Free Speech X-Press Delivering Weekly Censorship Updates to the Adult Industry
Vol. VIII, No. 9, Jan 20, 2006 — A Member Service of the Free Speech Coalition __________________________________________________________ Free Speech X-press is researched and edited by Kat Sunlove and Layne Winklebleck. Copyright 2005 Free Speech Coalition. Permission to reprint granted to FSC members; please give credit. __________________________________________________________ VISIT OUR WEBSITE FOR FSC MEMBERSHIP INFORMATION http://www.freespeechcoalition.com __________________________________________________________
INDUSTRY REPRESENTATIVE AT SENATE HEARING WASHINGTON, DC — Misinformation and threats of legislative action against the adult Internet characterized a recent hearing of the Senate Commerce Committee here, titled “Protecting Children on the Internet.” The adult entertainment industry had a spokesperson present for the first time in such a meeting, First Amendment attorney Paul Cambria, who testified on behalf of the Adult Freedom Foundation and tried valiantly to carry an olive branch to Congress, expressing a willingness to work with the Committee in an effort to find ways to protect children and the First Amendment rights of adults at the same time. However, Committee Chair Ted Stevens (R-AK) immediately responded to Cambria with anger and threats, demanding to know why the adult industry had not devised a self-rating system. Cambria responded that adult producers were willing to do so and that it was a matter of organizing the industry, an unfortunate response in the eyes of some observers. In fact, Web browsers have long supported the Internet standard called PICS, or Platform for Internet Content Selection. Internet Explorer, for instance, permits parents to disable access to Web sites rated as violent or sexually explicit. Many adult Web sites have voluntarily labeled themselves as sexually explicit. Playboy.com and Penthouse.com, for instance, rate themselves using a variant of PICS created by the nonprofit Internet Content Rating Association. Unaware of this, Senator Stevens told Cambria that if the industry did not come up with a rating system, and soon, Congress would mandate one. However, as CNET commentator Declan McCullagh points out in his report on the hearing, mandatory rating systems have frequently been struck down as violations of the First Amendment. It is, for example, unconstitutional for governments to enforce the Motion Picture Association of America’s movie-rating system. The Supreme Court has said that the right to speak freely encompasses the right not to speak–including the right not to be forced to self-label. Although some opportunities were missed during this hearing to clarify rating systems and other aspects of the problem of children having access to adult materials on the Internet, it is nonetheless a step forward that a representative of the industry was invited to the hearing and Senator Stevens deserves credit for that. In stark contrast, it is unfortunate that the hearing provided a format for Senator Blanche Lincoln (D-AR) to tout her naïve but dangerous Internet Safety and Child Protection Act, which would require age verification prior to the display of adult entertainment materials on a Website and which provides for a 25% sales tax on so-called “regulated pornographic Websites,” which are defined as any Website that is required to maintain documents under the federal 2257 record-keeping law. Lincoln has refused to accept input from the adult industry, relying instead on a study by a progressive group called the Third Way Culture Project. The report, “The Porn Standard: Children and Pornography on the Internet,” contains dated and highly erroneous information. For example, the report accuses adult webmasters of actively targeting childrennot only as customersbut also as participants in their products. This is, of course, nonsense, as adult Internet professionals would be only too happy to explain to Senator Lincoln if they had the chance. From Declan McCullagh, CNET News.com, 1/19/06 And from Connor Young, YNOT.com, 1/19/06 __________________________________________________________
GOOGLE FIGHTS THE FEDS ON RECORDS SUBPOENA SAN JOSE, CA — The Justice Department has filed a motion here asking a federal judge to force Google to comply with a subpoena for millions of search records. Prosecutors want a random sampling of 1 million Internet URLs and a random sampling of 1 million search queries submitted to Google over a one-week period. The feds want to analyze the random data, along with similar data obtained from other major search engines, as they build a case supporting the 1998 Child Online Protection Act (COPA). Prosecutors want to prove that COPA would be "more effective than filtering software in protecting minors from exposure to harmful materials on the Internet." In 2004 the Supreme Court left standing an injunction against enforcement of COPA, which would impose criminal penalties for commercial Internet sites that contain “harmful matter,” unless credit cards or other age verification methods are used. At the same time, the court left open the possibility that COPA might ultimately be upheld. Sending the case back to the lower courts, Justice Kennedy, writing for a narrow (5-4) majority, said the government must show why the voluntary use of filters to screen out material unsuitable for children would not work as well as the COPA criminal law. Now the government is trying to do just that by using the subpoenaed search engines to develop a factual record of how often Web users encounter adult materials online and how Web searches turn up material the government says is “harmful to minors.” To analyze the logs, the Justice Department has hired Philip Stark, a professor of statistics at UC Berkeley. Stark said that analyzing information from Google and other search engines would let him estimate the prevalence of materials which are harmful-to-minors and the effectiveness of content filters in blocking it. In other words, Stark apparently plans to create a miniature model of the Web for analysis and then test filters against it. Google has announced they will resist the request for data “vigorously.” In their response to the DOJ, Google objected on a number of grounds, among them that they did not view their data as being properly subject to a government subpoena for such a purpose. An attorney for the ACLU said Microsoft, Yahoo and AOL received identical subpoenas and chose to comply with them rather than fight the request in court. However, Yahoo claims they did not provide any personal information in response to the Justice Department’s subpoena and therefore they did not view it as a privacy issue. From Declan McCullah, Elinor Mills,CNET News.com, 1/19/06 And from Howard Mintz, San Jose Mercury News, 1/19/06 __________________________________________________________
CHRIS WILSON PLEA AGREEMENT LAKELAND, FL — There is apparently a final resolution in the Chris Wilson obscenity case. The whole legal affair has been bizarre, and for observers in the adult Internet, universally almost unbelievable. Wilson, 27, has finally pleaded no contest to five misdemeanor counts of possession of obscene materials and will be placed on five years probation. One can hardly blame him for copping a plea. Polk County officials had filed a felony charge and 295 other misdemeanor charges against him, and at the rate the ludicrous backwater Florida law enforcement was going, who knows what might have happened in a trial. Probation, unfortunately, is not the same thing as getting off, and Wilson will continue to be under the thumb of the law for some time. The good news is he was credited with time-served in the county jail, so he will not have to serve any additional time, and he will not be classified as a sex offender. In addition, gallingly, Wilson agreed to pay the state investigative costs of $3,785.56. Part of that will be paid from cash seized when his apartment was raided by sheriff’s deputies in October. He also agreed to pay a $500 fine and court costs. Not to mention certain other not so minor expenses such as that at the time of his arrest Wilson’s total bail on multiple charges was set at $151,000 (prosecutors charged Wilson with one count of wholesale distribution of obscene material and 300 misdemeanor counts related to 20 online films and 80 photographs obtained from his Web site. For each film and photograph there were three counts — distribution of obscene material, offering to distribute obscene material and possession of obscene material with intent to distribute.) His parents had to cough up double the usual 10% for the bail bondman because state law requires that the minimum charge for each count be at least $100. Then, adding insult to injury, about Christmas time prosecutors talked the judge into revoking Wilson’s bail because his website was still online, thus constituting, in their eyes, an additional crime. Unknown if his parents got the bail money back. It goes on and on. X-Press readers already knows the story by now, so we won’t try to summarize all the gory details again. Our advise to Chris Wilson: If you every manage to get totally out of the clutches of Polk County Florida authorities, run, don’t walk, to the nearest outpost of civilization. (Hint: do not run towards Ohio. See following story) From Dana Willhoit, The Lakeland Ledger, 1/14/06 And from Kelle Griffith, The Orlando Sentinel, 1/14/06 __________________________________________________________
COURTS UNCLEAR ON THE CONCEPT PREBLE COUNTY, OH — From First Amendment attorney H. Louis Sirkin comes word of the following patently irrational legal travesty. Along with Sirkin’s fax of court documents from Ohio’s Twelth Appellate Court of Appeals to Legislative Affairs Director Kat Sunlove, Sirkin attached a note and disclaimer: “FYI. Take a look at this case. I just don’t believe it but it’s real. I WAS NOT INVOLVED IN THIS CASE.” The Ohio appeals court, it seems, has upheld the conviction of William Hubbard, a homeless man who had the misfortune of leaving his duffel in a barn where he had been sleeping, to be discovered by cops who were conducting a legal search in an unrelated matter. In the duffel was a notebook containing sexual fantasies and drawn sketches depicting sex with a child who was identified in the fantasies as an actual child with whom Hubbard had been acquainted — but with whom he had never had actual sexual contact (as confirmed by the child). Also in the duffel was a school photo of the child, as well as a pair of her panties. Hubbard explained that the child’s mother had permitted him to do laundry in her home on occasion and the panties had somehow gotten mixed with his laundry. On the basis of these admitted facts, with no other allegations of actual abuse of a child, Hubbard was indicted on one count of pandering obscenity with a minor and one count of pandering sexually-oriented material involving a minor. The trial court overruled Hubbard’s motion to suppress the evidence and his motion to dismiss based on the constitutionality of the pandering statute. Hubbard subsequently pleaded no contest to attempted pandering involving a minor. He was convicted and sentenced. On appeal, Hubbard attempted to argue that the statute on “pandering obscenity involving a minor child” was unconstitutional where the child was real but the sexual fantasies were all fictitious and there was no effort to create, reproduce or publish obscene material. The appeals court acknowledged that the Supreme Court in Ashcroft v. Free Speech Coalition (2002) had struck down legislation banning “virtual” pornography which did not depict, and consequently did not harm, real children. However, in this case, said the court, Hubbards writings and drawings did “depict” a real child, so Hubbard’s personal notebook was enough to send him to prison. An email copy of the appeals court decision PDF is available by request from Layne@inreach.com. __________________________________________________________
COME CELEBRATE FREE SPEECH IN CALIFORNIA It’s time to mark your calendar to attend our acclaimed lobbying training program, Celebrate Free Speech Lobbying Days (CFSLD), in Sacramento, California. The dates are Monday and Tuesday, April 24 and 25, 2006, and as always, space is limited. The two-day event will include a full day of political action training for participants, as well as our popular cocktail reception for legislators and staff. Deadline for applications is March 10, 2006. Call the Legislative Affairs Office at 1-800-476-7813 or e-mail email@example.com for more information and an application form. CFSLD continues to be an inspiring and empowering activity for those who attend and is a great staff development opportunity for industry leaders. Don’t miss it in 2006.
ERRATA: Returning FSC Director Nick Boyias of Marina Pacific was inadvertently omitted from the list of board members in last week’s X-Press. We apologize for the omission. __________________________________________________________