Guilt by Extreme Association
by Lawrence Walters, www.firstamendment.com
The argument goes something like this:
Defense counsel: Your Honor, you can't apply the community standards of Western Pennsylvania to online content originating from California.
The Government: But Your Honor, the Defendant sent video tapes into this community, and was certainly aware that their content would be received in that location.
The Court: How is this different from any other case where a national distributor sends video tapes to various locations across the country?
Defense Counsel: Well, Your Honor, my client did not know that its Web site content would be downloaded in Pennsylvania even though it sent similar content through the mail to that location.
The Court: Are you asking this Court to instruct the jury to apply a different set of community standards to the online content as opposed to the video tapes?
Defense Counsel: Possibly, or maybe there should be a national standard applied to the Web site content, and a local standard applied to the video tapes.
The Court: Well, it seems that the jury will get awfully confused on what standard they must use to evaluate the legality of these materials, don't you think, counselor?
The Government: Your Honor, If Extreme knew that it may be subject to the community standards of Pittsburgh, Pennsylvania, when sending video tapes there, the Court should apply local community standards for our purposes when evaluating Extreme's Web site content.
Defense Counsel: But Your Honor, there's a difference...
The Court: Sounds reasonable to me.
The United States government has, without a doubt, thought through many of the legal and constitutional arguments that will be raised in the defense of the Extreme Associates prosecution. The feds often pick specific issues and venues in the attempt to establish precedent in their favor. The Extreme Associates prosecution may be one of those cases. As noted earlier, the government could be starting with the fringe material and working its way to mainstream erotica. According to one Justice Department official, "There is no particular behavior that is off the table." Along the way, this approach could be calculated to establish precedent favorable to the government to assist in prosecution of the more mainstream material. It will take a team of talented and dedicated attorneys, along with some brave federal judges to recognize what the government is trying to accomplish, and put a stop to this blatant censorship campaign. Should the government obtain victories in the earlier, more difficult cases, that precedent will come back to haunt the industry in a big way. An acquittal in the Extreme Associates case, on the other hand, could prove a huge setback for the government.
The Extreme Associates case should serve as a call to arms for the adult Internet industry, since rulings in that case will undoubtedly affect the industry as a whole. Our industry did not assist in any way with the first federal obscenity prosecution against adult webmasters in Beckley, West Virginia. Consequently, the amateur couple producing videos for sale on a Web site, along with their webmasters - have all pled guilty to one count of conspiracy to distribute obscene materials, in exchange for the dismissal of three other counts. The industry now has an opportunity to get involved in this current prosecution which specifically involves material downloaded from the Internet. Groups such as the Internet Freedom Association (www.OnlineFreedom.com) and the Free Speech Coalition (www.FreeSpeechCoalition.com) need your support and membership. If the industry turns its back on webmasters producing extreme or fringe content, the feds may soon be coming for you with a long line of victories in their hip pocket to use against you. Keep in mind, the federal government has unlimited financial resources to prosecute these cases, under the recently-passed PROTECT Act. On the other hand, adult webmasters number in the tens of thousands, and command the attention of millions of online Web surfers. This industry can fight back financially and politically by pooling its resources to fight these first few cases brought by the government, and by using the great communication tool called "the Internet" to remove the censors from power.
Rumor already has it that Attorney General John Ashcroft may not return to his post if George Bush is elected to a second term. Ashcroft is already on the ropes, trying to defend the USA Patriot act, however his attempts to do so have met with a cool reception. It has now been established that the Act has been used against common criminals, instead of reserved for the terrorists, as promised. If the moderates and political advisors in the current administration get the message that this campaign against erotica will cost them significant votes from the mainstream, merely to pacify the ultra-right-wing zealots, this obscenity campaign will be dropped like a hot potato fresh out of the microwave oven.
The adult Internet industry resents and resists organization and cooperation like the plague. On the one hand, it is such individualistic and rebellious attitudes that make adult webmasters such enjoyable clients to represent. However, in the interests of industry survival, the ego attachments and natural distrust of any sort of formal organization held by the adult webmaster community must give way to a collaboration based on the consistency of interests associated with fighting government censorship in the early stages. There is still time.
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, www.FirstAmendment.com or AOL Screen Name: "Webattorney."
Part 1: Exreme Association...
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