The adult Internet industry received another jolt this month with the news that a federal indictment had been returned against Extreme Associates, Inc., along with Robert Zicari (a.k.a. Rob Black) and Janet Romano (a.k.a.EXTREME INDICTMENT
The adult Internet industry received another jolt this month with the news that a federal indictment had been returned against Extreme Associates, Inc., along with Robert Zicari (a.k.a. Rob Black) and Janet Romano (a.k.a. Lizzy Borden, his wife and alleged business partner). A search warrant had been executed at Extreme Associates months earlier; however this indictment was the first formal action taken as a result of the raid.
The Justice Department followed a similar pattern as that seen in the case pending against the Defendants in the West Virginia obscenity case relating to scatological content, and alleged a conspiracy to distribute obscene content through the United States mail, and further sought forfeiture of proceeds generated as a result of the conspiracy.1 However, this case differs in one important respect: It also alleges that the Defendants violated the federal obscenity laws by offering Internet content for downloading on the Web.2 Therefore, this is the first known case to involve the application of the United States’ obscenity laws to content available exclusively on the Internet. Previous cases have focused on obscene materials delivered via the United States mail or common carriers. Thus, Webmasters can expect to see all of the constitutional arguments play out in this case, which thus far have been merely the subject of academic debate on message boards and resource sites.
The Justice Department promises that this Indictment is merely the first in a “wave of criminal cases” against the adult Internet industry.3 Reports indicate that the issue of pornography has worked its way to the top of Attorney General John Ashcroft’s agenda, now that the War on Terrorism is supposedly under control.4 In announcing the Indictment, Ashcroft said: “Today’s Indictment marks an important step in the Department of Justice’s strategy for attacking the proliferation of adult obscenity… [We] will continue to focus our efforts on targeted obscenity prosecutions that will deter others from producing and distributing obscene material.”5
The prosecution against Extreme Associates will be no cakewalk for the government, however. First Amendment attorney Louis Sirkin of Cincinnati, Ohio, has been retained to defend the charges, and other talented lawyers are certain to join in the fray. Because this case raises such groundbreaking issues as which community standard applies to evaluate online communications and what constitutes the ‘whole work’ on a Website for purposes of the obscenity test, the industry will be closely following this case. In the words of Obscenity Czar, Andrew Oosterbaan, “It’s not the first, and it won’t be the last.”6 This will be an important case for the industry to watch, and will certainly be the subject of future coverage in Update.
SUMMER INTERNEXT DRAWS TO A CLOSE
The adult Internet industry’s largest tradeshow ended with a bang (or several of them) in early August, as Hollywood, Florida picked up the pieces left by adult Webmasters visiting from all over the world. Legal matters were the topic of conversation throughout the tradeshow floor, as Webmasters commiserated about issues such as billing woes, Acacia Media’s patent claims, and expected obscenity prosecutions against adult Webmasters. This author has never seen the adult Internet industry as fixated on legal issues as it seems to be at present.
ASHCROFT’S LIST
In a move that has shocked many in the legal community, it was recently reported that Attorney General John Ashcroft wants federal prosecutors to create a list of judges who impose more lenient sentences than federal guidelines recommend.7 Critics say that such a creation of such a blacklist could interfere with judicial independence.8 Ashcroft directed all United States Attorneys to promptly report any judge that imposes a “downward departure” from the sentencing guidelines that are not part of a plea agreement or in exchange for cooperation by the defendant.9
Those convicted of obscenity offences need not be concerned with such “downward departures” since the recently passed PROTECT Act virtually eliminates the discretion of judges to provide such sentence reductions, in those cases. Ashcroft defended the creation of the list by claiming an interest in making sure that criminal sentences are faithfully, fairly and consistently enforced,10 which might be read as a complaint about judges who decline to adhere to the Draconian sentencing guidelines, even under very unique circumstances. Interestingly, Ashcroft did not ask for a list of judges who exceed the sentences recommended by the guidelines.
LEGISLATIVE UPDATE
Yet another anti-erotica bill has been introduced in Congress. This one is called the “Protecting Children from Peer-to-Peer Pornography Act,” and is cosponsored by Joe Pitts (R-Pa.) and Chris John (D-La.).11 The Bill would require Internet file swapping services to obtain parental consent before allowing children to use their software. “Its alarming today how easy it is for our children to inadvertently access pornography over the Internet and become victims of sexual predators…,” said Pitts.12 The Bill requires that the Federal Trade Commission and the Commerce Department develop “do not install beacons” that parents could use to block the ability to download file-swapping software.
However, some experts express doubt that such technology could be effectively developed.13 “I don’t think anybody has built such a thing and frankly I don’t think such a thing is possible, or at least not likely to be effective in this kind of world,” said Fred von Lohmann, senior staff attorney with the Electronic Frontier Foundation (EFF),14 not to mention the fact that children can access erotic material through many other means, such as chat rooms, news groups and email. Acknowledging the difficulty in creating such technology, the Bill’s sponsors provide an eighteen-month window within which to develop the “beacons.”15
(Stay tuned for Part Two of Larry’s Adult Industry Update for August 2003 in next week’s issue!)
1 United States of America v. Extreme Associates, Inc. et. al., Case No. [Under Seal]; released August 7, 2003.
2 Id.
3 P.J. Huffstutter, “U.S. Indicts Porn Sellers, Vowing Extensive Attack,” Los Angeles Times (August 8, 2003).
4 Id.
5 Id.
6 T. Ove, “Indictment made in Pittsburgh signal wider U.S. attack on porn,” Pittsburgh Post-Gazette (August 8, 2003).
7 Associated Press, “Ashcroft Wants List of Lenient Federal Judges” (August 7, 2003).
8 Id.
9 Id.
10 Id.
11 L. Morahan, “Anti-Porn Bill Targets Internet ‘File Sharing,’” CNSNews.com (July 28, 2003).
12 Id.
13 Id.
14 Id.
15 Id.
Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, FirstAmendment.com or AOL Screen Name: “Webattorney”.
