WOODHULL FREEDOM FOUNDATION “BROWN-BAG” MEETING IN D.C. – SEPTEMBER 21
FSC Executive Director Michelle Freridge, FSC Legislative Affairs Director Kat Sunlove, Woodhull Freedom Foundation Executive Director Ricci Levy and attorney Jim Turner will share a panel discussion on First Amendment issues at a luncheon in Washington, D.C., September 21. Included will be discussions of FSC’s lawsuit challenging the 2257 record-keeping law, the dot-triple-x domain name controversy, Senator Lincoln’s “Porn-Tax” bill, issues around banned books and, although not on the original agenda, there will no doubt be discussion of House bill 3726 (see following report). The meeting is open to the public. FSC members in the area are encouraged to attend. The meeting is from 12 – 2 at the National Gay and Lesbian Task Force, 1325 Massachusetts Avenue, NW – Sixth Floor, Washington, D.C., 20005.
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BILL WOULD EXPAND GOVERNMENT POWERS
       WASHINGTON, DC -- A bill (H.R. 3726) by Representative Mike Pence (R-Ind), which would greatly expand the reach of obscenity law and U.S.C. 18 §2257, the federal record-keeping law, has passed the House, sailing through committee hearings and a floor vote with virtually no debate shortly after it was introduced and attached as an amendment to the Child Safety Act of 2005 (H.R. 3132). In effect, H.R. 3726, the “Child Pornography Prevention Act of 2005,” was a done deal in the House almost before the adult industry or civil liberties groups knew it existed. The fast-track nature of the process, along with the key characters involved, has led some observers to speculate that the Justice Department, perhaps embarrassed by their lame defense of the 2257 law against adult industry attorneys in FSC’s challenge, have teamed up with legislators to up the ante and possibly to shore up what they see as loopholes in the law (See Mark Kernes’ report at AVN.com).
       H.R. 3726 covers the waterfront well beyond changes to 2257. It also amends other title 18 criminal code sections, including sections 1467, 3486, and 1465.
       The 2257 amendments insert new language which, according to an initial ACLU analysis, seems to require 2257 documentation for digital images of sexual conduct even though no actual person is involved. In addition, it strikes the word “actual” from the phrase “actual sexually explicit conduct” in U.S.C. 18 §2257, thereby appearing to expand the law to apply to simulated sex such as might appear in R-rated mainstream films. It broadens 2257 to apply to “lascivious exhibition of the genitals or pubic area,” which, of course, could be construed to apply to most nude models in adult entertainment materials, and perhaps even some clothed ones. It also strikes the language in 2257 which excludes “mere distribution” and other activities not involving work with the actual performers from requirements for 2257 documentation, substituting language which appears to rope in a much broader range of activity. Under H.R. 3726, for example, 2257 record-keeping would be required for managers of computer sites or services that contain a single visual depiction of sexually explicit conduct (including, under this bill, simulated sexually explicit conduct).
     Not satisfied with this exponential expansion of the 2257 law, the bill goes on to amend the following sections related to obscenity law:
       U.S.C. 18 §3486 is expanded to include obscenity charges under administrative subpoena powers previously dedicated to child pornography cases, making it easier for the government to compel a person to appear or to obtain records in a legal proceeding without having to demonstrate probable cause before a judge.
       U.S.C. 18 §1465 is amended to prohibit the production of obscenity as well as the transportation, distribution and sale of it. Under this change it would be illegal to produce obscenity with the intent to transport, distribute or transmit in interstate or foreign commerce. According to the ACLU analysis, this would amount to prior restraint on speech. The only way to determine if material is obscene is to have a completed product for a judge or jury to evaluate under the Miller test for obscenity.
       Regarding any potential impact H.R. 3726 might have on Free Speech Coalition et al v. Alberto Gonzales, the Free Speech Coalition’s current legal challenge to 2257, FSC Board Chair Jeffrey Douglas said, “This action by the House of Representatives does not have any direct impact on the pending FSC lawsuit. If this horrific bill were to become law in its current form, it would change some of our arguments, indeed strengthening several. For the purposes of the awaited ruling on our preliminary injunction request, it should have no effect whatsoever.”
       FSC attorneys and FSC Legislative Affairs Director Kat Sunlove are preparing a complete analysis of H.R. 3726, which will be posted on the FSC website (www.freespeechcoalition.com) as soon as it is ready.
From an FSC press release, 9/15/05
And from an ACLU “Talking Points” paper -- URL not available
And from Mark Kernes, AVN.com
http://www.avn.com/index.php?Primary_Navigation=Articles&Action=View
_Article&Content_ID=240327
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JOHN ROBERTS ON ADULT ENTERTAINMENT
WASHINGTON, DC --The Senate Confirmation hearings for Chief Justice of the Supreme Court nominee John Roberts have not proved reassuring for civil libertarians because Roberts has refused to reveal his personal beliefs about important values. There have been hints, however, that he would not be, if confirmed, a justice in the mold of Justices Scalia or Thomas. Roberts stated, for example, that he believes there is a constitutional right to privacy. So-called “strict constructionists” such as Scalia do not concede such a right because “privacy” is not mentioned in the Constitution. A right to privacy has been a cornerstone of controversial decisions such as Roe v. Wade, Lawrence v. Texas and the Extreme Associates case that Rogers may well review as Chief Justice.
      In matters of First Amendment law and adult entertainment, Roberts revealed himself to be relatively uninformed, at least in contrast to his encyclopedic knowledge in other areas of the law on display during the hearings. At one point, during questioning by Senator Leahy, he conceded that First Amendment law was not an area in which he felt “completely up to speed on the precedents.”
      The subject of adult entertainment came up when Senator DeWine asked Roberts if there were different levels of speech under the First Amendment. “Should pornography be treated with less regard than Mark Twain’s ‘Huck Finn’?”
      “Well,” said Roberts, “it’s my understanding, under the Supreme Court’s doctrine, that pornographic expression is not protected to the same extent, at least, as political and core speech. And the difficulty that the court has addressed in these different areas, of course, is always defining what is or is not pornography and what is entitled to protection under the First Amendment and what is not.…There are different categories, and the court has struggled over the years in figuring out how to determine those categories and what belongs in what category. And beyond that, I don’t think I can give a more precise answer.”
      If there is good news to be found­or at least hoped for­in Roberts’ rather tentative comments, it is that he apparently has neither settled opinions when it comes to adult entertainment nor an axe to grind.
From Editor and Publisher, 9/15/05
http://www.mediainfo.com/eandp/news/article_display.jsp?vnu_content_id=1001137019
And from Joan Biskupic, Kathy Kiely, USA Today, 9/15/05
http://www.greenvilleonline.com/apps/pbcs.dll/article?AID=
/20050915/NEWS03/50915001/1011/NEWS01
Transcript (Day 2) from The New York Times, 9/13/05
http://www.nytimes.com/2005/09/13/politics/politicsspecial1/13text-roberts.html?pagewanted=all
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MORATORIUM ON DANCE CLUBS RULED ILLEGAL
       SEATTLE, WA --U.S. District Judge James Robart has ruled that the city’s 17-year moratorium on new exotic dance clubs is illegal. The decision came in a lawsuit brought by Bob Davis, who had tried to open an exotic dance club last May, only to be told he could not because of the 1988 moratorium. The city has renewed the moratorium annually, saying it needed more time to adopt new land-use regulations governing such businesses, but failing to adopt any over the years. The city blamed the delay on the Department of Planning and Development’s “extreme” work overload and its shortage of experienced staff.
        The moratorium might have been fine as a limited, temporary response to rapid industry growth in the late 1980s but as an extended, seemingly endless restriction, it amounted to illegal restraint on an otherwise legal business, Robart reasoned.
       “The court is unpersuaded by the city’s attempt to justify 17 years of delay by arguing that ‘adult dancing is alive and well’ in Seattle and that its failure to adopt new legislation was due to legitimate reasons other than censorship,” said Robart.
       The next step in the lawsuit is a trial for damages. Davis is seeking $5 million.
       The decision opens the door for other new clubs to apply, and many will perhaps do so. Seattle presently has only four exotic dance clubs inside the city limits, and the clubs are popular because Seattle is the only city in the Puget Sound area that allows lap dancing.
       However, anticipating the outcome of the lawsuit, the city already has plans in motion to discourage new clubs from locating there. Mayor Greg Nickels is pushing for a new ordinance which will require clubs to have brighter interior lighting and will require dancers to stay four feet away from customers during dances, thereby banning lap dancing.
From Mike Lewis, Seattle Post-Intelligencer, 9/13/05
http://seattlepi.nwsource.com/local/240450_strippers13.html
And from Peter Lewis, The Seattle Times, 9/13/05
http://seattletimes.nwsource.com/html/localnews/2002490732_strip13m.html
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GROUP URGES VETO OF VIDEO GAMES BILL
       SACRAMENTO, CA -- The Interactive Entertainment Merchants Association (IEMA) has asked Governor Schwarzenegger to veto Assembly Bill 1179, which would limit children’s access to extremely violent video games. The bill calls for ending the sale and rental of video games to minors under 18 that depict serious injury to human beings in a manner that is “especially heinous, atrocious, or cruel.” Retailers who violate the act are liable for fines up to $1,000 for each violation.
       “The IEMA remains opposed to AB 1179 for many reasons,” said IEMA president Hal Halprin, “not the least of which is that it is impractical -- in essence creating a California-only class of products requiring retailers to buy, warehouse and distribute California video games separately from other inventory. And it is unnecessary, in that our member companies have already voluntarily committed to carding policies to inhibit the sale of Mature-rated games to minors. And it is clearly unconstitutional. Time and again courts have uniformly held that video games, just like books, movies, and music, are expression that is fully protected by the First Amendment.”
       FSC has remained neutral on the controversial bill, according to industry lobbyist Kat Sunlove. FSC members have expressed strong and principled opinions on both sides of the issue.
From David Adams, IGN.com, 9/12/05
http://cube.ign.com/articles/650/650212p1.html
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ADULT STAR SENTENCED
       LAKEWOOD, WA -- Kick Ass star Mary Carey was sentenced to a $300 fine and suspended jail sentence on charges stemming from an April arrest for violating a local adult cabaret ordinance by touching herself (gasp!) in a sexual manner. She must “behave” for a year or face the possibility of jail time.
From Gretchen Gallen, Xbiz.com, 9/11/05
http://www.xbiz.com/news_piece.php?id=10277
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UpComing Events

SEPT 26, – Sin City Golf Classic Tournament, Tuscany Country Club, Las Vegas, NV http://www.sincitychamberofcommerce.com/sin_city_chamber_golf_classic.htm

SEPT 29, – FSC Membership Meeting, Warner Center Marriott, Woodland Hills, CA, 818-348-9373

OCT 5-9, – 13th Barcelona International Erotic Film Festival http://www.ficeb.com

OCT 9, – Tampa Show 2005 Caravan Of Stars http://www.tampashow.com/