Many of you probably remember exactly where you were when you first learned about the
terrorist attacks of September 11, 2001.  What most of us have forgotten is what those attacks did
to the American psyche at the time.  The United States that we knew prior to September 11, 2001
was not the United States we knew after.  Our sense of invincibility was gone, our belief in the
security of this country was forever shaken, and our knee-jerk reaction was just that, a knee-jerk
reaction. 

     Attacking Iraq and deposing Saddam Hussein who had nothing to do with the 911 attacks,
somehow got justified.  Interning people without due process of law became patriotic and voicing
dissent to those actions became unpatriotic.  We were under attack and our moral compass be
damned, we needed to fight those bastards.  In that frame of mind, the United States Congress
passed the  ("Patriot Act") which was quickly signed into law by George W. Bush.  Most of the
Congressmen and Senators that voted for the Bill, never read it in its entirety and those that had
problems with specific provisions were cowed into submission as being weak or terrorist
sympathizers.  Many knew that there were unconstitutional provisions within the "Patriot Act"
but because of political expediency voted in favor of it relying on the Courts in the future to
strike down those provisions.

     One of the provisions of the "Patriot Act" makes it a crime to provide "material support"
which includes advise and training to terrorist organizations.  Material support includes expert
advice or training.  To be a terrorist group one only has to be designated as such by the United
States State Department.

     In June, the United States Supreme Court ruled on this provision of the "Patriot Act".
Ralph Fertig brought suit challenging the constitutionality of the Act based upon First
Amendment grounds.  Mr. Fertig  an advocate of Kurdish rights, argued that the words "advice"
and "training" should not be read broadly to cover those who advised others to steer away from
violence and terrorism.

     In a six to three decision, the Supreme Court ruled that in fact giving advice to a terrorist
group to settle their disputes peacefully was in fact advice covered by the law and would make
someone guilty of violating the "Patriot Act".  The Supreme Court held that the First
Amendment did not protect such speech and agreed with the United States Government that
"providing material support to a designated foreign terrorist organization - even seemingly
benign - bolsters terrorists of that organization".

     The ramifications of this case will go on for years.  It will silence those who try to bring
the outlawed into the lawed.  In essence, once an organization is declared to be a terrorist
organization by the State Department, American citizens can have no communication with it.  A
lawyer that was sought out by a terrorist organization to contact the State Department or other
authorities in order to explain why it should not be considered a terrorist organization or why it
was willing to change its ways, would be guilty of violating the "Patriot Act".  A broker of peace
between Al Qaeda and the United States would also violate this law.

     What is most disturbing about the Court's decision is the lack of analysis done by the
Supreme Court.  There are different types of speech.  As we have written numerous times, nude
dancing is on the outer fringes of First Amendment protection.  We have written numerous times
that pure or core political speech is the most protected of First Amendment expression.  Under
the Fifth Amendment to the United States Constitution, and other Amendments, the right to
counsel and the right of that counsel to advise has always been sanctified.  The Court did sidestep
these analyses, and rather ruled that the need to combat terrorism trumped the concerns over
restricting freedom of speech.

     Yet, under standard First Amendment analysis, it is the Government's burden to show a
compelling governmental interest as to why that is the case.  The Court's decision seems to rely
on the Government's assertion that there is in interest in preventing anyone from dealing with
terrorist organizations even if the motive is none violence or to bring that terrorist organization
into the fold.  The Court seemed to take the Government's position as not needing validation and
fact, but that the assertion alone was enough.

     In other news currently sitting on Governor Nixon of Missouri's desk is the Missouri law
that would restrict adult entertainment within the State.  The law would prohibit clubs from
staying open past 12 midnight, it would prohibit dancers from ever being totally nude, and would
restrict partial nudity to a stage where patrons would have to be six feet away.  The Governor has
until July 10, 2010 to sign the Bill and if he does not it becomes law.

     The Governor is faced with a dilemma.  Putting First Amendment freedoms aside, he is
the Chief Executive of a State which recently announced  three hundred and one million dollars
of budget cuts.  People in Missouri are looking for jobs and the State is looking for a way to
balance the budget and provide services to the people.

     Adult clubs in Missouri are estimated to supply income to three thousand people that
work within the clubs and untold thousands of people who work in ancillary businesses.  The
adult clubs  provided the State with 4.5 million dollars in State sales tax revenue just last year.
Governor Nixon will be balancing the loss of at least 4.5 million dollars in revenue, the
possibility of over three thousand people and their families needing State assistance, with a law
that is designed for the purpose of putting adult clubs out of business.

     It is always politically expedient to rule or to decide against adult entertainment.  Adult
entertainment never gets good press and the media likes to play up the shady side of the
entertainment.  But, this may be a situation where common sense trumps the political expediency
and Governor Nixon may just decide to veto this Bill as it is the right thing to do and it is best for
the State of Missouri.

     Title 18 U.S.C. Section 48 criminalized for up to five years in prison anyone who
knowingly created, sold, or possessed a depiction of animal cruelty if it was done for commercial
gain.  The statute did not address the underlying acts that were harmful to animals, but only
portrayals of such conduct.  In that statute, animal cruelty was defined as "in which a living
animal is intentionally maimed, mutilated, tortured, wounded or killed", if that conduct violates
Federal or State law where "the creation, sale or possession takes place".

     Robert J. Stevens was engaged in a business called "Dogs of Velvet and Steel" and had a
website where he sold videos of pit bulls engaging in dog fights and attacking other animals.
Three of his videos came under the scrutiny of the Federal authorities and Stevens was arrested
and indicted on three counts of violating Section 48.

     At the Federal trial level Stevens was convicted after Motions to Dismiss that he filed had
been denied.  The case then went to the Third Circuit Court of Appeals where the entire Circuit
declared that Section 48 was unconstitutional and that it violated the First Amendment to the
United States Constitution.  The case then was appealed by the government to the United States
Supreme Court.

     At the Supreme Court, the United States Government argued among other points, that
depictions of animal cruelty should be a new form of unprotected speech outside of the First
Amendment to the United States Constitution; or that Section 48 would only be applied to those
instances in which the videos portrayed "extreme cruelty"; and lastly that the Court should
construe the Statute in a way that made it constitutional.  For his part, Stevens contended that the
Statute was overbroad, meaning that many forms of videos or depictions that were not intended
to be covered by the Statute would fall under possible prosecution; and that this method of
speech no matter how repungnent was constitutionally protected.

     Last month, the United States Supreme Court rendered its decision in the United States v.
Stevens.  In an eight to one opinion, Chief Justice Roberts delivered the opinion of the Court
which was that 18 U.S.C. Section 48 was unconstitutional as it was overbroad and violated the
First Amendment to the United States Constitution.  As part of the rationale, the Court also noted
that given the wording of the Statute it would be almost impossible for someone to know when
they were violating the law.  As the law was based upon an act that would be criminal in either a
State or a Federal jurisdiction, the Court noted for example that hunting is illegal in the District
of Columbia while it is legal in many other places.  Therefore, depictions of animals dying in the
hunting process would be legal if taken in some jurisdictions but illegal if taken in the District of
Columbia.  This would set up a scenario where the legality of the video depended upon where the
acts took place as opposed to the content of the video.

     More importantly, the Court ruled that although these forms of videos may be distasteful,
that the First Amendment to the United States Constitution does protect distasteful speech.  If
only speech that was approved of by the majority was allowed, then minority voices would be
silenced.  The Court further declined the Government's plea that the Court weigh the value of the
speech against the social cost of that speech to determine whether the First Amendment even
applies.  In essence, the Government wanted a new test where First Amendment protections
could be excluded if the Court was to decide if the value of the speech (a totally subjective
personal view) was less than the detriment to society (another totally subjective personal view).
Again, the Court refused to accept that proposed test.

     Although, few people are fans of dog fighting or animal cruelty, the issues in this case
were totally First Amendment based.  Is the government going to be given the power to decide
what adults should or should not view?  Was the government going to be given the power to
curtail the speech even if it was distasteful?  In a ringing endorsement for the First Amendment,
the Supreme Court in an eight to one decision held no.

     The test that the United States Government propounded,  could be applied to other First
Amendment situations and certainly the adult entertainment industry.  Rather, than having to rely
on obscenity as the basis for curtailment of adult films and adult freedoms, should the Court have
adopted the test, that the United States Government was propounding in this situation, a new test
as to what adults would be allowed to view could have been created.  In this test, community
standards would have been thrown out and been replaced with simply a purely subjective test that
harm to society was greater than the value of the speech.

     This case was a great victory for the First Amendment.  Remember, that the First
Amendment protects unpopular speech as much as popular speech.  Popular speech does not
need protections as it is popular and therefore welcome.  But it is the unpopular speech that must
be protected in order that we all will always have the right to speak when we deem it appropriate
regardless of whether the majority believes that it is right or wrong or it is popular.

     Lastly, the Court's ruling that the Statute was overbroad was another victory for the First
Amendment.  Overbreath is a theory of the law that allows one whose speech is clearly covered
by a statute to contest that statute's constitutionality based upon the fact that others may not
speak for fear that their constitutional speech could fall under the reach of the statute.  Under that
scenario, speech would be silenced because of fear, not because it was illegal.

     Over the past decades the Courts have been retreating from the overbreadth doctrine,
trying to find ways around it.  The Steven's decision breaths new life into overbreadth, one of the
greatest tools to secure your First Amendment freedoms.

For whatever reasons it always seems that the summer months have less news on the First Amendment front or involving Adult Entertainment.  Maybe it’s because the courts, lawyers and even the police are on vacation, as well as many City and County Commissions.  Although the news maybe less we actually have a more active calendar during the summer months.

In July, the First Amendment Lawyer’s Association held its annual summer meeting in Vancouver Canada.  This three day event brings together some of the most learned and outstanding adult entertainment and First Amendment Attorneys from around the Country.  Those attorney’s report to the other members of the group their latest cases, the trends and information of interest that helps us all represent you much better.  The brain power in the room is quite astonishing with numerous of the members having argued before the United States Supreme Court and others being responsible for some of the most important First Amendment Jurisprudence throughout the Country.

This year’s  meeting was no different than others with topics being discussed involving zoning and licensing of adult establishments; the Federal Communications Commission; the requirements of labeling and record keeping for Adult Videos and on the Internet; and update on various cases that have been going on throughout the Court Systems.   As always, there is much give and take between the presenters and those in the audience with questions and comments flowing freely.  All in all it was a wonderful educational experience.

 Later this summer, at the end of August, Daniel Aaronson will be speaking in Las Vegas, Nevada at Expo 2009, the Tradeshow for the Adult Cabaret and Dance Club Industry.  Mr. Aaronson not only was asked to speak but in fact will be moderating one of the two legal panels. 

Mr. Aaronson has been asked to speak about the effectiveness of banding together as an organization given his recent success in the States of Pennsylvania and New Jersey.  Due to the strong organizational leadership of Jeff Levy the Executive Director of both the Pennsylvania and the New Jersey Adult Cabaret Associations an Ordinance in a small hamlet in Pennsylvania was repealed and a New Jersey State Statute was modified so that it is now palatable to Adult Clubs in New Jersey as opposed to being so expensive for the Adult Clubs to implement that without court intervention it could have been the death of many a club.

Also on Mr. Aaronson’s panel will be noted attorneys from California John Weston and from Texas Steve Swander.  These attorneys will speak on other subjects including the poll tax or patron tax that has been the new form of taxing the Adult Industry throughout the Country.

On another note earlier this summer James Benjamin and Daniel Aaronson found themselves in of all places Broussard, Louisiana.  Benjamin & Aaronson were representing Michael’s Men’s Club in a Federal Court Action against the City of Broussard because of an Ordinance that they have put in place that would have restricted what dancers could wear, where they could dance and how far patrons could be from those dancers.  After the lawsuit was filed negotiations started between the City’s Attorney and Benjamin & Aaronson, P.A.  To our surprise and delight the attorneys for the City were more than willing to resolve the Federal Lawsuit by way of compromise.  The net results were that Michael’s Men’s Club should now be in existence for a long time to come providing the people of Southern Louisiana with adult dancing for their enjoyment. 

This case showed us as much as any, that when reasonable people are willing to sit down and talk that a reasonable outcome can be had.  The issues were discussed between Benjamin & Aaronson, P.A. and the City’s Attorneys with them actually being willing to listen to our points of view. With modest concessions given by Michael’s Men’s Club, the City’s needs were met and so were the needs of Michael’s Men’s Club.

     In August, Daniel Aaronson was asked to speak in Las Vegas at the Gentlemen’s Club Exposition.  He was part of a panel that included five other First Amendment attorneys from across the country.  The presentation by the panel was done in a point-counterpoint type of atmosphere, with the respective attorneys being asked to take one side of a position even if they did not believe in it.

The endeavor seemed to have some merit as points of view that normally are not discussed were put on the table and due to the skill of some of the participants were argued somewhat convincingly.  But more important than the point-counterpoint was the question and answer period afterwards.  From some of the questions that were asked, it appears that what Benjamin & Aaronson have been writing about and saying for years along with those other attorneys on the panel, it just doesn’t get through to everyone.

What we are talking about is the fact First Amendment and adult entertainment freedoms are hanging by a thread.  That thread is simply who will get to appoint the next two Justices to the United States Supreme Court and what will be the makeup of that Senate when those two appointments are made.  Because even if the President wants a Supreme Court Justice, that Justice still must be confirmed by a majority of the Senate. 

As we speak, there are two Justices that being Justice Ginsberg and Justice Stephens who are and have been contemplating retirement for years.  Reports are that they are waiting and holding out for either a Democratic President or for at lease a Democratic Senate so that the Court that they know and believe in will not turn into a rubber stamp for the Republican National Committee.

Why should you care?  The answer is simple.  Regardless of how liberal the Legislature or even the Executive Branch of either a city, county, state or federal government, those branches of government by and large are never fans and friends of adult entertainment and the First Amendment.  Rather, it is the Courts that have always protected adult entertainment and First Amendment freedoms.  As the Supreme Court becomes more and more Republican and more and more conservative, it is being stacked with judges who do not care about adult entertainment and First Amendment freedoms, but rather with corporate interests and executive power.  Should George W. Bush without a Democratic controlled Senate be allowed to appoint the next two Justices, all that many of you have worked for for years, will be fleeting memories.

This is not just our opinion, but by and large the opinion of First Amendment lawyers.  Many of you want to vote with your pocketbooks.  You think the Republican party is in your best interest because they are for lowering taxes.  If you truly think with your pocketbook then you must, at least on the national level, vote Democratic.  That is not to say that the Democratic party is our friend.  In fact, no political party is the friend of adult entertainment.  Rather, a Democratic party if it controls the Senate and certainly if it controls the White House, are more likely to make sure that the next Justices on the Supreme Court believe in a woman’s right to choose, believe executive power has gotten out of hand, believe in a fair minimum wage, and certainly believe in civil and personal liberties.  Justices that feel along these lines, even if they do not like adult entertainment, are much more likely to acknowledge its place in our society and the fact that it enjoys and is protected by the Constitution.

Many of you do not know what to believe anymore.  You watch different news casts and hear different news.  What you see on FOX is certainly not what you see on CBS.  Therefore, articles like this one, are read, thought about, and then dismissed.  However, what is being said in this article is true.  If you enjoy First Amendment rights and adult entertainment, regardless of your normal political affiliation, when it comes to the Federal elections, be it the House, the Senate or the Presidency, it is time to vote with your pocketbooks and your conscious and to see that not all three branches of government are controlled by the Republican party.

On another note, and not First Amendment related, but certainly to dealing with freedoms, your President seems to want to take this country back a hundred years in relations with other countries and back a thousand years in its dealing with people.  The President, is clamoring, regardless of the words he uses, for the right of our CIA and other investigative agencies to be able to torture.  We were one of the most ardent proponents of the Geneva Convention.  We realized as a country back decades ago, that we as a society gave prisoners and/or enemy better treatment than was given to our soldiers.  We believed that the Geneva Convention would insure that our soldiers were treated as humanly as we decided to treat others. 

Now we have a President who wants to abolish the Geneva Convention because it does not suit his needs.  He hides behind 9/11 as if that is the end all, catch all phrase that should stir fear in Americans to the point where they are willing to give away their freedoms and to take away other’s basic human dignity. 

No matter how bad times get, America must stand for one thing above all and that is fairness.  Fairness of course does not mean torturing those that you hold captive.  Most experts believe that torture does not even work but rather gets those who are being tortured to say what the interrogator wants.  That leads to false and unreliable information.  Regardless, even if it meant reliable information, have we as a society stepped so low that we can condone torture?  Have we as a society then said it is OK for others to torture our soldiers?  After all what is good for the goose is good for the candor.

Maybe the most telling part about the President’s desire and foaming at the mouth in order to be able to torture may have just come in early September when he was conducting a news conference.  The reporter asked him in essence, how would he feel if American soldiers were captured by Iran and North Korea or countries of that ilk subjected to torture and then had those confessions used against them in a court in those countries without having the ability to confront their accuser and know what evidence was against them?  Your President’s response was something to the affect of it would be a better world.

What he meant by that no one will ever know.  But regardless of what he meant by that idiotic answer, what is evidently clear is he does not realize the ramifications of his actions as they apply to the American military.   What is abundantly clear is that he does not see the big picture, but just the small picture.  What is abundantly clear is that we have a dangerous man in the White House.