The devil is in the details. This is the phrase I always think of when people start to “debate” the issue of free speech and freedom of expression. Everybody tends to agree that free speech is a fundamental cornerstone of a free and democratic society (heck it is codified in the American Constitution under the First Amendment as well as in the Universal Declaration of Human Rights under Article 19) but when the speech that is causing the debate is controversial or perhaps one espoused by a minority of the population, all of a sudden some people are not necessarily as excited about giving free speech its due.
The very essence of free speech is that it exists to protect the controversial, the voice of the minority and the sometimes unpalatable and yet the instant the speech in question might be outside the mainstream, otherwise staunch free speech proponents often start to back down. It is in this atmosphere that the Free Speech Coalition was born. The voice of the adult entertainment industry, the founders of the Free Speech Coalition (originally the Free Speech Legal Defense Fund) realized that they would have to take matters into their own hands to protect their own interests and concomitantly ensure that the right of freedom of speech and expression remains just what it should be, a right benefitting all. Recently I talked with Diane Duke, Chief Executive Officer of the Free Speech Coalition (FSC) to find out more about their legal battles and how they use the law to protect the rights of their members and by definition anybody who values their First Amendment rights.
Progressive Lawyer: Please Introduce yourself and describe your role in the FSC.
Diane Duke: My name is Diane Duke, I am the Chief Executive Officer for the Free Speech Coalition, the trade association for the adult entertainment and pleasure products industry.
PL: Why was your organization started? What issues does it confront?
DD: The Free Speech Coalition was founded in 1991 by a group of concerned industry professionals in response to numerous government attacks against producers and retailers of adult products. Its roots are embedded deep within the birth and development of adult entertainment in the United States, and the organization has continued to grow, now representing all segments of adult entertainment on a national and sometimes international level.
PL: What services does your organization offer? Who are its primary clients/audience?
DD: As the industry’s trade association, FSC is a voice of pride for the industry, it supports and enhances adult businesses through value-added member benefits and serves as the watchdog for the industry through lobbying and litigation. Some of the current activities with which FSC is involved includes 2257 litigation against the Federal Government, overseeing protocols and the availability database for performer testing and continuing the fight against the ill-conceived mandatory condom laws and regulations.
PL: How do you utilize the law to further your organizational goals?
DD: As our industry embodies free expression and an individual’s right to privacy, we rely a great deal on the First and Fourth Amendments and the Constitution for protection. However, we are businesses and as such Trademark and Copyright laws are of importance to our members and we provide information and programs for businesses in those areas. Additionally workplace safety, OSHA, has been in the forefront for production companies and FSC has taken a leadership role in providing resources to our members as well as representing them at hearings and public meetings.
PL: Can you fill us in a bit more on the history of the FSC in respect to the legal cases it has become involved in?
The association’s roots date back to March 1968, to an early convention held at the Sheraton Universal Hotel, in Los Angeles. The association’s first iteration grew out of a national group called the Adult Film Association of America (AFAA) , made up mostly of theater owners. But with the advent of inexpensive home video, the AFAA morphed into the Adult Film and Video Association of America (AFVAA).
By 1987, the AFVAA leadership included industry legends like David Friedman, director Ron Sullivan and performer/publisher Gloria Leonard, among others.
The same year, an event defined the group as a true industry trade organization and galvanized its members – the arrest of adult producer Hal Freeman for pandering. Prosecutors charged that paying performers to have sex on film was prostitution. But Freeman took the fight to the California Supreme Court and won, opening the doors to making porn production legal in California and establishing the need for an organized group to advocate for adult.
This era also produced the group’s iconic “Fighting for Your Freedom” poster that mimicked the Marine’s flag-raising on Iwo Jima with adult starlets in military uniforms. The group’s first “Night of the Stars” benefit was held in the summer of 1988, eventually becoming one of the most prestigious annual galas held by the industry.
After Freeman v. California, the proliferation of adult home video being sold in suburbs and smaller cities saw retailers become the target of “obscenity” charges by law enforcement officials. In 1990, under the first Bush administration, the Federal government attacked most of the major manufacturers of adult films and products with a sting operation designed to destroy the industry.Search warrants against approximately 30 manufacturers of adult product were executed. Most of the cases were surprisingly settled favorably and saw very few saw jail sentences, with the notable exception of VCA’s Russ Hampshire.
The legislative climate provided the impetus that gave birth to the Free Speech Legal Defense Fund (FSLDF), formed by industry leaders to protect the rights of members in all areas of adult entertainment. But the group later decided to select a name more reflective of its broadened role in the adult community. In 1991, Free Speech Coalition was adopted as the name, as it exists today.
The first FSC Board, listed in its Nov/Dec 1992 newsletter as including: Al Bloom, Ron Braverman, Charlie Brickman, Sheri Freeman, Lenny Friedlander, Russ Hampshire, David Kastens, Bill Margold, Jim South, Bill “Pinky” Stolbach, Bob Tremont and Chuck Zane — all early industry pioneers. With the support of companies from each sector of the industry, as well as performers, professionals and adult consumers, the group initiated activities that would establish FSC as the industry’s legislative watchdog. Although FSC views litigation as a last resort, it has not hesitated to take serious, swift action when required, in order to defend the rights its members.
In 1994, the retention of a lobbyist in Sacramento was necessary to combat an excise tax on adult products and services, in the guise of funding programs to aid victims of domestic abuse and rape. In fact, most of the money was earmarked for tax collection and law enforcement.
The FSC argued that constitutional law long forbade the targeting of a content-defined tax and this bill was the model of such a tax scheme. FSC led a coalition of affected businesses and industry groups in fighting the tax. The FSC demonstrated the tax not only set a dangerous, unconstitutional precedent, but also that it would be bad for the state’s economy. The bill was defeated at its first committee hearing, without a single vote in favor.
In 1995, a comprehensive Federal scheme regulating in minute detail the creation and wholesale distribution of recorded images of sexual conduct went into effect. Purportedly aimed at detecting and deterring child pornography, the so-called Federal Labeling Law (also known as 18 U.S.C. § 2257) eliminated all privacy in the creation of sexual images. Any producers of, and performers in, such materials were ordered to comply with detailed disclosure requirements.
In order for the industry to comply, the FSC was essential. FSC conducted training seminars, prepared compliance documents and uniform exemption labels and negotiated with the Justice Department for relief from some of the more burdensome and unreasonable components of the law.
Legislators continued their relentless attacks on adult entertainment. One of the FSC’s tenets is that “adult entertainment” is exactly that – material made by adults, for adults.
The industry and FSC were therefore placed in a difficult position by the amendment of the Federal Child Pornography laws in 1996, which included “simulated” child pornography within the definition of child pornography. The redefinition of child pornography to include computer generated images or adults “appearing” to be minors, engaging in actual or simulated sexual activity was extremely controversial. The law also criminalized non-pornographic material marketed so as to “convey the impression” that it contained child pornography. In other words, the so-called “Child Pornography Prevention Act” eliminated both pornography and children from the definition. Upon conviction of creating simulated child pornography, the mandatory minimum sentence was 15 years imprisonment. The Senate Judiciary Committee (the committee of origin), never even held a hearing on the bill, yet it was signed into law, following Senator Orrin Hatch (R-Utah) attaching it during the Conference Committee to the October 1996 Spending Bill.
When all other interest groups decided that challenging a child pornography law would be too dangerous, it was left to FSC to undertake the fight. Overcoming significant divisions within the industry, FSC hired H. Louis Sirkin to challenge the law. Sirkin lost at trial, but won in the Ninth Circuit. Meanwhile four other Circuit Courts of Appeals held the law constitutional. The Supreme Court accepted the Government’s appeal, and in 2002 issued its opinion in Ashcroft v. Free Speech Coalition.
Despite the widely expressed view that FSC was destined to lose and lose badly, attorney Sirkin refused to compromise. Oral argument went apparently well, but no one expected the extraordinary victory that would come.
That Supreme Court opinion (535 U.S. 234) was widely hailed as the most speech protective decision in twenty years. The decision, split 7-2 and 6-3 on the two issues, was the first U.S. Supreme Court victory for the adult industry on a substantive, rather than procedural, basis in generations. The lead author was Justice Kennedy, whose memorable words in that opinion include, “First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”
FSC’s commitment to principle protected not merely pornography, but mainstream artistic expression as well. Academy Award winning movies such as Traffic, American Beauty and Last Picture Show all would have been subject to criminal prosecution. Its courage during this difficult litigation established the Free Speech Coalition as a significant warrior in the battle for free expression.
The opposition to controversial federal regulations goes on. Legislators continue to impose regulation, under the mantle of “protecting” young children. In 2005, FSC filed a complaint against the Department of Justice and then-Attorney General Alberto Gonzales, citing that 18 U.S.C. § 2257 regulations endangered the privacy and safety of performers by allowing private information to be accessed through the record-keeping process; also that 2257 regulations were complicated to the extent that adult producers would be unable to fully comply with the record-keeping system. FSC prevailed on the central claim – the challenged regulations imposed significant burdens on tens of thousands of businesses not authorized by Congress. FSC won at the trial level, protecting huge segments of the industry from ruinous regulatory burdens and potential criminal prosecution. Both sides retreated to fight over the rest of the law another day.
A revised set of 18 U.S.C. § 2257 regulations was released in December 2009, prompting another complaint against the DOJ and Attorney General Eric Holder in 2010. Now represented by attorneys Michael Murray and Lorraine Baumgarten, this new case was resulted in another outstanding win in the Third Circuit Court of Appeal. The fight continues in 2013.
Most recently, FSC led the opposition to Los Angeles County’s “Safer Sex” ballot initiative or Measure B, which was sponsored solely by HIV/AIDS nonprofit organization AIDS Healthcare Foundation (AHF). After several years of relentless attacks on adult industry healthcare resources and companies, the debate over mandatory use of barrier protection on adult movie sets saw further development as county voters passed the initiative in Nov 2012.
As it has many times in its turbulent past, FSC will press forward through litigation, though discussion of relocation and other alternatives are on the table for adult producers. Aside from being a tremendous waste of resources for Los Angeles County (the home of the modern adult film industry), Measure B represents government overreach foisted on taxpayers and the industry by an outside special interest. The real effect of Measure B will be chilling for adult movie producers, trickling down to other segments of the industry including, eventually, retailers and consumers.
FSC’s mission is to protect and promote the well being of adult industry businesses and its members. In the mainstream spotlight now more than ever, the contradictions embodied by the multi-billion dollar pornography media industry are overwhelming. It is a creative, communicative industry, both reviled and adored by popular culture, protected by the First Amendment, yet systematically attacked by law enforcement. Commercial pornography appeals to individualists, attracted by the outlaw image and the promise of access to wealth. But the very existence of that industry depends on the ability to work collectively. FSC is honored to serve the adult community – past present and future.
PL: What role do legal professionals play in your organization?
DD: Our Board Chair is an attorney, we work with many industry attorneys in our lobbying efforts, on regulatory issues and from time to time and we hire law firms to represent us in suits against various governments to fight against oppressive laws.
PL: Do you offer any internships or volunteer opportunities?
DD: Many attorneys work with FSC on a voluntary basis for the good of the industry and to gain experience/exposure in various areas of interest to our members.
PL: How would a legal professional pursue a career with your organization? What advice would you give to a law student or legal professional who would be interested in this type of law?
DD: Attorneys are hired through an RFP on the few occasions the Board determines that legal action is necessary. However, individual businesses utilize attorneys on a regular basis. Individuals who wish to represent adult companies will need a strong understanding of Constitutional law as well as contract and HR issues. I would also recommend joining The First Amendment Lawyers Association.
PL: How do you balance your work life with your private life?
DD: While I love my job, I try to remember that it doesn’t define me. I have an incredible partner whose love, support and faith keep me grounded.
PL: Outside of your organization, what issues are you particularly passionate about?
DD: My faith is a key component to who I am. Through my church I work in prison ministries writing letters and visiting people that our society has locked up and forgotten about. Every politician should be required to spend some time visiting and speaking with people inside those walls.
PL: What do you think the role of law and lawyers should be in society?
DD: I work with a lot of attorneys. From a business perspective, what distinguishes the good ones from the rest of the crowd is his or her focus. The best attorneys care more about the client than the case. A good attorney is someone you can trust to always look out for your best interest, who will have your back. As far as society is concerned, the law can be utilized for good, but unfortunately some bad players filing frivolous lawsuits have made a farce of much of the legal system. It would be great if lawyers could/would police their own to right-size our litigious society. And of course, I think all attorneys should have a portion of their practice dedicated to pro-bono service–representing those who cannot afford adequate representation.
For more information on the Free Speech Coalition, you can go to http://www.freespeechcoalition.com/ (currently under construction). More details about the FSC can be found at https://fscblogger.wordpress.com/.
I would like to extend my thanks to Diane Duke for taking the time to speak to me as well as to Joanne Cachapero for helping facilitate this interview. I also would like to quote the signature quote that Diane uses on her email as it is very appropriate and sets things into perspective:
If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.
George Washington
Until next week!