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First Amendment Attnys on dot XXX & more

OP/ED By First Amendment Attorneys Benjamin & Aaronson

Last month the First Amendment Lawyers’ Association (FALA) held its summer meeting in Minneapolis, Minnesota. Expecting the cooler temperatures that the State usually has to offer, we were incredibly surprised by the high 90’s temperatures that we arrived to. It was great to say that I wish I was in Florida where the temperatures were cooler.

  Temperature aside, the meeting was a great success and attended by many of the pre-eminent First Amendment attorneys throughout the country. It is always great sitting in a room filled with those who are making laws throughout the country and whose names appear on a great majority of the important First Amendment cases decided by the United States Supreme Court and the other Federal courts over the last forty years.

  As usual, there were the standards updates on licensing and zoning of adult establishments. Discussions were had dealing with the status of the law on adult clubs and adult bookstores causing adverse secondary effects. War stories were told about the various litigations going around the country. But all in all, when it comes to this area of the law, no new Earth-shattering or groundbreaking decisions have occurred in the last six months.

  A great deal of time was given to the United States Supreme Court and its most recent decision involving the case out of California where they held unconstitutional the ban on violent video games for children. This case was analyzed in light of the Supreme Court’s last term decision holding unconstitutional the federal law prohibiting videos showing the killing of animals under certain circumstances. Although under anybody’s opinion, the current United States Supreme Court is rather conservative, the Court in both of these cases refused to expand areas of speech and expression to not have First Amendment constitutional protection.

  In the California video case, some of the opinions of the concurring Justices pointed out that violence has always been a part of what we have told children. They cited examples of Grimm’s fairy-tales where characters are slain or pushed in the oven and baked. They pointed out that just because video games are a new media, they do not deserve less protection than those stories where good triumphs over evil, but evil comes to a violent and sometimes disgusting death.

  From our standpoint, we were certainly pleased with the Supreme Court’s decisions in these cases, but wonder how we have evolved into a society where grotesque death is an acceptable form of speech while various forms of sexuality can be declared obscene and made illegal. How can intercourse, oral sex, anal sex, ejaculation and even urination in any form be unsuitable for adults to view, while beheadings, gore, disfigurement, are suitable for children?

  The answer is not to outlaw those video games or what is suitable for children. The answer is that in the freest country on earth (supposedly), it should be up to the individual without governmental interference as to what they wish to view and watch. No collective, i.e. the government, should have the right to tell any person that what they wish to view is unsuitable(with the exception of child pornography as the continued viewing of that picture is continued harm to that child) for them to view if that is what they desire and that is what they like.

  Another interesting discussion centered around whether or not the adult industry should embrace the possibility of the standard .com, .net, .edu, .gov, being expanded to .xxx. Apparently, those that make the decisions are debating whether a new .xxx should be allowed on computers thereby delineating adult content and the nature of the website. From our standpoint,we see this as an unfavorable possibility. It will just be a matter of time that new ordinances and new regulations will be written whereby an establishment will automatically fall under adult entertainment codes should it have a .xxx website. It will be used as a tool for future regulations of adult material and the adult industry in our opinion.

  Certainly, the argument could be made that it is a voluntary designation and an establishment does not have to use the .xxx, but could seek another such as .com website address. This may be true at the onset, but will the market force those who wish to have traffic to put the .xxx domain, or will regulations even force the same.

  Lastly, a presentation was given involving the litigation surrounding “the stolen valor”line of cases. These are the cases in which the government has brought charges against individuals for falsely wearing medals of honor or facsimiles when those people wearing them were not given them by the military. Apparently, numerous people have been cited under this law for pretending they are war heroes and therefore receiving free meals, free drinks, free lodging and other perks only to be discovered that, in fact, they were frauds. At first blush, one might think that people who perpetrate this fraud should be penalized. But questions arise as to the implementation of the law and when rightfully so.

  For example, would not the law punish an actor in a movie who pretends to be receiving one of these medals? Would not the son or daughter of a legitimate recipient be liable for prosecution for wearing an honor given to their deceased relative? And as one of the Courts has pointed out, there is nothing that prevents someone from walking into the bar and saying I won the Congressional Medal of Honor and receiving a free drink for the same. Then why, should a person who wears a facsimile of that same medal and utters nothing be prosecuted for getting that free drink? Both of these acts are forms of expression and speech and why should one be punished while the other one is not?

  This years summer meeting in Minneapolis although not filled with new groundbreaking cases, certainly was filled with a lot of thought provoking discussions. We will keep you informed of the litigations and events surrounding these discussions in future updates. But one thing was certainly for sure, and that is the trip to the sweltering State of Minnesota was well worth it.

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