SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_03 0:30

Hello, everybody. This is John Katz at Beat the Prosecution. I'm a criminal defense and DWI defense lawyer in Northern Virginia. You hear it all the time, and you're going to hear it again. I'm having a lot of trouble controlling my excitement over my two guests today. We have Ricky Levy and we have Larry Walters. Okay, well, I met Larry first over like 20 or 25 years ago through the First Amendment Lawyers Association. We even did a case together. I was local counsel, a great lawyer. So excited to have him with us. He's also, among the many things he does, he's a lawyer in Florida. He'll tell you about what he does. He's general counsel of the Woodhall Freedom Foundation. And with the Woodhall Freedom Foundation, we have there, uh I want to get it, give it the right title. Is it executive director or something else, Ricky?

SPEAKER_02 1:20

President and CEO.

SPEAKER_03 1:22

Ricky is the president and CEO of the Woodhull Freedom Foundation. And that is a great group, which is about sexual freedom and civil liberties. And what I like to say is just like with marijuana, people will be stunned to know that I spent so much uh lip service, well, beyond that, about legalizing marijuana. And I haven't talked more than five times in my life, last one being sometime before law school. And same thing with sexual freedom. No, I'm not done. About sexual freedom, I'm going to say I'm not into that BDSM stuff, but uh when we protect people's right to choose, we protect everyone's civil liberties. With that, uh, because I've known him the longest, let's start with Larry. Larry Walters, please introduce yourself uh and tell everybody what you do.

SPEAKER_01 2:17

Sure. Thanks again for uh the opportunity to be on your podcast. Uh, really enjoying uh being here with you after all these years. Um as John mentioned, I've uh known him for many years and we've worked together, uh, both members of the First Amendment Lawyers Association, which is uh a great group of First Amendment lawyers throughout the country that has been involved in most of the precedence setting, First Amendment cases uh in the area of First Amendment jurisprudence. And uh I'm a uh past president and national chairman of that group. Um I'm the operator and owner of Walters Law Group, which is based in Florida, and uh we represent clients throughout the country. Uh my focus has been on defending First Amendment rights and freedoms uh for my 35-year career. Uh my website is firstamendment.com, and we provide a lot of free information there. Uh we tend to focus uh primarily on representing uh web-based clients, internet websites, uh, online platforms, social media sites, cam sites, uh classified advertising sites, hosts, uh, along with content creators and fans, uh, fan platforms, and uh just about anything having to do with uh uh publishing on the internet. And that, of course, leads to uh issues with the government and other people who want to censor uh what those clients have to say. And so we spent a lot of time challenging uh government laws or ordinances or other restrictions on people's ability to speak or to publish the content of third parties on internet platforms. Uh so that's uh what I have been doing for the last 30 plus years. And uh again, happy to be on your show.

SPEAKER_03 4:03

Thank you. And uh Larry, I think it was already back around, what was it, 2003 or 2004 or so that I was local counsel with you for that uh prison guard who got uh suspended from her job just because someone found out, do you think maybe it was another prison guard who actually looks at those websites uh regularly at the time? Uh it was found out that she had posed naked uh for uh some platform uh involving tattoos and piercing.

SPEAKER_01 4:31

Yeah, exactly. Uh another situation where we're we find ourselves defending uh employees or former employees who worked for the government in some capacity, and uh they are terminated or uh otherwise negatively impacted by the government employer uh as a result of freedom of expression, you know, uh publishing something online, saying something that the employer deems to be controversial. Uh that is, in fact, one of the cases that that we handled, uh got a great result for her, and uh been involved in a number of other similar cases, uh, all having to do, again, with uh censorship of First Amendment expression.

SPEAKER_03 5:10

And I think that's a great example, Larry, that uh we can be there to support people's uh free expression rights regardless of their walk of life. People might say to me, you know, you go against the cops so often, you you don't want your clients uh locked up, but that's not gonna uh uh change one bit that I'm gonna stand up for people's free expression rights, even if they are cops and their criminal defense rights, of course, as well as even if they're prison guards. Uh with that, Ricky, please introduce yourself.

SPEAKER_02 5:39

Thanks, John, and thanks for having me on. Um so my name is Ricky Levy, and I am, as John said, the president and CEO of the Woodhole Freedom Foundation. I'm also one of the founders. Woodhole was founded in 2003. Uh, we knew that identity politics, that is advocacy that is centered around the issue of who you are or how you present yourself, uh, was already well entrenched in the discourse. We wanted to become an issue organization based on an issue. We also knew that human rights were the foundation of all of the other rights that we've been fighting for for 21 years. Uh, and so the mission of Woodhall is to affirm sexual freedom as a fundamental human right. And our work over these 21 years has centered uh on all of the issues around freedom and personal liberty or personal autonomy. Um we've we've advocated in the courts, thanks to Larry Walters, uh, and and to others who supported our work. We've um we've uh testified in Congress quite a while ago on pornography, um uh against the censorship of pornography, obviously. We've testified this year, we've submitted testimony in 18 cases. Uh, and I'm not counting amicus briefs, I just mean direct testimony in 18 cases. Um we we are a convener and a coalition builder, we are known for that. Um we work across all communities because all communities, no matter what the identity, no matter what the issue, all are human beings, right? And they come under our umbrella.

SPEAKER_03 7:58

Well, uh Ricky, I know I know a lot about what brought Larry to his path, but I don't know a lot or much about what brought you to your path. So, how did you get to this path of working for sexual freedom? Who was Victoria Woodhall? And how did you and the others find each other to create the Woodhall Freedom Foundation?

SPEAKER_02 8:18

I asked myself that question a lot, John. Um, how did I come to this? I always believed that everyone should have equal rights and that we should be respected as human beings. My best friend growing up was a gay man who was very, very closeted. I'm very old. Back when I was growing up, you there just were no gay people, just tightly closed closets. Wow. Um, and he was one of the first deaths from AIDS back before it was called AIDS, when it was just referred to as uh grid, gay-related immune disorder. Um, so I always cared about people being able to live authentic lives in the light of day. Um I how did I get involved in Woodhull? I I had started um as a volunteer for the National Coalition Against Sexual Freedom. Uh, it's a funny story how that happened. Um, they had a problem with a website. I had made a donation, and all of a sudden I had a recurring donation on my credit card every single month. Um, and when I called the credit card company back then, you could do that. They were able to tell me that it was a teen Asian porn site. And I it certainly was not me. Um and I said that to the um credit card agency, and they said, um, okay, well, we'll reverse the charges. But I thought, you know, I should let somebody at NCSF know. And I got a call through to Susan Wright, and um Susan got very distressed and admitted that whoever had designed the website was long since gone and they had no idea what to do. At the time, I had my own consulting business, and one of the people that I worked with did web work and IT work. And I asked him if he could go in and break the link. And he did. Um, and they were very grateful. And I made the mistake of asking if there was anything else I could do to help.

SPEAKER_03 10:48

Okay. Well, Woodhall uh does a lot of work. Can you uh uh tell about when the next uh I guess you call it summit is coming up? And I think you I see on your website there's some educational events coming up in uh this month.

SPEAKER_02 11:05

Happy to discuss our work. Um we pivoted we had to. COVID caused us to end the summit when when there was just no way to get together. But we didn't want to stop our educational activities, and so we pivoted to virtual programming. Um this is now our second year with a program called the Censorship of Sexual Freedom, where we feature every month a different issue of censorship and how it impacts different people. Um last month we did a program um you know who Joseph Gao is or go uh professor at the University of Wisconsin who lost his tenured position when it came to light that he and his wife uh had an OnlyFans account and that they were publishing videos.

SPEAKER_03 12:10

Right.

SPEAKER_02 12:11

Lost his job. Crazy tenured professor. Um, it happens, but those are the kinds of issues that we talk about and what people can do about it and what's coming down the pike that might make it worse or better. Um the the programs are incredibly diverse, and every one of them is exciting. Um we have a program that we do uh in collaboration with the New Moon Network called Spokes Hub, that is an education program for people who are or have been sex workers to teach them about advocacy, to teach them um about lobbying, um, writing for the media, how to present themselves. Um and what's unique about this program is that thanks to the New Moon Network, the graduates receive a stipend every time they get a work published or do a media interview. Um we're paying everyone for their labor. Uh, so that's a program. Um what else are we doing? We are we are facilitating monthly calls with various communities uh with the goal of bringing the communities together. This is all post-election strategizing, uh bringing the communities together ultimately on a call to share uh opportunities for collaboration and make each individual community more aware of all of the communities as a whole under the sexual freedom movement.

SPEAKER_03 14:00

Have you, Larry, already uh said the website for the Woodhall uh Freedom Foundation?

SPEAKER_02 14:07

Have we what?

SPEAKER_03 14:08

What is the website for Woodhall Freedom Foundation?

SPEAKER_02 14:11

Oh, okay. I can tell you that. It's woodhullfoundation.org.

SPEAKER_03 14:17

And how do you spell Woodhall?

SPEAKER_02 14:19

W-O-O-D-H U L L.

SPEAKER_03 14:24

Who was Victoria Woodhall?

SPEAKER_02 14:27

She was a suffragant. She um very, very unusual person. Um she ran for president before women even had the vote. Um I think maybe she got her own. No, she didn't get a vote. Uh, in fact, she spent election night in jail. Uh, she named Frederick Douglass as her vice presidential candidate. Um, she and her sister were the first female stockbrokers on the New York Stock Exchange. Uh, she came from a terrible, horrible, horrible background. Um, but I think that it made her less afraid of anything she would face as an adult. She advocated for a five-day work week. Um, she was very popular with the women's uh movement to get the vote until she said the vote will be meaningless if we don't also have equal rights.

SPEAKER_03 15:36

Right?

SPEAKER_02 15:37

Yeah, 1800s. So um she advocated for free love. She lived at the end in, I guess you would call it, a polyamorous household. Uh her first husband from whom she was divorced lived with her and her second husband. Um she was very, very far ahead of her time.

SPEAKER_03 16:03

That's what I was just thinking.

SPEAKER_02 16:04

Yes, very far ahead of her time.

SPEAKER_03 16:08

Well, you're both fascinating people. And Larry, uh I thought I knew what brought you to this path, but actually maybe I'm not sure. I know how you started doing First Amendment work. What brought you to this path of becoming a lawyer and uh focusing a lot of your work on uh free expression rights and civil liberties?

SPEAKER_01 16:28

Yeah, um it's uh a story that I can try to tell as quickly as possible. Um it involved a pro bono case that I took on. And basically when I was practicing in Daytona Beach, Florida, uh, we had a state attorney who took office and ran on a platform of uh cleaning up the image of Daytona Beach, which at that time in the late 80s uh was kind of like a spring break capital honky tonk. Um and so this uh born-again uh state attorney decided to uh clean up the image. And uh one of the things he wanted to do is get rid of the porn. Um and at that time there was uh adult uh portions of video stores, you know, backrooms and video stores where you'd go rent videotapes, and uh that's how you'd get your uh adult content primarily. Uh really, it's what kept most of those individual uh non-blockbuster stores alive was the uh adult videotape rentals. But um, the uh the stores in his jurisdiction quickly became the target of the anti-porn campaign. And he started arresting the owners or operators of these stores and sending the video news crews out there to show the arrests and the perp walks and you know, taking these uh these poor clerks in handcuffs uh to jail for uh selling obscene materials. Um and you know, I saw that on the news, like, you know, that that doesn't sit well with me, you know. But I guess there's some you know obscenity law, maybe they cross the line somewhere. But then he went further and started sending letters to the video stores demanding that they take down um certain additional titles that the state attorney didn't like. Um, and these were not just adult videos, things like Pink Flamingos and other things that apparently One of my favorite movies. It's a great movie. Yeah, exactly. And once uh once I saw that, um, he's having these letters hand-delivered and making a big scene that this cannot be constitutional. This cannot be right. Uh, I wasn't a First Amendment expert, but it didn't sit well with me. And so I asked the, you know, fairly uh large firm in Daytona Beach, I think it was the second largest firm in Daytona Beach at the time, if I could go help some of these people or at least, you know, sit in on the trials, these obscenity trials, and see what's going on. And they're like, okay, we just don't embarrass the firm. You know, we represent banks and insurance companies. And uh, okay, I'll try not to. Um, so I went in there and they had some corporate guy who'd never been in criminal court before, neither had I, um, defending them. And um he was, you know, doing the best he could, but really struggling uh with the trial. And so I walked up to him in a break and I said, Hey, you know, you need any help? Um, I don't know that much about this stuff either, but maybe we can, you know, do something together. He said, Absolutely, second chair, sit here. So um just started to uh help defend these cases. And ultimately we got um acquittals or mistrials in all the cases. Um it started a very anti-uh censorship grassroots movement within the community. There were debates held with the state attorney and the ACLU, and you know, the community got really involved, bumper stickers on every other car, you know, uh showing support for the uh First Amendment. And um, you know, it it was a pretty high-profile incident. Um, what I didn't know is that sitting in the audience were um some of the producers of current adult content from California, they were worried about these cases because uh the titles that they chose to prosecute were some of the classics like Deep Throat, Behind the Green Door, The Devil and Miss Jones. And if those movies were found obscene, then the kind of stuff that they were producing at that time was really in trouble. So we're watching these cases very carefully. And you know, they came up to me after some of the trials and said, Hey, you know, I like your style, like what you did up there. Uh, you want to start doing some work with uh some of the large distributors. And so that's kind of my foray, you know, is it was one instance where uh a good deed did not go unpunished and led to a career in uh First Amendment law.

SPEAKER_03 20:21

Okay, so when was this that uh you first stepped into the courtroom about this matter?

SPEAKER_01 20:26

It was uh 1989. Um, and so there were several criminal trials and uh also civil uh seizures that were occurring um under obscenity laws. And so there's multiple cases going on at the same time. And you know, we would we'd talk to the jury and just explain look, you know, everybody has a right to see and watch and read what what they like. You might not approve of what your neighbor reads, but are we gonna put people in cages because of you know content that involved all willing adults? And everybody who watched these movies wanted to watch them, except for you, because the state attorney brought you in here and forced you to watch it, you know, and they're like, Yeah, you know, that kind of makes sense. So I think we connected with the jury on those arguments and uh they threw out all the cases where we got mistrials on some of the others. So uh that's that's kind of how it started there. And then the the internet came around, you know, five or six years later. And I was uh, you know, one of the first kids in uh in law school with a computer. I was always into technology, and I typed all my tests in law school and before anybody was typing and get a special room because I was fast at it and you know, I could change things around and come up with arguments easier than handwriting it out in the blue notebooks that they used to have you use. Um, but when the internet came out, it was kind of a uh perfect merger of my interest in technology and the First Amendment and started representing controversial sites on the internet, including uh got involved in the challenge to the Communications Decency Act in 1997 when it was passed, um, prohibiting all indecent content on the internet, believe it or not. And ultimately that was invalidated by the U.S. Supreme. Court uh unanimous decision in 19 uh 98.

SPEAKER_03 22:04

Did you argue that at the Supreme Court?

SPEAKER_01 22:06

I did not argue that. Uh I was involved in the campaign, um, helped organize what was called the Blue Ribbon Campaign, uh, which was a uh thing where you each website that was supporting the effort and helping raise money and awareness would post a little blue ribbon on uh on the site. And uh it was an indicator that you were in the fight and supported the First Amendment. It also gave me uh an idea for my my kind of first marketing of my law firm uh where my clients would post a uh banner saying, you know, uh this site protected by first amendment.com. Yes. Other sites would see that and they'd say, I want that. And so uh that kind of went viral and built up a nice practice that way.

SPEAKER_03 22:47

And so how did uh you, Larry and Ricky and Woodall all end up joining forces?

SPEAKER_02 22:55

Yeah, so there was there was a case um of written. It was child pornography, correct, Larry?

SPEAKER_01 23:06

It was purely written word. It was um the the the name of the website was Red Rose Stories. And uh this was an individual, Karen Fletcher, I can say her name. It was a well-publicized case uh brought by the um U.S. Attorney's Office, federal U.S. Attorney's Office in Pennsylvania, uh, a federal obscenity charge against a website that contained nothing but written words. And these written words involved uh some, you know, some uh pretty uh intense subject matter involving um sexual abuse and minors and torture and very difficult stuff to hear and read about. Um what the background was is that this individual, Ms. Fletcher, had been a victim of sexual abuse and had uh gotten a therapist. Um and the therapist said, you know, you need to connect with other people and kind of get this out and write about it. And so she basically started writing like diaries and you know, some some fantasies, not all true, but you know, expressing how she felt. And other people would chime in and submit other written portions, help her write the stories, and it was a therapeutic effort. Um, but you know, the U.S. Attorney's Office latched onto it and decided to first raid her house, seize all her computers, and then charge her with federal obscenity violations. And that was when you heard that was in uh about 1999-2000, like that.

SPEAKER_03 24:29

So that was that that was even happening then when um when Clinton was president. Yeah.

SPEAKER_02 24:36

So, John, we live in a society that is so puritanical, um, no matter what we think or how far we think we've come, um, I call it the prohibition of pleasure.

SPEAKER_03 24:50

Yes.

SPEAKER_02 24:51

Right? And so here I am, newly involved in Woodhall. Um, and I read about this case, and and I think, well, this is so wrong because we've always been uh fighting censorship. We've always advocated for free speech. Um, in fact, you had two of my favorite guests on, I think, your last podcast, right? Um, Bob Cornrevere was on the podcast. And Harvey. And Harvey. Uh the fire is um one of our close, very, very close allies in our work. Uh, we work together often. Um, but here I read about this case, and I think, well, this is horrible. This this just can't stand. But before I'm gonna jump in and do anything, I'm gonna reach out to whoever the attorney was. So I tell my colleagues at Woodhall that the attorney's Larry Walters, and they tell me, you can try, but you're never gonna reach him. He's much too busy, he's an important man. Well, yeah, so you know, don't tell me I can't do something. So I reached out, he answered me immediately. We had a wonderful conversation. Um, and I think that was the beginning of our relationship. Uh, and then I invited Larry to the summit, right? That ran for 13 years. Um and as they say, when you ask people how they got involved in Woodhole, almost everybody says, Well, I met Ricky.

SPEAKER_03 26:40

Yes.

SPEAKER_02 26:40

And that's it. It's a it's a path everybody walks.

SPEAKER_03 26:45

Well, Ricky, I've been to several of the Woodhole Freedom of Foundation events, at least two or three of the summits, some of the meetings. And one of the things that amazed me, and how did you pull this off? And I think you had said that it was not easy to do to get Martine Rothblatt to talk uh to the group. I think this was in the early 2000s. And there I was at a table with Nina Hartley, whose uh name precedes herself. And I'm and I'm sitting there in front of Martin uh Rothblatt, who of course was uh uh started, was it Sirius Radio, Radio XM radio, the same thing, and and is fascinated in every other way? I think that's on my YouTube channel, uh, defining exactly uh what is meant by giving people sexual freedom, saying that sex is not defined, uh whatever, sexual orientation or whatever is not defined by penises and vaginas. There's gradations and everything. How on earth did you and or woodhall generally uh uh get uh Martine to show up there over the National Press Club?

SPEAKER_02 27:46

Yes, sir.

SPEAKER_03 27:47

As simple as that.

SPEAKER_02 27:49

As simple as that. As simple as that, you know, John, to find a place where you can talk about sex, sexuality, your personal autonomy, the choices you make in your relationships without being censored or worrying about your job or your neighbors, um, though those opportunities aren't readily available, and certainly they weren't available uh when we began the sexual freedom summit. Uh it's easy to talk about other issues. Uh so you know, here's an example. If the government said, because the government uses two common flags, they wave two flags every time they want to pass a draconian law to restrict our rights. Yeah. One is to protect the children, who doesn't want to do that, right? And the other is to end sex trafficking, right? Not labor trafficking, not not anything else, just sex trafficking.

unknown 29:00

Right.

SPEAKER_02 29:00

So and the prohibition of pleasure. But if if the government said, no more beef, you can't eat beef, it's bad for you, we've decided it'll harm children. So all the people who eat beef would rise up and protest. The cattle growers would rise up and protest, and eventually whatever they were proposing would go away. But when it comes to things that are sexual, it's very hard for people to stand up and say, here's who I am, or here's what I like, or here's what I do. And that's why Woodhall and the spaces Woodhall creates are so vitally important for us to move forward as a society.

SPEAKER_03 29:48

Yes. And so this is a great way to segue. And uh, let's start with Larry. Please tell the audience about some of Woodhall's uh key agenda items. Uh for instance, uh challenging Flavor Rice Sesta, Foster, and uh dealing with the decriminalization of sex work as well as what's going on in Texas.

SPEAKER_01 30:08

Sure thing. So, you know, we're talking about beating the prosecution, and that's your uh that's your slogan and your podcast name. And you know, one of the ways to do that is to dismantle the law that they're using to prosecute you. And that's where you know constitutional lawyers like yourself and our firm and others come in. Uh, I my focus is on First Amendment challenges. There are obviously others, Fourth Amendment challenges and others. But when a law singles out speech or tries to regulate speech, particularly based on content, which is often the case with sexually oriented uh expression, then that is a content-based restriction on speech, which we learned in law school is presumptively unconstitutional and has to um pass a very strict test, called the strict scrutiny test, uh, in order to be valid and enforceable. And so we find ourselves, you know, uh, on behalf of Woodhall and sometimes in other contexts, um, challenging these laws to dismantle and undo the law so that it cannot be used either against our client or um even better, against anyone. And uh we often seek a an injunction, uh, a nationwide injunction if we're dealing with a federal law, prohibiting the Department of Justice from enforcing the law against anybody because of its underlying constitutional defects. Uh sometimes we win, sometimes we lose, sometimes you get uh a benefit out of the case just by challenging the law, in that the court will interpret the law or narrow its construction so that it doesn't violate the First Amendment, so that it can't be used against advocacy or protected speech. And that's what happened with uh Fausta Sesta, for example. Uh Woodhall in 2018 saw that this law was being passed. It did a number of different things, but primarily made any uh computer service or website operator liable for uh content that is posted by third parties. So, you know, envision YouTube being liable for every video posted by every third-party user, or Facebook being liable for every post or comment. Um, that's essentially what Foster tried to do. And it narrowed out the certain types of speech that could be punished. Um, speech dealing with sex trafficking, uh, speech dealing with promotion or facilitation of prostitution, and it was written in such a broad way and imposed such draconian penalties, you know, 15 years in prison, if more than five people are involved, 25 years in prison. Um, if a computer service is used to allow people to talk about these prohibited subjects. And, you know, given the penalties and the breadth of this law, many websites, as soon as the law was passed, shut down or uh eliminated any sections that allowed people to or encouraged people to talk about sexually oriented topics and anything where people might inadvertently say something that was uh interpreted as facilitating prostitution. And if you look at you know the definition of facilitating prostitution, it simply means to make easier, right? So if you look at all the harm reduction websites that were out there that you know uh educated uh escorts or providers on bad dates or people who were violent, um, or you know, talked about um where to get free condoms or what to do if uh you have to call the police on a you know on a bad date as a as an escort. All those websites in providing those services were making prostitution easier.

SPEAKER_04 33:42

Yes.

SPEAKER_01 33:43

And it really scared the bejesus out of uh a lot of website operators that realized you know we could get hit with these very serious penalties. Even Woodhall on its website uh when publishing its uh its notifications as to who was speaking at the upcoming summit in 2018, um, we were looking at, okay, we're posting these, you know, profiles of the speakers who were out sex workers, right? And giving you know email addresses and contact information. And I'll I'll never forget um the day when I think uh Ricky and I both realized that wait a minute, we could be facilitating prostitution by posting the information about these out-sex workers.

SPEAKER_04 34:27

Right.

SPEAKER_01 34:28

And you know, we're and then we started to say, okay, do we have to censor our speech? Do we have to take stuff down? We have to eliminate all this information from the website. And then we both looked at each other, I think at the same time said we have standing to challenge this law.

SPEAKER_04 34:40

Yes.

SPEAKER_01 34:41

Laws passed, nobody else was doing anything, the ACLU wouldn't touch it with a 10-foot pole. Everybody was afraid of being branded as, you know, promoting sex trafficking or being in favor of illegal activity if you challenge this law. But it was so broad that not only did it prohibit illegal activity, but anything adjacent to it, you know, anything that facilitated or promoted this activity. And so uh a vast amount of constitutionally protected speech. So we led the charge in a challenge to the law. Eventually others jumped on, other plaintiffs. Um we got amicus briefs even from you know groups like uh Reddit, uh, the Internet Archive jumped on as a plaintiff, and we we challenged the law. And it took, what, four or five years, went up and down to the uh Federal Circuit Court of Appeal uh for the DC Circuit, uh, first on standing, which the trial court got wrong and got sent back down, and then up on the merits. Ultimately, at the end of the day, uh, unfortunately, based on a Supreme Court decision that came out literally two weeks before ours did, which changed the analysis of how you look at these terms like promote and facilitate in a criminal law, uh, the Supreme, uh the um this circuit court upheld the law on the constitutional challenge, but issued one of what I referenced before, one of those narrowing constructions. And so what it did is it it read the law as if it only prohibited um common aiding and abetting activity, which aiding and abetting is a, you know, in criminal law circles, is a known type of you know, substantial involvement in a particular criminal enterprise, uh, which the government can prohibit, but uh the court interpreted FOSSA so as to not apply to things like advocacy and harm reduction and speech related to prostitution or sex work or um you know these these other prohibited activities. So we believe that you know the decision was helpful. Um, it will now guide other courts into you know how to interpret if somebody's charged with a violation involving promotion or facilitation of prostitution. Well, you got to look at whether or not they were engaged in speech-related activities. If that forms the basis for the prosecution, then our case says you can't go forward. Uh, and that, you know, kind of uh shuts down the prosecution at that time. So um that's how that case came out. Um, you know, it was kind of a split the baby, but we we ended up with a narrowing construction.

SPEAKER_03 37:00

Okay, I'm I'm getting mixed up uh or summing some of these uh acronyms. So that one was FOSTA. Correct. Which stands for what?

SPEAKER_01 37:09

Um fighting uh online trafficking, uh uh something like that.

SPEAKER_02 37:15

Trafficking.

SPEAKER_01 37:16

Yeah. Yeah, they always come up with these acronyms that nobody could stand against, right? There were, I think, only two senators that were brave enough to vote against the law because it was a law designed to fight trafficking, and that's how it was sold. And nobody really read into it. And at the kind of the last minute in a committee hearing, uh a senator got the bright idea of, hey, why don't we just throw in a prohibition on consensual sex work and make that a federal felony, too? And uh just went in there and slipped by. Nobody ever really talked about it. Uh, but that's what ended up being passed. And so uh that's the law we fought and challenged, and the court limited how it could be applied and prevented it from being applied to First Amendment protected activities.

SPEAKER_03 37:54

Okay, and that that was which court?

SPEAKER_01 37:56

That was the um the DC Circuit Court of Appeals, one step below the U.S. Supreme Court.

SPEAKER_03 38:03

Okay, and what was it? What's the title of that case?

SPEAKER_01 38:06

Woodhall Freedom Foundation versus United States of America.

SPEAKER_02 38:10

I still love to hear that.

SPEAKER_03 38:12

Yes, I'm gonna jump in here and and tell you um, you know, uh a little more about why all this is so important to me. I mean, you know, aside from the fact that the first and only time that I represented a woman who was uh uh uh posed in the in a centerfold of Playboy, and one of the first things I said to her was, wow, I never would have imagined when I was in high school that I'd be representing uh someone who appeared as a as a Playboy centerfold. But by that time it was much more, it was much more serious. This is a civil liberties concern for me. Uh that is uh what helped drive me to become a member of the board of director, directors in the early 2000s of helping individual prostitutes survive in D.C., which is great. It's about this is about harm reduction for sex workers. If a sex worker doesn't want to be a sex worker anymore, hips was helping them, even uh preparing resumes and telling them how to interview for jobs elsewhere. If they wanted to stay as a sex worker, um then fine. It's like uh then find figure out how to learn how to protect yourself once again against uh against violence by dates, to reduce your chance of uh getting sexually transmitted diseases, to have net uh to have needle exchanges for for people who use intravenous drugs, uh even stuff is as much as how to uh uh finish uh quickly with one with one date or customer or or a hobbyist, whatever they called it, and and go to the next. And to me, this is all about freedom of expression, individual liberties. And so when people try to trot out some of the uh uh sexual activities uh that maybe people engage in that either are less popular or people just don't want to admit to, uh, you know, how how about the number of legislators there are who uh have the hue and cry against uh porn and then get caught in the uh uh let's leave soliciting another mail uh in the bathroom? And fine, let it let them do that. It's it's all about uh consensual activity uh among adults. Uh so Ricky, before we get on to SESTA and what's happening in Texas, I I do want to ask you, uh is there a big draw, though, for people to particularly support Woodhall who are involved in in the uh claimed outer edges of of consensual sexual activity. When I say outer edges, you know, in terms of what the moralists are saying, the people who are involved in extreme BDSM activity, for instance, that might include burning and needles, for instance.

SPEAKER_02 40:48

Well, that's that's extreme, but yes, it's still a protected activity, um or or should be. Um it depends, I guess, on who encounters the situation. Um is is there a reason for people to be involved in the work that we do? I think that's what you're asking me.

SPEAKER_03 41:11

Yes.

SPEAKER_02 41:12

And the answer is absolutely. Um the the line that gets drawn with the red pen of a censor may be something you don't want to see, but at some point it's going to be something you do want to see, and it's still gonna have a red pen. When we call for uh the censorship of uh free speech on the internet, for example, um we may support it.

SPEAKER_03 41:50

Something's frozen. I hope it's not on my end. I think it's on my end. Okay, unfrozen.

SPEAKER_02 42:00

Are you? Can you see me?

SPEAKER_03 42:02

Yes, uh my computer says my internet connection is unstable. Uh but uh hopefully it'll continue well now.

SPEAKER_02 42:10

Good. Um so it all depends on who's in power and who's doing the censorship. The issues we fight for, uh the freedoms that we fight for, the liberties that Woodhall fights for, are across the board issues. Um and and really they should matter to everyone. Uh they're human rights, there are fundamental human rights, and that should matter to everybody.

SPEAKER_03 42:42

Yes, absolutely. Now uh another Ricky, I think another uh big issue for Woodhall is uh Sesta?

SPEAKER_02 42:54

That's part of uh Sesta Fosta are the House and the Senate bills. It's really the same bill.

SPEAKER_03 43:02

Okay, and then what about uh what can you tell the audience about uh what Woodhall Freedom of Foundation is doing involving Texas?

SPEAKER_02 43:11

Oh weeping, copious tears. Uh Texas is just one of the states across the country that has enacted age verification requirements. Um we are very opposed to the way these laws are structured because they violate our privacy and their restrictions on free speech. Uh they're forcing uh federal um federal identification to prove your age before you can access material that some committee has decided uh meets the criteria for a site that needs to have age verification. Um I I want to go on the record and say I we are totally supportive of and enthusiastic about protecting minors. But this is not the way. This is an ineffective tool and only restricts adults from being able to access whatever they want to access online. Uh Larry, I think, can tell you more about the actual case that we're involved with that's going to the Supreme Court January 15th.

SPEAKER_01 44:40

Sure. Okay. Yeah. Happy to, real quick. So we've got a uh a role in the Supreme Court case as uh Amicus Curi, friend of the court. And we've submitted a couple of briefs in the Supreme Court at the uh the cert stage when the court was deciding whether to take the case. And then also now at the merit stage, now that the court has accepted jurisdiction and will rule on the case, um, we're uh also working with EFF and others to um bring these issues to the attention of the court, primarily involving the burden on adults in providing online age verification. Essentially, what the uh the Fifth Circuit said, who got the decision stunningly wrong in upholding the law, despite the fact that the trial court had invalidated it, is the Fifth Circuit uh looked at this and said, well, this is no different than um somebody walking into an adult bookstore and having to flash an ID.

SPEAKER_04 45:39

Right.

SPEAKER_01 45:40

Um, you know, we have all kinds of laws like that, and they just have to survive a rational relationship. And so um online age verification is no different. Well, it's it's markedly different. And the even the U.S. Supreme Court itself has recognized that in the Child Online Protection Act case and uh Ashcroft the uh ACLU, um, there is precedent, long-standing precedent, to indicate that the burden on adults is significant in providing online age verification because there's a record of that identification. You're providing information across many different posts and servers and websites, each of which has the opportunity to hack and steal and breach. Um, you're creating a record of association between you and a particular type of adult content that you may not want other people to see, and that you have an absolute right of privacy to keep to yourself. Yet the government is mandating that these records be created and potentially subject to hacking and vulnerability. Um not to mention the fact that a lot of people in the United States don't have the kind of identification that the state of Texas is requiring in order to access the site. So they're just completely barred from being able to access constitutionally protected speech. We're not talking about illegal content, we're not talking about underage content or obscenity, we're just talking about adult content, which is presumed to be protected by the First Amendment. Yet the state of Texas and others, many others, and 19 others, have passed prohibitions on accessing this content unless you age verify first. Um, and the penalties are becoming more and more extreme. Um, Tennessee just passed one that's going into effect January 1st that actually makes it a uh a criminal felony to not age verify. Um, and you have to do it every 60 minutes. I mean, it's completely unreasonable. But this is going into effect, and so Woodhall is standing up against it. We're trying to uh take a stand for the First Amendment rights of both the website operators and the users of the site, as well as the privacy rights of all individuals to not have to show their papers in order to access constitutionally protected speech.

SPEAKER_03 47:55

And what did you say is the procedural posture of this case in the courts or court?

SPEAKER_01 48:00

The uh the case is at the United States Supreme Court. Uh, it's Paxton versus Texas, and it's scheduled for oral argument on the merits uh on January 15th, 2025.

SPEAKER_03 48:11

And who's gonna argue that?

SPEAKER_01 48:14

Well, I don't know that the uh specific attorney uh has been identified. It will likely be somebody from the free speech coalition or the ACLU who are the lead plaintiffs in the case. There are uh a number of uh Mickey friends of the court that have submitted briefs both for and against. Um so there's you know a lot of people taking positions on this case because it's incredibly important in that it will likely decide the constitutionality of all these other laws that are being passed by the states trying to impose age verification for uh access to websites.

SPEAKER_03 48:46

Okay, uh, because I've been so fascinated by what both of you have been talking about, I haven't gotten uh to the meat and bones of beating the prosecution right in court beyond what you've talked about. Before we go there, is there anything else either you want to say about decriminalizing sex work or have we uh covered that?

SPEAKER_02 49:06

Um I would just say that since we were founded, Woodhull has been working to decriminalize consensual adult sex work. In 2011, we went to Geneva with our allies for the first uh universal periodic review, which is uh human rights review uh on the international stage of the United States. Um and we were successful in getting the United States to agree, and this is after an enormous amount of lobbying and coalition building there in Geneva, uh, the United States finally agreed in recommendation 86 uh that violence against sex workers was a human rights violation. Uh, that seems like a no-brainer, doesn't it? Um in agreeing to accept that recommendation, the United States agreed to work on that issue and to correct that violation and to be held accountable for it in the next uh Universal Periodic Review. We'll see how that goes because we know how it's going in reality.

SPEAKER_03 50:24

We we will see.

unknown 50:25

Yes.

SPEAKER_03 50:25

Larry, I did not know this that when you started doing uh First Amendment work, you hadn't even had any uh criminal uh defense experience when this was a criminal matter. When you started that case, how much trial experience did you have?

SPEAKER_01 50:41

I had minimal trial experience as well. I was a second-year associate at the law firm. Um so I had been second chair on uh some large uh malpractice, uh county malpractice cases, um, some insurance matters, and um handled uh as lead counsel some landlord tenant eviction trials. Uh but as far as a criminal trial, uh had had no experience at all, uh but knew that the representation they were getting uh likely wasn't sufficient, and I may be able to add some value.

SPEAKER_03 51:16

And uh at this point, Larry, what is your uh extent of uh bench and jury trial, criminal and civil experience, and who have been your best teachers?

SPEAKER_01 51:27

Well, that's uh it's an interesting question uh as far as mentors. I I haven't kept stats on the trials. Um I've I've practiced in courts throughout the country, uh, been first chair, second chair at many uh jury trials and bench trials, uh, some civil, some criminal, uh, you know, dating back 35 years. So it'd be tough to count. I do quite a bit of a appellate work as well. So handled uh numerous oral arguments in the state and federal courts of appeal, uh been involved in, I think, uh five or six U.S. Supreme Court cases as uh either counsel or Mikas. And uh so we've been uh, you know, I've had the opportunity to see uh the legal system at the state level and the federal level and many different jurisdictions, and have had uh great exposure to you know the trial system. Uh, I'd say as far as mentors, you know, I've had uh some very impactful people in my life, um, primarily uh from my prior law firm, uh Weston Grew and DeWitt. Yes, John Weston is probably uh uh the most important mentor that I've had in my life, who is just an incredible lawyer, very well respected, uh, extremely articulate, and himself handled seven U.S. Supreme Court cases involving First Amendment issues. Um, and Clyde DeWitt, uh, another impactful mentor, both of whom have passed, uh regrettably, uh, but their memory certainly lives on. And uh I like to take what I've learned and try to do the best I can with the gifts I've been given.

SPEAKER_03 53:08

Larry, um, I've uh met up with you in person several times and on the phone several times, and you're always nice, and I say that in a good way, because you have two types of nice. You have powerful nice, which you have, and then you have uh cream puff nice, which people walk all over. So I ask a lot of my uh guests who come across as nicer than uh I as the adopted New Yorkers, sometimes maybe come across as, are you always nice? And I have to imagine you've had some contentious moments, maybe with some of these government prosecutors and other government lawyers. So can you give an example of one or two instances where things have gotten heated and how you've dealt with it?

SPEAKER_01 53:48

Well, I you know, I give people the respect um that they earn. I always presume good intentions uh until you know shown otherwise. And uh unfortunately, you know, uh as time has evolved, uh the practice of law has gotten more abrasive and coarse. Um I think just like the discourse throughout society and you know, social media, uh anonymous keyboarding has contributed to a lot of that. But uh, you know, uh I take the position that I can be um formal and polite and persuasive uh without becoming raucious or angry or abrasive. Uh and that has worked for me in court. There have been times where uh opposing counsel, government counsel, or others have misrepresented the record or um made personal attacks on my clients. We've all been there. And that I don't stand for for a second. Um I'm I'm firm and yet uh I want to let the court know that I'm gonna honor the rules of professional conduct, um, but make my point and make sure it's it's loud and clear and preserved for the record. And I think judges respect that. And I think you get much further with that approach than you do with uh being brash.

SPEAKER_03 55:01

Now, when I when I talk about being an adopted New Yorker, that doesn't mean that I advocate being the worst of New Yorker. I I may have said in a previous show, I had an opposing counsel uh from a local government, and he was just a nasty uh person. He gives me a call and he didn't have to hang up the phone right away. He was just following the minimum requirements of telling me he was going to be setting an emergency hearing. So the next time I saw him in the courthouse, I said, You from Brooklyn? He goes, Yeah. I said, Yeah, you know, I've been dealing with the New Yorkers and the northern New Jersey people and the Long Islanders. I was stereotyping. I said, I went to summer camp with a bunch of you folks. I said, guess what? He's he looked really uncomfortable. He said, What's that? I said, your New York won't work on me. So that's that's what works with me. Rather than me being uh the the worst of the stereotype of a New Yorker, I just throw it back at him. I say, you know, that might work with some people, but not with me. I want to turn this over to Ricky. Ricky, I have to imagine you've had some very uh contentious uh uh habits with people. And and if so, how have you dealt with that?

SPEAKER_02 56:09

You know, I've had surprisingly few. Um either I'm incredibly convincing uh or I'm totally intimidating. Uh but like Larry, I don't I don't enter a conversation to have a fight. I want to find something we can agree on. Uh, and if I can't, then I'm generally going to exit the conversation. Um I'm not gonna sit there screaming. I don't think that accomplishes anything. And if someone isn't listening, I want to understand where they're coming from, and I would like them to understand where I'm coming from. And if that leads to something we can agree on, then that's wonderful. That's a success. If it doesn't, then there are many other conversations I should be having where I do have a choice and a chance to advance the knowledge others have and to enrich my own knowledge of what matters to other people.

SPEAKER_03 57:19

Well said, keeping our eyes on the prize, not letting ourselves get distracted by people who want to just debate for debate's sake and to hear themselves talk. I told both of you we would be together for an hour and we just hit the hour mark. So therefore, I invite Ricky and Larry to tell the uh everyone anything that you haven't been able to say that you want to say, including giving a final promotion for your organization or for and for what you do.

SPEAKER_01 57:49

Why don't you go? I'll start. Um, you know, what I didn't get a chance to say and uh would like to is please take a look at Woodhall's work. Um, they do incredible, incredible work. It's it's not cheap, it's very time-consuming and laborious. Uh, they put incredible efforts into creating a fact-checked guide to dispel many of the common myths that the media and politicians are using surrounding sexual uh expression and uh human rights to sexuality. And uh I'd ask you to take a look at their work. Um they've done great work in the courts. You know, these these cases uh take a lot of attorney time and costs. And so uh, if you have the ability to help support their work, I'd appreciate it. Uh as far as me, you can get in touch with me at firstamendment.com uh or at Walters Law Group on social media. And it's been a pleasure talking with you.

SPEAKER_03 58:44

Excellent. And Ricky, any final thoughts beyond what Larry said?

SPEAKER_02 58:49

No, I was going to bring up fact checked. I couldn't believe I hadn't mentioned it. That's a huge project that we're working on to counter the wrong information that is often used to pass those bills we talked about or to drum up social fear and concern. We're hoping to counter that with those documents. They're available on the website, they're free. Um, I echo Larry Woodhull does amazing work. I'm so proud to have been at the helm of this organization all these years. We can't do the work we do without the support of individuals. We rely on that support. And our work is more important today than it's ever been. Woodhull Foundation, W-O-O-D, H U L L foundation.org. We're on all social media platforms at Woodhall Freedom.

SPEAKER_03 59:51

Yes, and I join in recommending people who have the financial resources to get on the Woodhall Freedom Foundation site and to support them financially in any other way you can. Ricky Levy and Larry Walters, thank you so much for joining on Beat the Prosecution. This is John Katz. I'm a criminal defense law and DWI defense law in Fairfax, Northern Virginia. Both of you please wait for one moment.

SPEAKER_00 1:00:19

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beat the prosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.