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Weekly Censorship Updates to the Adult Entertainment
Vol. X, No. 56, February 22, 2008 - A
Member Service of the Free Speech Coalition
without byline submitted by FSC contract writer, Scott
Contributing writers: Matt Gray and Dave
Copyright 2008 Free Speech Coalition. Permission
to reprint granted to FSC members; please give credit.
This X-press in brought to you by our
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||Obscene Device Law
Overturned In 5th Circuit|
||Free Speech Coalition
Analysis and Frequently Asked Questions of the 5th
Circuit Decision Overturning the Texas Ban on the
Sale of Sex Toys|
||Sexual Device Ruling
Good News for Sherri Williams|
||Suicide Girls Contracts
||Utah Police Raid Spenser
||Crackdown on Celebrity
Porn Rifles Hong Kong Free Speech
||A Year in Review
||The World's Largest
& Ad Blowout!
||FSC Legislative Bill
February 18, 2008
Device Law Overturned In 5th Circuit|
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
"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
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.
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
In conveying the ruling,
Sirkin was quick to laud his associates from Sirkin, Pinales
& Schwartz and their co-counsel in achieving the victory.
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).
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.
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.
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.
What other states does this cover?
Louisiana (where the state Supreme Court already invalidated
that state's sex toy law), and Mississippi.
What does this mean for Sherrie William's case?
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.
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
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.
by Reed Lee, Esq.
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.
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
"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
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
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."
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.
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
"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."
Girls Contracts Voided|
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
SG Services, the parent company of
SuicideGirls.com, has filed numerous lawsuits against websites
claiming they are competing sites that have illegally used its
SG Services reportedly threatened its models
with lawsuits and removal from SuicideGirls.com for doing any
outside work, even on non-competing projects.
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.
Police Raid Spenser Gifts |
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.
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."
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
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.
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.
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
Year in Review|
By Matt Gray
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
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
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.
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.
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:
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!Dear FSC Member:
Celebrate FSC's One-Year Anniversary of
the X-Press Redesign With SAVINGS for 2008!
Your Company and Services to Thousands of FSC Members
Nationally, and Support FSC's Mission at the Same Time!
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
There are two ways for your company's logo
and live internet link to be seen:
- Exclusive masthead sponsorship - limited to two
- 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
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.
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 email@example.com
for more information. Thank you for your support of FSC and
the work we do on your behalf.
Legislative Bill Tracking Report:|
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.
want to hear from you. Please send all of your suggestions to:
for more information.
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. |
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
2008 - Adultcon, Los Angeles
APR 18-20, 2008 - Exxxotica Expo, Miami
JUNE 6-8, 2008 - Erotica LA, Los Angeles
JUNE 10-13, 2008 - Cybernet Expo, San
JULY 9-11, 2008 - XBiz Summer Forum,
JULY 14-15, 2008 - Adult Novelty Expo,
Universal City, CA
August 24-27, 2008
- Storerotica, Las
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
W. Clement Stone