Delivering Weekly Censorship Updates to the Adult Entertainment Industry
Vol. X, No. 20, May 25, 2007 - A Member Service of the Free Speech Coalition Free Speech X-press is researched and edited by Scott Ross.
Copyright 2007 Free Speech Coalition. Permission to reprint granted to FSC members; please give credit.
Anti-porn Campaigners Petitions Seeking Grand Jury Investigations in Kansas and Missouri
KANSAS CITY, KS . - Last week leaders of local churches in six counties in both Kansas and Missouri turned in petitions requesting grand jury investigations of adult businesses in their communities for the "promotion of obscenity." A total of 32 businesses, including strip clubs, adult retailers, and video rental stores, were targeted.
"It went very well," Phillip Cosby, executive director of the Kansas City chapter of the National Coalition for the Protection of Children & Families (NCPCF), the organization that spearheaded the petition drive, told XBIZ. "There was a meeting that culminated the delivery of a little over 20,000 signatures of registered voters in the six-county area.
It was fairly dramatic to hit six counties in the same day. The prosecutors received the petitions well. We have had good conversations with them about the Missouri and Kansas obscenity statutes. We want the community standards question allowed and asked in the Kansas City area"
The petitions will likely result in grand jury investigations for at least the businesses targeted in Kansas, where state law allows citizens to call for grand jury investigations. Missouri does not have a similar mechanism for the pubic to request a grand jury, but prosecutors who received the petitions in question in Missouri released a joint statement last Thursday saying they were alerting the businesses targeted to be aware of the state's obscenity law.
"We would hope that the prosecutors on the Missouri side are moved to listen to those people in Missouri that did sign, asking that the obscenity statutes be enforced. But it is up to their discretion," Cosby told XBIZ.
Cosby first rose to prominence in the national anti-porn movement due to his success in previously organizing similar petition drives that led to grand jury investigations in Kansas.
http://xbiz.com/news_piece.php?id=23126
Attorney Fights Houston Anti-Adult Ordinance
HOUSTON - Adult businesses in Houston face an impending crackdown under the city's decade-old adult business ordinance, which was recently given district court approval after a remand from the Fifth Circuit Court of Appeals.
But AVN.com reports the battle of the controversial ordinance is not yet over. First Amendment attorney John Weston, who represents two of the largest adult cabarets in the city, continues to brand the ordinance unconstitutional, and has filed a motion with the Fifth Circuit for a stay of enforcement and/or an injunction against enforcement pending appeal that he believes he will be granted.
"Nothing is over," Weston declared. "We think there are very, very major issues to be raised, including some matters that the district court just rendered decisions on that are the only ones in the history of the country that have ever been rendered in this fashion, and in the Fifth Circuit, the standard for getting a stay is basically, you just have to show that there are serious questions that you're raising, that the balance of hardships tips in favor of the party asking for relief, and that there's no serious hardship that would result to the other side in granting the motion."
"The city withheld enforcement while the case was still at the district court level," Weston explained, "because in addition to filing a motion for injunction or stay pending appeal, we also filed a motion to alter or amend the judgment, which has the effect of staying the judgment, and the judge then ultimately denied both motions simultaneously, which had the effect of leaving us essentially naked and subject to enforcement. The city has taken the position, in a letter that it wrote to us, saying that it opposed our motion for injunction or stays pending appeal, and would, unless stayed by the court, enforce. And the city is at least taking that position in public statements, and I assume that the city will proceed against one or more businesses at this time."
Whether the city actually does so will depend on how quickly the Fifth Circuit acts on Weston's motion, which is likely to be joined or adopted by a number of the other 193 individuals and businesses which originally sued the city over this ordinance back in 1997.
Part of the intricacy of this fight is that Houston doesn't actually have zones or zoning laws, though the state has allowed the city to enact various ordinances which have effects very similar to the zoning ordinances found in other jurisdictions.
However, one difficulty that the lack of zones - residential, commercial, and industrial, etc. - has created for both sides of this conflict is how to define the areas where the city says it will allow adult businesses to locate. The city "solved" that problem by creating what it called "residential circles," which are defined as any area of the city with a 1,000 foot radius within which 75% or more of the buildings are residences.
Unfortunately, the city has never bothered to map out just where those "residential circles" are located.
"The trial court relied on a novel theory that the existence of adequate 'alternative sites' can be proven solely by a city council's intent and reasonable belief, and that it is not necessary for a city to prove the existence of such sites in court," Weston's motion argues. No other court in the nation has embraced that proposition. There have now been countless legal challenges to adult zoning ordinances based on their failure to provide an adequate number of alternative relocation sites.
"This is the sort of thing that's absolutely empirically verifiable," Weston stated. "It doesn't matter whether the city thought there were adequate alternative sites, even if the information on which they relied was reasonable. The point is whether in fact there are. And the ordinance is not constitutional unless it provides adequate sites. That's historic, as far back as Renton v. Playtime Theatres, [a seminal adult zoning case]."
Weston's motion makes the point that no matter how the Fifth Circuit decides any of the issues he's raised, "this case is of such significance that it is inevitable that either the City or appellants will seek further review of any adverse ruling" because of the "unusually large number of significant constitutional issues." Therefore, he argues, the appeals court should maintain the status quo regarding adult businesses and restrain the city from enforcing its ordinance.
"As we've pointed out, 'Look, the kinds of things that you talk about here that you think are the terrible things, if they were so bad, how come you weren't enforcing the ordinance against all the people that weren't protected by the [prior] injunction for the last 10 years? And more importantly, you've got all the laws you need. If you're saying you're concerned about prostitution, Texas has some very strong anti-prostitution laws.' Basically, any problem they claim that this ordinance will correct, they already have the power to deal with without it."
The Fifth Circuit has no deadline by which it must consider Weston's motion, and as noted above, it took six years to issue its ruling on the original summary judgment. But the sooner it does act, the sooner Houston can enforce whatever legitimate rules are left to it ... and the sooner adult businesses can carry on without the cloud of impending disaster hanging over their heads.
http://avn.com/index_cache.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=289130
9th Circuit Ruling Could Affect Adult Websites
PASADENA, CA. - A recent decision by the 9th U.S. Circuit Court of Appeals opens the possibility that adult matchmaking websites are in danger of losing their "safe-harbor" protections provided by the Millennium Copyright Act (DMCA), according to an AVN.com report.
In a 2-1 ruling, the 9th Circuit ruled that Roommates.com did not qualify for similar safe-harbor protections provided by the Communications Decency Act (CDA) failed because the website set out to collect information in a manner that helped shape the content.
The ruling can be interpreted to mean that safe-harbor protections do not apply to content published on a website by people other than the site's owner.
Roommates.com created a computer program that filtered applicants for co-habitation reasons. Roommate seekers listed characteristics about themselves and what preferences they sought in a potential roommate. In the Roommates.com registration process, the website asked questions about a user's gender, sexual orientation, and number of children.
The Fair Housing Councils of San Fernando Valley and San Diego sued Roommates.com, alleging that by asking for certain roommate information, the company violated the Fair Housing Act by assisting landlords in discriminating against certain prospective tenants.
In its defense, Roommates.com countered the Fair Housing Councils' assertion by stating the lawsuit was ineffective as to Roommates.com, because the online company was protected by the CDA Safe Harbor provision. A lower court initially agreed with Roommates.com's defense and entered a judgment stating the online company could not be sued based on CDA section 230 Safe Harbor immunity.
The Fair Housing Councils appealed the case to the three-judge 9th Circuit Panel. In a divided ruling, Judge Alex Kozinski wrote in his majority opinion that, "if it [a website] is responsible in whole or in part, for creating or developing the information, it becomes a content provider and not entitled to CDA immunity."
So, is the 9th Circuit's present decision in the Roommates.com case a foreshadowing of future legal actions against online adult dating websites, ones in which it will be argued that the DMCA Safe Harbor does not apply? Perhaps.
Adultfriendfinder.com, Alt.com, and even traditional dating sites like Harmony.com and Match.com always are looking for creative ways to differentiate people for matchmaking purposes. The questions they ask certainly appear to constitute the creation of content applying the judicial logic in Roommates.com decision.
One notable attorney took issue with the Roommates.com ruling. "While I understand the court's reasoning regarding the 'closed ended' questions barring Roommates from Section 230 immunity, I have a real struggle with being on that slippery slope to begin with," said Seattle-based attorney Robert S. Apgood. "Why can't we be open to the use of selection criteria when choosing with whom we wish to live? Doesn't Roommates.com facilitate a more efficient vehicle for that selection?"
The ability to choose a roommate is quite similar to choosing a mate. "The selection of a mate [is] tantamount to the selection of with whom one lives." Apgood added. "How very thin is the line between selecting a date and selecting a mate?"
This isn't to say that the adult matchmaking sites are in imminent peril of losing their safe-harbor protections. In the 9th Circuit's holding, Kozinksi stated that removing safe-harbor protection is to be applied when content formation clearly can be used for a wrongful purpose. The judge states that safe-harbor provisions in the CDA do not provide immunity to those "who actively encourage, solicit, and profit from the tortious and unlawful communications of others."
In other words, context matters.
http://avn.com/index_cache.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=289187
Sentencing Delayed for Fourth Time in Classroom Computer Porn Case
NORWICH, Conn. - Sentencing has been delayed for a fourth time in the controversial case of Julie Amero, the former substitute teacher who faces up to 40 years prison after her conviction on charges that stem from pornographic pop up ads appearing on a classroom computer.
The sentencing hearing for Amero, which was scheduled for last Friday, has been moved to June 6. She was originally scheduled for sentencing on March 2 after being convicted of four counts of risk of injury to a minor in January in a case that many believe never should have been brought to trial.
No explanation for the new sentencing date was offered by either the prosecution or defense.
Amero was substitute teaching a seventh-grade class in October of 2004 when pornographic material began to appear on the classroom's computer. Several of the children saw the adult images, which appeared for at least two hours.
Amero claims that while she had accessed the Internet during the school day, she did not visit any adult sites. She believes that the adult images were the result of malicious software that was likely inadvertently installed prior to her use of the computer, a contention that has drawn the support of computer experts around the world.
Key testimony from a defense expert that would have supported that the pop-up ad defense was barred by the presiding judge after Amero's defense lawyer failed to file the proper paperwork. Prominent Connecticut attorney William F. Dow III has recently taken over her defense.
http://www.norwichbulletin.com/apps/pbcs.dll/article?AID=/20070518/NEWS01/705180324/1002
Lobbying Process 101 - Continued
In our previous two installments, we've watched a health-related initiative (mandating sugarless sodas only in America's public schools) begin its journey through Congress via a start-up coalition and an interested congressman. The bill is currently being considered by the Health Subcommittee of the U.S. House's Energy & Commerce Committee, which has held a hearing on the bill to flesh out its pros and cons. The time has come for a subcommittee vote. How do the Members decide?
Since word of the bill first got out, Member offices have been deluged by requests for time. Food-related trade associations, soda companies, and press outlets have all called relevant staffers asking for intelligence and information about the bill and predictions on what will happen. Staffers have endured dozens of meetings with these "stakeholders", all the while briefing their bosses (the Members of Congress) on who wants what and who should be listened to. As mentioned in part two of this series, Members have a lot to consider in weighing how to vote, from their constituents' opinions to the impact on businesses in their respective districts to the spin the media could unleash on their decisions. Each Member has his or her own interests to protect and districts to represent, so none of these decisions are easy. One Member may have a disproportionate number of obese children in his or her district, so voting for the bill would be a great decision toward improving the health of that district's children. However, another subcommittee Member might have a large soda company headquartered in-district, so a "yes" vote on the bill would anger the company and the hundreds (if not thousands) of employees who vote to keep that Member in office. And, as you've probably guessed, contributions to the committee Members' campaigns could be affected, as food and beverage companies might express their displeasure with a "yes" vote by sending their money elsewhere.
The time has come for Members to weigh all of the considerations and decide what to do. They have all that they need to make an informed decision, having spoken to all of the relevant stakeholders and been thoroughly briefed by staff. Members know who's for the bill and against it, and it now boils down to what's best for the district. Looming, however, are donor concerns, the whims of the subcommittee's chairperson (who always has an opinion on which way the vote should go) and, of course, the Member's own beliefs and ideals. Do they offer amendments to the bill (which any subcommittee Member can propose) to alter/improve/strip certain language in furtherance of their stakeholders and constituents? Do they vote for the amendments of other Members? It's gut-check time.
Votes are cast and the bill narrowly makes it out of the Health subcommittee. This will make the voting at the full committee (Energy & Commerce) level even more contentious, as Members who are not on the Health subcommittee have been waiting for an opportunity to be heard and offer their amendments. The chairperson of the full committee now presides over the action, and maintains procedure and order throughout the full committee markup. The Health subcommittee had 33 Members offering their opinions, amendments, and views and now the musings of 24 additional individuals must be considered. Additionally, the full committee Members who are not on the Health subcommittee (but rather on other Energy & Commerce subcommittees) weren't able to ask questions at the subcommittee hearings on the bill, so they might ask the chairman to hold another hearing or set of hearings. It pandemonium to a degree, but nothing like what the bill will endure if it passes out of the full committee and heads to the House floor for "final passage" before the entire U.S. House of Representatives.
Victory! The bill survives the committee craziness and now heads to the main event (or, more properly stated, the House floor). Now is the time for the remaining 378 Members of Congress to air their views on the bill, with the 57 Energy and Commerce Committee Members all still in the mix as well. However, there is a semblance of order to be sure, as a number of rules govern the consideration of bills on the floor of the full House. Rather than tick through all of them (there's a book-full), know that one of the most important and constrictive rules governs the offering of amendments to bills in front of the full House, and how they must be germane (or relevant) to the legislation being offered. The powerful House Committee on Rules (yes, yet another committee) governs what amendments can and can't be offered, and there is much wheeling and dealing in this regard. Thus, if a Member of Congress wanted to attach to our health bill an amendment granting favorable trade status to another country, it would probably be blocked and wouldn't be considered. Or would it? Again, the Rules Committee is a unique and complex animal where many deals are done.
After vigorous floor debate on our bill, with Members from all over the country offering their five-minute views (as is usually the allotted time during floor debate), a vote of the full House - all 435 Members - is conducted to determine final passage. And…it…PASSES! Final tally is 252-183, and the Eat Smart Coalition, which generated the initial idea for the bill, can now celebrate.
So that's it, right? The bill now becomes law? Sadly, it's not even close. The bill is now sent to Congress's other body, the U.S. Senate. It will wend a similar path through comparable committees and debate, and hopefully survive to reach the Senate floor. If passed, it must then go through additional scrutiny in a House/Senate conference, which is comprised of House Members and Senators who oversee the final details and particulars of the bill. THEN, the finished bill is presented to the President of the United States, who can either sign it into law or kill ("veto") it via the powers vested in him (or her!). The only way to override a veto is by another vote of the full House and Senate (comprised of 100 senators) for just that purpose, which must result in two-thirds of all Members voting to override the President's decision (so the vote must result in at least 288 House votes and 66 Senate votes). Should the President's veto survive, the bill dies but can be re-introduced only to undergo the same, massive trek that it's already been through to hopefully reach the President's desk and decision-making power again in the future.
Fun! Who wants to register to become a lobbyist?! Single-file, please. No pushing.
Email Xpress@freespeechcoalition.com for more information.
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MAY 26 - Arizona Fetish Ball, Scottsdale, AZ
JUNE 7-10 - Cybernet Expo, Tampa Bay, Florida
JUNE 22-24 - Erotica L.A., Los Angeles Convention Center
JULY 16-18 - ANE - Adult Novelty Expo, Universal City, CA
AUGUST 27-30 - Annual Gentlemen's Club Owners Expo, Las Vegas, NV
AUGUST 27-30 - STOREROTICA Convention and Tradeshow, Las Vegas, NV
SEPT 21-23 - ADULTCON, Los Angeles Convention Center
You can turn painful situations around through laughter. If you can find humor in anything, even poverty, you can survive it.
-- Bill Cosby
A successful man is one who can lay a firm foundation with the bricks others have thrown at him.
-- David Brinkley
