Adult Industry Update March 2002

www.FreeSpeechLaw.com5 Apr 2002 01:14:

Online voyeur houses top the legal news this month; first with the United States Supreme Court refusing to disturb the very favorable legal ruling for the Voyeur Dorm.

The Voyeur Dorm solidified its legal victory by convincing the United States Supreme Court to leave its appellate court victory intact, despite desperate pleas by the City of Tampa, Florida, which pressed the High Court to take the case. Last year, the Atlanta-based Eleventh Circuit Court of Appeals ruled that Tampa’s zoning laws do not apply to “virtual space” on the Internet, despite the City’s attempt to require the Voyeur Dorm to comply with the City’s adult entertainment regulations. While the appeals court avoided the sticky constitutional issues potentially raised by the case, the ruling may cause some local governments to reconsider any attempts to regulate the Internet through imposition of local zoning restrictions.

Voyeur Dorm’s legal victories, however, did not deter a Florida homeowners association from trying to shut down a gay voyeur house in Seminole County, Florida. That dispute is currently raging in the author’s hometown of Altamonte Springs, Florida, and may set a dangerous precedent for voyeur Websites nationwide. The voyeur house at issue operated inconspicuously until a neighborhood child accidentally tossed a baseball through one of the house’s windows, exposing cameras and promotional material for the Website. County law enforcement was unable to identify any crime being committed, or any other enforcement mechanism that could be used to shut the operation down, despite repeated urgings by “concerned” neighbors.

Finally, the homeowners association identified some archaic property restrictions, prohibiting the operation of a business in a residence. Using that legal argument, the homeowners association filed suit against the property owner, seeking to shut down the gay Internet voyeur site. Of course the homeowners association is unconcerned with the many other businesses almost certainly operating in homes throughout the subdivision. This case illustrates the increasing tension between traditional land use laws and the proliferation of home-based Internet businesses. Online businesses create none of the typical secondary effects of traditional, brick-and-mortar businesses such as traffic congestion, parking problems and urban blight. Important to note is the fact that the City of Tampa did not seize upon the argument that Voyeur Dorm was operating a business without a permit in a residential zone. That argument will now be litigated in the Seminole County case, which is certainly one to watch.

The Government’s “Protect the Children” battle cry received a boost recently, with over 50 arrests announced by the FBI in “Operation Candyman,” an online child pornography sweep involving more than 89 people in 26 states. Those arrested included two Catholic priests, a school bus driver and at least one law enforcement officer. The Government also recently announced that the child pornography sting has been widened to ten other countries, where search warrants were executed on people suspected of exchanging illegal images on the Internet. From the searches, customs agents seized 12 computers, more than 600 CDs, floppy disks and external computer drives, hundreds of videos, a digital camcorder and a book on how to seduce children. Attorney General John Ashcroft, in describing the operation stated: “A new marketplace for child pornography has opened in the dark corners of cyberspace. There will be no free rides on the Internet for those who traffic in child pornography.”

The Government’s case may be falling apart, however, since several Defendants are raising the question of how it will prove that any particular individual was behind the keyboard when the illegal images were exchanged. A few weeks before the arrests, Ashcroft claimed that the mission of the Justice Department was endowed by God: “The guarding of freedom that God grants is the noble charge of the Department of Justice.” Nothing like doing the Lord’s work!

Efforts to protect children on the Internet has resulted in a Congressional Bill to set up a kid-friendly zone on the Web, free of violence, pornography or other material deemed inappropriate for children. The Bill would direct the operator of the “.us” Internet domain to set up a “.kids” subdomain for Websites targeted at children under the age of thirteen. The Bill was introduced by Representative Fred Upton, whose Telecommunications Subcommittee unanimously approved the Bill. The Energy and Commerce Committee will take up the Bill by the end of March, and it may become law as soon as July 2002. The government originally put pressure on the Internet Corporation for Assigned Names and Numbers (“ICANN”) to create a .kids top-level domain like .com and .net.

However the government backed off of that plan last fall after it was informed that it could be difficult to overrule ICANN, which is not under direct government control. The proposed new .kids subdomain would be overseen by the Commerce Department’s National Telecommunications and Information Administration. The content would be policed by NeuStar, Inc. to make sure that it remained free of inappropriate content. While many in the adult Internet community agree that a kid-friendly domain might be a good idea, such government-imposed content control of any domain on the Web may draw complaints of censorship.

Internet service providers have also become the focus of state and federal legislation. The State of Pennsylvania recently passed a law requiring Internet service providers to block child pornography. Under the new law, ISPs with customers in Pennsylvania will be legally responsible for blocking access to child pornography, with maximum penalties including prison time for repeat offenders. This law is believed to be the first of its kind. However, the law requires the State Attorney General’s Office to notify ISPs of what content should be blocked. This requirement may result in the law having somewhat limited success in accomplishing its stated goals. It is contemplated that prosecutors would, after obtaining a court order, provide the ISPs with a list of Websites and other items that must be blocked. However, child pornographers have been known to readily move to other Websites once existing sites have been identified by law enforcement.

The law carries penalties of $5,000.00 for a first offense, $20,000.00 for a second and thereafter violators are subject to fines of $30,000.00 and up to seven years imprisonment. ISPs have argued, in response to the law, that they serve only as conduits of information, and do not actually control content. Essentially, the ISPs argue that they are tantamount to the Postal Service, which delivers letter without knowing what’s inside of the envelopes.

At the same time, the federal government is floating contradictory legislation designed to protect Internet service providers from the criminal actions of third party users. Under current law, ISPs are protected from civil liability for content posted by a third party. Under the new Bill, introduced by Representative Robert Goodlatte, R-VA, ISPs would be protected from criminal charges, and a uniform standard would be set for ISP liability. The Bill is entitled “The Online Liability Standardization Act of 2002,” and was prompted by a criminal charge against a New York-based ISP, BuffNet, in 2001. BuffNet was charged with a misdemeanor for facilitating child pornography because it allowed access to a bulletin board containing images of a child pornographic nature. In February 2001, the company pled guilty and a judge ordered BuffNet to pay a $5,000.00 fine. The proposed Bill contains an exception where a senior employee knew about illegal activity of a third party.

In more news on the voyeur front, the creator of “Wild Party Girls” was ordered to pay five million dollars to a Southwest Texas State University student who appeared in advertisements for the video. The case arose from the photographing of the student taking off her shirt at a wet T-shirt contest in Mexico on her twenty-first birthday. A few months later, the student saw herself in national ads for a “Wild Party Girls” video on the E! cable network, with a red stripe proclaiming “Too hot for TV” stamped across her naked breasts. The student knew something was wrong when strangers began asking her to take her top off. The student sued the Florida-based Arco Media Group, Inc. for invasion of privacy and emotional distress, along with E!. Arco never responded to the complaint, and the judge entered a default judgment in the amount of five (5) million dollars. The student’s lawyer argued that Arco’s representatives conspired with bartenders to get pretty young women to drink alcohol and convince them to enter wet T-shirt contests, which would then be filmed. The lawsuit against E! will continue. E!’s lawyers claim that the network simply sold airtime to Arco, and had no duty to censor the advertisements wholly produced by third parties. The student plans to donate part of the funds collected by her judgment to a women’s shelter. This judgment is one of the first of its kind against the makers of videos with nude college women, for invasion of privacy. The legal question involved is whether privacy protections extend to individuals who take their clothes off in public at large events where many people have video cameras. Even if such an expectation of privacy is not found to be reasonable, and additional question is raised whether companies have the legal ability to profit from such images by placing them on the Internet.

The adult video industry was prepared to receive some advice regarding current community standards for obscenity in the case against Adam Glasser, a.k.a. Seymore Butts, but those charges recently resulted in a settlement. On March 20, 2002, Glasser announced that the charges had been resolved through a settlement agreement with City Prosecutors. The case involved one of Glasser’s videotapes, Tampa Tushy Fest, which included a controversial “fisting” scene. The settlement required Glasser’s company to plead No Contest to the charge of creating a public nuisance, and pay $1,000.00 to a victim’s restitution fund. “I feel great,” said Glasser in a recent interview. “I feel like the fight’s been well worth it, although very stressful at times,” he added.