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Delivering Weekly Censorship Updates to the Adult Entertainment Industry
Vol. X, No. 56, February 22, 2008 - A Member Service of the Free Speech Coalition
Stories without byline submitted by FSC contract writer, Scott Ross
Contributing writers: Matt Gray and Dave Grimaldi
Copyright 2008 Free Speech Coalition. Permission to reprint granted to FSC members; please give credit.


This X-press in brought to you by our exclusive sponsor ARS.

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1. Obscene Device Law Overturned In 5th Circuit
2. Free Speech Coalition Analysis and Frequently Asked Questions of the 5th Circuit Decision Overturning the Texas Ban on the Sale of Sex Toys
3. Sexual Device Ruling Good News for Sherri Williams
4. Suicide Girls Contracts Voided
5. Utah Police Raid Spenser Gifts
6. Crackdown on Celebrity Porn Rifles Hong Kong Free Speech Advocates
 
7. A Year in Review
8. The World's Largest Swingers Party
9. X-PRESS Sponsorship & Ad Blowout!
10. FSC Legislative Bill Tracking Report:
February 18, 2008
11. Suggestion Box
12. GAYVN Summit
13. Advertisers
14. Events
15. Quotable Quotes
Obscene Device Law Overturned In 5th Circuit
NEW ORLEANS, LA - A three-judge panel of the Fifth U.S. Circuit Court of Appeals overturned a Texas statute making it illegal to promote or sell sexual devices last week.

The ruling relied upon the landmark Lawrence v. Texas decision, which overturned Texas' anti-sodomy statute on the grounds of substantive due process rights, a complex legal argument that holds that government must have a compelling reason to interfere with the rights of an individual; morality not being an acceptable reason.

"Because of Lawrence, the issue before us is whether the Texas statute impermissibly burdens the individual's substantive due process right to engage in private intimate conduct of his or her choosing," wrote Judge Thomas Morrow Reavley for the panel. "Contrary to the district court's conclusion, we hold that the Texas law burdens this constitutional right.

"An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right. This conclusion is consistent with the decisions in Carey [v. Population Services Int'l] and Griswold [v. Connecticut], both cases involving distribution and use of contraceptives, where the Court held that restricting commercial transactions unconstitutionally burdened the exercise of individual rights."

"You've got to read the opinion!" H. Louis Sirkin, one of the lawyers representing Reliable Consultants in the case, told AVN. "It's absolutely everything that we could have ever wanted to develop from Lawrence.

The Reliable Consultants case came before the U.S. District Court on a declaratory judgment motion. Reliable Consultants does business as Dreamer's and Le Rouge Boutique, operating four adult stores across the state which sell novelties, and according to the Fifth Circuit opinion, PHE, Inc., better known as Adam & Eve, later entered the case as an intervenor because it too wanted to sell sexual devices in Texas but feared prosecution if it did so.

Reliable and PHE argued that "many people in Texas, both married and unmarried, use sexual devices as an aspect of their sexual experiences," sometimes because of fear of disease contagion from intercourse and sometimes to treat sexual dysfunction. The district court, however, ruled that Texas' statute didn't violate the Fourteenth Amendment because it found that there was no constitutionally protected right to publicly promote obscene devices. The Fifth Circuit panel disagreed.

"The Plaintiffs' claim is predicated upon the individual right under the Fourteenth Amendment to engage in private intimate conduct in the home without government intrusion," Judge Reavley wrote. "Because the asserted governmental interests for the law do not meet the applicable constitutional standard announced in Lawrence v. Texas, the statute cannot be constitutionally enforced."

In conveying the ruling, Sirkin was quick to laud his associates from Sirkin, Pinales & Schwartz and their co-counsel in achieving the victory.

http://avn.com/index.cfm?objectid=151B4806-02AF-8A47-24D76004AC6036FC
Free Speech Coalition Analysis and Frequently Asked Questions of the 5th Circuit Decision Overturning the Texas Ban on the Sale of Sex Toys
A panel of the United States Court of Appeals for the Fifth Circuit has invalidated the Texas statute banning the sale or transfer of devices designed or intended primarily to stimulate the human genitals. The ruling is grounded on the same constitutional privacy considerations which earlier led the Supreme Court to invalidate the Texas sodomy law (and similar laws in other states).

The panel majority's decision and reasoning are sound, and they deserve to prevail both in the Fifth Circuit and elsewhere. But conservative judges will likely be upset about the ruling (as they were about the Supreme Court's sodomy decision and about so many other decisions of importance to us.

So, just as the Sixth Circuit panel's recent 2257 decision is not likely to be the last word on the subject, we can expect more litigation about sex toys. In the end I think, both panel's decisions will be vindicated.

Frequently Asked Questions

1. Is now safe to sell novelties in Texas?
If the Fifth Circuit decides against rehearing, the Texas law will be invalid unless the U.S. Supreme Court steps in. But it will be a few weeks before we know anything about rehearing and several months, at least, if rehearing is granted.

2. What other states does this cover?
Texas, Louisiana (where the state Supreme Court already invalidated that state's sex toy law), and Mississippi.

3. What does this mean for Sherrie William's case?
It means that Sherri Williams is a lot like Michael Hardwick. (Hardwick unsuccessfully challenged Georgia's sodomy law in the 1980's). They both bravely fought unconstitutional laws on constitutional privacy grounds. They both fought a bit ahead of their time. Unlike Mr. Hardwick, it looks like Sherri Williams will live to see her constitutional challenge fully vindicated. No one has struggled more assiduously than she has; and no one deserves vindication more.

4. Can Texas appeal?
Texas can seek rehearing in the Fifth Circuit or it can ask the Supreme Court to hear the case. In either case, the relevant court must agree. Neither move is a sure thing for Texas.

5. Can city and county jurisdictions in Texas impose sex toy bans?
If the current decision stands, local governments will not be able to replace the Texas statute. They too are subject to the United States Constitution.

6. Is this the beginning of the end for state sex toy bans?
More like the middle of the end, I think. Other courts have struck down sex toy bans, so this most recent decision is less remarkable than it may seem. The real odd court out on this issue seems to be the Eleventh Circuit, which rejected Sherri Williams' constitutional challenge (identical to that which has prevailed in the Fifth) no fewer than three times over ten years.

Commentary by Reed Lee, Esq.
Sexual Device Ruling Good News for Sherri Williams
NEW ORLEANS, LA - Last week's ruling by the 5th Circuit Court of Appeals that overturned a Texas statute that made it illegal to promote or sell a sexual device may have revived Sheri Williams chances to overturn a similar Alabama law.

Attorneys for Reliable Consultants Inc., the original plaintiff in the "obscene device" on which the ruled this week, and for Sherri Williams, who has challenged a very similar law in Alabama, applauded the court's ruling and were hopeful that the court's reasoning would withstand further review.

Jennifer Kinsley of Sirkin, Pinales & Schwartz , who represented Reliable Consultants in the case told Xbiz that she thought the ruling was very good news for Williams, as the Alabama statute that Williams has challenged is "virtually identical" to the Texas statute that the 5th Circuit shot down.

"There's really no intellectually honest way to distinguish between them," Kinsley said of the two statutes.

Reed Lee of J.D. Obenberger and Associates, who represented Williams in her challenge of the Alabama statute, concurred with Kinsley, and said that the 5th Circuit's decision was clearly "in conflict" with the 11th Circuit's decision in the Williams case.

"The [5th Circuit] panel majority got it right," Lee told XBIZ. "This would be pretty straightforward and unremarkable, but for Sherri William's troubles in the 11th Circuit."

Lee said that the 5th Circuit panel correctly interpreted Lawrence vs. Texas, the landmark case that resulted in the state's anti-sodomy law being struck down as unconstitutional.

Asked why it has taken so long for some courts to reach the conclusion that "obscene device" laws are unconstitutional (similar laws have already been struck down in Colorado, Georgia, Kansas and Louisiana), Lee said that the complex nature of the legal issues involved render progress slow.

"This area of substantive due process is a difficult area of law," Lee said. "It's because it is so difficult that the courts move so slowly."

As for Williams, whose case the U.S. Supreme Court declined to hear last year, Lee said that the 5th Circuit's ruling last week - assuming it is not overturned by way of an en banc rehearing - "dramatically raises the chances" that the nation's highest court will at last hear the case.

"The Supreme Court sees one of its primary roles as resolving splits between the circuits," Lee said.

If the case does reach the Supreme Court, Lee said he's optimistic that the court will uphold the 5th Circuit panel's reasoning, especially in light of the court's ruling in the Lawrence case.

"Five of the justices who decided Lawrence are still there," Lee noted. "It's very hard for me to imagine that the same justices who reached the conclusion that a law against sodomy is unconstitutional would decide that a law against sexual devices is not."

http://xbiz.com/news/retail/90164
Suicide Girls Contracts Voided
LOS ANGELES, CA - A Los Angeles Superior Court judge last week voided the modeling contracts of alt soft porn innovators Suicide Girls, ruling that their exclusivity terms are too broad to legally keep models from doing outside modeling work.

The ruling, made against SG Services, the parent company of SuicideGirls.com, in its suit against GodsGirls.com, declares that "each and every version" of SG Services' model releases are void and invalid as a matter of law.

SG Services, the parent company of SuicideGirls.com, has filed numerous lawsuits against websites claiming they are competing sites that have illegally used its models.

SG Services reportedly threatened its models with lawsuits and removal from SuicideGirls.com for doing any outside work, even on non-competing projects.

Among the lawsuits pursued by Suicide Girls is a $100,000 suit against photographer Philip Warner, aka Lithium Picnic.

Several models claimed SG Services never properly defined what it considers competition.

http://avn.com/index.cfm?objectID=144F51C1-E0FA-6CE7-6A030389DEEA6BA3&slid=402859

Utah Police Raid Spenser Gifts
LAYTON, UT - Police raided a Spencer Gifts inside the Layton Hills Mall last week, seizing 15 boxes of items they said were sexually explicit. No one was arrested at the time of the raid. While none of the items are considered illegal, according to the Deseret Morning News, Spencer Gifts, a nationwide novelty gift chain, may have violated a Utah statute that prohibits having sexually explicit items available for purchase and display to minors.

"It's based on several complaints we've received over the last year or so," said Layton Police Sgt. Mark Chatlin. "People complaining about the material they're selling."

Police were vague in their descriptions of the items seized but acknowledged seizing games, food items and items that could be described as "sex toys."

A lawyer from Spencer Gifts LLC met with Davis County Attorney Troy Rawlings this week to discuss the matter.

"We haven't resolved everything yet, but it was a productive meeting," Rawlings told the Morning News after the meeting. "I found Spencer Gifts to be cooperative. They want to do whatever they can to comply with the laws in Utah."

http://deseretnews.com/article/1,5143,695254296,00.html
Crackdown on Celebrity Porn Rifles Hong Kong Free Speech Advocates
HONG KONG - The arrest of several people this month in connection with sexually compromising photographs and videos believed to feature some of Asia's most popular entertainers has led to a division among Internet users over free speech, and questions of selective police enforcement of obscenity laws, according to the New York Times.

A total of nine arrests have been made, although only three suspects have been formally charged. Two people have been charged with "publishing obscene articles," including a 24-year-old man who allegedly posted two files containing 100 photos.

Another person was charged with "access to a computer with dishonest/criminal intent," presumably a computer repair person believed to have taken some of the files in question while repairing the computer of Edison Chen, a well-known singer and producer who is believed to appear in photos and videos with a least six different women, four of whom are believed to be famous singers.

Neither Chen nor any of the women involved have explicitly confirmed that they are in the photos and videos, although Chen and others have apologized for an embarrassment the scandal may have brought onto those around them.

Some Web users here see the police action as an infringement on individual freedoms. As many as 400 people participated in a free speech protest inspired by the arrests earlier this month, arguing that, among other things, Hong Kong's anti-pornography ordinance was too broad and too vague, and that this was a case of unequal treatment.

"On the Internet there are a lot of nude pictures and sexy photos, but the police don't bring charges," except in the current case involving the singers, said Oiwan Lam, a local blogger who participated in the demonstration and edits inmediahk.net, a citizen-reporter Web site.

The free speech point of view is hardly shared by everyone in Hong Kong, partly because of a sense that the police crackdown may have strong public backing and partly because Hong Kong laws allow the police to prosecute people who distribute pornography.

"If we listen to radio talk shows and so forth, there are people calling in who say that Internet users are unreasonable and want to pass around dirty pictures," said Charles Mok, the chairman of the Hong Kong chapter of the Internet Society, an international advisory group on Internet standards.

Mok noted that just as the police could not ticket every traffic offender, they could not charge everyone who distributed pornography, but did have an obligation to address cases that caught the community's attention, like videos and photos that appear to show famous singers engaged in sex acts.

The police declined to address the question of selective enforcement except to say that "any enforcement action taken by the police is in accordance with the laws in Hong Kong."

http://www.nytimes.com/2008/02/13/
business/worldbusiness/13internet.html?em&ex=1203051600&en=5e5d33c170b9b534&ei=5087%0A
A Year in Review
By Matt Gray

The Adult Entertainment Industry has faced a number of threats during this past year. In addition to ongoing 2257 reporting obligations and government confusion on a federal level, California alone has been the staging ground for a series of troubling legislation and proposals which seem to be spreading to other parts of the nation.

In California, lawmakers and special interest groups have been pushing for 8% taxation, mandatory condom usage, increasing the minimum age for performers, and censorship of products being displayed in stores.

Through careful planning and execution of strategies, Free Speech Coalition's California lobbying force has been able to successfully stop all of these attacks upon the industry - and in many cases proactively uncover the proposals and stop them before they ever became formal legislation.

The 8% tax legislation was in fact introduced as AB 1551 (Calderon), and repeatedly scheduled to be heard in its first committee which was chaired by the bill's author. Politically speaking, a committee Chair almost always gets his or her bill out of their own committee; and facing slim chances of the measure failing in that committee, a solid strategy was formalized which successfully deterred the bill's author from carrying the legislation forward.

All in all, a good political year for the industry in California, as well as on 2257. As the second year of the 2007-2008 legislative session begins to wind up, the sky is the limit on ideas by lawmakers who are trying to fix a rapidly approaching $20 BILLION dollar state budget deficit, while still being sympathetic to special interests who would just as soon see the industry wither up and die if given the chance to deliver that fatal blow.

What other proposals are quietly lurking in the halls of the Capitol?

Government regulation is among the most important issues any California business faces. It is critical that everyone in the industry support the legislative efforts of Free Speech Coalition through membership. Otherwise, you may really be helping the opposition to your business by just sitting back and leaving others to protect your livelihood. For more information, contact FSC at 818-348-9373.

==============================================================
Matt Gray is a senior lobbyist for Capital Alliance, a Sacramento based lobbying and government strategies firm. He can be reached at 916-444-5551, or by e-mail: matt@thecapitalalliance.com

THE WORLD'S LARGEST SWINGERS PARTY
In the summer of 2008, over 10,000 sexually liberated adults from around the globe will converge in Hollywood, Florida to attend SwingFest 2008; The World's Largest Swingers Party and Adult Lifestyle Expo being held from July 31 through August 3, 2008.

The 4-day event features over 25 adult lifestyle parties, a massive 50,000 square foot vendor area with everything from adult novelties to adult video stars, 20 sexy seminars on varying erotic topics, exciting contests with prizes such as a BMW 328i or an all expenses paid trip to SwingFest 2008, shuttle service to one of the top 10 nude beaches in the world, countless giveaways, wild entertainment, goody bags, and even a golf tournament! As if that wasn't enough, the master of ceremonies for 2008 is none other than adult megastar, Mary Carey and the $300 USD couples pass covers everything mentioned for all 4 days plus it includes buffet meals, and open bars at many of the evening events. All of this takes place in what can only be described as a swingers paradise; the 5-star, beachfront, Westin Diplomat Resort which offers over 50 additional luxurious and decadent amenities to attendees.

For even more information about SwingFest 2008 please visit http://www.swingfestevents.com

X-PRESS SPONSORSHIP & AD BLOWOUT!

Celebrate FSC's One-Year Anniversary of the X-Press Redesign With SAVINGS for 2008!

Promote Your Company and Services to Thousands of FSC Members Nationally, and Support FSC's Mission at the Same Time!
Dear FSC Member:

FSC offers a low-cost, effective way to get your company's name in front of other industry decision-makers. Producers, distributors, online companies, consultants, attorneys, talent agents and others - ads and sponsorship of the X-Press are cost-effective solutions.

There are two ways for your company's logo and live internet link to be seen:

  1. Exclusive masthead sponsorship - limited to two companies, and
  2. Your company's logo in the ad section (limited to the first 24 companies to sponsor an ad in any given month).


In late 2007, FSC conducted a survey of our membership. We learned that approximately 85% of our membership reads the X-Press "weekly," with over 90% reporting that they read it "at least occasionally." The X-Press was listed among the top 5 services provided by FSC in its importance to members. This means that your logo ad WILL BE SEEN by others in the industry.

COST OF SPONSORSHIP & ADS:

To celebrate FSC's success with the X-Press, and our members' support of this publication and FSC's important mission, we're offering some discounts for 2008. We're cutting the rate by more than HALF the rack rate for companies who sign up to advertise by March 15, 2008.

A regular logo ad costs $250 per week or $1,000 per month. Under this special promotion, you can put your company's logo before thousands of other industry members weekly for only $100 per week, or $400 per month. If you agree to run your ad throughout all of 2008, the rate drops even more, to only $75 per week or $300 per month - only $3,600 per year!

Another option is to become an exclusive masthead sponsor of the X-Press (limited to two companies only). Here, your live-link logo will be placed at the top of each X-Press. Sponsorships can be obtained on a quarterly or annual basis. The logo will include a live link to your company's website and/or e-mail address. Last year, companies paid $3,000 per quarter for this opportunity. But, if you agree to sponsorship by March 15, 2008, sponsorship ads (two) are available for only $1,500, or $6,000 for the year, with a full one-year agreement.

DON'T MISS THIS OPPORTUNITY -

Space is limited. The purpose of the X-Press is to provide our members with important information, advisories and legislative updates.

Sponsorship helps FSC, a non-profit trade association, meet its financial overhead in providing these services. After March 15, 2008, our prices will return to 2007 rates. Take advantage of our celebration of one year of X-Press success and sign up to promote your company and services today.

Contact Valerie Vizmanos at val@freespeechcoalition.com for more information. Thank you for your support of FSC and the work we do on your behalf.
FSC Legislative Bill Tracking Report:
February 18, 2008

FSC recognizes the importance of local grassroots involvement in the legislative process in all fifty states. Therefore, to enhance and further this important aspect of our mission, we are introducing a new tool, called the "50-State Tracking Report." Click on the link to view pending legislation in your state or elsewhere. Special thanks to Angelina Spencer of ACE for her efforts in compiling this report.
We want to hear from you. Please send all of your suggestions to:

Suggestionbox@freespeechcoalition.com




Email Xpress@freespeechcoalition.com for more information.
Because of 2257 litigation, it's critical that we have your company's information complete in our database. Are you SURE your company's information is complete? Email UpdateInfo@FreeSpeechCoalition.com to update your company's information now.

NOTE: The data we're tracking, related to 2257, has changed. Please update NOW.
MAR 27-30, 2008 - The Phoenix Forum, Phoenix, AZ

APR 7-9, 2008 - International Lingerie Show, Las Vegas, NV

APR 25-27, 2008 - Adultcon, Los Angeles

APR 18-20, 2008 - Exxxotica Expo, Miami Beach, FL

JUNE 6-8, 2008 - Erotica LA, Los Angeles

JUNE 10-13, 2008 - Cybernet Expo, San Francisco

JULY 9-11, 2008 - XBiz Summer Forum, Las Vegas

JULY 14-15, 2008 - Adult Novelty Expo, Universal City, CA

August 24-27, 2008 - Storerotica, Las Vegas

DEC 19-21, 2008 - Adultcon, Los Angeles
A good plan today is better than a perfect plan tomorrow.
-- General George S. Patton

Have the courage to say no. Have the courage to face the truth. Do the right thing because it is right. These are the magic keys to living your life with integrity.
-- W. Clement Stone