What a charmed life many of you have lived! Some of you go back to the days when you could trundle down to the bank, open a merchant account, register a URL, put up a bunch of TGPs and rock. Bill Clinton was president, and Janet Reno was attorney general. Obscenity prosecutions had stopped before the adult Internet started. There was no Child Online Protection Act; 2257 was totally ignored, and nobody seriously contended that it applied to “secondary producers.”
Then the Bush v. Gore disaster happened. John Ashcroft was crowned attorney general, and with that came the promise that all of you would be carted off to jail. But then came 9/11—and Ashcroft certainly would not have won any popularity contests by responding to an attack on the U.S. with an attack on porn. No matter how negatively the administration could spin the adult Internet, Boeing 767s crashing into the World Trade Center and the Pentagon had to take priority.
Now, George W. Bush’s approval rating is circling the drain, but the Republican Congress has done what the Bush administration (as in, “Bush and God”) requested in terms of throwing large dollars at the “pornography problem”—and the administration has started spending the money. Presently, there are clusters of civil servants sitting in cubicles at the Department of Justice in Washington, assigned to attack porn.
Understand something about these civil-servant types: As has been stated here before, there are three axioms of many prosecutors: (1) don’t lose cases; (2) don’t stir up controversy; and (3) look busy.
The problem is axiom No. 3: looking busy. These people have been hired to go after the “pornography problem”—or, more accurately, non-problem—and in order to look busy, they need to produce indictments. To this point, they are just beginning to mobilize and spend all the money Congress appropriated for porn prosecution. Parenthetically, you probably have read about the fact that the Porn Department of the DOJ is a laughing stock.
There are plenty of pedophiles to chase. That is a factor. The prosecution of pedophiles and kiddie porn receive a nearly 100-percent approval rating from the public. Prosecuting consenting-adult porn does not ring so well with the public at large, although it is a prize of Bush’s favorites, the religious right.
But emphasis needs to be placed on the “consenting adults” component. Remember, this is all about approval rating, and a whole bunch of Americans are significantly informed about websites that allow unblocked access to porn. Sure, parents should have their kids’ computers set up with filtering programs, but parents are supposed to do all kinds of things to raise their children properly. The reality is that they don’t: Ever since America migrated to two-bread-winner families, Mom doesn’t watch the kids; Mom doesn’t have time to figure out Sis’s computer (assuming she is capable of doing so), and Mom wants the government to do her babysitting.
So, isn’t the real issue Dubya’s approval rating, coupled with this gaggle of civil servants assigned to prosecute adult porn? How do they win approval? Try this formula: Prosecute hardcore websites with unlimited access to some extreme content—and that’s what’s beginning to happen. It avoids the so-called “consenting-adults defense,” which the government hates and juries love. The moral of the story is that if you don’t insulate your content from minors, you are asking for trouble, especially if your content is edgy.
This segues to the next topic, which is the onslaught of offshore competition, coming from places that don’t possess a tyrannical theocracy like America. They post more tantalizing content without password protection, post a considerably broader array of content that clearly would be risky here, and they don’t need to worry about 2257 (or, at least, are profoundly less at risk).
The 2257 regulations are another matter. As this goes to press, Congress is trying mightily to amend 2257 to make “secondary producers” responsible for keeping, indexing, and making available all of those records—and don’t count on a change in Congress in the upcoming, off-year election. Remember, 2257 was enacted and then re-enacted by a democratically controlled Congress (1988-90), and authored by Republican administrations like the present one.
The proliferation of offshore sites is a significant component of the newly surfacing competition, against which it is becoming profoundly more difficult to contend. Making your sites even visible—much less making them distinctive—is a tall order in the sea of adult content that is bombarding the Internet.
Hoping not to awaken a sleeping tiger, we all know about the increasing difficulty in obtaining merchant processing. American Express has nixed adult content altogether. Visa and MasterCard are, after all, private concerns, which admittedly have a love-hate relationship with adult content (charging dizzying rates and imposing air-tight chargeback limitations that compel business-draining scrubbing). And, face it, even though there are alternative methods of payment, Visa and MasterCard are the lifeblood of this industry. They could kill it in a heartbeat.
Finally, all but forgotten is COPA. You remember COPA—the law that requires a valid credit card before allowing access to content that is “harmful to minors.” It has never been enforced since its enactment because of an injunction won by the American Civil Liberties Union. The final trial of the COPA case is gearing up in Philadelphia. Meanwhile, Visa has issued a public statement that credit cards should not be used to establish age because they are sending cards to minors in their own right. That process ensures that kids get addicted to credit cards when they’re still in high school; when the minors turn 18 and make their first payment, they are ratifying the debt and are stuck with it. Where is that all going?
This is no crystal ball; it’s food for thought.
Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online’s offices, or 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 that anything reported in this column might impact them should contact their personal attorneys.
