Legalese Column: AVN's 30th Anniversary Compels a Look Back

This article originally ran in the January 2013 issue of AVN magazine. In 1983, a Temple University journalism graduate named Paul Fishbein saw a need for a trade publication to cover the exploding adult video industry. Obtaining consent from his boss to undertake that sideline endeavor, he sent out a newsletter, Adult Video News. Paul soon quit his job, launching AVN as a full-time endeavor. He budgeted 25 bucks a week for personal expenses. The rest is history. Much has transpired in the 30 years of AVN’s existence. From the legal perspective, here are some of the most significant: President Reagan’s Reelection (1984)Reagan trounced Walter Mondale 525-13 in the Electoral College, giving the charismatic president immense political capital coupled with a huge debt to the emerging political power of the religious right. The latter would be punctuated by his Supreme Court appointments, especially the elevation of William H. Rehnquist to Chief Justice and appointment of Antonin Scalia as associate justice; and, as noted below, the attempted appointment of Robert Bork. President Reagan also appointed a roster of very conservative lower-court judges, turning the federal bench as a whole to substantially favoring the right. While the administration fervently denied it, there is little doubt that the lesson learned from Sandra Day O’Connor was that a litmus test was needed for judges with assurances that they would vote to overturn Roe v. Wade. President Reagan also appointed Edwin Meese III as attorney general; Meese would quarterback the administration’s near-decade-long assault on the adult video industry.The Helms Amendment (1984)North Carolina Senator Jesse Helms was one of the fiercest enemies of adult entertainment. In a never-debated, eleventh-hour amendment to an unrelated bill engineered by Senator Helms’ political cunning, state and federal obscenity crimes were added to predicate RICO offenses. The result was that two obscenity violations by an organization could result not only in 20-year sentences for those involved but also in the forfeiture of the entire “enterprise.” Although the Justice Department has to this day maintained a policy that RICO be used sparingly, to be approved only by a top DOJ official, the Helms Amendment later begat the addition of obscenity forfeitures and obscenity as a predicate to the federal money laundering law, which allows forfeitures almost as severe.The Meese Commission Report (1986)Although William French Smith was attorney general when the president’s Commission on Obscenity and Pornography was hatched, Edwin Meese III was a Reagan staffer at the time and would become attorney general in early 1985. Imitating the Kefauver Commission on Organized Crime of the early 1950s and perhaps more poignantly the infamous Army-McCarthy hearings a few years hence (“Are you now or have you ever been a member of the Communist Party?”), the Meese Commission paraded around the country holding hearings—described as “dog and pony shows” by many—exposing the supposed “horrors” of pornography. “Victims” would testify from behind screens about how pornography ruined their lives. Despite the fact that the members of the commission were hand-picked conservatives, certain to stack the deck against the adult industry, the final report was not as stinging as had been hoped by Meese and his minions. Pornography, the commission found, was not nearly as harmful as in the picture painted by its detractors. The report’s detailed appendix quickly rendered it the best-selling publication in the history of the Government Printing Office; the administration was somewhat embarrassed when Meese released his report in the Great Hall of the Robert F. Kennedy Department of Justice Building in Washington, D.C.—directly in front of the bare-breasted Lady Justice statue. The media had a field day with that! However, the report included dozens of legislative and enforcement recommendations, all of which were spoon-fed to the commission by religious-right organizations and Meese’s Department of Justice. Those recommendations included an obscenity strike force, 2257, enacting a forfeiture provision to federal obscenity laws and adding obscenity to state RICO statutes, all of which were largely adopted, along with many more.Operations PostPorn and Woodworm (1987-89)Springing from one of the report’s recommendations, Meese promptly organized the National Obscenity Enforcement Unit, soon redenominated the Child Protection and Obscenity Enforcement Unit because obscenity enforcement didn’t sit too well with much of the public. However, the unit aggressively orchestrated two, spectacular “operations”: PostPorn, designed to extinguish every adult mail-order company, and Woodworm, intended to annihilate the San Fernando Valley’s exploding adult video industry. Quite a few folks went to prison and several companies went out of business, but the industry survived and continued to grow. Anthony Kennedy’s Appointment/Confirmation (1988)A recurring theme in presidential politics: “It’s the Supreme Court, Stupid!” Anthony Kennedy has been the swing vote on First Amendment issues at least since the retirement of Sandra Day O’Connor; most forget how it was that he found his way to the highest court. President Reagan first nominated Robert Bork to take the seat vacated by Lewis Powell’s retirement. Bork was an off-the-chart conservative, whose published works on his legal thinking were criticized by liberals and conservatives alike. His nomination was met with a rare 58-42 rejection by the full Senate, including six Republicans voting against him. Reagan’s replacement nominee for Bork, Robert Ginsburg, was short-lived, derailed by the revelation that he had been known to inhale. Anthony Kennedy was the third try, presumably selected because of a belief that, while clearly palatable to the slightly Democratic Senate, his Catholicism would impel him to vote to overturn Roe v. Wade. Wrong! Justice Kennedy would go on to reject the Republicans’ views by casting the deciding votes in the flag-burning and homosexual activity cases, while reading from the bench a blistering dissent in the Alexander case, explained below.People v. Freeman (1988)Adult movie-making is not prostitution, the California Supreme Court held in Hal Freeman’s 1988 case, the holding of which has never been rejected by any court. The decision created a sea change in production habits, bringing all of it above ground. 18 U.S.C. § 2257 (1988; 1990)Enacted first in 1988, promptly held unconstitutional, recast in 1990 and finally for the most part judicially approved in 1995, the misery brought about by the labeling and record-keeping requirements embodied in this statute needs no elaboration here. FW/PBS v. City of Dallas (1990)A 6-3 win in the Supreme Court, this case had a potential downside that few ever realized. Holding that licenses for adult businesses are subject to the constitutional restrictions (1) against allowing licensor discretion and (2) requiring reasonable time limits for responses to license applications, the decision saved every adult business, from production to retail, from being totally thwarted by regulatory red tape.Alexander v. United States (1993)The Supreme Court here surprisingly gave 6-3 approval for forfeiture of entire enterprises as a consequence of a handful of obscenity findings. Ferris Alexander lost his estimated $20 million Minnesota empire of real estate, businesses and inventory as a result of a jury finding of six obscenity convictions.The Digital Millennium Copyright Act (1998)Little need be said about this. It begat “tube” sites and is to this day subject to a great deal of litigation.The Election of Clinton (1992, 1996) & Obama (2008, 2012)Clinton and Obama together have appointed the only four Democratic justices on the Court (Justices Ginsburg, Breyer, Sotomayor and Kagan) who, with Kennedy, spin out the few pro-First Amendment rulings from the court. Had Bush 41 been re-elected in 1992 and McCain defeated Obama in 2008, we would have an all-Republican Supreme Court that could have rejected Roe v. Wade 8-1 and wreaked havoc on the First Amendment. Obama’s second term could prove equally important, given the ages that some of the justices will reach before January 20, 2016 (Ginsburg, 83; Scalia and Kennedy, each 80). President Obama stands to be in a position to block a Republican effort to kill Roe v. Wade and most of the rest of the Bill of Rights.No New Categories of Unprotected Speech (2002-12)During the past decade, on at each of least four occasions the Supreme Court has refused a governmental invitation to add to the short list of categories of unprotected speech, such as child pornography, defamation, fraud, fighting words, etc.: Ashcroft v. Free Speech Coalition (2002, virtual child pornography), United States v. Stevens (2010, “crush” videos); Brown v. Entertainment Merchants Ass’n (2011, violent video games); and United States v. Alvarez (2012, lying about having received medals). Indeed, the last time the court added to the list was the 1982 decision in New York v. Ferber, adding child pornography. It has been an interesting run. Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at ClydeDeWitt@earthlink.net. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.