Oprano Adult Industry Forums - View Single Post

*KK* · 06-23-2005

After reading the DOJ's response to the request for the TRO, I'm curious as to what the terms of this deal will actually be.

For those of you not up on the legalistics of TROs and injunctions and the like, it works generally like this --

Someone (plaintiff) files a motion for a Temporary Restraining Order against the other side (defendant). The judge hears the motion for the TRO and looks at the argument upon which the request is based. At that point, the hearing may be ex parte (only one party has to be present) or it may be an open hearing with both sides in court.

IF the judge rules, based upon the argument presented, that there may indeed be a reason in a court hearing on the merits of the case, that the plaintiff will be granted a more permanent injunction, then the judge can decide to issue the TRO, pending further hearing, and if that happens, a date for the hearing is set. IF the judge does not see the merit in the argument, then the request will be declined -- which does not stop the plaintiff from amending their motion at a later date and requesting the order yet again.

The defendant has a right, and potentially an obligation, to return an Answer to the Motion to the judge, prior to (including up to the day of) the hearing for the permanent injunction or order. The defendant would normally respond with the reasons that the Plaintiffs argument was invalid.

All of these motions and answers are matters of public record - regardless of the validity of the claims made in either. What this allows is for both the Plaintiff and the Defendant, under the due process of the law, to see what the other side is basing their arguments on, prior to the actual permanent hearing regarding the injunction.

Getting the TRO may take as little as a few minutes before the judge. Getting a permanent injunction depends on trial schedules, arguments for and against, and so on, until there is either a final appeal to the Supreme Court over the points of law, or there is a resolution by a judge that does not trigger an appeal by one side or the other.

As to the grouping of FSC members vs. non FSC members in this instance, I'm really not at all sure how the delineation will be made.

Nor does the fact that a TRO is issued, or some deal made to supplant the TRO but achieve the same results, mean that this law wont stand up in court eventually, and that it is not possible that prosecutions could fall back to the date of the original enforcement. It also doesn't mean that if someone is inspected, be they FSC member or not, that they cannot be charged with other crimes that come to light in the course of an inspection or investigation.

Personally, after talking to multiple people who've been on the receiving end of a federal prosecution for being in the adult entertainment business, I don't believe that with or without the TRO or deal in place, that the government is going to start hauling people off in handcuffs and trying to put them in the slammer for 5 long years.

Previously the federal government was more about fines and stipulations -- such as those saying the defendant wont engage in specific business practices or industries as part of their plea bargain agreements -- as opposed to actually putting people in jail. While I do know of one person who did 18 months for an obscenity charge in Alabama, that was more due to the fact that he didn't want to pay the excessive fines to stay out of jail, and due to the fact that several of his employees were on the indictment list. His choice was to plead out a sentence that placed the blame on him and got the government off the rest of his company's back, so to speak.

To make a long post longer, and once again, only my completely non-legal opinion, I don't really think the federal government is going to waste its time going after small mom and pop operations that have no real assets. Sure, they might make headlines, but in the scope of things, the judge, the prosecutors, the investigators, they are making the same amount of money per hour regardless of who they go after.

Just like the case of the FTC knocking on RJB's door in 2000, I'm sure they could have chosen numerous companies that were using dialers and had their own merchant accounts to harass... instead they chose the largest target they could find at the time. This was also the general tack the government took during the MIPORN investigations and the Meese Commission prosecutions. Once again, it's nice to say you are hurting the pornographers, but it's so much nicer to say you are hurting the biggest and baddest of the pornographers. Look at Elliot Spitzer and his prosecution of the Crescent Publishing group -- I'm SURE that if you looked through all the audio text and pornographers in the state of NY, you could find other guilty parties. But in the interest of self promotion and headlines, why not go after the biggest one you can find, it makes much more impact for the same amount of research and investigation. Getting a bunch of 100,000 a year guys to say they'll get out of porn isn't nearly so compelling on the newswire as it is to say that you've got 250 million in repayment for fraud or so...

06-23-2005	#1
KK Members Respin bullshit press Your Comments Are Welcomed Join Date: Nov 2002 Posts: 2,581	After reading the DOJ's response to the request for the TRO, I'm curious as to what the terms of this deal will actually be. For those of you not up on the legalistics of TROs and injunctions and the like, it works generally like this -- Someone (plaintiff) files a motion for a Temporary Restraining Order against the other side (defendant). The judge hears the motion for the TRO and looks at the argument upon which the request is based. At that point, the hearing may be ex parte (only one party has to be present) or it may be an open hearing with both sides in court. IF the judge rules, based upon the argument presented, that there may indeed be a reason in a court hearing on the merits of the case, that the plaintiff will be granted a more permanent injunction, then the judge can decide to issue the TRO, pending further hearing, and if that happens, a date for the hearing is set. IF the judge does not see the merit in the argument, then the request will be declined -- which does not stop the plaintiff from amending their motion at a later date and requesting the order yet again. The defendant has a right, and potentially an obligation, to return an Answer to the Motion to the judge, prior to (including up to the day of) the hearing for the permanent injunction or order. The defendant would normally respond with the reasons that the Plaintiffs argument was invalid. All of these motions and answers are matters of public record - regardless of the validity of the claims made in either. What this allows is for both the Plaintiff and the Defendant, under the due process of the law, to see what the other side is basing their arguments on, prior to the actual permanent hearing regarding the injunction. Getting the TRO may take as little as a few minutes before the judge. Getting a permanent injunction depends on trial schedules, arguments for and against, and so on, until there is either a final appeal to the Supreme Court over the points of law, or there is a resolution by a judge that does not trigger an appeal by one side or the other. As to the grouping of FSC members vs. non FSC members in this instance, I'm really not at all sure how the delineation will be made. Nor does the fact that a TRO is issued, or some deal made to supplant the TRO but achieve the same results, mean that this law wont stand up in court eventually, and that it is not possible that prosecutions could fall back to the date of the original enforcement. It also doesn't mean that if someone is inspected, be they FSC member or not, that they cannot be charged with other crimes that come to light in the course of an inspection or investigation. Personally, after talking to multiple people who've been on the receiving end of a federal prosecution for being in the adult entertainment business, I don't believe that with or without the TRO or deal in place, that the government is going to start hauling people off in handcuffs and trying to put them in the slammer for 5 long years. Previously the federal government was more about fines and stipulations -- such as those saying the defendant wont engage in specific business practices or industries as part of their plea bargain agreements -- as opposed to actually putting people in jail. While I do know of one person who did 18 months for an obscenity charge in Alabama, that was more due to the fact that he didn't want to pay the excessive fines to stay out of jail, and due to the fact that several of his employees were on the indictment list. His choice was to plead out a sentence that placed the blame on him and got the government off the rest of his company's back, so to speak. To make a long post longer, and once again, only my completely non-legal opinion, I don't really think the federal government is going to waste its time going after small mom and pop operations that have no real assets. Sure, they might make headlines, but in the scope of things, the judge, the prosecutors, the investigators, they are making the same amount of money per hour regardless of who they go after. Just like the case of the FTC knocking on RJB's door in 2000, I'm sure they could have chosen numerous companies that were using dialers and had their own merchant accounts to harass... instead they chose the largest target they could find at the time. This was also the general tack the government took during the MIPORN investigations and the Meese Commission prosecutions. Once again, it's nice to say you are hurting the pornographers, but it's so much nicer to say you are hurting the biggest and baddest of the pornographers. Look at Elliot Spitzer and his prosecution of the Crescent Publishing group -- I'm SURE that if you looked through all the audio text and pornographers in the state of NY, you could find other guilty parties. But in the interest of self promotion and headlines, why not go after the biggest one you can find, it makes much more impact for the same amount of research and investigation. Getting a bunch of 100,000 a year guys to say they'll get out of porn isn't nearly so compelling on the newswire as it is to say that you've got 250 million in repayment for fraud or so...