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January 20, 2017

Legal Panel 'When The Whip Comes Down' Discusses Impending Trump Era

LAS VEGAS—Many in the adult industry are probably not familiar with early 20th century journalist and cultural commentator H.L. Mencken, but on July 26, 1920, he published the following in a column for the Baltimore Evening Sun: "As democracy is perfected, the office of the President represents, more and more closely, the inner soul of the people. On some great and glorious day, the plain folks of the land will reach their heart's desire at last, and the White House will be occupied by a downright fool and a complete narcissistic moron." It was with that quote that moderator Mark Kernes opened AEE's primary legal panel on Thursday afternoon, whose objective was to discuss why "adult content producers have reason to be wary of how a Republican-led Justice Department might affect their bottom line"—and clearly, these were the right panelists to do it: First Amendment attorneys Clyde DeWitt, J. Michael Murray and Reed Lee; Evil Angel owner John Stagliano, and Free Speech Executive Director Eric Paul Leue. Of course, with the inauguration still a day away, and no Trump appointees having yet taken office, the panel was left with speculation based on the performances of previous Republican-led Justice Departments, and DeWitt was only too happy to bring the audience up to speed regarding what past presidents had done. "You in the industry have had eight years of wonderfulness," DeWitt began. "You've had no 2257 inspections, you've had no obscenity prosecutions, none of that crap. Fasten your seat belts starting at noon Eastern time tomorrow." DeWitt went on to give a recap of sexual speech suppression beginning with the Reagan administration's pandering to the Religious Right in 1980, and noting his Attorney General Edwin Meese, who put together the Attorney General's Commission on Pornography, better known simply as the Meese Commission, in May of 1985. The Commission spent six months holding hearings and released its final report in July of 1986, which would become, DeWitt said, "the best-selling book in the history of the Government Printing Office: two volumes on pornography, everything from soup to nuts. Ninety-four recommendations on how the federal and state and local governments could curtail pornography." He went on to note that one of those recommendations led to the creation of the federal recordkeeping and labeling law, 18 USC §2257, and the National Obscenity Enforcement Unit (later renamed the Child Exploitation and Obscenity Section), which current Attorney General nominee Jefferson Beauregard Sessions III told a Senate committee last week that he didn't realize had been disbanded, but that he had no problem starting it up again. DeWitt also touched on President George H.W. Bush's appointment of Dick Thornburgh, another anti-porner, as Attorney General, and the creation of several government "sting" operations that targeted adult producers (MiPorn) and adult mail-order companies (PostPorn), forcing many to close until Adam & Eve fought back in court. Then, following the speech-friendly Clinton administration, President George W. Bush gave us a series of anti-porn AGs including (Rev.) John Ashcroft and Alberto Gonzales, who drew up the first comprehensive federal regulations regarding 2257, which led to dozens of companies being inspected. "Elections matter," added Murray, who's been fighting the 2257 law for more than a decade, "and the election that brings us together tomorrow in Washington is going to matter a lot to your industry because of the fact the Attorney General who's been nominated, Jeff Sessions, has vowed at his confirmation hearings that he's going to prosecute vigorously obscenity violations under the federal laws, and that's going to have an enormous impact upon your industry. You are going to be at risk for being attacked... The result could be the entire forfeiture of your businesses, and there were prosecutions under the RICO law way back in the 1980s and into the 1990s," including that of founding adult entrepreneur Reuben Sturman in Las Vegas in 1991. Turning to the ongoing battle against the recordkeeping and labeling law, Murray supplied an update. Describing 2257 as "a tool a new Attorney General could use to really cripple the industry. It's a law that requires perfection; any minor deviation from the recordkeeping and labeling requirements may be punished as a felony and you can face up to five years in prison," Murray noted the latest ruling to come down in the Free Speech-instigated lawsuit against the law: Earlier this month, U.S. District Judge Michael M. Baylson made official the Third Circuit Court of Appeals' ruling that the search and seizure sections of the 2257/2257A laws were unconstitutional under the Fourth Amendment and should be struck from the law. "2257 made it a crime to refuse to allow the FBI to come in without a warrant, without probable cause, and inspect all your records, copy your records and cart them away," he said. "Those are the inspections that occurred years ago that could be revived under a new administration." He also noted that another Third Circuit decision called for 2257 to be examined under the doctrine of "strict scrutiny," a higher standard than the intermediate scrutiny standard that had been in force during the trial of the lawsuit almost four years ago. After new briefs are submitted later this year, "we believe we have at least a reasonably good chance of prevailing, if not in the District Court, when we get back if necessary to the U.S. Court of Appeals for the Third Circuit." Murray also lauded the Free Speech Coalition's unwavering support for the suit, which involves a dozen plaintiffs. Stagliano spoke next, noting that despite the Obama administration's general lack of interest on obscenity, it had decided not to drop such charges that had been lodged against Stagliano and his company during the later years of the Bush presidency. "[Obscenity prosecution] is increasingly a difficult proposition for the Justice Department to take on," he opined, "because I think, with the internet and the community standard argument being the internet and the world, or the whole country in this case, it will be more difficult and also the openmindedness of the people in our country appears to be changing and increasing." Stagliano said he expected that rather than bringing obscenity cases against the industry, the feds would essentially attempt to regulate us to death, in part through programs like Operation Chokepoint, which led to several banks closing adult industry members' accounts and denying them loans. Finally, speaking as a libertarian, he assured the audience that libertarians "have been explicitly against Trump from the beginning and still are, and never caved in like many Republican politicians who have now said that they support Trump and want to kiss his ass, so to speak. We explicitly are against government power, of which Trump is the worst example of it." "What I find mindboggling is that anybody who voted for this federal Republican administration in this industry voted directly against themselves," added Leue. "We know that we do not know what to expect of a President Trump; we do not know what is going to come, and that is one of the most frightening things because it's hard to prepare for something that we have absolutely no idea about what is going to happen. But we do know that the PEOTUS voted and vowed that porn is a public health crisis and signed a pledge by Enough Is Enough, which is one of the most terrifying and challenging hate groups against our industry... which will then create a commission which will not come after obscenity but will come after us in a Gulliver's way, and that is chipping away at our ability to function as businesses. They're looking at blaming us on children watching adult content, they're looking at blaming us that consuming or watching adult content makes your brain shrink; they're looking to think about how we increase teenage pregnancy rates, etc., etc., etc. They want to blame every single social issue that they didn't want to address on this one 'person' in the room that is such a small industry and really hard to defend itself, that it's going to be relatively easy to chip away at." Leue also pleaded with audience members to join and support Free Speech. "We cannot defend you if you don't help us defend you," he said. "The FSC [is] heavily underfunded but we are up against a gigantic enemy. 2257 has been an extremely expensive fight... but these fights against the federal administration don't come cheap... What we're looking at now are porn filters and adult content filters in South Carolina and Virginia, where users that buy new electronic devices that can access the internet have to pay $20 for that filter, that block to be removed from their device. We're looking at 'porn is a public health crisis' in Utah, Texas, South Carolina, Virginia as well and a couple of other states are also coming up with it. So we're looking at a really broad movement against us in a way that is going to be terrifying and challenging... When we fight, we win, so let's fight." The final speaker was Reed Lee, an attorney and Free Speech board member for over 12 years, who has authored several amicus briefs supporting adult causes. He began by attempting to put the industry's worries about Trump in perspective, noting that "there are a lot of vulnerable groups that have a lot to worry about in the immediate future; a lot of those groups more clearly have things to worry about than this one does." "History is on our side," he assessed. "But that doesn't mean we can kick back and relax, because history doesn't happen by itself, progress doesn't happen by itself, in the political arena or the legal arena. It takes work, it takes planning and it takes concerted effort... This industry has the clear march of social progress in its favor, and I think we need to understand that and make it a part of our political and legal claims for what's coming." Lee went on to discuss how two prongs of the federal obscenity laws depend on "community standards," noting that, "whether the conservative politicians, moral conservatives or otherwise, like it or not, there has been a steady progress in contemporary community standards," though Murray later suggested that with Trump set to appoint at least one U.S Supreme Court justice and possible two or three others during his term, those criteria could be altered. "Right now, we can win cases under it [the Miller obscenity decision] because it depends upon contemporary community standards. There have always been some on the Court and elsewhere who believe that you don't need community standards; that you ought to be able to make it a crime to create a film that shows actual sexual intercourse, and if that were the definition, hardcore pornography, they would say, shouldn't be protected at all by the First Amendment." Lee then turned to the question of how involved Trump will be in actual governing. "To be honest, I don't understand him," Lee admitted. "I think I understand the kind of proto-fascism that he fashioned a campaign out of because of my understanding of history, but the real question with Trump is how much he wants to be involved in being president. He clearly wanted to be elected president, he clearly enjoyed running for president, he clearly enjoyed speaking to crowds reminiscent of Nuremberg that quietly accepted what he had to say. Is he going to enjoy governing the Executive? I don't know. If he does, and if he's a hands-on president that directs policy according to what he thinks is important, given where we stand, he may be better for the industry than the alternatives, because I don't know that he has personal animosity toward adult entertainment. "But I fear that that's not what's going to happen," he continued. "I fear that Trump never really wanted to be president; he just wanted to run for president and be elected president and now he's going to leave it to others, and he has lots and lots of debts to pay to others, which do want to come after us." At that point, Kernes interrupted to note that several months ago, Trump's son told a reporter that Trump would be spending his presidency "making America great again," and would be leaving all "domestic and foreign policy" to his vice-president, who turned out to be right-wing religious zealot Mike Pence. "That's the real concern here," Lee agreed "If Donald Trump wants to cruise through four years and leave policy matters to others, the people who are in place to step up are not friends of this industry and are the ones who could bring about the most dire predictions you've heard." Kernes then opened up the floor to questions, and several speakers expressed concerns about their future, and the industry's, under the incoming administration, though some suggested that considering Trump's womanizing background, and the fact that his wife had been a nude model, there might be less to fear than is expected. In response to one question, Leue expressed worry about several other Trump administration nominees, including Education Secretary Betsy DeVos, Health Secretary Tom Price, anti-vaxxer Robert F. Kennedy Jr., and Ben Carson, "who believes that the pyramids were for "grain storage." "That is exactly why the FSC is trying to raise money to have a federal lobbyist on Capitol Hill," he later stated, "because we need proper representation there, so if you don't want to donate to the organization but you want to donate to having a federal lobbyist, come speak to me. We need proper representation 24/7 on Capitol Hill or all of our livelihoods are at stake." Other questioners expressed worry about how the new administration would deal with piracy of adult content; how Federal OSHA might impact Cal/OSHA regarding adult filming; and whether the industry would be forced out of the country to film (Stagliano admitted that it was a possibility, but that public pressure would probably keep it alive here). "I think the feds are coming," declared industry attorney Al Gelbard during the Q&A. "They don’t care if they get convictions because prosecuting people in this room puts them out of business. If you remember in the MiPorn era, the PostPorn era, they went after Adam & Eve is seven different jurisdictions at the same time... They're going to come, and if you think they're not coming, you're dreaming." "Let's be realistic: There are ways to come after us, and the only way we can face that is if we stand united," Leue stated. "We've been preaching this for years," added Murray. "You've got to be unified, you've got to support the Free Speech Coalition and those who are on the front lines fighting the battles over freedom of expression. You can't be passive; you've got to be active because liberty is lost when you're passive. Every new generation has to fight these same battles over liberty of expression over and over again. You never win them completely; you only stop the government for a while. Then they come after you again, and so you've got to be absolutely vigilant and you've got to be proactive and you've got to get all the other members of your industry supporting." Lee had a slightly different perspective. "The progressive in me wants to point out that while every bit of that is true, while we never ever win an issue once and for all, we can look back over the last 60 years and say that every time we win and make some progress, and every time they come back after us, we don't fall back all the way. There is a long term progress. We have to understand that, we have to make it part of our planning, we have to make it part of our commitment because it will not be a one-direction path toward perfection in the future. There will be setbacks, there will be fights, and each time we have a fight, we have to know that if what we do is defend this and come out better than we started, that is what makes for progress in the long run." On that somewhat optimistic note, the seminar concluded. Pictured, l-r: Clyde DeWitt, John Stagliano, Eric Paul Leue, J. Michael Murray, Reed Lee.

 
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