Free Speech Coalition



Tuesday, July 10, 2007

Free Speech X-Press
Delivering Weekly Censorship Updates to the Adult Industry

Vol. IX, No. 9, December 29, 2006 -- A Member Service of the Free Speech Coalition
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Free Speech X-press is researched and edited by Layne Winklebleck.
Copyright 2006 Free Speech Coalition.
Permission to reprint granted to FSC members; please give credit.
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VISIT OUR WEBSITE FOR FSC MEMBERSHIP INFORMATION
http://www.freespeechcoalition.com
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PLEASE NOTE: We have learned from several sources that last weeks X-Press did not go out to many members and friends from the new mailing program at the FSC servers. Therefore we are mailing this X-Press from our Inreach Lists serve as well as from FSC. We apologize to those who might receive two e-mailings. If you have not been getting the X-Press or do not continue to receive it, Please contact Diane Duke at Diane@freespeechcoalition.com
    At the end of this X-Press you will see that we have also included the reports from last week for those who may have missed them.
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FSC LEGISLATIVE AFFAIRS DEPARTMENT CLOSES
This issue of the Free Speech X-Press – the ninth issue in the ninth year of publication under the auspices of the Legislative Affairs Department – will be the last issue sent out from this office. As was announced a month ago, the Legislative Affairs Department is being closed due to financial problems at FSC and Kat and Layne have been rather unceremoniously laid off.
    We are proud of the part the Legislative Affairs Department has played in the organization and on behalf of the mission of protecting freedom of speech for adult entertainment. For the past decade, this department has overseen some of FSC’s most important activities: our annual Celebrate Free Speech Lobbying Days here in California and its popular legislative reception; drafting and publication of our annual White Paper, giving legislators a snapshot view of our industry; the passage in 2004 of AB1894, an important small business bill; the development of critical allies, such as the ACLU, RIAA, and even the California Chamber of Commerce; dozens of letters of opposition or support, testimony at hearings, bill analyses at the state and federal level and even comments submitted at the request of the Congressional Budget Office in Washington, D.C. All this, plus many excellent issues of the Free Speaker magazine and, of course, this weekly newsletter were produced by this office.
    It remains to be seen what will happen now with the Free Speech Coalition, working with a skeletal staff and limited budget. We hold the remaining FSC staff -- who have been working very hard for many months under difficult circumstances -- in high regard and wish them the best. We have been told that the X-Press will continue to be published weekly, so stay tuned for more information.
    In the meantime, we bid adieu to our long-time friends, supporters and FSC members. We thank each and every one of you for your confidence in us and for your friendship. We hope you will all stay in touch with us as we move forward out of this difficult experience. If Free Speech means anything, it should mean the freedom to speak your mind. That we will continue to do no matter what comes next.
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FSC MEMBERSHIP MEETING SCHEDULED
LAS VEGAS, NV -- FSC will hold a general Membership Meeting Friday, January 12, 2007, at the Sands Meeting Room #304 and 305 (Please note: this location is a change from previous announcements). Margarita and Salsa Bars will open at 5:00 p.m., followed by the meeting, which will be moderated by Board Director Joan Irvine.
    The following topics are on the agenda: Introduction of Diane Duke (FSC’s new Executive Director), board director election results, new member benefits, an update on the Utah Child Protection Registry challenge by Greg Piccionelli, and an update of the 2257 litigation by Jeffrey Douglas. FSC’s Federal Lobbyist Robert Raben will also be at the meeting. Members and non-members are encouraged to attend.
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INDUSTRY LEGENDS AT INTERNEXT
LAS VEGAS, NV -- A Special Presentation at Internext, on Monday, January 15 (the first day of the Expo) from 1:00 p.m. -- 3:00 p.m. (Mandalay Bay Resort) is titled “Industry Legends Address the Future of Adult Entertainment.” AVN organizers tout the event as the must-see presentation of Internext. They are bringing together some of the pioneers of the online adult industry -- visionaries who’ve created trends, built empires, developed the blueprint for others to follow and survived to tell the story -- to share their insights into where the adult industry is going.
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ADULT DVD PIRACY CASE VICTORY
NEW SOUTH WALES, AUSTRALIA -- The innovative and effective copyright enforcement program of the Australian Adult Industry Copyright Organization (AICO) has been upheld and vindicated by a ruling of the full bench of the Federal Court. The decision came in an appeal brought by Venus Adult Shops of an August ruling by a Federal Magistrate, awarding AICO damages, court costs, permanent injunctions and return of films, after ruling that Venus had infringed the copyright of Fraserside Holdings Ltd, (part of the Private Group) and their exclusive Australian distributor, Calvista Australia Pty Ltd.
    “This is a significant result for our members and a big blow to the pirates,” said AICO Executive Officer Graeme Dunne. “The Appeal Court has also made clear that adult film copyright owners are just as entitled to copyright protection as any other copyright owners, including the full range of legal remedies.”
    AICO’s adult film piracy program, which has over 40 overseas production companies as members and currently has four major copyright infringement cases before the courts (including a second case against Venus) is the subject of an article in FSC’s January 2007 Free Speaker magazine. Also, Dunne will be a panelist at a Las Vegas Adult Entertainment Expo seminar on piracy, called “Making Pirates Walk the Plank,” in the Treasure Island’s Marco Polo room (#701-702) from 3:30 p.m. to 5:00 p.m., Friday, January 12.
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DANCE CLUB OWNER CHALLENGES COUNTY -- AGAIN
SALEM, SD -- McCook County and Racehorses Gentlemen’s Club owner Bob Rieger are once again in court. This time, Rieger is challenging the county adult business ordinance that requires employees to be licensed, and dancers to keep a 6-foot distance from customers. The issue is whether the latest restriction is a zoning or a regulatory ordinance. It's a zoning ordinance, contends Rieger, and it doesn't apply to his business because the building was in its location before the county had a zoning law. McCook County State's Attorney, Roger Gerlach, says the ordinance regulates a specific type of business, something the county has every right to do.
    Rieger has been battling the county since 2003, winning 4 separate court battles and using creative tactics to keep his club open. When he was denied a liquor license in 2003, he opened a juice bar dance club. When the county said a commercial business could not operate in an area zoned for agriculture, Rieger fought them in court and won. When voters passed an anti-nudity ordinance in 2004, Rieger discovered a loophole that exempted movie theaters, so he started showing adult movies in the club.
    Among the creative tactics Rieger has come up with over the years was threatening a “nuclear option”: If McCook County commissioners placed new regulations on his business, said Rieger in 2005, he would sponsor an outdoor drag-queen festival in his parking lot across from the festivities for Salem’s 125th anniversary celebration. Rieger has also threatened to conduct “Salem Witch Trial Days” with mock trials and costume competitions (he has often referred to female critics of his club as the “Salem witches.”)
Current information is from KSFY TV, 12/28/06

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UpComing Events

JAN 10-13, -- Adult Entertainment Expo, Sands Expo, Las Vegas

JAN 10-13 -- GayVN Expo, Sands Expo, Las Vegas

JAN 11-14 -- Taboo: The Naughty But Nice Sex Show, Vancouver

JAN 15-17 -- Internext , Mandalay Bay Resort, Las Vegas

JAN 21-22 -- International Lingerie Show, Miami

FEB 7-8 -- XBIZ Awards and Industry Conference, Hollywood

FEB 23-25 -- Sex and So Much More Show, Denver

MAR 23-25 -- ADULTCON, Los Angeles Convention Center

MAR 23-25 -- Taboo: The Naughty But Nice Sex Show, Red Deer, CN

APR 16-18 -- International Lingerie Show, Las Vegas

MAY 11-13 -- Sex and So Much More Show, Phoenix

JUNE 22-24 -- Erotica L.A., Los Angeles Convention Center

SEPT 21-23 -- ADULTCON, Los Angeles Convention Center
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Below: Vol. IX, No. 8, December 22, 2006
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2257 INSPECTIONS CONTINUE WITH K-BEECH, INC.
CHATSWORTH, CA -- The latest in a series of FBI inspections of adult entertainment production companies’ records to determine compliance under the federal record-keeping law, 18 U.S.C. §2257, has been confirmed by Kevin Beechum, owner of K-Beech Inc.
    “Eight feds came in around 9 AM and stayed until 11 AM,” said Beechum. “They came to inspect 10 titles from Erotic Angel a company that is now out of business. We had all the paperwork. I felt no stress and no pressure. The FBI informed us we had everything.”
Beechum said the FBI informed him it had randomly selected 10 titles to be inspected.
    “The FBI did their homework because they took a screenshot of a girl’s face off of a movie that we had and we had to match it with our ID records,” Beechum said.
The other companies that have been subject to 2257 records inspections are Pure Play Media, Evasive Angles, Darkside Entertainment, Legend, Sunshine Films, Robert Hill Releasing, Sebastian Sloane Productions and Diabolic.
    In addition to the inspections, the DOJ reached a plea agreement in September, under which Joe Francis, founder of Mantra Films and the “Girls Gone Wild” video series admitted violating 2257 record-keeping and labeling laws and agreed to pay $2.1 million in fines and restitution, of which $1.6 million are to be paid by Mantra and $500,000 are to be paid by Francis. The agreement was considered unusual because the unique nature of the Girls Gone Wild video series -- hardly typical adult entertainment productions -- involves the filming of spontaneous actions by often drunken, college-age women, at more or less public events.
(For more on the Girls Gone Wild agreement see the X-Press Report,
“2257 Plea Agreement Announced,” 9/15/06 ,
Some quotes are from Steve Javors, Xbiz.com, 12/15/06.
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DRACONIAN ADULT LAW STRUCK DOWN
JEFFERSON CITY, MO -- An en banc (entire court) decision by the Missouri Supreme Court has affirmed a ruling last year by Cole County Circuit Court Judge Richard Callahan throwing out adult entertainment amendments to an anti-drug law because the Missouri Constitution stipulates that bills cannot be amended during passage to change their original purpose. Exotic dance club provisions, which were added on the next-to-last day of the legislative session,     “were not remotely within the original purpose of the bill, but rather constitute a textbook example of the legislative log-rolling” that the constitution was intended to prevent, the court ruled in a unanimous decision written by Judge Ronnie L. White.
    “Log-rolling” refers to the practice of gathering in a single bill several matters that would not command majority votes individually in the hope of ensuring their passage.
Callahan also had ruled that provisions of the adult entertainment amendments prohibiting customers and employees younger than 21 at adult-oriented establishments were unconstitutional.
    “…[E]ighteen, nineteen and twenty-year-olds are not minors and the State may not limit persons of majority age from engaging in lawful expressive conduct protected by the 1st Amendment of the United States Constitution without a substantial and direct connection to adverse secondary effects…” said Callahan. However, the Supreme Court did not rule on the age issue since the decision on the amendments issue was dispositive.
    The case, Missouri Association of Club Executives v. Missouri, is a very important victory for the Association (ACE). The draconian law, in addition to the 21-and-over rules, would have increased penalties, limited hours of operation (10 to 10), prevented virtually all interactions between exotic dancers and their audiences, and created new categories of "public nuisance" that could close adult businesses completely. In order to get around Judge Callahan’s decision, the sponsor of the original measure (SB 32), Senator Matt Bartle (R-Lee’s Summit), reintroduced the bill in March, 2006, in a new incarnation as SB 1232. The bill was sent to the Senate Judiciary Committee but did not pass out of that committee during the legislative session. Inexplicably, SB 1232 retained the 21-year-old minimum age provision which Judge Callahan had already declared unconstitutional.
Information is from the Missouri Supreme Court case record summary, 12/19/06 .
See also, X-Press report, “Draconian Adult Business Law Reintroduced,” 3/10/06.
See also, Dan Margolies, The Kansas City Star, 12/20/06.
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SHARP QUESTIONS BY JUDGES ON “FLEETING EXPLETIVES” RULES
NEW YORK, NY -- Oral arguments have been heard here in the U.S. 2nd Circuit Court of Appeals in the challenge brought by the major networks (except ABC) against the Federal Communications Commission’s indecency rulings issued last March. Comments by Reuters reporters Paul Thomasch and Martha Graybow and a summary of the arguments by the Free Expression Policy Project both concluded that the panel of three judges seemed skeptical about the legitimacy of the FCC's "indecency" censorship rules. The case arose after the FCC issued an "Omnibus Order" in March finding "apparent liability" for indecency and profanity against ten broadcasters, including a small PBS station in California that had aired Martin Scorsese's documentary, "The Blues." Four of the rulings were unaccompanied by fines, thereby allowing the broadcasters to appeal directly to the federal courts rather than filing an "opposition" within the agency. After the case was filed, the FCC reconsidered these four rulings, and reversed two of them - against "NYPD Blue" for using the word "bullshit" in one episode, and against "The Early Show," where a reality TV participant uttered the word "bullshitter."
    The FCC argued that the case is a narrow one, relating solely to its findings in the two remaining rulings against Billboard Award shows in which celebrities Cher and Nicole Richie had used naughty words, (Cher, at the 2002 Billboard broadcast, said "F**k 'em" in response to her critics; Richie, the following year, said "Have you ever tried to get cow shit out of a Prada purse? It's not so f**king simple.") and that it would be improper for the judges to consider the broader implications of its new rule against "fleeting expletives."
    The judges - Rosemary Pooler, Peter Hall, and Pierre Leval - did not seem impressed by this argument, asking a serious of sharp questions about the potential reach of the “fleeting expletives” rule.
    "Why isn't this a sword of Damocles hanging over every TV station?" Judge Hall asked. “Suppose broadcasters reporting on this case use the words ‘f**k’ and ‘shit’ on their news shows tonight; will those be punishable by the FCC?” Miller assured him they would not - even though the FCC has said there is no blanket exception from the fleeting expletives ban for news.
    Let's suppose they rebroadcast the Cher or Nicole Richie clips, Judge Hall asked. Miller responded that the FCC is not in the business of second-guessing the news and editorial judgments of broadcasters, which brought forth further skepticism from the judges.
    "So why can't they call anything news?" Judge Pooler asked. "Are you telling the networks that they just have to make some cockamamie claim that their program is journalism in order for the FCC to defer to their judgment?”
Most quotes and information are from an excellent, long piece at the
Free Expression Policy Project website.
See also, Paul Thomasch and Martha Graybow, Reuters, 12/21/06.
See also the X-Press report, “FCC Responds to Network Filings.” 12/8/06.
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SIMULATIONS BAN IN ALCOHOL CLUBS RULED CONSTITUTIONAL
RICHMOND, VA -- The U.S. Fourth Circuit Court of Appeals has overruled a November 2005 decision by U.S. District Judge N. Carlton Tilley that a state Alcoholic Beverage Control law regulating exotic dancing is unconstitutional. The case, known as Giovani Carandola v. Fox, is referred to in the Fourth Circuit decision as Carandola 2, Carandola 1 being an earlier case with the same plaintiff and the same Judge Tilley when club owner Carandola challenged a very similar law, won in Tilley’s court and prevailed on appeal. The difference this time is that the North Carolina Legislature, taking the decision to heart, had in the meantime re-crafted the law and the new version has passed muster with the appeals court.
    In Carandola 1, (2001) the Fourth Circuit upheld Tilley’s decision throwing out the law, noting that the state’s restrictions, which banned simulated sex acts or the fondling of private parts, including the posterior, could prohibit the performance of ballet or flamenco dance or such productions as “Cabaret,” “Chicago” and “The Full Monty”.
    In Carandola 2, however, said the Fourth Circuit, rather than asserting that the ban reaches every wiggle or touch in a licensed establishment, the new statute bans only limited activities. The prohibition on simulated sexual acts only applies to performances "that give the realistic impression or illusion that sexual intercourse [or masturbation, etc.] is being performed for the audience." Similarly, [the] prohibition on "fondling" of buttocks, genitals, breasts, etc. only bars a performer from actually "manipulating specified erogenous zones." [Furthermore]… “the new statute has no prohibitory effect on non-erotic dance and would not apply to other [forms of] mainstream entertainment….”
From the Fourth Circuit Decision, Giovani Carandola v. Fox, 12/15/06.
See also, Q. Boyer, Ynot.com, 12/19/06.
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HOW MUCH IS SIGNIFICANT?
THAT’S FOR US TO KNOW AND YOU TO FIND OUT
JOHNS CREEK, GA -- U.S District Judge Thomas Thrash has rejected claims by John Cornetta, owner of the Love Shack here, that the store meets Fulton County's rules and should be treated as a regular retail store.
    "It appears clear to me that the plaintiff is operating an adult business and it is operating illegally," Thrash said. He said Cornetta had failed to obtain proper permits and to meet zoning requirements from Fulton County.
    At issue is whether the Love Shack stocks a “significant” amount of adult material. Cornetta's attorney, Louis Sirkin, asked Thrash to define “significant” but the judge refused to do so. Judge Thrash agreed to allow the Love Shack to remain open until a specified hour after a few days to give Cornetta time to appeal and seek a temporary stay from the 11th Circuit Court of Appeals.
    In the meantime, Cornetta has been busy putting in rush orders to dilute his adult inventory by adding lingerie, children's movies, and sportswear and hats.
    "The judge was completely off base and off the law," Cornetta said. "Can they have a sign that says 'Don't drive too fast through town' but we're not telling what that means? The 11th Circuit is going to remand it to him, I guarantee it."
Information and quotes are from Doug Nurse, Atlanta Journal-Constitution, 12/21/06
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CHRISTMAS STORY
SAN FRANCISCO, CA -- As they have for more than nine years, approximately 700 dancers at 11 exotic dance clubs citywide will donate approximately $15,000 from their tips to the San Francisco Firefighters’ Toy Program, a union charity that last year provided nearly 20,000 toys to 4,189 families. If they choose to participate, dancers working at clubs such as Centerfolds, the Garden of Eden and the Hungry I perform one song for charity during their shifts between Thanksgiving and Christmas. They contribute their tips from that song usually about $20 to Toys for Tots.
    In 1998, the union began recognizing the dancers’ efforts officially, and this year, the dancers’ donations to the program will have reached a total of $100,000, said Joe Carouba, president of BSE Management, which operates the clubs.
    So far this year, the dancers have raised a little more than $10,000. “I’m going to guarantee that it’ll be at least $15,000, even if I have to kick in a little myself,” Carouba said.
From Adam Martin, S.F. Examiner, 12/19/06

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