I'd like to think that none of them are going to be charged, but if one were charged, then the question would be, would I have a conflict to take on someone else who might be in the distribution chain or what-have-you? We don't have the number of lawyers that we had 14 years ago, and the guys who have any jury trial experience, successful jury trial experience, might be down to four. There's only one of me when it comes to trying cases. There's 70 of me when it comes to doing legal work, because I have 70 lawyers in my firm, but there's only one of me that can stand in front of a jury."
Sirkin, with a much different legal practice, has much the same problems.
"I don't have the national retainer clients like Déjà Vu Consulting and Larry Flynt and Hustler and those companies, and the Vivids and whomever," Sirkin notes. "We are general practitioners, and I do a lot of First Amendment work that's not related to the adult industry, death penalty appeals and other things, and we're really getting taxed. The adult industry needs to realize and appreciate us to the fullest, in the sense of realizing, you don't call us at the last minute; you don't expect everybody in the world to be able to drop their work and come running. They think we're waiting for them. They have no idea the work that's involved in defending one of these things."
It's the fable of the ant and the grasshopper all over again.
"I hear guys say, 'Well, we figure we'll just go do what we want; we'll get busted; you'll go to federal court and you'll get a restraining order,'" Sirkin recounts. "Hey, folks, it's not that easy anymore, number one. Number two, you just don't file a lawsuit today and get a TRO [temporary restraining order] in four hours. They set hearings, and you have to be ready to go forward on an expedited basis."
"The courts are tremendously and unbelievably demanding, and some of them are outright hostile," Sirkin continues. "We filed an action in Kennedale, in the Fort Worth U.S. District Court down there, and asked for a TRO or a preliminary injunction. The judge said, 'Oh, I'll accommodate you-all, but I'm not going to waste the time on a preliminary. You've got an agreement they won't enforce this law right away, so we're going to trial on the merits in three weeks.' This lawsuit was filed like two weeks ago. We have to put together a strategy, get discovery, hire experts, get them in order, fulfill their requirements that we have our expert reports available – they're like, 'Okay; you want to have it? We're going to give it to you, but this is what you're gonna do.'"
One measure that almost all of the attorneys agree would be a good idea is the establishment of a legal defense fund – an idea that the Free Speech Coalition is exploring – or at least that individual companies create internal ones for their own use.
"What the companies used to do is, they routinely had a 'sinking fund' that they would constantly contribute to," Cambria recalls, "and at the end of the year, if they didn't have any legal problems of any great significance, they would distribute it. But it was a regular routine part of the adult business for many, many years, and it's sad that that practice seems to have fallen out of favor."
"Companies that have meager resources financially should be attempting to build up a war chest in case they need it," he continues, "because not only do lawyers cost money, but also expert witnesses, travel, lodging, all the rest of it,. And I can guarantee that people whose businesses are located in Los Angeles aren't going to be prosecuted in Los Angeles; not by the federal government anyway."
The key is going to be: Think big, and think long-range.
"The industry has to unite itself even more aggressively and the industry has to be willing to finance whatever battles have to be waged," opines J. Michael Murray, a Cleveland-based attorney who represents both adult stores and cabarets. "They've got to arouse their customer base to assert their rights and to make sure that those who pass these laws know that there's a majority of citizens that are not in favor of those kinds of restrictions on freedom of expression."
"It might be a good idea for companies to retain their lawyers ahead of time," Cambria suggests. "Believe me, it's a lot easier if the money is deposited in a lawyer's trust account than if it's deposited in a business bank account and the government tries to freeze the account and you're trying to ask for the money, rather than if the lawyer has the money and the government's trying to get it back. That would be a lot better situation."
Sirkin almost goes as far as to suggest a scholarship fund for First Amendment attorneys.
"There's a lot of vacancies on the federal appellate and district court benches, and there are gonna be a lot of people appointed over the next couple of years, and I'm just telling you, people ought to be prepared to help keep us few lawyers healthy and make sure that we're in this mode to be mentors," Sirkin says. "Paul [Cambria] has got some young people working with him; I've got some young people; Jeff [Douglas] has still got his youth, but I'm getting up there, and Art Schwartz is up there; Paul's got a lot of youth to him, and Michael [Gross] – I call these guys the kids, but those of us with actual federal obscenity trial experience are few and far between. I just wish that people in the adult industry would all take a shower and wake up."
"I just wish that some of the people in the industry would humble themselves and stop bragging about how much money they're making and talk about the issues," he continues. "I really think that I'm on the forefront of protecting very, very important basic American rights, and I'm willing to take that risk and I'm committed to do that, and I'll do whatever I can to help protect that because I'm doing it not only for myself and my family, but for my fellow Americans. I just think it's important, and I can't convey that enough. I really can't."
