Legal News

Jury Clears Publisher of Injuring Girl with Gay Porn Ad

By Matthew Heller, Editor

A former reality show contestant has lost an unusual negligent mailing case as a Tennessee jury found a publisher was not liable for exposing his 12-year-old daughter to an ad for a gay porn magazine it had mailed to him.

Kent Blackwelder

Kent Blackwelder's daughter thought she was getting an offer for a Disney video when she opened a plain white envelope marked only with the words, ?New! Free DVD Offer Enclosed.? Instead, Madison Blackwelder got an ad from Specialty Publications of Los Angeles soliciting subscribers to its Freshmen magazine.

The girl was ?horribly shocked to see numerous sexually explicit photographs of completely nude males showing genitalia sexually aroused,? Blackwelder said in a complaint in which he and Madison requested a whopping $3.85 million in emotional distress damages.

Postal regulations say sexually oriented advertising must be enclosed ?in a sealed envelope or cover? unless the exterior envelope is marked with the words ?Sexually Oriented Ad.? But a jury in Knoxvile, Tenn., last week rejected the Blackwelders' claim that Specialty was negligent in failing to follow those rules.

?Do I wish it hadn't happened?? Specialty attorney Richard L. Hollow asked jurors in his closing argument. ?Yes. Do I believe children should be protected? You bet. But it's not up to everybody else to take care of our children.?

Kent Blackwelder, who was a contestant in the second season of the ?Big Brother? reality show, also argued Specialty was liable for sending him unsolicited advertising. ?He didn't solicit this,? his lawyer, David A. Burkhalter II, told jurors. ?He's not gay ? not that there's anything wrong with that.?

But Hollow said his name and address wound up on Specialty's mailing list because he had previously entere an online contest sponsored by The Out Traveler, another of the same publisher's gay magazines. The contest offered an all-expenses paid trip for two to a ?gay friendly? destination.

Specialty's porn bomb arrived in the Blackwelders' mail on May 28, 2007, offering a free gift of the ?TitanMen's Farm Fresh? DVD with a subscription to Freshmen. Madison testified that the envelope contained a tri-folded brochure with no warning label and with only a small ?wafer seal? to prevent it from opening automatically.

?Did you open that seal?? Hollow asked Madison. ?It looks to me like it's been cut. Nobody cut that??

?No,? she replied.

A former postal inspector testified for the Blackwelders that the wafer fastener was not an adequate seal and the contents of the brochure could still be viewed even if the wafer was intact. ?Clearly the composition of this mailing did not confirm to the regulations issued by the United States Postal Service,? Russell Fallis concluded in his report.

Madison, though, only glimpsed the contents for about five seconds and she may have strained credulity by testifying that what she saw made her afraid of ?being kidnapped.?

Specialty also had a First Amendment defense, arguing in a brief that it ?had a right to use the U.S. Mail for the purpose of transmitting [constitutionally protected material] to the Blackwelder home. The Defendant was not required to obtain the consent or approval of Plaintiff, Kent Blackwelder, for the purpose of any mail solicitation sent to him.?

Blackwelder denied entering the Out Traveler contest but Hollow suggested former co-workers at a temporary employment agency entered him ?as a prank or act of vengeance.? Specialty's records showed he received at least one of its other mailings without complaint.

By Matthew Heller
On Point

Full post as published by On Point News on December 20, 2010 (boomark / email).