Free Speech Coalition



Tuesday, July 03, 2007

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

Vol. VIII, No. 35, July 21, 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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2257 AND OBSCENITY PROVISIONS PART OF CHILD PROTECTION BILL
WASHINGTON, DC -- On a voice vote, the Senate has passed H.R. 4472, now called the “Adam Walsh Child Protection Act of 2006.” According to several sources, it is expected that the House will pass the same version shortly, so that it can be signed by the President on the anniversary of the abduction of Adam Walsh. Adam Walsh, the 6-year-old son of John Walsh, was abducted and murdered in 1981, a crime which motivated John Walsh to become a victims' rights advocate and helped spur the formation of the National Center for Missing and Exploited Children.
    Unfortunately, in addition to a range of provisions related to sex offenders, crime information databases, community safety programs and child pornography, the otherwise laudable bill also expands obscenity law as regards adult entertainment in some major respects and re-works 2257 record-keeping requirements to include so-called secondary producers and to expand the nature of images needing 2257 documentation. Under the Adam Walsh Act, 2257 records are required for lascivious display of the genitals, which brings soft-core imagery under the law and, in a separate section, “simulated sex,” such as one might see in mainstream movies.
    We have followed the evolution of this bill in a number of X-Press reports since a bill (H.R. 3726) containing many of the same provisions was first introduced in the House by Representative Mike Pence (R-IN) in September, 2005. (See X-Press Report, “Bill Would Expand Government Powers,” 9/16/05)
In December 2005, a Senate version (S. 2140) containing some of the same language as the Pence bill was introduced by Senator Orrin Hatch (R-UT), with Senator Sam Brownback (R-KN) as a co-sponsor. (See X-Press report, “Senate Version of Pence Bill Introduced,” 12/23/05)
    The present bill is a composite of the two with various other amendments as well. One provision related to obscenity law that was in the Pence amendment is thankfully missing in the present bill, this being the expansion of U. S.C. Title 18 §3486 to include obscenity charges under the administrative subpoena powers (i.e. without a judge being involved) previously dedicated to child pornography cases. Still in the bill is an amendment to U.S.C. 18 §1465 which prohibits 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. There is also an expansion of government civil forfeiture powers to include -- according to our initial reading of the bill language -- the use of misleading domain names in order to lure persons to view obscenity.
    Regarding the 2257 record keeping provisions, it appears from the language -- which is by no means straightforward and will need some serious analysis by FSC attorneys -- that secondary producers such as webmasters will have to keep 2257 records going forward from the date the law goes into effect some months from now. FSC members who are secondary producers are protected against 2257 enforcement for the past by a court injunction. Going forward, under this new law, may be a different story.
During the legislative process, the Motion Picture Association of America (MPAA) got quite involved, for obvious reasons, since “simulated sex” is stock-in-trade of the industry. Under Pence's original amendment, "any book, magazine, periodical, film, videotape or other matter" that contained a simulated sex scene would come under the same government-filing requirements that adult films must meet. However, before the current bill could obtain its bipartisan, bicameral approval, legislators had to find a way to pacify Hollywood, which they managed to do with softball penalties and eased record requirements in the special section written for simulated sex. According to Brooks Boliek, writing for the Hollywood Reporter, although Hollywood isn't thrilled by the bill, the studios didn't want to give the appearance that they are standing in the way of legislation meant to help the government crack down on child abusers.
    "To be clear, we support legislation that stops child pornography," the MPAA said. "But the original proposal would have subjected studios to criminal penalties, federal searches and near-impossible labeling requirements, none of which would have advanced the stated goal of protecting children. While this latest draft is not a perfect outcome, it is much better than it was."
    “Near impossible,” is it? We quite agree. Too bad the final version leaves in “near impossible” labeling requirements for some but not for others. Is it too much to ask for laws to be fair and reasonable for all?
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ALCOHOL-SERVING EXOTIC DANCE CLUB LOSES APPEAL
PHILADELPHIA, PA -- The 3rd U.S. Circuit Court of Appeals has upheld a summary judgment by U.S. District Judge Robert B. Kugler of the District of New Jersey in 181 South Inc. v. Fischer, a challenge of a New Jersey law prohibiting “lewdness or immoral activity" -- interpreted to include exotic dancing -- in clubs that serve alcohol. The case involves an Atlantic City tavern, the Moulin Rouge, which had been fined by state Alcohol Beverage Control after an undercover operation by state police, who observed Moulin Rouge exotic dancers engaging in what the police determined to be prohibited activity under the regulations. Dancers were seen to rub their breasts and crotch areas while onstage, “simulating masturbation,” and to straddle patrons and push their pelvis into the customer’s laps, “simulating sexual intercourse.” These more or less standard exotic dance and lap-dance components fell under the category of prohibited “lewd or immoral activity” because New Jersey state courts have ruled that lewd and immoral activity includes entertainment where the “predominant object and natural effect upon the observers-patrons of one portion of the performance [is] erotic excitation.”
    The Moulin Rogue owners, 181 South, Inc, appealed Kugler’s judgment, claiming that the District Court erred and that the New Jersey regulations violate the First Amendment, are overbroad and are constitutionally vague.
    The appeals court said it was not the freedom of erotic expression that was at issue, but the serving of alcohol.
    Wrote Circuit Judge Julio M. Fuentes: “New Jersey’s interest in enacting the Regulation is unrelated to the suppression of free expression, because the Regulation does not prohibit individuals from participating in “lewd or immoral activity.” Rather, it only prohibits such activity from taking place on the premises of liquor-licensed establishments. In other words, the Regulation “is not a restriction of erotic expression, but a prohibition of non-expressive conduct (i.e., serving and consuming alcohol) on premises where such expression takes place.”
    Moulin Rouge attorney Daniel A. Silver noted that Fuentes seemed to have misunderstood one of the key facts in the case because his opinion begins by saying the case "involves topless dance performances that include sexually explicit dance routines." In fact, Silver said, none of the Moulin Rouge's dancers are topless.
Information is from the Third Circuit opinion, 7/18/06
And from Shannon P. Duffy, The Legal Intelligencer, 7/19/06
See the FSC Website for an expanded version of this report.
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GROUPS URGE INTERNET FREEDOM
CYBERSPACE , EARTH -- The European Parliament has adopted a resolution strongly condemning restrictions on Internet content (apart from when it is illegal), as well as the harassment and imprisonment of Internet users. It calls on the EU to take steps to promote free speech on the web and to help release detained Internet users. The resolution notes that the Chinese government has even persuaded companies such as Yahoo, Google and Microsoft to facilitate the censorship of their services.
    In the meantime, Amnesty International released a new report, “Undermining Freedom of Expression in China,” exposing how Yahoo!, Microsoft and Google have violated their stated corporate values and policies in pursuit of the potentially lucrative Chinese market.
    "The Internet should promote free speech, not restrict it. We have to guard against the creation of two Internets -- one for expression and one for repression," said Larry Cox, Executive Director of Amnesty International USA (AIUSA).
    Amnesty International also recently joined with thirteen other human rights groups, including Reporters Without Borders and Human Rights Watch, in urging the U.S. Congress to pass the Global Online Freedom Act of 2006, ( H.R.4780) introduced by Representative Christopher H. Smith (R-NJ). (See X-Press report, “Global Online Freedom Act Passes Committee,” 7/7/06)
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JUDGE RULES FOR DANCE CLUB ON ZONING ISSUE
TARZANA, CA -- Los Angeles Superior Court Judge Dzintra Janavs has denied a request by Los Angeles city officials to shut down the Frisky Kitty adult cabaret here for allegedly being located too close to a residential zone. City Attorney's Office spokesman Jonathan Diamond said the city is trying to get the business to conform to zoning laws. However, according to Santa Monica attorney Roger Jon Diamond, the issue boils down to how the city measures the distance between the exotic dance club and the nearest residences. According to the way the city measures it, the club is within 500 feet of homes. But under other cities' measurements, the club is more than 500 feet from homes, Diamond said. "The municipal code is silent on how you measure," he explained.
    City officials have been trying to shut down the Friskly Kitty for eight years.
Information is from Troy Anderson, L.A. Daily News, 7/18/06
See also, X-Press Report, “Decision on Dance Club Set Over,” 6/9/06
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BUSH ASKED TO TAKE INTERNET LEADERSHIP
WASHINGTON, DC -- A veritable gaggle of right-wing fundamentalist groups, led by Bob Peters of Morality in Media, and including Concerned Women for America, American Family Association, Focus on the Family, Traditional Values Coalition, Family Research Council and Citizens for Community Values, among others, have sent a letter to President Bush asking him "to take a leadership role in addressing the international dimension of the ever-expanding obscenity problem." Peters said that new technology has made it practically impossible for U.S. obscenity laws alone to deal with the new international frontiers of the expanding explosion of obscene material through electronic transmissions. He pointed out that "international treaties on obscene publications were signed in 1910 (and amended in 1949) and in 1923 (and amended in 1947)." Those treaties are clearly outdated, he said, adding that every effort must be made to secure a new round of agreements.
    Tellingly, the group letter made common cause with Islamic fundamentalist groups on the issue. Peters noted that Muslim populations from across the world take great offense to the infusion of pornography on the Internet. He documented his claim by citing a 2002 Gallup poll taken from surveys conducted in several Muslim-dominated countries (i.e., Indonesia, Iran, Jordan, Kuwait, Lebanon, Morocco, Pakistan and Turkey). Fundamentalists of a feather stick together.
Information and quotes are from James L. Lambert, Agape Press, 7/17/06
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UpComing Events

JUL 15-22 -- Gay Games, Chicago IL

JUL 26 - AUG 5 -- Outgames, Montreal, Canada

AUG 4-6 -- Internext Summer 2006, Weston Diplomat, Hollywood, FL

AUG 22-24 -- Gentlemen’s Club Owners Expo, Las Vegas

AUG 25-28 -- Erotica Expo, New Zealand

SEPT 2 -- Sin City Chamber of Commerce Golf Classic, Las Vegas

SEPT 4 -- West Coast Rubber, Palm Springs, CA

SEPT 9-10 -- Gay Erotic Expo, L.A., CA

SEPT 24 -- Folsom Street Fair, San Francisco, CA

SEPT 23-24 -- Adultcon 11, Los Angeles Convention Center

SEPT 25-27 -- AVN Industry Summit, Palm Springs, CA

OCT 7 -- Arizona FetishBall,Scottsdale, AZ

OCT 8-9 -- Gay Erotic Expo, NY

OCT 17-22 -- CineKink NYC

OCT 20-26 -- Everything To Do With Sex Show, Toronto

OCT 21 -- Exotic Erotic Ball, San Francisco

DEC 1-3 -- Black Rose 2006, Washington, DC

See our website calendar for a more complete listing of events.