Delivering Weekly Censorship Updates to the Adult Entertainment Industry
Vol. X, No. 28, July 20, 2007 - A Member Service of the Free Speech Coalition Stories without byline submitted by FSC contract writer, Scott Ross
Contributing writers: Matt Gray and Dave Grimaldi
X-Press Editor-in-Chief: Scott L. Lowther
Special thanks to Cubik Corp. for formatting and Val Vizmanos for distribution
Copyright 2007 Free Speech Coalition. Permission to reprint granted to FSC members; please give credit.
FSC provides the following overview of the proposed 2257 Rules and Regulations for members' information.
Frequently-asked questions and information regarding how industry representatives can contact the DOJ with requested feedback on these proposed rules and regulations will be provided in the upcoming X-Press, through a member e-mail Advisory and/or posted to the FSC website at www.freespeechcoalition.com . We ask that the industry await further suggestion about contacting Congress so that our collective impact on this issue can be as powerful as possible. The deadline is September 10, 2007, so we still have plenty of time to coordinate the effort.
Thank you for your patience as the FSC legal team works quickly to respond to the new proposal and its related timeline. Together, we will speak as "one voice" with one unified message.
ADDITIONS, CHANGES AND CLARIFICATIONS
RE: 18 U.S.C. 2257
Source: Federal Register, Vol. 72, No. 133, Page 38033-39
These are NOT the final rules!
NEW Record Keeping Rules for Secondaries:
* "Lascivious exhibition of the genitals" is now part of the definition of "actual sexually explicit conduct," (the recording of which triggers the statute) purportedly retroactively back to July 27, 2006. Note: By some courts' view, the genital area may be clothed and yet fall within this definition. See, for example, U.S. v. Knox 32 F.3d 733 (C.A.3,1994)
* Applies only to images recorded on or after July 27, 2006.*
* Can accept a duplicate of ID and with the address and other unnecessary data deleted, but must contain photo, serial number, name, and DOB.
* Must otherwise index and cross-reference as if a primary (but with additional burdens).
* Secondaries are subject to inspections just as primaries have been.
CHANGES:
* Live web cams must record sufficient material to identify performer and must otherwise comply with record-keeping (may be in conflict with pending FSC v. Gonzalez injunction).
* Websites must put entire 2257 statement (designating e.g., custodian and street address), rather than previously approved hypertext.
* Primaries may delete "non-essentials" from ID copies provided to secondaries (but must contain photo, serial number, name, and DOB).
CLARIFICATIONS:
* Producers (foreign or domestic) filming overseas may rely on government-issued ID other than USA-issued.
* Primary producers with performances recorded before June 23, 2005, may rely upon non-government ID, such as employer or school ID.
Fight Back:
* FSC is launching an industry-wide campaign to encourage participation for the 2257 public comment period.
* PUBLIC COMMENT PERIOD ENDS SEPTEMBER 10, 2007
* Visit freespeechcoalition.com for help in formatting and transmitting your comments (Guide will be soon available).
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* This is contained solely in the comments, page 38035, not in the proposed regulations themselves. Credit to FSC Executive Director and constitutional attorney Reed Lee for first bringing this anomaly to our attention.
New Proposed 2257 Regs Published
WASHINGTON, D.C. - New proposed revisions to the regulations for records relating to visual depictions of sexually explicit conduct were published last week to the Federal Register. FSC immediately notified all members via an e-mail blast of this important news (Ed. Note: Our apologies for the loop of notifying e-mails that resulted in our attempt to keep everyone duly informed).
The new regulations reflect changes made to 18 U.S.C. 2257 under the Adam Walsh Child Safety and Protection Act last year, legislation signed into law by President George W. Bush on July 27, 2006.
Alterations to 2257 made under the Adam Walsh Act include significant changes in statutory definition of the word "produces," revisions to exclusions in the statute for the operation of Internet companies, and the inclusion of depictions of "lascivious exhibition of the genitals or pubic area of a person" in the type of material covered under 2257.
In the new proposed regulations, the Justice Department states that the Adam Walsh Act also "confirmed that the statute applies to secondary producers as currently (and previously) defined in the regulations."
Also changed under the Adam Walsh Act was the requirement regarding the placement of 2257 compliance statements on websites. Under the current regulations, website operators are permitted to affix the label stating the location where the required records are kept "on its homepage, any known major entry points, or principal URL (including the principal URL of a subdomain), or in a separate window that opens upon the viewer's clicking a hypertext link that states, '18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement.'"
The new proposed regulations revise the labeling rule such that the label must now appear on "every page of a website on which a visual depiction of an actual human being engaged in actual sexually explicit conduct appears."
FSC will be posting both Frequently-Asked Questions and an overview of the proposed changes to the Rules & Regs on its website as well as in this edition of the X-Press.
http://xbiz.com/news/legal/81855
FSC PROVIDES OVERVIEW OF THE PROPOSED 2257 RULES & REGS -
Frequently-Asked Questions to be provided to members next week
Kansas City Anti-Porn Petitions Lead to Grand Jury Probes
KANSAS CITY and OVERLAND PARK, KS - Courts in Wyandotte and Johnson counties began forming grand juries this week in response to a petition drive by anti-porn crusader Philip Cosby in his campaign to wipe out adult businesses in the Kansas City area.
Cosby heads the Kansas City chapter of the National Coalition for the Protection of Children and Families (NCPCF). Earlier this year, he organized a petition drive calling for grand jury investigations of 32 adult businesses in Kansas and Missouri for promotion of obscenity. Enlisting the help of church leaders and community activists, Cosby's group delivered the petitions to six county courthouses in May. Kansas allows citizens to call for grand juries through petitions.
Depending on jurors' reactions to adult material, the grand jury investigations could lead to obscenity indictments. The Kansas City Star reported today that "jurors might be asked to watch adult videos, review adult toys, or even take field trips to businesses in question," in an attempt to define community standards.
Thus far, several counties in Missouri have not acted on the petitions beyond sending letters to the businesses in question reminding them to comply with state obscenity law. According to the Star, one liquor store in Platte County has already buckled to the pressure, ceasing all sales of adult material, indicating the potentially 'chilling' nature of this coalition's efforts on the expression of free speech in the area.
This isn't the first time Cosby has used the petition strategy as a tool in his quest to wipe out porn. In 2003, he led an unsuccessful effort to shut down the Lion's Den adult bookstore in Dickinson County.
http://www.kansascity.com/105/story/191300.html
PA. Borough Considers Adult Business Restrictions
TULLYTOWN, PA - Although there aren't any adult businesses in the borough of Tullytown as of yet, the borough council is currently considering an ordinance that would regulate adult businesses should they someday appear.
Council president Beth Pirolli told the Bucks County Courier Times that the ordinance would control and regulate the location and operation of any prospective strip clubs, adult video stores or arcades that intend on moving into Tullytown.
"This will prevent an abundance of such adult businesses in the community," Pirolli said. "The spacing regulations will prevent a 'red light' type district."
Under the proposed ordinance, adult-oriented businesses would be prohibited from setting up shop in commercial areas; regulating them to the community's sole industrial area. The ordinance also requires adult businesses to keep a certain distance away from each other.
"Residents traditionally do not want adult business establishments interspersed throughout residential and family-frequented business areas," Pirolli continued. "Residents shouldn't have to worry about businesses of the adult-oriented nature being allowed to operate in family-frequented areas such as residential, shopping centers, highways that represent the community to passersby, church and school properties, daycare centers and business areas that could be negatively impacted by adult businesses."
A hearing for the proposed ordinance is scheduled for Aug. 7. If passed, the ordinance would be enforced by the borough zoning officer.
http://www.phillyburbs.com/pb-dyn/news/111-07132007-1377331.html
Scottsdale Council Votes to Allow Lap Dancing
SCOTTSDALE, AZ - The Scottsdale City Council unanimously approved a new adult business ordinance last week that allows lap dancing and "on-person or in-costume" tipping in strip clubs. The council's decision resolves a long-running local debate centering on two local businesses, Babe's Cabaret and Skin Cabaret.
First Amendment attorney Paul Cambria played a key role in drafting the new ordinance as chief counsel for Babe's, which is partly owned by AVN Hall of Famer Jenna Jameson.
"We're quite pleased with the results," Cambria told AVN. "We went through the entire referendum process, and we were successful in defeating the law that had been spearheaded by Scott Bergthold, who is an attorney who basically hires himself out as an adult entertainment killer.
"After that, the city attorneys were most cooperative in attempting to work out our differences in terms of what legislation we could live with, and what they could live with. Myself, my business partner Roger Wilcox and John Weston, who represented Skin Cabaret, proposed a number of statutory provisions, and yesterday when I was in Scottsdale, I negotiated the last two bumps in the road that we had with the city over language. We came up with kind of a mutual draft, which the council passed 7-0. Even our greatest detractor, Mayor Mary Manross, signed on board this particular statute."
The city first attempted to crack down on the clubs in 2005, hiring Bergthold to draft an extremely restrictive ordinance that included a ban on nudity and a mandatory 4-foot distance between dancers and patrons. Although the council approved the restrictions, voters defeated that proposal in September 2006.
The new ordinance allows dancers to perform nude if they abide by certain stage restrictions, or with pasties and a G-string without any stage restrictions (as is the case at Babe's.) In addition, the ordinance extends hours of operation until 2 a.m., and modifies a requirement regarding surveillance of the areas where dancing occurs.
"In the past, in a lot of municipalities the laws are so expansive that police officers take the mere fact of the lap dance as improper conduct," Cambria noted. "We specifically had that excluded. The conduct prohibited does not include incidental touching or the contact between the dancer's butt and the patron's lap, which is very important because this eliminates the ability for police officers who have the inclination to harass the dancers, patrons and club owners by trying to claim that the mere touching was some kind of improper conduct.
"The other thing that we've added to this statute is that the touching that's prohibited must be done with the intent to excite or stimulate; it has to be something more than mere touching or the ordinary kind of excitement or arousal that may occur just from observing a dance."
The Scottsdale council vote is notable in that council members opposed to adult entertainment reversed their stance on the issue in response to public opinion.
Cambria told AVN the lessons learned through his experience in Scottsdale could prove useful in the current fight against anti-adult legislation in Ohio.
"We discovered that people relate less to freedom and constitutional issues than they do government micro-managing small businesses," Cambria said. "You cast a wider net if you're saying, 'How can we let government micro-manage these small businesses? Yours will be next - your gas station, your fish tackle store, your convenience store. They'll be dictating your hours of operation, how to display your goods...' That has a much wider appeal than telling people, 'Hey, let us sell adult movies', because a number of people just won't expend the effort to vote if it doesn't affect them directly."
http://avn.com/index_cache.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=291830
Tenn. Town Updates Laws Restricting Adult Businesses
SMYRNA, TN - Smyrna officials are updating the town's law restricting adult businesses to include specific definitions that town leaders expect will pass constitutional muster.
The code that is to be updated, established in 1994, defines an adult bookstore as one where sexual materials make up "a substantial or significant portion of its stock and trade" but does not define what substantial or significant portion would be.
The Daily News Journal notes that the language in the current Smyrna code is nearly identical to a Knoxville law that the Tennessee Supreme Court struck down in 2005 because it found that the definitions used were "unconstitutionally vague."
Town Attorney Michele Elliott says that the proposed change, which is part of an overhaul of all the town's codes, may happen as soon as August. She stressed that adult-oriented businesses have been shown to have negative secondary effects.
In 2005, the Tennessee Supreme Court struck down a Knoxville law restricting adult businesses because that law was in its definition. The language currently in Smyrna's Municipal Code is nearly identical to that law.
Smyrna's draft resolution redefining adult bookstores would define them as establishments with sexual material making up a "substantial portion as 20 percent of the floor areas, 20 percent of inventory, 20 percent of revenues, and an inventory of 200 or more units."
The Murfreesboro City Council made an almost identical change to its definition of adult video stores last year. Murfreesboro is currently involved in at least two legal battles arising from that law.
In February, Murfreesboro sued 21 Up Movies and More, an adult video store for violating its zoning restrictions on adult-only establishments 21 Up has since counter-sued the city, and independent video store Video Culture, which was made to reduce its stock of adult videos to less than 200, has joined that suit.
The location restrictions on adult business in Smyrna aren't limited to the location but also require the business to be 1,500 feet from any public recreation area, school or college, religious facility or day-care service. Such businesses are also prohibited from locating within 1,350 feet of any residential zone, 2,500 feet of Interstate 24, or 1,000 feet of any other adult-oriented business.
In addition to the location requirements, Smyrna requires that an adult business operator must register with the police and submit to a background check before opening a store.
CONGRESSIONAL OBSERVATIONS FROM FSC's DC LOBBYISTS -
With Congress having been out for 10 days in July and about to split for the entire month of August, Washington is prepping for relaxation mode. No major oversight initiatives are bearing down on the industry (knock on wood), but there are some collateral issues at play that are quite interesting.
As the fires from the Don Imus "nappy-headed" ordeal begin to smolder and fade, Congress has decided to take a close look at music industry and its lyrics. Congressman Bobby L. Rush, who serves on the House Committee on Energy and Commerce's Subcommittee on Commerce, Trade, and Consumer Protection (which has jurisdiction over the cable and broadcast industries), has announced that he intends to convene a hearing on the current state of music and, more to the point, the disrespect of women in the broadcast industry.
While not stated, it seems clear that such interest is Imus-prompted. Rush hopes to fill a witness panel with executives from the major music labels, but no details have been made public thus far. Word has it that the hearing will be held prior to Congress's month-long adjournment at the end of July.
On the "other side of the dome" (the Capitol's, that is), the Senate is beginning to consider Senator Joe Biden's (D-DE) Combating Child Exploitation Act of 2007, which is touted as, "a bill to establish a Special Counsel for Child Exploitation Prevention and Interdiction within the Office of the Deputy Attorney General, to improve the Internet Crimes Against Children Task Force (46 regional Task Force agencies working together to help State and local law enforcement agencies enhance their investigative response to offenders who use the Internet and online communication systems), to increase resources for regional computer forensic labs, and to make other improvements to increase the ability of law enforcement agencies to investigate and prosecute predators."
It's too early to determine whether there will be any online censorship or monitoring affected by the legislation, but rest assured we'll be checking in as it moves along. Stay tuned.
-- The Raben Group
