CROSS-EXAMINING YOUR ADULT WEBSITE ATTORNEY
Tips for interviewing lawyers to secure the best adult business representation
By: Lawrence G. Walters, Esq.
Choosing the right lawyer for an adult website business is critical. Here you will find some guidance on interviewing potential candidates for the job. If you are looking for tips on safely operating an adult website or live webcam network, check out our Legal Guides here and here.
Ok, so you're ready to take the advice of all the trade show panels, chat forums, and articles you’ve read, and hire an attorney to represent your adult business. You know that your Section 2257 record keeping compliance needs to be tightened up, and you've always been a little nervous about some of that fetish content, anyway. So now what do you do? Google search? Ask a friend? Contact a referral service?
This article will examine what qualifies an attorney to represent an adult website business, and what questions you should ask potential counsel. It is intended for website operators seeking counsel for the first time, or those who want to make sure their existing counsel remains the right choice.
With all the political uncertainty in Washington, DC, adult website operators are reevaluating their current legal practices and preparing for anything. It's been said that this is a good time to know a great lawyer. But what makes a lawyer great? There are great lawyers in various specialty fields. A great personal injury trial lawyer is probably not the best choice for adult website operations advice. Similarly, if you have heart disease, you don't go to your family doctor. You look for the best heart surgeon in the country, right? It's the same with lawyers. We're all specialists, now – or should be. The days of the general legal practitioner are long gone. All lawyers have their niche. So, what kind of lawyer is best for adult website representation?
Obviously, you need an attorney with experience, particularly in the areas of Internet Law, Intellectual Property, and First Amendment Law. Operation of an adult website triggers numerous legal issues associated with content clearance and licensing, copyright/trademark registration and enforcement, advertising restrictions, and compliance with federal age verification laws. Your lawyer should have some experience with criminal defense, as well, since many of the issues facing adult website operators can result in criminal prosecution if the wrong decision is made. There are only a handful of lawyers with the relevant experience to competently assist adult website operators. Most are members of the First Amendment Lawyers Association – a group which I have served in the capacity of President and National Chairman, in the past. I have been representing adult webmasters since there was such a thing, but the practice area has only been around for less than 30 years – unlike other fields of law that have spanned centuries. So, while you may not find a lawyer with substantial Adult Internet Law experience, you should at least eliminate potential candidates who do not have significant experience with the Adult Entertainment Industry in general. The adult industry has been around since at least the 1950's, when people were thrown in jail for selling Playboy magazine. Many of the lessons learned from the battles involving other types of adult media are extremely useful in representing adult webmasters. For example, the video distributors of the 1980’s fought many of the same types of battles that the Internet industry faces today. The tactics are different, but censorship of erotic media remains a popular political endeavor.
It is essential that your choice of counsel have experience representing adult industry clients, for several reasons: First, adult industry clients are different. While I have considered it an honor to advocate for the right to erotic expression for most of my career, adult industry clients are treated differently by judges and juries, and can be some of the toughest clients to represent in the court of public opinion. Legal arguments that will be readily accepted by the courts, when advanced by “mainstream” litigants, may be summarily rejected when the client is involved in the adult industry. Your lawyer should be accustomed to this treatment and prepare ahead of time. Adult industry lawyers are often held to a much higher standard in the courts and must always be more prepared and polished than attorneys in other practice areas.
You should not be your attorney's first adult industry client. We've seen it time and time again; the client who comes to us at the last minute because the Big Law firm that helped an adult business during the formation stages is ducking for cover when the media is pounding down the door about some high-profile case involving their favorite topic: sex. “Our other clients would not understand,” they say, as the client is shown the door and given the final bill. Your lawyer should be prepared to defend you in the court of public opinion when the going gets tough. If not, you should find one that will. You cannot afford to switch horses midstream. By the time your counsel decides to bail out, it may be too late for another attorney to take over and do a competent job. So, ask your lawyer: are you in this for the long haul?
Other important questions are:
- How many adult industry clients have you represented?
- Have you handled any obscenity cases? What was the outcome?
- How long have you been keeping up on the legal issues affecting the adult Internet industry?
- Do you understand today’s adult website business models?
- Will you be my media spokesperson?
- Will your other clients have a problem if you publicly advocate for me?
- Will you represent me on appeal if we lose a case?
Don't be afraid to interview your attorney. Choosing a lawyer will be one of the most significant decisions you make during the operation of your business. Often, clients are intimidated when it comes to challenging an attorney's experience and qualifications. This is not a time to be bashful.
The next issue to explore with your attorney is his or her familiarity with the Internet and possibly mobile applications. Does your candidate for legal counsel speak your language, or will you have to provide an education (on your dime)? Does your lawyer run a website or a blog? Is he or she active in social networking? Has the lawyer personally developed any software or mobile applications?? This is not a field for attorneys who dabble. It is a well-publicized fact that most lawyers experience job dissatisfaction. Many are looking to switch practice areas to something that is perceived to be more exciting or “sexy.” While there will always be room in this industry for talented, dedicated attorneys who are willing to fight for the First Amendment, be careful of the lawyer who is shopping around for the next distraction.
You should also question your attorney regarding the depth of his or her knowledge about the common legal issues affecting the adult Internet industry. These issues, like the Internet itself, are constantly evolving, and your attorney must stay on top of the changes in case law and legislation affecting your business, on a daily basis.
Some of these important legal issues are:
- FOSTA/SESTA: This law was passed in April, 2018, and has dramatically impacted the adult internet industry. Your lawyer should be familiar with this statute and how it will affect your ability to publish, advertise, and monetize erotic content.
- Obscenity: Historically, this has been one of the biggest potential concerns for website operators. Your attorney should have actual experience in this practice area.
- Records Keeping and Labeling Act (18 U.S.C. § 2257): The most common mistakes adult business operators make are in this category. The details can be tricky, so make sure your lawyer is up on this federal law and its implementing regulations.
- Child Pornography: Legitimate adult businesses detest actual child pornography, but compliance with federal child pornography and pandering laws can be more elusive. These laws can be violated even if all your models are over 18. If you get it wrong, the penalties are the same as actual child pornography.
- Unfair Trade Practices: Adult website operators have been pursued by the Federal Trade Commission for “unfair” business practices including deceptive promotional tactics, unreasonable user terms, data security breaches, and billing practices. Your lawyer must be able to spot these issues and provide advice.
- Copyright & Trademark: Protecting your brand and your content from intellectual property theft will be one of your lawyer's primary responsibilities. At the same time, your lawyer should be able to defend you if you make a mistake by infringing on someone else’s rights. Make sure your lawyer maintains an active copyright and trademark practice.
- Sex Trafficking: Laws designed to reduce sex trafficking are more commonly being used against adult website operators – particularly online advertising networks and content producers. Your attorney should be familiar with the restrictions and reporting obligations relating sex trafficking at the state and federal levels.
- Online Agreements: Adult websites require carefully-worded agreements, policies, and disclaimers. These documents must address contractual issues along with statutory obligations relating to privacy, age verification, and copyright law. Your attorney should have substantial experience in drafting these documents.
Potential clients often call for a referral to an attorney in their home city or state. While this is a natural inquiry, such geographical limitation has become irrelevant in the Digital Age. Initially, modern communication tools allow attorneys to instantly interact with clients across the globe. The developments with encryption allow such communications to remain more private than ever. Your attorney can advise you from just about anywhere, consistent with ethical rules. Another important fact to remember is that most of the issues that are likely to affect a website operation are federal or constitutional in nature. That means that the law is uniform across the country. We all share the same First Amendment, and other constitutional protections, so lawyers who have familiarity with these issues can competently advise clients throughout the U.S. When local issues do arise, your adult website attorney can engage local counsel to advise on any such matters. Accordingly, you should not exclude any attorney simply on the basis of office location.
Operating without competent counsel creates an unacceptable risk. The days of the Wild West Internet are gone, and the adult website industry is under a microscope by state and federal authorities. These efforts are bolstered by a wide variety of special interest groups that believe pornography is a public health crisis, or somehow contributes to sex trafficking. The large adult video companies that survived the war on pornography during the 1980s consistently budgeted a significant percentage of their profits for legal representation. While it may have been possible to survive without engaging legal counsel during early days of the adult Internet, the industry has matured and is held to same standard as other media interests. Get the most out of your legal budget by identifying the proper specialist for your business.
Lawrence G. Walters, Esquire is the managing attorney with Walters Law Group. He represents clients across the globe who are involved in all aspects of adult media. Walters Law Group handles First Amendment cases nationwide and has been involved in significant free speech litigation before the United States Supreme Court. Nothing in this article constitutes legal advice. You can reach us at http://www.FirstAmendment.com/contact-us/ or follow us on Twitter: @walterslawgroup