Get Into Jail Free Cards –
Reevaluating Free Hardcore Websites in the Current Legal Climate

BY: LAWRENCE G. WALTERS

The Web is all about free. Free downloads, free trials, free software, free memberships – free, free, free. It may be time to free the Web of all this free. With the Justice Department publicly touting its planned crackdown on Internet pornography[1], a fresh look at the risks and viability of the free content model is in order.

It’s the oldest legal debate on the Internet: How can we protect children from inappropriate materials without compromising the rights of adults? The first misguided attempt was to criminalize all “indecent” material on the Web by adoption of the Communications Decency Act of 1996. The United States Supreme Court made quick work of that travesty of justice in a rare unanimous Opinion striking down the law as a patent violation of First Amendment rights[2]. In doing so, however, the Court acknowledged that the government has a compelling interest in protecting minors from exposure to sexually-oriented materials on the Internet[3]. Although several other laws attempting to regulate online content in the name of protecting children suffered the same fate the courts have recognized that the government has an obligation to protect minors from exposure to adult erotica[4]. The question always boils down to: How? Clearly, broad content prohibitions restricting all Internet users’ access to explicit materials will not survive a constitutional challenge in light of the high level of protection afforded to online materials under the First Amendment[5]. The United States Supreme Court again wrestled with this problem in the recent arguments relating to the challenge to the Child Online Protection Act, (“COPA”), in March 2004.[6] While the Justices were certainly in favor of protecting children through some legitimate means, some were also uncomfortable with requiring credit card access prior to viewing adult materials on the Web.[7] Justice O’Connor suggested, perhaps out of frustration, that perhaps the answer lay in obscenity prosecutions against the vast array of websites that, in her view, are potentially subject to prosecution.[8]

To be sure, the issues of age verification, free sites and obscenity prosecutions are inextricably intertwined. To put it bluntly; free sites are tougher for attorneys to defend. All of our pious First Amendment arguments precariously hinge on the fundamental premise that the content at issue was created by adults, for adults. The average juror can be quite receptive to arguments contesting the government’s ability to validly tell you, or your neighbors, what media you should be able to watch, read or hear. These arguments can be successful even if the juror does not personally enjoy erotica. In the upcoming obscenity prosecutions, the government will likely make every effort to dilute that otherwise convincing argument by throwing in the issue of children; either as participants or an audience. If the content involves underage performers, or even those who appear to be underage, the prosecution will have the upper hand. However, a more subtle attempt to decimate the First Amendment arguments will arise where the content at issue is freely available to adults and children alike, at the click of the mouse. The well-groomed federal prosecutor, with hundreds of convictions under his belt in many white collar criminal cases, will look the jurors in the eye at the end of his closing argument, after he has meticulously identified how the website under prosecution violates each prong of the Miller Test[9], and will boldly announce: “And even your children can see this stuff!”

Multiple federal investigators are scouring the Internet, looking for appropriate websites to prosecute for federal obscenity offenses.[10] Those with no age verification or credit card firewall will immediately stand out as more attractive targets of prosecution than paid membership sites, with censored or soft-core free tours. Hardcore TGP sites are particularly vulnerable, because of the lack of any age verification, warning page, or literary material more commonly found in larger pay sites such as stories, diaries, themed video content, blogs, etc. Hardcore TGP site owners must ask themselves if they feel confident defending their material, with even the best First Amendment counsel money can buy, if their TGP site were blown up to life size and projected onto the side of a courtroom wall in dead silence, in full view of an elderly judge, court reporters, audience members and six frowning individuals forced to show up for jury duty that day in a small town that may not even contain an adult video store. In the context of defending that case, the webmaster must not only defend his or her right to display that content to adults, but must further justify its unrestricted availability to the youngest child in that small town. Such is the reality potentially facing many webmasters in the upcoming months. By the time this article is published, some may already have been indicted or tried. Those that choose to restrict access to their materials only to adults will be giving themselves, and their attorneys, a fair shot at defending their content. Others who insist on allowing unrestricted access to their sites, with nothing more than a “click here if you’re over 18” warning page, will be handicapping their own defense and potentially setting dangerous precedent for others in the industry, should the content at issue be declared obscene by a judge or a jury.

Importantly, the issue of age verification has nothing to do with the question of obscenity. Materials are either obscene or not, without regard to whether they are transmitted to minors. However, making obscene materials available to minors may result in an additional charge, under the Communications Decency Act’s obscenity provisions, which makes it a separate federal crime to transmit obscene materials to minors.[11] Even if the government does not separately charge an offense involving access by minors, it will try to interject the lack of age restriction into the trial, in various subtle ways.

In the 1980’s, during the heyday of the adult video prosecutions, local investigators would often send older-looking minors into video stores to rent or purchase the adult materials chosen for prosecution in an obscenity case. The fact that the purchaser was a minor was irrelevant to such charges, however the witness would state his or her age in the course of testifying, so everyone on the jury knew that the store was selling adult materials to minors. Similarly, in the first prosecution against an adult website in Polk County, Florida, Sheriff’s Deputies repeatedly testified that the defendants in that case provided passwords to the site to teenage boys in the neighborhood, even though such testimony had nothing to do with the obscenity case at issue. Therefore, history has shown that the government likes to mix the issue of children and obscenity, whenever possible.

Unfortunately, the culture of the Internet has developed in such a way that any restriction on access to content – even age restriction – is viewed with suspicion, and is often avoided. That cultural resistance must be broken in light of the legal realities of the day. Whether COPA is upheld or not, the adult Internet industry must consider some form of voluntary age restriction or verification when it comes to hardcore materials. All of the academic arguments against such restrictions, such as placing the obligation on parents to approve their child’s media intake, that foreign webmasters will get the upper hand in the marketplace, that some exposure to sexually-oriented materials is acceptable (even helpful) for teen and pre-teen development, and/or that such restrictions are simply unconstitutional, must give way to the safety and protection of the adult webmaster community in the face of a religiously-motivated political crackdown by the United States Department of Justice on website content.

If self-preservation is not a significant enough motivator, let’s look at the business realties: Children make lousy traffic. They don’t have credit cards, or much disposable income, and thus they will not purchase memberships or products from your websites or advertisers. Their friends and acquaintances are also usually minors. Therefore, their word of mouth referrals are also worthless. Underage traffic uses bandwidth, costs money, and provides no return benefit. Instead, minors create a legal liability. The last thing any webmaster needs is one of their underage customers to be caught red-handed, viewing an adult website, by their parent who happens to work for the Department of Justice, the FTC, or some other law enforcement agency. Personally motivated prosecutions are more difficult to defend or resolve.

There is no question that the suggestions made herein require a radical rethinking of the free site, free tour, and/or TGP-based business model. As noted in the opening paragraph, website users want their free content. However, this calls for a bit of forgiveness by the Web surfers. They may actually have to shell out a few bucks to see the money shot, just as they used to when the only forms of erotica available were the videotape, the magazine or the 8mm film roll. Is this a bad thing? The industry already knows the answer to that question. Free content has done more to dilute the value of adult materials online, and to reduce the bottom line of adult webmasters, than any other single factor – including copyright theft or credit card regulations. Yet the industry did this to itself. The pervasiveness of free hardcore materials online is a cancer that must be eradicated through the equivalent of virtual chemotherapy. Sure, imposing these involuntary restrictions might make you feel sick for a while, but you know it is for the greater good. Will everyone comply? Surely not. Does that mean that the industry should not attempt to protect itself both collectively and individually? Again, certainly not. In a global industry like the Internet, there will always be those who do not play by the rules, give others a bad name, and engage in self-destructive behavior. However, industry standards are developed by consensus, not 100% compliance. If the vast majority of webmasters restrict access to hardcore materials using some form of age verification, the industry will benefit through a heightened public perception, and individual webmasters will benefit through better legal positioning. As with any movement, it takes a few leaders to set the example and spur change. Any industry participant reading this article can decide to be one of those leaders and can take a stand for the benefit of one, and all.

1. Sullivan, Laura, “Administration wages war on pornography,” The Baltimore Sun (April 6, 2004).
2. Reno v. ACLU, 521 U.S. 844, 112 S.Ct. 2329, 138 L.Ed.2d 874 (1997).
3. Id.
4. Reno v. ACLU, supra, American Book Sellers Foundation for Free Expression v. Dean, 202 F.Supp.2d 300 (D. Vt. 2002); PSI Net, Inc. v. Chapman, 167 F.Supp. 878 (W.D. Pa. 2001), aff’d, 2004 WL 584355 (4th Cir. March 25, 2004); Cyberspace Communications, Inc. v. Engler, 142 F.Supp.2d 827 (E.D. Mich. 2001); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997).
5. Reno, supra,521 U.S. at 863.
6. Ashcroft v. ACLU, U.S. S.C. Case No. 03-218.
7. Transcript of Oral Argument.
8. “Justice O’Connor Presses for Obscenity Prosecutions,” YNOT NEWS (March 4, 2004), located at http://ynotnews.ynotmasters.com/issues/030404/page6.html.
9. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
10. “Administration wages war on pornography,” supra.
11. 47 U.S.C. ' 223

Lawrence G. Walters, Esq., is a partner in the national law firm Walters Law Group. Mr. Walters represents clients involved in all aspects of adult media. Nothing in this article constitutes legal advice. Please contact your personal attorney with specific legal questions. Mr. Walters can be reached at , through his website: www.FirstAmendment.com or via AOL Screen Name: “Webattorney.”
larry@firstamendment.com