Although not the most significant news in the First Amendment arena but for Benjamin & Aaronson it certainly was. On February 9, 2005, James S. Benjamin was installed the President of the First Amendment Lawyers’ Association. We have spoken to you about this organization numerous times in the past. The organization is made up of approximately 150 attorneys nationwide who specialize and who focus their areas of practice on First Amendment law and adult entertainment juris prudence. As President, James Benjamin organized and ran the FALA meeting held in Costa Rica from February 9th through February 12th.
At the FALA meeting, were speakers who updated the organizations and laws dealing with zoning, licensing, obscenity, copyright, patent and trademark laws. In addition to these First Amendment areas, there were also speakers on ethics and the Federal Sentencing Guidelines after “Booker and FanFan”. In addition to the legal speakers, there was also Dr. Randy Fisher from the University of Central Florida who lectured and spoke on methodology in computing whether or not adult entertainment establishments actually do cause adverse secondary effects. The adverse secondary effect doctrine is what is used by governments to regulate adult entertainment and from our standpoint suppress freedom of speech and expression.
In more important news to most of you out there, recently Lou Sirkin from Cincinnati had a major victory in the “extreme associates” case. This case dealt with extreme associates of the internet who send adult material to subscribers. The United States government decided to prosecute this case in the Western District of Pennsylvania expecting a conservative judge and therefore a conservative ruling.
The United States government could never have been so wrong. Relying on somewhat recent case of Lawrence v. Texas, a United States Supreme Court case, in which the Supreme Court struck down the Texas sodomy laws as they pertain to private people in private settings, the District Court in Pennsylvania found that the Federal Obscenity Statute was unconstitutional as applied to extreme associates and its clientele. The Court noted that after Lawrence v. Texas, that the government had no right or interest in curtailing what someone viewed in their own home even though it had been disseminated through the Internet. This ruling pulls much hope for the rest of the adult entertainment industry and especially print, video, and DVD industry. Based upon the Judge’s ruling, along with the ruling in Lawrence v. Texas, it certainly now can be argued that the State or the Federal government no longer has any interest preventing obscene material from being sold from stores, as long as those materials are not being viewed on the premises of the store.
As the Court noted in its analysis, that having the right to view obscene materials in ones home could not be accomplished without the ability to get that obscene material. Although as said above, this was involving the Internet, the same rationale pertains to the adult video store. If someone has the right to view obscenity in their own home, as was decided years ago in Stanley v. Georgia, then the argument flows that shouldn’t they have the right to purchased that material from a store. We, are certainly hoping that this opens the flood gates to litigation that will establish throughout the country that it is unconstitutional to prevent people from purchasing obscene material for their view in private.
On another note, the United States House of Representatives, has just voted to raise the fines for violations of FCC standards up to $500,000.00 per incident. The Senate previously had passed its own bill capping the amount at $350,000.00. As in the Senate, committees will get together and iron out the exact amount.
Regardless, whether it is $350,000.00 or $500,000.00, the fact that radio stations or televisions stations could receive fines of this magnitude, certainly will send a chilling effect across those broadcasters, announcers and personalities as to what they will say on the air. Ultimately, this leads to censorship, as fear of these draconian fines will prevent you and I from hearing things that we do not find offensive but that some sexually repressed person’s unfettered power does.
Most of you already know that Howard Stern has decided to move to satellite radio that is not covered by FCC regulations. The exorbitant fines by the FCC will either push more people to do the Howard Stern route and go to satellite radio or it will cause numerous people to curtail their expression. The end result of all of this will be, that those of you who do not have satellite radio will be treated to much more sensitive radio and television, much more antiseptic radio and television and radio and television that is much more pleasing to conservative religious right agenda than that of supposedly the most freedom loving country on earth.