"In contrast to previous economic eras,
intellectual property will be the primary source
of new wealth in the 21st century."
- Gregory A Piccionelli, 1989
 
AREAS OF PRACTICE
• Internet Matters
• Music & Other Entertainment Matters
• Intellectual Property Rights Enforcement
• Crowdfunding Matters
• Freedom of Expression Matters

What If McCain Wins?

OCTOBER 2008

If preserving the freedom you have to create, market and distribute adult entertainment is important to you, read on. At the time of this writing, the political winds of change have begun to blow in favor of John McCain and against the adult entertainment industry thanks, ironically, in part to the sexy librarian good looks of a former beauty contestant turned governor of Alaska.

Because of John McCain’s selection of evangelical social conservative Sara Palin as his running mate, it has become clear that if the McCain-Palin ticket is elected, the adult entertainment industry will likely once again be an active front in what Bill O’Reilly has called The Culture War. Only this time, the federal government’s war on porn will not likely be as botched in its prosecution as it was under the famously incompetent Bush Administration. Instead, if the McCain-Palin ticket is elected, look for the effort to be spearheaded by Vice President Sara “Barracuda” Palin.

 

A source close to the McCain campaign, who has asked to remain unnamed, has informed me that one of the roles a Vice President Palin might be asked to play in a McCain administration would be to head up a task force to investigate and recommend ways to “protect kids from online pornography”. It would seem that such a project would be tailor-made for Palin who is already beginning to look like some sort of a culture war Joan of Arc heroine rallying social conservatives to support the McCain-Palin ticket. Should my source be correct and should McCain win, I could easily see how many religious and social conservatives could view Palin as the long-awaited culture warrior they have prayed for. A fellow traveler with the political ability to deliver them from the agonizing frustration they have felt during the last eight years because of an administration that never made good on its promises to reign in Internet porn and prosecute scores of pornographers.

 

But given McCain’s previously stated opinions and voting record advocating increased governmental regulation of online erotic expression, such an anti-porn task force makes sense because it would also provide McCain with a golden opportunity to firm up support with the religious ultra-conservative base of the republican party while furthering one of the few goals he apparently truly shares with that group: effectuating a meaningful crack-down on the online adult entertainment industry.

 

While my source did not discuss in detail any specifics about how or when a McCain administration might launch a new war against the industry, a quick look at the McCain website (www.johnmccain.com) revealed to me that the issue of controlling online pornography is indeed a fairly important one to McCain and his campaign. On his website, McCain has posted detailed descriptions of his positions on a number of issues. In the issue category of “Human Dignity and Life” the issue of “Protecting Children From Internet Pornography” was listed prominently along with “Overturning Roe v. Wade”, “Preserving Marriage” (a.k.a. “Preventing Gay Marriage”) and “Addressing the Moral Concerns of Advanced Technology”.

 

Regarding the Internet, his website states that

 

“John McCain believes the Internet offers tremendous promise in terms of freedom of expression, information sharing, and the spread of knowledge and commerce. It represents the greatest innovation of the modern era in terms of the democratization of free speech and access to information.”

 

But then the policy statement qualifies his support for free speech on the Web and, unfortunately, reveals either his lack of understanding of how the First Amendment works or just how shallow his support of freedom of expression really is:

 

“However, there is a darker side to the Internet. Along with the access and anonymity of the Internet have come those who would use it to peddle child pornography and other sexually explicit material”(emphasis added).

 

My fellow citizens, there is no law in our beloved country that prohibits the marketing or sale of content merely because it comprises “sexually explicit material”. Thankfully, this is because any such law would be clearly prohibited by the First Amendment. Put another way, if that “other sexually explicit material” referred to in his position statement is not otherwise unlawful matter such a depiction adjudicated to be obscene or content distributed in violation of the federal record keeping and labeling laws (18 U.S.C. §2257), then that “other sexually explicit material” referred to is presumptively legal and fully protected expression. In fact, I wonder if Senator McCain even understands that the “other sexually explicit material” referred to on his website is just as protected by the Constitution as the sexually exploitive “Hot V.P. Candidate” button photographs of Sara Palin that were peddled by entrepreneurial republicans at the GOP convention in St. Paul.

 

For a different reason, however, I believe it is important to take note of how McCain characterizes the issue of “Protecting Children From Internet Pornography”. McCain’s policy statement on the issue of adult entertainment didn’t just fail to distinguish between adult entertainment entrepreneurs, who promote and distribute perfectly legal erotica, and those who distribute obscenity or other illegal sexually explicit material. McCain’s website policy statement also furthers the damaging, insulting and patently untrue myth propounded for decades by conservative republicans that lumps into the same category vile and loathsome distributors of child pornography and tens of thousands of legitimate tax-paying businesses providing a legal and constitutionally protected product in high demand throughout the country. On this issue, at least, McCain’s no more a republican maverick than I am the Pope.

 

Adult industry’s lawyers have long known that McCain has never been, and probably will never be, a friend to the adult entertainment industry. So an Internet publication revealing what I have always suspected regarding McCain’s personal view of legal erotic materials was not too surprising to me. It also would not have been of any concern to me either except for the fact that thanks to Ms. Republican Specs Appeal we now have a presidential race that is likely going to be tighter than . . . (no I won’t take that shot) . . . a drum. In fact, at the time of this writing, Obama’s once large lead in the national polls has now become as thin as turnip soup.

 

Because of this I think that everyone with an interest in the adult entertainment business should take note of McCain’s recently improved chances to win the White House, thanks to the bespectacled barracuda. I also think every adult business owner should take a long, hard, and hopefully, sobering, look at what a McCain presidency would likely mean for his or her business, for this industry, for our civil rights, and for the future of our country. Its my hope that perhaps if those in the industry truly knew what they are in for under a McCain-Palin administration, maybe, just maybe, we might start to see this huge industry shed its political apathy and begin to use its massive communication power to reach scores of millions of voters.

 

So, in the hope that a glimpse into the valley of death might get some webmasters, content producers, gentleman’s club owners, and multi-millionaire adult moguls named Steve to get off their butts and use their name, influence, websites, and contract stars to help save our freedoms, consider the following possible reality if our country elects another republican president:

 

The Supreme Court holds the key to the survival of the adult entertainment industry. In the next few years it will likely determine, among a host of other issues of great importance to the industry, if and how obscenity law will apply to the web and mobile phones, whether the 2257 regulations are constitutional, if adult entrepreneurs can be wiretapped more easily than other citizens, and even possibly whether, sexually explicit content should be protected speech under the First Amendment at all.

 

Any one of the above is a bet-the-farm issue for thousands of adult businesses. In recent years the Court has issued decisions upholding free speech in large part because the Court’s four conservative Justices (currently Justices Scalia, Thomas, Roberts and Alito) have been out-voted by a combination of the three liberal Justices (currently Justices Stevens, Ginsburg and Breyer) and the two “swing” Justices (currently Justices Souter and Kennedy).

 

Now consider these sobering facts: Justice Stevens is 88 years old, Justice Ginsberg is 75 years old and neither is reportedly in good health.

 

If elected president, McCain has repeatedly said that he would nominate Supreme Court appointees like Justice Scalia. Justice Scalia has opined that the founding fathers did not intend that explicit sexual depictions should be subject to the protections of the First Amendment.

 

So if McCain is elected and he is able to replace two, or even one of the elder liberal Justices (Stevens or Ginsburg), you might find that by 2012 the following has occurred:

 

  • The Supreme Court has upheld the constitutionality of the 2257 regulations siding with the Sixth Circuit en banc reversal of the three-judge panel’s decision invalidating 2257. Soon thereafter, following the recommendations of the Palin Online Obscenity Task Force, McCain authorized the Department of Justice to initiate prosecutions of scores of adult entrepreneurs for violations. Most fold and leave the business taking plea offers. This would be likely because by 2012 the Supreme Court has also upheld the government’s long-stated interpretation of 2257 that even the smallest of violation of any of the dozens of obligations comprising the 2257 regulations, like a failure to have a compliance statement on every page of a website, will subject the violator to up to five years in jail for a first offense, ten years for second and subsequent offenses. As a result, waves of webmasters have signed agreements to pay huge fines and quit the business rather than face the possibility of decades in jail.

 

  • By 2012 the Supreme Court has rejected a national standard for determination of what constitutes obscenity distributed over the Internet. This means that prosecutors have obtained the Court’s blessing to use the traditional “community standards” formulation for determining what is “obscene” rather than a national standard which would have made prosecutions of main stream adult content almost impossible. As a result, almost instantly, dozens of obscenity cases with extra counts for money laundering and racketeering tacked on were brought in conservative bastions like Utah, Kentucky and Alabama. By 2012 scores of adult entrepreneurs are facing total forfeitures of their assets and scores of years of incarceration.

 

  • The Supreme Court has determined that even a five-second clip on a website and not the whole website can be the “work taken as a whole” to be charged as obscene. As a result by 2012 webmasters by the thousands are facing the risk that most individual video clips and photographic depictions on their websites do not have independent serious literary, artistic, scientific or political value. This means that by 2012 a typical adult website published in 2008 would expose a typical webmaster to potentially hundreds of years in jail.

 

  • The Supreme Court has also determined that the government can take full advantage of their recent obscenity and 2257 rulings over the entirety of the five-year statute of limitations period for obscenity and 2257 violations. Webmasters realize that they are vulnerable to prosecution for the content that was published on their sites, and 2257 errors, as far back as 2007.

 

  • The Supreme Court has upheld the constitutionality of Ohio’s and other states’ revamping of their child predator laws in compliance with the Adam Walsh Act. This means that any adult entrepreneur that markets materials in Ohio or other states that have acted similarly to Ohio could face mandatory registration as sex offenders for fifteen years and face severe residential restrictions if convicted for pandering obscenity, an offense that seems completely unconnected to exploitation of children.

 

  • The Supreme Court also upholds new laws that went on the books during the Bush Administration, such as a law that punishes the creators of content, such as actors, directors and editors if the content is found to be obscene in any jurisdiction in the United States (Adam Walsh Act, 2006).

 

  • Over and over again, what has become to be known as the “McCain Supreme Court” upholds each new law and executive order that intrudes more and more into the privacy of citizens. The continued erosion of civil rights is almost always rationalized by the Court on the grounds that the government can take extraordinary action in times of great national security concerns. By 2012, because of actual terrorist acts, and governmental propaganda, public hysteria regarding bioterrorism has replaced outdated concerns regarding nuclear terrorism. This enables the McCain administration to get just about anything it wants from Congress and the courts. But because of the world-wide-reach of the Web and e-commerce, and the Web’s continued connection with terrorist recruitment and financing, those in Internet businesses are subjected to even greater governmental cyber-scrutiny, and, in some cases, even to personal geo-tracking. But no group is more scrutinized than those in the online adult business for whom the Supreme Court has virtually stripped every expectation of privacy.

 

Scary? Sure. Orwellian? You bet.

 

Realistic? I do believe that if McCain is elected and Stevens and/or Ginsberg cannot hold out until the next democratic president, I sincerely feel that all of the above is, in fact, a realistic possibility. How realistic will depend only on how much damage is done before the Court can be rebalanced by future appointments.

 

This uncharacteristically negative view will probably shock many of my regular readers who know that I have a long history in the industry of playing down fear in favor of communicating the real progress we have made in the last ten years against the forces arrayed against the industry. In fact, many of my columns this year have been celebratory as I discussed my sincere belief (which I still maintain) that we are only one election away from a true sea change in the regulation and public perception of the legitimate adult entertainment industry.

 

I must confess that while I have always known that I could be criticized for being too optimistic, I thought that given the current state of affairs in our country, attributable in no small part to the incompetency of the Bush Administration and the greed and corruption of many republicans, there was simply no way my fellow Americans would “go back Jack and do it again”. I have great faith in the American people and have always felt that if I was patient things would change for the better because of what one of my great personal heroes, Abraham Lincoln once said “You can fool some of the people some of the time and all of the people some of the time. But you can’t fool all of the people all of the time.”

 

Well Lincoln was and continues to be right. In fact, I think the very fact of Obama’s candidacy is proof of that. And it does indeed seem as though our country is waking up to the bill of goods it has been sold. But Governor Palin has taught me a valuable lesson too. She has reminded me not to forget that other wise observation about human gullibility by the famous impresario P.T. Barnum. Its an observation that seems to be the mantra of the McCain-Palin campaign: “There’s a sucker born every minute”.

 

Please, please, let’s all do our part to make the theme song for this election “Won’t Get Fooled Again” and not “Do It To Me One More Time”.

 

At the time of this writing there are

131 days, 12 hours and 19 minutes

until the end of the Bush Administration

 

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

 

 

 

 

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