"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

An Opportunity That We Must Not Let Slip Away

JANUARY 2009

Since its inception, the adult entertainment business has been the target of unfair and frequently unconstitutional government regulations. Enactment of onerous laws such as, the federal record keeping and labeling regulations (18 U.S.C. §2257), harassing criminal prosecutions and shameful participation in non-stop industry smearing misinformation campaigns have almost always been our elected leaders’ response to the lobbying efforts of ultra-conservative groups that have traditionally wielded vastly greater political power than the adult entertainment industry. As a result, mainstream adult businesses have been unfairly, but successfully, established in the public’s mind by their foes as tantamount to illegitimate enterprises that pander obscenity to minors and produce child pornography. Given the utterly false and undeserved nature of that reputation, it is a real shame that the adult entertainment industry itself has added insult to injury by its historic failure to effectively counter-lobby the government on its own behalf.

 

But regardless of the past, I sincerely believe that recent political events clearly indicate that now, for the first time in the history of the adult entertainment business, there is a real and substantial opportunity to effect a meaningful and permanent change in the way the industry is perceived and regulated. It is an opportunity, which I strongly feel, if not seized may pass away and may not be presented to the industry again for many, many years. It is, therefore, literally, a golden opportunity for change. But it’s an opportunity that can only be realized with your assistance.

 

A Historic Election, A New Generation, and A Desire For Change Have Combined To Create A Rare Opportunity For The Adult Entertainment Industry

 

For most of my adult life, I have remained an active observer of, and participant in, local and national politics. It is from this life-long politico’s perspective that I have formed an opinion regarding an aspect of the recent historic national election that concurs with many of my colleagues and fellow political commentators. That opinion is that the election of Barack Obama, the expansion of democratic control in both houses of the federal legislature, and the generalized repudiation of Bush-era politics in races throughout the nation, is likely a manifestation of a significant shift in the socio-political mindset of America as the post-baby boom generation comes to power.

 

It is clear by just about any measure that the people want change. In fact, by most published reports, the political pundits have attributed Barack Obama’s victory in large part to his successful exploitation of this popular desire for change.

 

Fortunately for the adult entertainment business, both democratic and republican leaders and strategists have been describing the “change” desired by the public, in part, as a desire for a change away from morality-based policies and legislation implemented at the behest of religious conservative groups. Even many conservative republican strategists are now attributing their party’s stunning losses, at least in part, to the voter alienation caused by the widespread perception that the Republican Party has been preoccupied with implementing the morality agenda of religious interest groups. This means that, at least for the moment, politicians at every level are distancing themselves from the political organizations that have, coincidentally, been the bane of the adult entertainment industry.

 

A Chance For More Reasonable Regulation

 

It seems that politicians may have finally gotten the message that voters want their government to focus on pressing problems such as the economy, health care, national security and the environment. Clearly voters are telling their representatives that they want government to get out of the business of telling them what they can and cannot do in their bedrooms.

 

It is likely, therefore, that the new political era we are entering will provide the adult entertainment industry at least an opportunity for more reasonable regulatory treatment from a new crop of elected leaders that are more representative of, and responsive to, a new generation of voters, and a more progressive American culture at large.

 

I believe an unprecedented window of opportunity has opened for the adult entertainment industry to meaningfully, and perhaps permanently, change the regulatory environment in which it operates. At hand may well be a real opportunity for the industry to exploit an extraordinary turn of events in which a more youthful electorate that is more accepting of erotic materials than any generation before, has joined older voters who have become intolerant of politicians promoting religious agendas.

 

We Must Seize The Moment and Lobby Baby, Lobby!

 

The best way to achieve a beneficial change in the regulatory environment surrounding the adult entertainment industry is to lobby the Obama administration, congress and local legislatures for more reasonable regulations. In my opinion, this can only effectively be accomplished though the industry’s representative organizations, The Free Speech Coalition (“FSC”) and Association of Sites Advocating Child Protection (“ASACP”). Indeed, for the reasons I will discuss below, the industry will need the unique strengths and qualities of each organization working cooperatively to most effectively achieve real regulatory change for the industry.

 

Many of you already know that FSC has been lobbying government on behalf of the adult entertainment industry as its premier trade organization for more than a decade. I have written extensively about FSC’s lobbying efforts, and my support of them, over the years. I am confident that you probably know that as the adult industry’s trade organization, FSC has not only lobbied successfully to prevent many horrible anti-industry laws from passing, it has also funded many critical lawsuits, such as its challenge to the federal record-keeping and labeling laws. If you are not already a member of FSC or if you do not know about all the good work that organization continues to perform on behalf of its members, please visit its website at www.freespeechcoalition.com and become a member as soon as possible.

 

But assuming that you are already an FSC member or at least know the importance of supporting FSC in its efforts, I would like to tell you why I believe that one of the industry’s other advocacy groups, ASACP, will become more critically important than ever precisely because of the newly emerging political environment.

 

ASACP’s Key Role To Effect Beneficial Change For The Industry

 

The reason why I believe that ASACP is uniquely and ideally suited to assist FSC’s and the industry’s efforts to positively change the regulation and public perception of adult businesses in the new political environment we are entering can be summed up in one word: children.

 

It is very unlikely that either the Obama administration or the current congress will engage moral activism in any manner resembling what we’ve seen under the Bush Administration. Thus, obscenity prosecutions, 2257 regulations enforcement and new anti-industry laws to discourage the creation, distribution or consumption of legal erotica are all relatively unlikely.

 

But while federal obscenity and 2257 prosecutions are far less likely under Obama than they have been under Bush, there is actually a greater likelihood that congress and the new administration will revisit the issue of how to best protect children from the exposure to adult content via the Internet and mobile devices. There will also likely be a much greater allocation of resources at the Department of Justice for the prosecution of child pornographers.

 

Thus, the likely focus of congress and the Obama administration with respect to the adult industry in the next few years will center on how to best protect children. This, of course, as its name implies, has been the central and guiding mission of ASACP, unique amongst adult organizations, from its inception.

 

Many adult entertainment industry advocates, including myself, have long argued that the only reasonable and legitimate purpose for governmental regulation of erotic content is when it directly provides meaningful protection of children without trampling cherished constitutional freedoms. So, as you might imagine I am elated at the prospect that our government might finally stop terrorizing the vendors of protected expression with the prospect of obscenity or 2257 prosecutions and train its guns instead on some real criminals, the child pornographers.

 

But the road to perdition is paved with good intentions. And if there is anything the government does well, it’s screwing up.

 

The adult industry’s interest group foes are politically wounded but not dead. They can be expected to fight tooth and nail to prevent any changes to the current regulatory regime that would benefit the industry. Therefore, when congress takes up the issue of child protection from Internet and mobile porn (which is very likely) or the issue of modification of the 2257 regulations (which is also likely) the industry must be prepared to lobby congress and the administration or face the likely consequence that its well-financed ultra-conservative foes will once again prevail on lawmakers to the industry’s great detriment.

 

It has often been said that doing the same thing over and over again while expecting a different result is a form of insanity. Historically, virtually all of the adult entertainment industry’s greatest legal setbacks occurred simply because it did not have a voice in the legislative process at the time the laws were being created. It’s time for the industry to act a bit more sanely when it comes to the issue of its regulations. We cannot let history repeat itself. We simply cannot let the best opportunity for fair and reasonable regulation in fifty years just pass away.

 

The adult entertainment industry’s best chance for reasonable regulation this time around will result from robust lobbying efforts by both FSC and ASACP to keep the Obama administration and congress focused on appropriate regulations that protect children without infringing the free speech rights of adult entertainment businesses.

 

But unlike the Free Speech Coalition, which is a trade organization for the adult entertainment businesses that unceasingly acts to protect its members’ expressive freedoms, the Association of Sites Advocating Child Protection is all about what its name describes, the protection of children. That focus is likely also to be the primary, if not only, focus of regulation of sexual content production, distribution and consumption during the Obama administration, and hopefully beyond.

 

Fortunately for the adult entertainment industry, ASACP is now perfectly positioned to credibly lobby for better government regulations regarding sexual content that more effectively protect children from adult content while respecting and protecting the free speech rights of adults. The reason why ASACP will be such an effective advocate for child protection and for regulatory change for the industry is simple. ASACP has the history of accomplishments to prove that it alone has “walked the walk” of child protection with the support and assistance of the adult entertainment business.

 

Here are just a few examples of why ASACP will be able to credibly lobby legislators and government agencies to re-focus government efforts on true child protection and permanently abandon enforcement strategies designed to discourage and punish participation in the legitimate adult entertainment industry

 

  • For over twelve years ASACP has managed a child pornography (CP) reporting hotline that receives over 10,000 reports of suspect CP sites per month and sends validated CP sites to law enforcement.

  • Through more than a decade of gathering and compiling child pornography reports and related data, ASACP has compiled one of the world’s largest databases regarding the origins and online distribution patterns of child pornography.

  • To help protect its sponsors from accidental affiliation with parties distributing child pornography, ASACP developed and implemented the world’s only automatic CP notification system to help alert its sponsors and members if an affiliate program participant is trying to use the program or its resources to distribute CP. This service has been provided free of charge to all ASACP sponsors and members since earlier this year.

  • To assist its sponsors, ASACP has also reviewed tens of thousands of affiliate websites to verify that they display proper statements accurately attesting that all models depicted are over 18 years, to verify that the models subjectively appear to be adults, and that the sites do not contain unacceptable terms often statistically associated with child pornography.

  • ASACP’s Best Practices guide and sponsor certification program has become the most respected and most broadly adopted adult website certification model in the world. When a bona fide sponsor qualifies to place the ASACP sponsor logo and embedded link on its sites, web surfers can engage the link to display the website’s ASACP sponsorship and certification that it was compliant with ASACP’s Best Practices at the time of review.

  • In 2006 ASACP developed the industry’s most effective voluntary filter-enabling tool, the Restricted To Adults – RTA Website Label, now in use on over four million adult websites around the world. Use of the RTA filter-enabling tool is free, easy, and clearly demonstrates the adult industry's voluntary commitment in helping parents prevent minors from viewing sexually explicit content.

  • The enormous size and scope of ASACP’s RTA label adoption and its Sponsorship program well-positions ASACP as a uniquely credible voice of the adult entertainment industry that can powerfully and persuasively demonstrate the sincerity and success of the adult entertainment industry’s efforts to provide effective child protection within self-regulating environment.

 

Your Support Is Needed Now More Than Ever

 

Throughout the many years that I have represented adult entertainment companies, I have never lost faith that the regulation of erotic materials would someday more reasonably reflect legitimate concerns regarding the product rather than the mere discomfort or intolerance of some regarding sexual depictions. I have always believed that the day would eventually come when the adult entertainment industry would have an opportunity for fair and reasonable regulation that would be appropriate for one of the world’s most demanded leisure products.

 

I believe that recent political events just might herald the dawning of that day. If so, what a shame it would be for the adult entertainment industry to miss an opportunity to free itself from the shackles of onerous regulations and reprehensible intentional mischaracterization.

 

But miss the opportunity of a lifetime is exactly what the adult entertainment industry will do if it does not support ASACP’s and FSC’s efforts to lobby the congress and the Obama administration for more fair and reasonable regulations.

 

I have always believed that ASACP would play a pivotal role in helping the adult entertainment industry seize the kind of opportunity I have discussed in this article. That is why I have been a strong supporter of ASACP since its inception. It is also why I am asking for your help in support of ASACP at this critical time.

 

So if you are a current sponsor or member of ASACP, please continue. If you are not currently a supporter of ASACP, please become one.

 

There has never been a better time to effect real change in the way the adult entertainment business is regulated. There has also never been a time when your support has been more critically needed.

 

 

At the time of this writing there are

45 days, 20 hours and 20 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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