Free Speech X-Press Delivering Weekly Censorship Updates to the Adult Industry Vol. VIII, No. 26, May 19, 2006 — A Member Service of the Free Speech Coalition __________________________________________________________ Free Speech X-press is researched and edited by Kat Sunlove and Layne Winklebleck. Copyright 2006 Free Speech Coalition. Permission to reprint granted to FSC members; please give credit. __________________________________________________________ VISIT OUR WEBSITE FOR FSC MEMBERSHIP INFORMATION http://www.freespeechcoalition.com __________________________________________________________
SAN DIEGO, CA — An FSC membership meeting is scheduled for 11:30 AM to 1:00 on Sunday, June 11, (room location to be announced) during the Cybernet Expo in San Diego. Speakers will include FSC Deputy Director Scott Lowther, First Amendment attorney Eric M. Bernstein, FSC Board Director Connor Young and FSC General Counsel Jeffrey Douglas. No doubt the meeting will be very upbeat thanks to the recent victory in defeating the .XXX Domain scheme. FSC Executive Director Michelle Freridge will moderate a discussion of the current state of FSC and the latest issues threatening free speech.
Also at Cybernet Expo, don’t miss the panel discussion of First Amendment issues scheduled on Saturday, June 10, from 1:30 PM to 2:30 (room location to be announced). See seminar schedule for details.
SUPREMES DENY CERT IN EXTREME ASSOCIATES CASE
WASHINGTON, DC — The Supreme Court has denied cert (refused review) in the Extreme Associates appeal of a decision by the U.S. Third Circuit Court of Appeals. Basically, that means the obscenity charges in the high-profile federal case against Rob Black and Lizzy Borden are reinstated and the matter will go back to U.S. District Court Judge Gary Lancaster’s western Pennsylvania court for trial. Many legal issues must be resolved, however, so it will probably be some time — perhaps a year or more — before an actual trial can take place. (See Mark Kernes’ AVN report for details.)
Extreme Associate attorneys Louis Sirkin and Jennifer Kinsley had formed a defense based on privacy rights as defined in Lawrence v. Texas and convinced Judge Lancaster of their logic. Lancaster dismissed the obscenity charges, which resulted in a huge national uproar, with prominent U.S. Senators Owen Hatch (R-UT) and Sam Brownback (R-KS) publicly castigating Lancaster and setting up a series of high-profile committee hearings, largely in reaction to the ruling.
On the government appeal, the Third Circuit said that Lancaster had reached too far, and that only the Supreme Court could change obscenity law to that extent. The Third Circuit did not rule on the merits of the privacy rights argument, however, and the denial of cert by the Supreme Court says nothing about how the high court might rule if the case goes back to the Supremes on appeal.
From Mark Kernes, Adult Video News
See also: Q. Boyer, YNOT, 5/12/06
For a partial history see also Jake Tapper’s ABC News Nightline summary, 1/24/05
JUDGE RULES AGAINST SWINGERS GROUP ON 2257
CLEVELAND, OH — A challenge to the federal record-keeping law U.S.C. 18 §2257 by a swingers publication — a challenge that that has been bouncing around the Ohio courts since 1995 — has been decided, once again, by U.S. District Court Judge John M. Manos in favor of the government in every respect, although there was one interpretation of statute which can be read in a way favorable to the industry (see below).
The case is Connection Distributing Co. v. Gonzalez. In 1995, Connection Distributing Co. filed a lawsuit asking the court to enjoin enforcement of U.S.C. 18 §2257. On May 25, 2000, the Court granted summary judgment in favor of the government, ruling that the statute was constitutional. On appeal, however, the Sixth Circuit sent the case back to the District Court for reconsideration in view of Supreme Court decisions that had been decided subsequent to the District court’s ruling. In addition to new Supreme Court decisions, there had also been amendments by Congress (The Protect Act) and “revisions” to the 2257 requirements by the Department of Justice.
Judge Manos reviewed each of the Supreme Court decisions specified by the Sixth Circuit, as well as some other cases and congressional amendments and changes by the DOJ, finding in each instance that the cases and amendments were irrelevant to his original ruing that the 2257 statue was constitutional. The one matter decided which might be seen as favorable to Connection Distributing and to the adult industry had to do with web-hosting features in which interior web pages were essentially managed by individual member swingers with little or no control over content by Connection Distributing. Connection argued that it would be impossible for them to monitor the postings in thousands of member profiles, each containing numerous pictures (up to one hundred) and subject to frequent change. They also argued that they could not control what is said in the chat rooms and shown using web cams.
When considering this issue, the court determined that existing statues already provide an exemption for such situations. When Connection provides web-hosting services and/or remote computing services as to which they reasonably cannot manage the sexually explicit content, they are exempt from the requirement that they keep 2257 records, said the court.
According to First Amendment Attorney Larry Walters, while the overall decision can be viewed as essentially a disaster for the industry, and as bad precedent for the upcoming decision in the Free Speech Coalition challenge, the part of the ruling dealing with web-hosting is a “golden nugget.”
“This is a potentially important holding by the federal court,” said Walters, “and the first of its kind. The scope of these hosting exemptions had not been interpreted by any court thus far. Potentially, they could be read to apply only to traditional, mainstream hosting companies and ISP’s, as opposed to webmasters who provide pages, or ‘areas’ of their site for others to manage. While this holding only affects webmasters in that narrow category, it should be seen as a positive development.”
Information is from the opinion Connection Distributing Co. v. Gonzalez 5/10/06
(We could not find a URL for the case. FSC members can request an email copy from Layne@inreach.com)
Some information also drawn from comments by First Amendment Attorney Larry Walters.
JURY AWARD TO DANCE CLUB AFFIRMED ON APPEAL
SAN BERNARDINO, CA — The California 4th District Court of Appeal has affirmed a jury’s $1.4 million award to Randy Welty’s Flesh Club. The exotic dance club was forced to close for four years from 1995 to 1999 after a Superior Court judge granted the city’s request for an injunction based on a city ordinance. However, after a series of appeals another trial judge ruled the ordinance was so restrictive it was unconstitutional. The 4th District Court of Appeal affirmed the ruling, and the state Supreme Court declined review. The club reopened in 1999.
Shortly thereafter, attorney Roger Jon Diamond filed his complaint alleging the club was entitled to payment for damages suffered when it was closed under the ordinance. The club asked for $2.6 million in damages, After deliberating for six days over a two-week period, the jury awarding Welty $1.4 million for profits lost during the four years. (See X-Press report “Dance Club Scores Partial Victory,” 6/4/04)
Diamond called the recent 4th District decision a "total victory for the club." He said the opinion would send a "strong" message to cities statewide.
"It will tell cities they need to be very careful before trying to shut down an existing business if it’s protected by the First Amendment," he said.
Diamond said he now would focus his attention on seeking up to $500,000 in attorney fees in the case.
Information source: Jason W. Armstrong, Daily Journal, 5/12/06 (URL not available)
Thanks to LK and to Jim Everett for the news alert.
FRIST TAKES ANOTHER STAB AT INDECENCY
WASHINGTON, DC — This week Senate Majority Leader Bill Frist made his second recent attempt to call up legislation to increase fines by ten-fold for broadcasting indecent material. According to a Congressional Quarterly report, Frist is working to muster support for S193, sponsored by Senator Sam Brownback (R-KS), which would up fines levied by the Federal Communications Commission against television broadcasters that air obscene, indecent or profane material from $32,500 to $325,000 per violation. Less than two weeks ago, he tried unsuccessfully to activate legislation sponsored by Representative Fred Upton (R-MI) that would increase such fines to $500,000 per incident.
Among those voicing strong opposition to the proposed increases in fines is the Center for Creative Voices in Media, whose members include big Hollywood names and production companies.
Some information is from John Eggerton, Broadcasting and Cable, 5/15/06
Information also drawn from a Congressional Quarterly Report
SENATOR SHOPS A LA CARTE AMENDMENT
WASHINGTON, DC — In another effort to give consumers choice in selecting cable television programming, Senator Ron Wyden (D-OR) is shopping for a Republican co-sponsor for his bill which offers a three-pronged approach to the issue. Because Wyden does not serve on the Senate Commerce Committee where such bills are heard, he needs a committee member to offer his text as an amendment to S 2686, a broad telecommunications bill authored by Committee Chairman Ted Stevens (R-AK).
Wyden’s bill would put pressure on cable operators to offer three options: a family tier with programming suitable for children, programming tiers covered by broadcast indecency rules or channels provided on an a la carte basis.
Information from Ted Hearn, Multichannel.com
OTHER NEWS OF THE WEEK
The Louisiana House has passed a violent video game law similar to laws ruled unconstitutional in several federal courts.
Advisory questions may be put on the ballot in North Las Vegas to find out how residents feel about adult entertainment businesses locating in the community.
Another Kansas grand jury is to be convened under a law that requires grand juries if enough signatures are gathered on petitions.
Bob Tremont Golf Tournament
The Gala 19th Annual Night of the Stars Awards Show
The Bob Tremont Golf Tournament
(See Calendar below for dates)
TICKETS AND SPONSORSHIPS
Event Sponsor $2,000 (Foursome, Hole Sponsorship, & additional recognition)
Foursome & Hole Sponsor $1,300
Hole Sponsor $500
Individual Ticket $260
19TH Annual Night of the Stars Awards
Event Sponsor $5,000
Program Sponsor $3,000
Table Sponsor $1,500
$175 (Purchased before June 1, 2006)
$200 (Purchased on or after June 1, 2006)
$1,600 (Purchased before June 1, 2006)
$1,800 (Purchased on or after June 1, 2006)
Night of the Stars Program Advertising
Full page, Full Color Ad (81/2×11) $500
Half page, Full Color Ad (81/2×51/4) $250
Quarter page, Full Color Ad (41/4x 51/4) $125
Business Card Size, Full Color Ad (2×5) $75
For application materials or additional information, contact Valerie Vizmanos or Michelle Freridge by email or at 818-348-9373
MAY 25-29 — Mr International Leather, Chicago, IL
MAY 27 — Azania Fetish Ball, Phoenix, AZ
JUN 1 — Black & Blue Ball, New York, NY
JUN 8-9 — Sex in Video Games conference, San Francisco
JUN 8-11 — Cybernet Expo 2006, Shelter Pointe Hotel, San Diego
JUN 9-11 —Exxxotica Miami Beach, Miami Beach, FL
JUN 16-17 — Exotic Erotic Expo and Ball, New York, NY
JUN 18 — Folsom Street East, New York, NY
JUN 17 — Leather Pride Night, New York, NY
JUN 17 — Rock N Roll Bingo, Benefit for FSC, L.A. CA
JUN 23-25 — Erotica Los Angeles, L.A. Convention Center
JUN 27-JUL 1 — AASECT Annual Conference, St Louis
JUL 12-14, XBiz Summer, Las Vegas, NV
JUL 15 — Night of the Stars, L.A. Center Studios, L.A. CA
JULY 16 — Bob Tremont Golf Tournament, Vista Valencia GC, Valencia, CA
JULY 17-19 — Adult Novelty Expo, Universal, CA
See our Website Calendar for a more complete calendar of events scheduled for 2006.
Subscriptions to Free Speech X-Press are FREE to FSC members. Contact us at Sunlove@direcway.com or 800-476-7813.