Legal threats stalk adult sites
June 15, 2004
By Randy Dotinga
SAN DIEGO -- The landmark federal prosecution of an infamous porn producer is putting the fear of John Ashcroft into the owners of countless adult websites, even those whose content is far milder than the material under attack.
Experts told an audience of porn webmasters last weekend that they indeed have reason to worry. A variety of X-rated photos and videos could become illegal nationwide if the Bush administration scores an important victory in its war on obscenity. But the online adult industry is divided over exactly what to do about the threat from Attorney General Ashcroft and his crew.
On the one hand, "they're all worried that the attorney general and president of the United States are going to come knocking on their doors, telling them the gig is up," said adult entertainment attorney Eric M. Bernstein.
Even so, not everyone is rushing to help the far fringes of their industry fight off the threat of new obscenity standards. Many feel uncomfortable providing aid and comfort to people who think nothing of, say, simulating rapes on videotape.
At issue is whether a porn producer called Extreme Associates has the First Amendment right to sell videos featuring urination, simulated rape and adults depicted as minors, among other things. Extreme Associates is perhaps best known for the porn movie Forced Entry, which simulates a rape so violently that a camera crew for the PBS documentary series Frontline became disgusted and fled while filming the production.
While Extreme Associates is based in Southern California, the U.S. attorney in Pittsburgh is prosecuting the obscenity case over Forced Entry and several other videos whose names livened up a court filing (PDF) but won't be repeated here. She has jurisdiction because prosecutors were able to order the videos by mail and download them over the Internet. Porn industry attorneys suspect that federal prosecutors decided to pursue the case in Pittsburgh because they think it's more likely to cough up conservative jurors.
Simulated violence is uncommon in much of online porn, which tends to focus on traditional sex and naked bodies -- "soft-core pinup stuff," according to Quentin Boyer, head of public relations at TopBucks, which provides content to adult websites. But plenty of porn providers continue to sell legally risky material featuring bestiality, violence and people who look like minors. (Actual child pornography, of course, is illegal.)
Material depicting bodily functions and fetishes could also lead to trouble in court, but that hasn't stopped producers from continuing to explore their creativity in those areas. "There are certainly people out there going the extra mile," Boyer said.
Extreme material is especially popular on the Internet. "It's a lot easier for someone to explore the outer fringes of acceptable fantasies online because no one's going to know," he said. "A guy feels safer: 'I can check this stuff and I don't have to have a clerk looking at me and wondering why I'm looking at these trannies.'"
At the Cybernet Expo, which concluded on Saturday in San Diego, more than 120 porn webmasters listened closely as several panels explored the threats facing the industry. Many sought legal advice from the attorneys who peddled their services at the conference exhibit area amid merchants offering nudie pictures, webmaster resources and billing services.
"Some webmasters who have tried to get away without a lawyer and without anyone reviewing their sites are realizing it's critically important to have a competent attorney working with you," said adult attorney Lawrence Walters by phone. "The demand for our services has skyrocketed."
While some in the adult industry have tried to create Ashcroft-friendly guidelines (such as these explicit recommendations), obscenity prosecutions rely on vague "community standards." The Extreme Associates case could tighten up these community standards, for prosecutors are trying to stop the online distribution of porn, not just orders sent by mail to one region or state. Any new standards could potentially apply nationwide. And, as in the case of Extreme Associates, they might be retroactive.
Adult industry attorney Frederick Lane III advises his clients to think carefully about their content until the rules are clarified. But abandoning the most controversial material may be easier said than done. Extreme content can be very profitable because customers who find the rare material end up becoming "committed" to websites that offer it, Lane said.
One potential strategy is to turn illegal porn into legal art by adding plotlines to X-rated videos. "Let's say you have a rape scene," attorney Walters said. By itself, it could be challenged as obscene, "but it may be perfectly acceptable if it's portrayed in the context of a movie like The Accused."
There's another option that doesn't require anyone to take a creative writing class. "You go to the (porn) webmaster chat boards, and they're talking about moving out of the country," said Giorgio Xo, owner of adult classified websites. But porn purveyors may not necessarily find greener -- and less litigious -- pastures abroad. The U.S. government could extend the long arm of the law into bank accounts there, and other countries are also cracking down on pornography.
For now, porn webmasters are trying to decide whether to provide financial or moral support to Extreme Associates and its flamboyant owners, Robert Zacari and Janet Romano, also known as Rob Black and Lizzie Borden, respectively. "They're very divided," said Walters. "There's a very loud vocal contingent who believes Extreme Associates went too far, that they deserved what they got. They asked for trouble, and they've made life worse for everybody by producing extreme materials."
To some, the key point is that the performers and the customers are consenting adults. "You may not want to, but you really need to stand up for Rob Black," said Connor Young of YNOT Masters, which provides support services to porn sites.
Ultimately, the customers, not the performers, may be the key to the Pittsburgh obscenity case, which is now in the pre-trial phase. Since obscenity is defined by "community standards," observers expect Extreme Associates will try to prove that its products are popular in Pittsburgh by producing lists of local mail and Internet orders. Since the defendant is hardly known for subtlety, that could be quite a day in Steel City -- and potentially a defining moment for the porn industry.
Rape, snuff films protected, defense argues
By Chris Osher
Tuesday, November 2, 2004
The government is misguided in its effort to prosecute a California couple who distributed pornographic videos depicting rapes and murders, a lawyer argued Monday in federal court in Pittsburgh, because the U.S. Constitution protects sexual expression.
Prosecutors countered that federal obscenity laws are needed to regulate community standards and to prevent such material from finding its way to children and those who don't want to view it.
The decision on whether the prosecution will go to trial rests with U.S. District Judge Gary Lancaster, who promised the lawyers at the end of yesterday's hearing that he would make a ruling with "all deliberate speed."
At times Lancaster seemed dubious of the case brought by U.S. Attorney Mary Beth Buchanan.
"My question is this: If the ability to read and view what you want to read and view in your own home is a fundamental right, then what is the compelling state interest?" Lancaster asked from the bench.
"The compelling state interest is making sure that children and people who don't want to have exposure to this don't have to have exposure to this," answered U.S. Attorney Steve Kaufman.
Kaufman highlighted a 1969 U.S. Supreme Court case in which the court ruled that although a Georgia man should not be prosecuted for having obscene material in his home, the government retained broad power to regulate the commercial distribution of such material.
The court's thinking has evolved over the decades since, argued H. Louis Sirkin, the lawyer representing Robert Zicari, 31, also known as Rob Black, and his wife, Janet Romano, 27, also known as Lizzie Borden, of Northridge, Calif.
Sirkin, of Cincinnati, highlighted a 2003 U.S. Supreme Court ruling that struck down Texas' homosexual sodomy laws as unconstitutional.
He noted that Bob Dole, a former U.S. senator and presidential candidate, had appeared in advertisements touting the benefits of Viagra, and said that society has evolved since the 1960s on questions dealing with morality and sexuality.
"Liberty now gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex," Sirkin said in his brief. "It is broad enough to encompass a right to buy and sell obscene material."
Sirkin acknowledged that the courts have consistently held there is no First Amendment protection that prohibits the regulation of obscene material. But he said court cases, including the one that affirmed a woman's right to abortion, have ruled that adults have a right to privacy.
"This 'privacy' right has moved out of the strict confines of the marital bedroom and into private interactions between consenting adults and even commercial transactions," he stated in the brief.
Zicari, Romano and their firm, Extreme Associates, Inc., of North Hollywood, Calif., face one count of conspiracy and nine counts of distributing obscene material in Southwestern Pennsylvania, including three videotapes.
An undercover U.S. postal inspector registered on Extreme's Web site in September 2002. That allowed postal inspectors to view video clips.
Zicari and Romano each face up to 50 years in prison and a $2.5 million fine if convicted in federal court. Obscenity is only a misdemeanor with a one-year prison term under California law.
After the court hearing, Zicari said the firm was still in business. He argued that his business sold products only to those who visited the Web site and sought to buy the material and didn't send out unsolicited material.