Free Speech Coalition - History

History

Free Speech Coalition is the trade association of the adult entertainment industry in the United States. Founded in 1991, it opposes the passage and enforcement of some censorship laws (with the exception of ‘anti-piracy’ laws) and obscenity laws.

The concept of an organization as a rallying point for those who believe in the free expression of adult-themed works began as early as 1970. The first truly national group to emerge was the "Adult Film Association of America (AFAA)". At that time, adult entertainment was only available in adult theaters and bookstores so early members were largely theatrical exhibitors.

With the advent of inexpensive home videos, the AFAA morphed into the Adult Film and Video Association of America (AFVAA). The next significant event that galvanized the AFVAA was the arrest of Hal Freeman for pandering. Prosecutors wanted to establish once and for all that paying performers to have sex in a film was an act of prostitution. Freeman won that legal battle, which redefined the use of the pandering laws relative to providers of adult product. As video productions became the dominant factor in the marketplace, theatrical exhibition diminished. The Freeman decision effectively legalized the production of adult films in the state of California.

Video chains and many independent stores in suburbs and smaller cities started carrying adult fare. Law enforcement officials subjected more and more retailers to obscenity charges. Then, in 1990, under the first Bush administration, the Federal government attacked most of the major manufacturers of adult video with a sting operation designed to destroy the industry.

In response, the Free Speech Legal Defense Fund (FSLDF) was formed by industry leaders to protect the rights of members in all areas of adult entertainment. In 1991, as the government attack was blunted, the FSLDF decided to select a name more reflective of its broadened role in the adult community, and the Free Speech Coalition was born. The association became closely aligned with other organizations representing the rights of free speech and civil liberties

In 1995, a comprehensive Federal scheme regulating the creation and wholesale distribution of recorded images of sexual conduct went into effect. Aimed at detecting and deterring child pornography, the 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.

It was FSC’s response to the Federal Labeling Law that established broadly throughout the industry the necessity of a functional trade organization to assist the industry.

The FSC entered the field of lobbying in earnest in 1994, with the retention of a lobbyist in Sacramento, California’s state capitol. After a year, the lobbying presence proved itself critical for the health of the national industry. A tax bill was introduced, with the purpose of assisting victims of domestic abuse and rape. An excise tax was proposed for all adult products and services, with the proceeds going to collection of the tax, law enforcement and, if anything remained, to rape counseling centers and battered victim shelters.

Constitutional law had long forbade the targeting of a content-defined tax, and this bill was the model of such a tax scheme. Traditionally, the industry had relied solely on the judiciary to protect itself against such intrusions, and legislatures across the country have become accustomed to regulating the adult industry without consultation with the parties to be regulated. Both patterns came to a halt with this proposed tax.

The FSC led a coalition of affected businesses and industry groups in fighting the tax. The FSC argued that the tax was a dangerous, unconstitutional precedent and that it would be bad for the state’s economy. During the course of the ensuing debate, the economic influence of the adult entertainment industry was established in the minds of the zero votes in support. The bill was defeated at its first committee hearing.

More importantly, the adult entertainment industry, through FSC, proved itself an effective “player” in the legislature.

The industry and FSC were placed in a difficult position by the amendment of the Federal Child Pornography laws in 1997, which included “simulated” child pornography within the definition of child pornography.

The redefinition of child pornography to include adults appearing to be minors, engaging in actual or simulated sexual activity was controversial. The Senate Judiciary Committee (the committee of origin), never even held a vote on the bill, yet it was signed into law, following Senator Orrin Hatch (R-Utah) attaching it during the Conference Committee to the October 1997 Spending Bill. Under the definition, films such as Midnight Cowboy, Last Picture Show, Animal House, A Clockwork Orange, Halloween, Fast Times At Ridgemont High, Return to Blue Lagoon, The Exorcist, Risky Business, Porky’s, Bull Durham, Blow Up, Dirty Dancing, and The People vs. Larry Flynt, were now subject to prosecution, with the attendant five-year mandatory minimum imprisonment. When these concerns were brought to Senator Hatch’s staff, they responded by conceding that such films could be charged, but that “legitimate” movies need not fear prosecution.

The FSC challenged the constitutionality of the law. For the first time since its own redefinition as a trade association, FSC undertook litigation challenging the constitutionality of a Federal statute.

In 1999, FSC hired its first full-time Executive Director and began to gain a national reputation as a defender of First and Fourth Amendment rights.

During the Clinton Administration, there were few obscenity prosecutions. Then-Attorney General "Janet Reno" seemed to see “obscenity” as a victimless crime. She also realized that in many areas community standards had changed and “obscenity” convictions were becoming more difficult to sustain.

However, in 1996, the "Communications Decency Act" (CDA) was enacted to protect children from accessing adult material on the Internet. The Child Pornography Protection Act (CPPA) soon followed; this legislation sought to criminalize the depiction of minors in sexually explicit video or online content, even if those depicted in the material were over 18-years of age. FSC filed suit against then-Attorney General John Ashcroft, charging that the CPPA abridged first amendment rights by defining protected speech as obscene or as child pornography.

In 2002, FSC views were upheld in the US Supreme Court in "Ashcroft v. Free Speech Coalition", the “virtual child porn” case.

In 2005, FSC filed a complaint against the Dept 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.

The controversial regulations have been an ongoing issue for adult industry producers and FSC. 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.