October 15, 2002
Dear Friend,
It's been a very long time since our last xxxlaw Bulletin - since early July - and a great many things affecting the Adult Internet, Free Speech, and Liberty have taken place since then. And so, this Bulletin is long overdue. It comes to you from Los Angeles, California, on an uncharacteristically chilly and drizzly Wednesday night.
Los Angeles AWE This Weekend
I am here to meet with some people in our industry and to speak on Saturday at 2:00 p.m. at the Los Angeles Adult Webmaster Event, the last AWE of 2002 and the twelfth such event at which I've had the pleasure of speaking during the past two years. I cannot guarantee that registration for this free event is still open, but I just can't strongly enough emphasize how valuable these events are for webmasters at every level. I have recommended them to many, many new clients and the feedback always confirms the value of these events to the attendees.) By all means, attend if you can. [Stay away at your peril! For the first time, I've been getting emails in advance of the Event asking - No, demanding - that I discuss the new Visa Regulations, the Max Hardcore Case, and the potential for liability emerging out of the AdultCheck/Perfect 10 case. I intend to leave the audience satisfied ;-) ] The registration link is found here . This event will be held at the LAX Radisson - which turns out to be a very nice hotel.
(I will be back to Los Angeles in three weeks. I have been invited to address the general membership meeting of the Free Speech Coalition on Wednesday evening, Nov. 6, 2002, at the Airtel Plaza Hotel in Van Nuys, CA. I take that invitation as a significant honor, and I hope to see as many of my friends and clients there as possible.)
By the way, the handiest and cheapest way to get hold of me through Sunday is through the text messaging link on the front page of xxxxlaw.net .
Latest on the Mike Jones Case
Last Friday, three months after I filed a Motion to Dismiss, I appeared and argued before McHenry County Illinois Circuit Judge Sharon Prather and she declared a portion of the Illinois Child Pornography statute unconsitutional in the Mike Jones case. We had argued that more than twenty-three uses of such terms as "portray", "depict", "simulate", "perform", and "appears to be" in the Illinois law invalidated that entire statute, because, taken together, they violated the prinicipal articulated and decided by the US Supreme Court in the Free Speech Coalition Case last Spring: The State cannot make ideas and the mere expression of ideas illegal. We believe that the entire statute is unconstitutional as facially and substantially overbroad. (At least one other judge in Illinois has done so, and as a result, the statute in question will go to the state Supreme Court.) A mainly accurate article appears here: http://www.nwherald.com/spider/NWH/news/277826042577732.shtml , in a local paper, the Northwest Herald. She invalidated only a definition whose text closely resembled that part of the text of Section 2256 that was declared facially overbroad and invalidated by the Supreme Court; She held that the rest of the statute only applied to persons under the age of 18.
What really is at issue in this case are nine bondage/domination/sadomasochistic images which are charged as obscene. I am not permitted to directly make public comment about the evidence in this pending case - and I will not - but it is my most deeply held belief that probable cause does not exist for the child pornography counts. Mike is not and has never been a child pornographer. It is enough for me to say that when the government comes looking in a search warrant, they will look for anything that will get them the result they desire. They will search your Internet Explorer cache file, even for deleted thumbnails which appeared on websites that you were javascripted into - images that you never saved and never accessed again - and if those images depict minors, you can count on the proposition that you will be so charged to give the prosecution a tactical advantage. This will happen even when the government knows that it can never prove that your "possession" of the images, if it can be called that, was intentional or knowing. This is an object lesson in the use of disc-scrubbing hardware on a routine basis.
Nevertheless, Judge Prather's ruling of partial invalidity opens a new door with new issues and presents a new oppornunity for another challenge against these Counts from a different direction. Keep your eye on this case.
This false allegation has taken its toll on Mike and on his business, cdbabes.com . Mike is the last person to deserve such a fate. It is Mike Jones who got me started on Section 2257, long before these events took place. Those of us who know Mike personally know him to be a kind, decent, generous, unflappable man of the most decent character with a warm and unfailing sense of humor. Please do consider Mike Jones when purchasing content. By defending himself against charges of criminal obscenity based on BDSM images, Mike is defending interests a great deal broader than his own.
Hung Jury in Max Hardcore Obscenity Case
The videos of Max Hardcore explore the outer perimeters of the sexually extreme, and those who have seen his content, whether they like it or not, are unlikely to forget it.
Last Thursday, October 9, after jury deliberation of ten hours spanning four days, a mistrial was declared in the Los Angeles County obscenity trial of Max Hardcore arising out of his video, "Max Extreme Volume IV". When the mistrial was declared, the jury was split 6 to 6 and showed no real signs of movement toward a verdict. Under the unanimous verdict rule, all jurors must concur to convict or to acquit.
The jury consisted of ten women and two men. All six votes for conviction were from women, one of whom had never seen a porn tape before the trial. A significant number of the jurors were employed by the government or defense contractors. In other words, they jury did not resemble a fair cross section of the population of Los Angeles County.
Max was capably represented by Attorney Jeff Douglas of Santa Monica. I've read the press accounts and I've had the chance talk with Jeff about the case.
The tape at issue contained four scenes of a sexually explicit nature. In one of them, the female (romantic?) lead announced that she was only twelve years old during an intimate act, and it was this comment that drew most of the fire of the female prosecutor. During deliberation, the jury sent a note to the judge, inquiring whether the prominent notice in the opening titles, that all of the performers were eighteen years of age or older, was there because it was requried by law. The tape featured a significant amount of what was perhaps most adroitly described by another adult enteratainment lawyer as "a/m action", but apparently lacked the forced fellations which are almost a signature item in the Max Hardcore ouvre.
Predictably, much of the pretrial skirmishing was about the "comparables", that is the subject of what the defense is permitted to show the jury to establish community acceptance of the materials depicted in the charged materials. If the materials are not "patently offensive", of course they cannot be obscene. Thus, obscenity defense lawyers strive to show that similar materials are popularly bought, rented and viewed. Despite the testimony of AVN CEO Paul Fishbein that "Barely Legal" was the most popularly sold tape in California, the jury was not permitted to see any excerpts from that series. They were permitted to view selections from the "Extreme Teens" series and from the original "Cherry Poppers". What seemed to matter to the trial judge was actual concrete survey data based on calls to outlets selling adult materials, and what seemed to matter least to him was the opinion of a person who arguably has his finger on the pulse of adult video sales more accurately than any other individual in the country.
Visa Rules Changes
I have had the opporntunity during the last twenty-four hours to talk with an individual at the highest level of a major charge processing company. It did not provide much clarity in understanding the situation. I learned that even the major processors can't get straight answers from Visa on such nuts and bolts issues as whether they can continue recurring billing for sites which do not opt in to the new regime, pay their money, make their disclosures, and in the case of the international webmsters, establish an American presence. Tom Hymes and Kathy Brewer together wrote an excellent piece of journalism which currently appears on the front page of AVN Online, an article that ends its trail of inquiry at a dead end concerning the real purposes and sources of the rule change. The situation is further clouded by the fact that Visa Rules are secret, confidential, proprietary information that is not to be released outside Visa and is affilliated banking entities. There is something vaguely sinister about all of this. Stay tuned for further developments.
And Finally, Some Pictures . . .
2002 has been a remarkable year for xxxlaw and for my own travel to get out into the world and meet the webmasters and content providers. Las Vegas - Tampa - Montreal - Atlanta - Vanouver (twice!) - Seattle - Hollywood - Philadelphia - Fort Lauderdale - Denver - New York - and now LA. I have shared a couple of my Philadelphia pictures on the front page of xxxlaw - to make a point - and now I share some from Montreal and from the wonderful excuse that Nina Maraschino gave me to visit her city of New York for her sensational two-day party.
If you read my article, "Just Speaking Freely About Montreal: The Words of the Prophets", that AVN Online was gracious enough to put up on its site immediately after it was written on the 4th of July, you might have though that the actions depicted in the story line were just literary devices. Nope. All of it was literally true, and I've put the pictures to prove it online. When I came to Nina's party in New York, a very dear and special friend from college days picked me up at Newark and, after showing me "her" part of New Jersey, Bobbi put me on a hydrofoil ferry from near Sandy Hook, New Jersey that took me under the Narrows Bridge, past the Statute of Liberty, and into Manhattan at 34th Street from the sea. As a result, I was able to enter New York through a misty and foggy ocean, as my own immigrant ancestors did, and the experience was unforgettable. Pictures of that, and of my first visit to Ground Zero and of the American Museum of Natural History and of a great corned beef sandwich, and more, are all found at this link: Montreal 6-1-02 New York 9-17-02 .
We are most sincerely grateful to our clients, whose patience and understanding during the past few whirlwind months will be repaid in full to them with renewed devotion and loyalty, and all of the skill we are capable of bringing to bear for their advantage.
All best wishes,
Joe Obenberger,
Attorney at Law
http://www.xxxlaw.net
Joe Obenberger,
Attorney at Law
www.xxxlaw.net
As always, this email is sent only to a select group of Adult Internet and Adult Entertainment professionals for general information and legal education: It does not constitute legal advice nor form a legal relationship.