"In contrast to previous economic eras,
intellectual property will be the primary source
of new wealth in the 21st century."
- Gregory A Piccionelli, 1989
 
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We Are At the Crossroads And The Time To Act Is Now

NOVEMBER 2008

Our country is now just days away from what is likely to be one of the most important presidential elections in our nation’s history. For adult entertainment businesses, I believe, the stakes could not be greater.

 

This month’s article is admittedly going to be a bit more political than usual. Even though I am not a democrat, and not a republican (I am a “Third Party” Independent), this month I believe that my duty as an adult industry advocate, and my duty as a freedom-loving citizen of the greatest nation on earth, converge to but one focal point, one mission: do everything I can to get Barack Obama elected as our next President. This, fellow citizens and participants in the adult entertainment industry, compels me to issue this call to arms to motivate everyone in the adult entertainment business to also act, and act now. For the time is short and the cost of inaction will likely be catastrophically great.

On November 4, 2008, the U.S. adult entertainment industry will stand at a crossroads like none it has ever faced before. Its future lies among one of the two distinct paths before it. One way will almost certainly lead the industry to a new era of greater tolerance of erotic expression and more reasonable regulation of adult entertainment. The other way will likely lead to more outrageous and irrational morality-based regulations and the demise of long standing judicial protections of freedom of expression that have allowed the adult industry to explosively grow and flourish despite the best efforts of its powerful and determined enemies.

 

To illustrate the starkly differing choices that are now before the industry, let’s imagine what it would be like to fast-forward to 2012, to the end the first term of the next president. The following highlights what I believe would likely be the vastly different realities that would confront the industry after four years of either an Obama or a McCain administration.

 

The Obama Way: Freedom, Tolerance and Reasonable Regulation.

 

Policies Involving Adult Entertainment. It is extremely unlikely that an Obama administration would continue Bush’s hostile and adversarial policies towards the adult entertainment industry. Obama’s stated position has always been that regulation of adult content should at all times be consistent with the protection of the content providers’ First Amendment freedoms. Under Obama, I believe we would find that reason, and not religion, would once again be the driving force in the regulation of the adult entertainment. (Hallelujah!)

 

2257 Regulations Under Obama. The Department of Justice under President Obama will likely prioritize enforcement of 18 U.S.C. §2257 and 28 CFR 75 (the “2257 regulations”) the same as President Clinton’s DOJ. That is, no priority. As a result, my estimated number of inspections and 2257 indictments during an Obama administration would be zero, zip, none, nada. Further, many First Amendment attorneys, including myself, believe that during an Obama administration we will likely have the opportunity of working with a democratic congress to replace the ridiculous, unconstitutional and horrifically punitive 2257 regime with a simple, fair and more effective means of assuring that no minors are used in the creation of sexually explicit content.

 

Obscenity Prosecutions In An Obama Administration. Under a President Obama, again, like under President Clinton, I would expect federal obscenity prosecutions to cease entirely. I would also expect the DOJ obscenity task force that has brought several obscenity cases around the country in recent years to be permanently disbanded.

 

If the federal government gets out of the obscenity prosecution business, it would also be likely that after four more years of continuing acceptance of adult content in communities throughout the country, obscenity prosecutions of mainstream adult content, i.e., prosecution for being outside a given “community’s standards”, would likely become extremely difficult or impossible after 2012. Thus, a four-year break from federal obscenity prosecutions might well permanently disable a future administration’s ability to convict distributors of mainstream adult content.

 

Obama’s Views Regarding Keeping Kids Out of Online Adult Content. In an Obama administration is also likely that adult industry efforts spearheaded by ASACP will be able to actually work with lawmakers to develop effective means of filtering explicit adult content at the users’ end. Obama’s position has always favored parental filtering as the preferred means of solving the problem of keeping online adult content away from kids. Consequently, it would be extremely unlikely that a President Obama would push for another COPA (Child Online Protection Act), for example, where the adult business owner is expected to somehow prevent access to adult content by a minor or face imprisonment. You can count on a President McCain to try to do just the opposite.

 

Obama’s Supreme Court. The greatest and most profound difference between the two paths that lie directly ahead is the likely resulting complexion of the United States Supreme Court four years hence.

 

The highest court in the land does nothing other than interpret the United States Constitution, including that all-important set of words known as the First Amendment. Right now, the creation, distribution and possession of non-obscene erotic depictions of adults are protected by the constitution. But that protection is only the result of the Supreme Court having previously declared it so. Unfortunately, what the Supreme Court giveth, the Supreme Court can taketh away. This is a critical point to remember as we proceed because the adult entertainment industry stands or falls on the issue of the quantum of constitutional protection provided to it by the United States Supreme Court.

 

Right now the Supreme Court is pretty equally divided along liberal-conservative lines. There are four generally liberally-leaning Justices: Stevens, Ginsberg, Breyer and Souter; four conservative justices, Scalia, Thomas, Roberts and Alito; and one judicial switch-hitter, Justice Kennedy. Generally, liberal Justices have ruled favorably for the adult industry and conservative Justices have not.

 

Now, here is an absolutely critical problem facing the adult entertainment industry that virtually every participant in the business should be gravely concerned about. In the next four years, from one to three of the liberal leaning Supreme Court Justices are likely to be replaced. This is because Justice Stevens and Justice Ginsberg are now, respectively, 88 and 75 years old. Both have stated that they would like to retire. Further exacerbating the problem of likely departing liberal Justices is the fact that Justice Souter, who has openly expressed his disenchantment with Washington life, has, reportedly, recently stated privately that he wishes to retire from the bench soon and move back to his New Hampshire home.

 

If either of the elder Justices or Justice Souter retire and are succeeded by conservative McCain appointees, the result could be a very significant shift of the Court to the right. This would be bad for the adult industry, very bad (See McCain’s Supreme Court below).

 

A president Obama would almost certainly appoint new, and relatively young, Justices to the Court that would preserve the current balance for many years to come. This would provide the adult industry with the continued constitutional protection it simply must have to survive.

 

Also, if a first Obama term leads to a second, Obama may also have the opportunity to replace the adult industry’s current chief nemesis on the court, Justice Scalia. And that would be good for the adult industry, very good. While on the bench Antonin Scalia has opined that explicit adult content is not subject to the protection of the First Amendment.

 

Good thing Scalia’s view is not in the majority, huh? Well, read on to see how, if you sit on your butt and let McCain get elected, that just might not be the case in four years.

 

The McCain Way: Morality, Censorship and Punishment.

 

Policies Involving Adult Entertainment. If McCain is elected, I think that we can expect that the Bush administration’s hostile and adversarial treatment of the adult entertainment industry will continue or, thanks to the addition of evangelical Sarah Palin to the ticket, potentially even worsen.

 

It is very unlikely that McCain’s party will control congress during the next four years, and so, if he becomes president, his only means of rewarding the religious right base of his party for their support will be via actions by departments under his control in the executive branch of the federal government. Twelve letters immediately spring to mind that should be of some concern to adult industry participants: DOJ, FBI, FTC, and IRS.

 

Now add to the aforesaid possibility of visiting upon adult industry players the traditional plagues of federal investigations, prosecutions, tax audits and civil actions, a potential new pestilence: a Book-Banning-Talking-in-Tongues-Evangelical-Vice President Sarah-Barracuda Palin.

 

It was recently reported by me in my last article “What If McCain Wins” that a Vice President Palin could be asked by McCain to lead a federal task force to try to clean up smut on the Web. That disturbing possibility should send a chill up the spines of every adult content provider and porn-loving citizen in America. God help us all if the would-be oldest person to become president, alleged-cancer beating old codger McCain, God-forbid dies or becomes disabled in office, and SHE takes charge. I think it would be fair to say that the inevitable extinction of moose and beaver would be the least of our problems.

 

Under a McCain administration we are also likely to see McCain’s claim to be able to work “across the aisle” come to pass in the form of new laws in which the compromise with the democrats will, in some cases, be republican sponsored provisions aimed at regulating or disadvantaging the adult industry. The following is an example of how this might happen.

 

During the next administration regardless of who is elected, we will likely see copyright enforcement reform to help content producers in their battle against piracy, particularly online copyright infringement. Unlike an Obama administration, a McCain administration would be likely to try to exempt adult content producers from any legislation or enforcement activities that would help support the value of adult content.

Least you doubt that a republican administration would do such a thing, consider the fact that in 2004 the Bush administration pushed through congress the “American Jobs Creation Act” which contained an extraordinary new tax incentive for film producers who make low and medium budget films (under $15 or $20 million).  It’s a pretty good law for filmmakers, but not porn filmmakers. The Bush administration made sure that producers of content subject to 18 U.S.C. §2257 were expressly excluded from the benefits of the law explicitly in the language of the statute.

 

The 2257 Regulations. The 2257 inspections of adult content “producers” commenced for the first time under President Bush. The inspections are currently on hold pending final publication of amendments to the DOJ regulations (28 CFR 75 et seq.). The 2257 records and label inspections and subsequent prosecutions of violations of the regulations are likely to recommence with vigor under a President McCain. As a supporter of legislation requiring the DOJ to enforce 2257, McCain’s DOJ can also be counted upon to strongly oppose any efforts to either congressionally modify or judicially invalidate 18 U.S.C. §2257.

 

Additionally, conservative republicans and their pet prosecutors realize that it is becoming increasingly difficult to prosecute mainstream adult content providers for violation of the obscenity laws because such content is not likely to be found by juries to be outside of their communities’ standards because of the general availability of such materials in most communities via the Internet, via cable and satellite broadcast, in hotels, etc. As a result, the culture warriors on the right are looking optimistically to the availability of much easier prosecutions for 2257 record keeping or compliance statement violations carrying potential jail time of 5 years a-pop. Therefore, under a McCain presidency, I would expect to see more prosecutions mirroring the strategy underlying the recent indictment of producer Ira Isaacs in Los Angeles. In that case, the DOJ’s obscenity task force brought a number of obscenity charges but hedged its bet with two 2257 failure-to-label charges exposing Isaacs to ten years in jail regardless of the outcome of the obscenity counts.

 

Obscenity Prosecutions In A McCain Administration. The religious right not only recognizes the term “obscenity” as a legal term pertaining to prosecutions of sexual depictions, it conflates and creates a virtual identity of the term with sexual depictions and pornography of all kinds. Consequently, I believe that a McCain administration would likely want to provide cultural conservatives with lots of reasons to believe that McCain is much better at fighting “obscenity” than George Bush, who sorely disappointed them on this count. Because his party will not control congress, the Bush tactic of mollifying the right with tougher laws that were not enforced is not likely to be available to McCain (and even if it were, the cultural conservatives probably wouldn’t buy it. Even they feel duped by Bush!). So I believe McCain will not only the continue funding the DOJ obscenity task force, I believe he (or Ms. Barracuda) will unleash the DOJ on the industry via combined obscenity/2257 prosecutions as explained above. If such a strategy were to be implemented virtually every adult entertainment content provider in America could potentially be at risk.

 

McCain’s Views Regarding Keeping Kids Out of Online Adult Content. Unlike Obama, McCain has not stated a preference for parental filtering as the most reasonable, fair and constitutional means of addressing the problem of child access to porn. Instead, McCain, the so-called “maverick”, is in lock-step with the ultra-conservatives of his party who favor new laws to prosecute and imprison content providers even if what is really going on is the phenomenon of kids intentionally stealing the content providers’ intellectual property by unlawfully gaining access to the webmasters’ sites that clearly say “ADULTS ONLY”. Never mind that such a strategy has twice failed to produce constitutionally viable laws (both previous attempts, Communications Decency Act and the Child Online Protection Act (“COPA”) have been struck down). And never mind that such a strategy will never provide an effective method of slowing down kids’ access to porn. But hey, McCain is the guy that is actually proud of the fact that he advocated our expenditure of blood in treasure in Iraq when Bin Laden, the guy that attacked us, was in Afghanistan.

 

McCain’s Supreme Court. John McCain has repeatedly said that if he was elected president and given the opportunity to fill vacancies on the Supreme Court, he would nominate judges who are like Justice Antonin Scalia. Great. If McCain wins and the virtually inevitable occurs, i.e., one to three of the most liberal Justices on the bench retire, McCain almost certainly will try to pack the Court with a number of young Scalia-minded Justices.

 

This would take us into dark new judicial territory in which explicit adult content could lose the presumptive constitutional shield that has traditionally protected it from its ardent foes. Given that Scalia’s view that the founding fathers did not intend sexual depictions to be subject matter covered by the protections of the First Amendment, is a view likely shared, at least in part by at least two other conservative Justices currently on the bench, Justice Thomas and Chief Justice Roberts, two more “Scalias” on the Court could sound the death knell for the adult entertainment industry in this country as we know it.

 

A more conservatively configured Court that included only one liberal Justice replacement with a Scalia-conservative, however, could be enough to result in some very bad rulings for the industry on any number of very important cases currently on track towards a possible Supreme Court ruling. For example, all of the following could occur relatively soon if the Court is only slightly tipped more conservatively by a single McCain appointment replacing a liberal Justice.

 

  • Regarding the critical, but as yet unresolved, issue of what constitutes the “community” for the purpose of determining community standards in an obscenity prosecutions for transmissions via the Web, there is a pretty good chance that the current Court might modify or abandon the traditional local geographic community formulation in favor of a national or online community standard. Such a reformulation would be great for the industry because it would deprive federal prosecutors of one of their most formidable prosecutorial weapons, the ability to exploit a small community’s unusual hostility to adult content by bringing a case in such a community and asking the jurors to measure the explicit adult content by their conservative community’s standards. If any of the liberal Justices were replaced by another “Scalia”, it is unlikely that the traditional formulation would be abandoned.

  • A McCain-influenced Court would likely rule to uphold the 2257 laws and any screwball modifications of the associated regulations adopted by a McCain DOJ.

  • A McCain-influenced Court would likely uphold provisions of the Adam Walsh Child Protection Act that criminalize for the first time in history the mere creation of adult content if it is found to be obscene.

  • A McCain-influenced Court would likely also not strike down provisions of the Adam Walsh Act or laws in states such as Ohio that are passed pursuant to that act that subject promoters of adult content to fifteen years on national sex offender lists for marketing or advertising explicit sexual depictions that are found to be obscene.

  • A McCain-influenced Court would likely also uphold other anti-adult industry laws such as the “do-not email” registry law in Utah, the exception to the film tax exemption cited above, and probably every other ridiculously unfair regulation imposed on the adult entertainment industry.

 

The predictions above are not made up from whole cloth and they are not exaggerations. They are based, in part, on John McCain’s own words and promises regarding the types of judges he would put on the Supreme Court, the Circuit Courts of Appeal and the federal courts around the country. You know, after World War II many people were surprised to learn that Hitler had laid out his plans to conquer Europe in great detail in his book Mein Kampf long before he put those plans into catastrophic action. I feel that McCain’s statements about the types of judges he would put on the federal bench should be viewed for what they are, explicit plans he will execute if the voters give him the power to do so.

 

With all due respect, now you can never say you weren’t warned.

 

Want To Help Our Country And Our Industry Take The Road To Greater Freedom, Tolerance and Reasonable Regulation? Here’s How.

 

  • Of course, at a minimum, you could vote for Obama. But you could also convince your friends and family who are thinking about voting for McCain to vote for Obama.

  • You could donate money or volunteer your time to the Obama-Biden campaign (See www.barackobama.com)

  • You could publish a positive Obama message on your website or in your marketing materials.

  • If you are a pornstar, you might consider making a YouTube™ movie in support of the Obama ticket.

  • You could also join me in my YouTube™-initiated strategy to motivate the news media to get McCain and Palin to answer a simple question I designed to explode their myth of their “maverickness” and supposed distance from Bush administration policies. My simple, but amazingly yet unanswered question to McCain and Palin is: “Do you think George W. Bush has been the worst president in your lifetime?” (For more information about “The Question” please see the XBiz online article “Industry Lawyer Piccionelli Asks McCain-Palin Opinion on Bush”, October, 7, 2007 at www.xbiz.com/news/news_piece.php?id=99931&mi=all&q=Piccionelli or email me at the address below) I invite you to join me in sending emails to local and national print, radio, television and Internet news organizations to ask McCain and Palin my simple, but revealing question and demand an equally simple and straightforward answer.

 

Finally, while I believe that Obama may win in a landslide repudiation of McCain and the failed republican leadership, the fact is that it could also be an extremely close election. So, since the fate of our country could be determined once again by a few thousand votes, I feel compelled to make the following plea. I know this may be an uncomfortable issue for some to confront, but if you know someone who really doesn’t like the McCain-Palin ticket but will be voting for them simply to prevent an African-American from becoming president, please ask the person not to commit a double sin. Please ask them to simply abstain. While I have always previously encouraged everyone to vote no matter what their political persuasion is, I believe that all of us must do our best to prevent this extraordinarily important election to be decided by a few bigots. If that were to happen, heaven help us. We deserve what we get, even if that turns out to be President (gulp) Sarah Palin.

 

I sincerely hope that four years from this coming January 20, we will be celebrating the fourth anniversary of a new day in America and I will not be working on an article entitled “I Told You So”.

 

At the time of this writing, there are 102 days 18 hours and 23 minutes left in the Presidency of George W. Bush.

 

1Gregory A. Piccionelli, Esq. is an Internet and adult entertainment attorney. He can be reached at Piccionelli & Sarno at (310) 553-3375 or at greg@piccionellisarno.com.

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