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Sex and the Law

United We Stand; Divided We Fall – If Only It Were That Simple

Liberal or conservative?  Mac or PC?  Romney or Rick?  Exacerbated by politics, economic theories, technological preferences and even something as trivial as your reality TV show of choice – these days, it always seems like we’re always picking a side in one way or another.  Given that we’re so quick to draw that proverbial line in the sand, one can’t help but wonder how any groups rally together for a common purpose anymore.  In this respect, the adult industry is the same as any run-of-the-mill church organization, PTA, or even the federal government – there’s infighting.  Representative of, arguably, the strongest motivator of human nature, the adult entertainment industry has the unique task of justly operating within its own sociosphere , all while conveying a somewhat united front to the outside world.  But between high-profile obscenity prosecutions, piracy problems, the economy, and DOTXXX, the pressure on those in the industry hasn’t made it easy to sit around singing Kumbaya at the latest industry gathering.

In all fairness, dissension, disagreement, and the dialogue the two create – that’s the kind of stuff we thrive on.  When I say ‘we,’ I mean those of us involved in the adult entertainment industry – in one way or another.  I understand that we all got involved in the industry for different reasons, intended or not, but we all have that little bit of rebellion deep down inside – if we didn’t, we wouldn’t still be here.  This begs the question: Is that drive to question the status quo so innate within us that we simply cannot recognize when it benefits the greater good of the industry to offer support based less upon conditions and more upon the recognition that we’re all supposed to be fighting the same fight?

Despite its substantial contribution to everything from technological development to global charity, the adult industry is not necessarily held in the highest regard in mainstream society.  Because of this ‘outsider’ perception, conveying a united front on headline-grabbing issues is all the more important.  It seems that the higher-profile the issue, the more cavernous the division is within the industry; especially with matters having a direct impact on the mainstream.  Unfortunately for us, those issues that reach the ‘outside’ world, so to speak, are the ones that warrant the most serious attempt at forming a unified front.

As we’ve seen in the past, this industry has actually turned on its own a time or two – a regrettable circumstance that does nothing but harm the industry as a whole.  The Extreme Associates and Max Hardcore cases are two perfect examples of situations where the industry severely lacked in supporting its own.  Arguably, one of the most significant legal attacks against the adult industry, US v. Extreme Associates, was the federal government’s first major obscenity prosecution since the early 1990’s; a grim reminder that political rants on “moral values” aren’t always just empty threats.  For those who don’t remember, in 2003, husband and wife business partners, Rob Black and Lizzy Borden were indicted on various conspiracy and obscenity charges based on the “extreme” hardcore nature of adult content produced by their corporate entity, Extreme Associates.  The case was dismissed by the district court in January 2005, which ruled that the federal obscenity statutes were unconstitutional because they violated an individual’s right to privacy.  The DOJ appealed and found success in a Third Circuit decision overturning the District Court’s ruling, which eventually lead to the couple pleading guilty on obscenity charges and their subsequent imprisonment.  Similarly, in 2008, Paul Little (a.k.a. Max Hardcore) was convicted of ten counts of distributing obscene materials, stemming from adult films produced by his company, Max World Entertainment. He was ultimately sentenced to a 46 month prison term.  The lack of support – both, financial and moral – offered to these individuals illustrates exactly how the adult industry should not respond to government attacks against a fellow industry associate.  Black and Little were essentially on their own, as other content producers tried to distance themselves from the type of content subject to prosecution.   Sadly, it became alarmingly easy to distinguish one’s self and/or business practices from “those people” who were targeted in the DOJ’s latest witch hunt du jour.

If we’re being frank here, it was the extreme nature of Black’s and Little’s content that likely had industry players running to their lawyers asking whether their content was ‘safer’ than the material subject to prosecution.   Those same lawyers may well have cringed at the thought of advising any public support or association with defendants under federal indictment.  But support for the most extreme end of the industry ironically helps keep all others safer.  Bottom line: The members of the adult entertainment industry should not only have rallied behind Paul Little and Rob Black, but should thank them for being willing to take a bullet for the same people that averted eye contact for years instead of readily opening their wallets as a gesture of unwavering solidarity.  The federal government (and more than a few right-wing political groups, for that matter) would love nothing more than for the industry to cannibalize itself – and with Extreme Associates and Max Hardcore, that’s what happened.  Even more industry division has resulted from the DotXXX battle, which has left close friends no longer speaking with each other.  It is time to rise above.

Despite its wavering past, hope springs eternal.   In 2008, when producer John Stagliano was indicted on seven counts of violating federal obscenity laws stemming from the sale and distribution of adult films by his company, Evil Angel, the industry galvanized solidly behind John.  Even though he was financially able to defend himself from the governmental onslaught, most industry stakeholders provided much-needed moral and public support for his cause.  Approximately two years later a federal district court judge dismissed the case finding that the evidence provided was insufficient for a jury to find guilt beyond a reasonable doubt.  The Stagliano case is a prime example of the adult entertainment industry pulling together to present a united front.  Recognizing the fluidity of obscenity prosecutions and the particular content targeted in them, Stagliano’s legal team addressed the industry, specifically requesting that it not make the same mistakes seen in the Max Hardcore case.  Calling on each content producer to be a “foot soldier” in the battle against unwarranted prosecution, Stagliano’s attorneys encouraged industry players to preserve current business relationships, donate to the cause and maintain unconditional assistance despite fear of prosecution.  John Stagliano chose to fight the good fight and luckily the industry as a whole remained a foundation for that fight.

Remaining optimistic thanks to the Stagliano case, I have also had the pleasure of seeing first-hand the industry unite on a much smaller, but equally as important, scale in opposing the current prosecution of Theresa Taylor (a.k.a. Kimberly Kupps).  Involving the all-too-familiar venue of Polk County, Florida, Ms. Taylor is facing felony state obscenity charges based on the content of her website KimberlyKupps.com.  The content targeted in this case is well within the mainstream of modern erotic fare, and has thus far not resulted in the distancing and finger pointing that occurred during the Extreme Associates and Max Hardcore cases.  This Kupps prosecution epitomizes the slippery slope that occurs when law enforcement agents deem themselves the judge, jury, and executioner in enforcing overly subjective legal standards to adult content.  Having already received dozens of donations to help fight the censorship machine that reared its ugly head once again in Polk County, I remain extremely encouraged and pleased to see the adult industry supporting the cause – even for a state level prosecution such as this.

The spirit of this post is a call to action for the adult entertainment industry, not to dwell on missteps of the past.  Heck, even the industry lawyers have their own share of in-fighting.  But in order to know where we are going, we must know where we’ve been, and in turn recognize the mistakes that were made on the way.  I am proud, and always humbled, to have the opportunity to fight for the First Amendment rights of the adult industry, and represent those victimized by sex hysteria.  But in order to make progress and deter the government from committing future Free Speech violations, the members of the adult industry must stand in solidarity with each other, regardless of petty intra-industry disputes, issues with competition, disagreements over content, or fear of becoming the next target.  Aptly referenced by our colleague, H. Louis Sirkin, Esq., in discussing the importance of unconditional industry support of its own members, I leave you with this famous quote: “First they came for the communists, and I didn’t speak out because I wasn’t a communist.  Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist.  Then they came for the Jews, and I didn’t speak out because I wasn’t a Jew.  Then they came for me and there was no one left to speak out for me.” [Pastor Martin Niemöller]