Volume 2007, Issue 9

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ITEMS OF SPECIAL INTEREST

'Sex tourism' targeting U.S. minors
Baptist Press, Erica Simons, 9.26.2007

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ABSTRACTS

Pitt County v. Dejavue, Inc., 2007 WL 2471200 (N.C.App. Sep 04, 2007) (NO.
COA06-838)

County's ordinance does not violate the First Amendment or the Constitutional provision prohibiting ex post facto laws.

The county sought a declaratory ruling that several sexually oriented businesses (SOBs) were unlawfully operating unlicensed businesses in violation of the county zoning ordinance. In response, the SOBs argued that the county violated Article I, Section 10 of the U.S. Constitution which prohibits ex post facto laws. The court of appeals held that Article I, Section 10 governs criminal laws not civil laws enacted to further the health, safety, and morals and general welfare of the citizenry such as the one in question.

The SOBs also argued that the ordinance was a content based restriction on free speech in violation of the First Amendment. They argued that the ordinance should be reviewed under strict scrutiny standards, because individual county commissioners did not “personally” review the research materials considered by county legal staff during the ordinance drafting process. The court promptly rejected this citing Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) and finding that the county had produced an abundance of evidence indicating that the regulation was directed toward adverse secondary effects. The court also observed that the state legislature had made a legislative finding that SOBs can and do cause adverse secondary impacts on neighboring properties, including increases in crime rates and decreases in property values. Furthermore, the court cited case precedents holding that there is no constitutional requirement that council members personally physically review secondary effects studies. See, e.g., Lakeland Lounge v. Jackson, 973 F.2d 1255, 1258 (5th Cir. 1992).

Finally, the SOBs argued that the County ordinance failed to leave open reasonable alternative avenues of communications as required by Renton and other Supreme Court precedents. Specifically, they argued that the map of potential alternative locations prepared by the county was not prepared until after the ordinance was enacted and that the available properties were not commercially viable. Regarding the former, the court held that the Renton alternative avenues requirement “concerns the effect of the ordinance on speech; not the process by which the ordinance was adopted.” Regarding the commercial viability, the court observed that Renton specifically held that the commercial viability is not relevant to the constitutional query. The court further observed that the County had offered evidence indicating that approximately 124 square miles or 19% of the county was available for development by the SOBs.

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(Abstracts excerpted from article introductions, citations omitted)

Child Pornography and First Amendment Standards
Kyle Duncan, 76 Miss. L.J. 677 (2007)

This paper explains how the Supreme Court currently applies the First Amendment to laws targeting child pornography. In light of those standards, the paper explores some current areas in child pornography law, principally Congress's legislative response to the Supreme Court's decision in Ashcroft v. Free Speech Coalition regarding “virtual” child pornography. The purpose of this paper is primarily descriptive, rather than evaluative, but it does offer some criticisms of these judicial and legislative approaches to the continuing and distressing problem of child pornography. Part I explains the Supreme Court's general approach-known as “categorical balancing“-to defining areas of expression that are withdrawn from the full protection of the First Amendment. Part I then places child pornography within that analytical framework. Part II moves to the most current area of child pornography law-“virtual” child porn- and discusses how the Supreme Court addressed Congress's efforts to combat that problem in the 2002 Ashcroft decision. It then discusses Congress's response to Ashcroft in the 2003 amendments to federal child pornography laws. Part III concludes the paper by discussing how the state and lower federal courts have addressed issues posed both by Ashcroft and the amended federal law.

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The Legacy of Lords: The New Federal Crackdown on the Adult Entertainment Industry's Age-Verification and Record-Keeping Requirements
Robert D. Richards and Clay Calvert, 14 UCLA Ent. L. Rev. 155 (2007)

. . . Congress adopted 18 U.S.C. §2257 nearly two decades ago as part of the Child Protection and Obscenity Enforcement Act of 1988 to safeguard against future situations like those involving Traci Lords and to prevent the sexual exploitation of minors. It has, however, lain largely dormant in terms of enforcement against the adult industry, while undergoing several amendments in recent years, most recently with the adoption of the Adam Walsh Child Protection and Safety Act of 2006. As Jeffrey Douglas noted in a January 2006 column posted on the online adult industry news Web site XBIZ.Com, the §2257 legislative maze - complicated by a complex set of U.S. Justice Department regulations - was “finally initiated after 18 years of inactivity when the FBI began inspections in September [2006].”

Obvious questions thus arise:

• Why did the FBI suddenly begin the §2257 compliance inspections in 2006?
• What are the political forces and motivations behind the inspections?
• Have the inspections, in fact, uncovered underage performers?
• Is there a problem with underage performers today in the adult movie industry?
• How have the inspections affected the adult movie business in Southern California so far and what are the long-term effects likely to be on the industry?
• Is there selective enforcement by the FBI in terms of which companies are being targeted?
• What actually transpires when the FBI comes knocking on the doors of an adult movie company, and what takes place once the agents are inside?
• How much time, effort and money do adult movie companies spend in their efforts to comply with the §2257 rules?

This article addresses each of these issues, among others, from the unique, first-person perspectives of more than a half-dozen leading individuals associated with today's adult entertainment industry with direct knowledge of §2257 rules and/or the current searches. In addition, the article examines the remarkable series of events and political maneuverings under which the inspections are taking place, including details behind what one adult industry attorney described on XBIZ.Com as “an unprecedented invitation-only meeting of a select group of adult entertainment companies and their attorneys to candidly discuss the §2257 compliance inspection process at FBI headquarters in Washington” on October 12, 2006. The meeting, attended by adult industry attorneys Jeffrey Douglas, Paul Cambria and Greg Piccionelli, was led by James H. “Chip” Burrus, Jr., the FBI's assistant director of its Criminal Investigative Division, who, according to Douglas, acknowledged that the FBI “cannot effectively inspect or regulate an industry without an understanding or dialogue with the industry.”

By the end of January 2007, ten different adult movie companies, including both producers and distributors, had undergone FBI inspections, including, in alphabetical order: Darkside Entertainment; Diabolic Video; Evasive Angles; K-Beech; Legend Video; Pure Play Media; Robert Hill Releasing; Sebastian Sloane Productions (the only non-Southern California company inspected); Sunshine Films; and Wicked Pictures. The companies are selected, according to one of the chief FBI agents in charge of the inspections who was present at the Washington meeting, Chuck Joyner, completely at random “like a lottery.” The inspections, which began in July 2006 at Diabolic Video, were named by trade publication Adult Video News as the number one news story for the adult movie industry in 2006.

The heart of this article is based on an exclusive set of in-person and in-depth interviews conducted by the authors in Southern California in March 2007 with: 1) Jeffrey Douglas, a leading adult entertainment defense attorney who attended the October 2006 meeting in Washington, D.C., with the FBI officials and who also currently serves as chair of the board of directors for the adult industry's top trade association, the Free Speech Coalition; 2) Steve Orenstein, a 27-year veteran of the adult industry and the owner and president of the prominent and well-respected adult movie maker, Wicked Pictures, that was inspected by FBI agents in January 2007; 3) Julie Russell, the chief compliance officer for Wicked Pictures on 18 U.S.C. § 2257 matters who was present, on behalf of both Wicked Pictures and Orenstein, at the October 2006 meeting with the FBI officials; 4) Mark Kulkis, the media savvy president of adult content producer, Kick Ass Pictures; 5) Sean Berrios, the supervisor of records and documents - including, importantly, those directly related to 18 U.S.C. § 2257-for Larry Flynt's adult entertainment empire, LFP, Inc., and the person who, along with attorney Paul Cambria, represented LFP, Inc. at the Washington meeting with the FBI; 6) Diane Duke, the new executive director of the Free Speech Coalition; 7) Dan Miller, the editor-in-chief of AVN Magazine; and 8) Mark Kernes, a senior editor at AVN Magazine who has reported for many years on legal issues affecting the adult entertainment industry and is often quoted in the mainstream news media.

Based on these interviews, the article describes and analyzes the impact that the §2257 rules and their new enforcement are having on the adult entertainment industry. Among other things, it addresses the motivations behind the inspections and why they are happening now when there would seem to be no triggering event like the discovery of underage performers.

Part II of the article briefly describes the methodology for conducting the interviews, including details about the dates, times and locations of the interviews, as well as the recording and transcription processes used by the authors. Part III then moves in to the heart of the article, setting forth the comments, opinions and remarks of the eight individuals interviewed for this article on a number of different issues related to 18 U.S.C. § 2257. Finally, Part IV analyzes and synthesizes their viewpoints and remarks, and it ultimately concludes by calling for the federal government to: 1) institute a far less burdensome method for protecting against child pornography in the adult entertainment industry; and 2) not to pander and kowtow to political pressures of some grandstanding politicians and interest groups that like to score easy points by foisting blame for real-life problems like child pornography on to adult industry.

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