With the balance of the Supreme Court in play, all eyes were on the Justices this month as rumors of potential retirements ran rampant. As the Court announced its final decisions of this term, Chief Justice William Rehnquist playfully announced the only retirement would come from the Supreme Court’s law librarian.SUPREME COURT UPDATE
With the balance of the Supreme Court in play, all eyes were on the Justices this month as rumors of potential retirements ran rampant. As the Court announced its final decisions of this term, Chief Justice William Rehnquist playfully announced the only retirement would come from the Supreme Court’s law librarian. Thus, for now at least, some semblance of balance remains in the nation’s high Court – but how long will it last?
The Court gave the nation another pleasant surprise when it rendered its decision in Lawrence v. Texas, the now-famous Texas sodomy case.1 The decision went much farther than expected by striking down anti-sodomy laws across the country. It was based on an enhanced, due process based, privacy right to be free from governmental interference into private sexual behavior, overruling the 1986 Bowers v. Hardwick case, holding the precise opposite. While the Court could have easily rendered a narrow decision striking down the Texas law based on its unequal treatment of same-sex versus opposite-sex behavior, on well recognized equal protection grounds, it went much further by striking down all sodomy laws due to their impact on non-traditional lifestyles. The effect of this decision on future cases involving private sexual activity has yet to be felt, but it cannot be disputed that the mold for new constitutional arguments has just been forged, and civil rights lawyers now have a new weapon in their arsenal to be used when battling governmental interference in our sex lives.
One can only wonder whether last month’s decision from the federal court in Miami, Florida, holding that group sexual activity intended for live broadcast over the Internet is not constitutionally protected, would have been different if the Court had the benefit of this recent Supreme Court decision.2 In light of the fact that an appeal has recently been filed by the Plaintiffs in that Florida case, we may soon know the answer to that question. For bettor or for worse, the Eleventh Circuit of Appeal will soon likely render a decision on whether such conduct is constitutionally protected. Adult Industry Update will continue to monitor this important case for the adult industry.
PEER-TO-PEER BATTLE
The adult Internet industry may soon gain an unlikely ally: The Federal Bureau of Investigation. A bill entitled “The Piracy Deterrence and Education Act of 2003”3 requires the FBI to develop a program to deter online theft of copyrighted material, particularly through peer-to-peer networks.4 The bill also encourages copyright owners, ISPs and other law enforcement agencies to work together to battle this growing concern. Copyright protection apparently makes for strange bedfellows.
The proposal is not without its detractors, of course. The Electronic Freedom Foundation (EFF) predictably complains that the Bill apparently requires ISPs to reveal private information regarding users whenever asked by organizations such as the Recording Industry Association of America.5 It also gives the FBI “a chance to scare a lot of users into thinking the government is after them,” according to Wendy Seltzer, Staff Attorney for the EFF.6
SPAM AND EGGS (AND PORN)!
The recent onslaught of anti-spam legislation at the state and federal levels is being fueled by one thing: porn! Senator Charles Schumer (NY-D), an otherwise liberal legislator, has teamed up with the Christian Coalition to pass the Stop Pornography and Abusive Marketing Act, conveniently known as the SPAM Act.7 “Pornographic e-mail is really pushing people to act,” said Ray Everett Church, a consultant at EPrivacyGroup.com.8 The Christian Coalition hopes the anti-spam legislation will stop the “filth of pornography and junk e-mail that our children and grandchildren are receiving every day on the Internet.”9 The Act allows consumers to sue spammers for $1,000 dollars per unlawful message, and creates a national Do Not Spam registry, similar to the Do Not Call lists recently implemented at the federal level aimed at telemarketing solicitors.10 An influential Senate committee also passed a similar anti-spam measure imposing criminal sanctions on spammers, and providing the Federal Trade Commission with greater authority to track down guilty parties.11 Junk e-mail is now thought to make up over half of all e-mail communications.12
Morality in Media takes another tactic when it comes to reducing spam. It says that the answer lies in aggressive enforcement of Internet obscenity laws.13 “When U.S. Attorneys begin to vigorously enforce Internet obscenity laws (and, in appropriate cases, the RICO-Obscenity Law) against websites that market hardcore pornography, these websites will not be around to push unwanted porn spam into countless American homes and work places.”14 Remember the days when you could have your spam and eat it too?
[Editor’s Note: Stay tuned for part two of “Adult Industry Update: July 2003” in next week’s issue!]
1 Lawrence v. Texas, ___U.S.__, Case No. 02-102 (Jun. 26, 2003).
2 Theater v. Palm Beach Co. Sheriff’s Office, CV 02-80462 (S.D.Fla. May 21, 2003).
3 HR 2517
4 D. Becker, New Bill Injects FBI into P2P Battle, CNetNews.com (Jun. 20, 2003).
5 Id.
6 Id.
7 S. Emling, Porn Outrage Fuels Anti-Spam Push, Austin American Statesman (June 21, 2003).
8 Id.
9 Id., quoting Roberta Combs, President of the Christian Coalition.
10 Id.
11 A. Sullivan, Panel Approves Anti-Spam Measures, Washington Post (Jun. 19, 2003).
12 Id.
13 “The Best Way to Stop Porn Spam is to Enforce Internet Obscenity Laws,” says Morality in Media, US Newswire (Jun. 13, 2003).
14 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”.
