Practical Tips for Webmasters Who Want to Stay Out of Jail
Some Practical Tips on How to Succeed in the Adult Internet While Staying Out of Jail.
Part One: The Multifaceted Risks of Obscenity Law
J. D. Obenberger,
Attorney at Law
Written as a two-part article that appeared on YNOT News.
This is the first of two articles in a series designed to help new and amateur webmasters understand and apply some basic principles of legal risk avoidance. The first article, which follows, deals exclusively with one topic, the law of obscenity; The second article will cover a great many more varied topics.
The law of obscenity in the United States is an immense area with many distinctive principles that are different in important ways from the laws governing other kinds of human conduct. Neither this article nor any other article or book, can pretend to give you a full explanation, in depth, of obscenity law as it is applied in the modern era. It does not pretend to do so. Moreover, the Internet is still a new means of publishing with distinctive features that only now are first being addressed by the law. The principles that will govern obscenity prosecutions are yet emerging. Accordingly, this article is intended instead only as a lighthouse and beacon to generally warn the reader of the most dangerous areas that require skilled navigation and great care lest you run aground on the reefs and shoals. None of it is any substitute for the kind of careful legal advice and guidance that only a personal and professional relationship with a lawyer can provide.
The adult web has been a place where a relatively modest investment, coupled with talent, applied with perseverance over long hours, can still build a decent livelihood and create some real chance of wealth. As a result, the online adult entertainment industry continues to draw impressive persons into its ranks, bright, industrious, creative people with a sense of adventure. That spirit of adventure and willingness to undertake risk in a climate of Liberty is precisely what has defined America and fostered its many national achievements Like those explorers and pioneers, they share a willingness to incur some risk on the way to achieving their goals:
An Incursion into Foggy Terrain: Obscenity
There are certain unavoidable uncertainties inherent in conducting an online adult business, uncertainties that loom should loom on one level or another in the consciousness of everyone involved in this industry. Chief among these unsettled issues is the tenuous and uncertain line at which constitutionally protected erotic speech can cross the boundary into unprotected criminal obscenity. There is not even a prominent “sign post up ahead” as Rod Serling spoke of, though the place where the adult webmasters and content providers make their living surely can resemble a legal twilight zone, nonetheless. There are no speed limit signs here. It might be convenient for the producer if there was a “three finger” rule or the like, but they just don’t exist in the world of adult erotic expression under the First Amendment, and they can’t.
becomes critical to content providers and webmasters because, in the economy of
attracting customers to a particular site, the appearance is that it is far
easier from a technical, marketing, and creative perspective to offer so-called
“extreme” content than it is to compete in quality. Apparently painful
insertions of anatomical parts and man-made objects into orifices seemingly too
small to comfortably accept them, gag-inducing felations, and the like - all
passing these days as “extreme content” - will always attract a crowd just as
injury car accidents do, and perhaps for the same dark reasons deeply within
the human soul. It cannot be categorically stated that graphic depictions of
any of the acts that pass as “extreme” are, in isolation from their context,
obscene: No fixed rule describing specific conduct as obscene per se could
remain fixed for long.
Why There Are No Fast and Fixed Rules Prohibiting Certain Adult Sexual Depictions
applied in human expression can be so dynamic and so elastic that it is
virtually impossible to conceive of a particular sexual act or depiction that
categorically could not ever become an essential and integrated part of a work
worthy of social acceptance as literature of value. If you can imagine an act
that disgusts you, I can imagine a literary setting that would not only justify
its graphic depiction, but mandate it: Not only is one man’s erotica another
man’s bellylaugh, but it may be part of yet another person’s epic poetry. There
is no variety of coupling so degenerate, no rape so vile, no practice so
hopelessly perverted, that its graphic depiction could not become the pivotal
and defining moment of serious drama in a work that has something of
significance to say about the human condition. However, the corollary principle
is that it may take quite a bit of contextual value to establish the
serious value of a work containing material capable of truly shocking the
contemporary viewer. Literary aims, serious literary accomplishment, and mere
pretext are all different things; The distinctions among these categories is
unlikely to be lost on a prosecutor or a jury. The publication of a serious
work of literature in the common domain interspersed with unrelated lurid
images of a nature and characher that would otherwise render them obscene is
still likely to form an obscene whole. Keep in mind that if the graphic content
is extreme enough, it may be close to impossible to imagine, conceive, and
execute a work of serious literary value, which simultaneously
integrates that extreme content in a real and nonpretextual manner and yet
has commercial value and worth in the realm of the contemporary adult internet.
The use of images of bestiality comes to mind as one of those extreme matters
whose inclusion in a work would present a most serious challenge to the
aspiring author of serious nonpretextual literature, and to the advocate in the
defense, in any readily imaginable context.
The Inevitable Uncertainty in Identifying the Obscene and Criminal Responsibility
The unfairly vague consequences of this uncertainty was recognized early by at least three justices of the United States Supreme Court, justices who felt, too, that these risks not only chilled free expression impermissibly, but who felt that unposted speed limits are fundamentally and conceptually unfair.
In this context, even the most painstaking efforts to determine in advance whether certain sexually oriented expression is obscene must inevitably prove unavailing. For the insufficiency of the notice compels persons to guess not only whether their conduct is covered by a criminal statute, but also whether their conduct falls within the constitutionally permissible reach of the statute.
Paris Adult Theatre v. Slayton, Dissent, 413 U.S. 49, 88 (1972)
It is important to note that these words are from a dissent. The state of the law is such that anyone dealing in what he knows to be generally pornographic materials will incur liability for obscenity if a court concludes that one of the works is obscene, and at least one decision suggests liability even for child pornography without any particularized knowledge that a model was underage. United States v. X-Citement Video, Inc., ___ U.S. ___ (1994).
The Uncertain Condition of “Community Standards” Law
In order for a work to be obscene, it must also, when viewed as a whole, and in light of contemporary community values, both appeal to a prurient interest in sex and also depict sex in a patentlyoffensive way. Miller v. California, 413 U.S. 15 (1073). At present, we do not know with much precision whose “community standards” may be applied by prosecutors to bring successful obscenity prosecutions against the webmaster. Historically, venue, that is the place of criminal prosecution, the place from which a jury is to be selected to hear a criminal case, and the place whose standards shall be applied in evaluating whether the constitutionally mandated elements of Miller exist to justify a conviction, was the intended destination in the case of mailed material such as videotapes and brochures, and Congress, in the laws governing the mailing of obscene materials, aspired to fix appropriate venue at any place through which the mail traveled. In United States v. Thomas, 1996 FED App. 0032P (6th Cir.), 74 F.3d 701, cert. denied, 117 S. Ct. 74. (1996), a case I regard as extreme, and of questionable authority in view of more recent statements from the Supreme Court, the Sixth Circuit fixed venue in Memphis not only for videotapes mailed to Memphis but for .gif images downloaded in Memphis from a California BBS, without knowledge of the BBS operator that the files were being downloaded in that venue, and the distant and remote defendants were prosecuted and convicted of obscenity under the community standards of Memphis. The jury cannot be expected to apply the community standards of a place whose values are foreign to it, and accordingly, the rule has been that, in criminal obscenity prosecutions, federal courts apply the community standards of the federal district in which they sit - usually several counties of a state, or in less populous states that have only one district, that state - and state courts apply the community standards of the entire state in which they sit, unless the state legislature has, by law, defined the “community” to be a different area, a county for example. However, there seems to be no particular requirement in the law that the exact nature geographical extent of the community be defined for the jury in obscenity prosecutions. See generally Jenkins v. Georgia, 418 U.S. 153 (1974).
On April 16, 2002, in Ashcroft v. ACLU, the United States Supreme Court gave us at least a glint of a hint of the things to come in regard to community values. It appears that only three members of the Court, Chief Justice Rhenquist and Justices Thomas and Scalia, would permit the application of the standards of local geographical communities so that a webmaster could be convicted under those standards anywhere in the country that his site is viewed. The remaining six justices appear to be gravitating in the direction of a national community standard for evaluating Internet obscenity, though it seems barely possible that juries may permissibly go uninstructed by the judge as to the boundaries of the community whose standards they are to apply. It appears almost certain that the Court will not permit the standards of any community through which the signal is transmitted to control. This case can be confusing for anyone to read because there is no single written opinion that is joined by a majority of the members of the Supreme Court; I have prepared a tabular breakdown of the position of each of the justices, as expressed in the various opinions and concurrences and the dissent, in a table found at http://www.execpc.com/~xxxlaw/focus.htm.) Inasmuch as the application of a community’s standards are part of the elements of the offense of obscenity, this confusion also adds to the webmaster’s uncertainty.
No matter how the issue of community standards is ultimately resolved, the development of the Internet is a fundamental change in the ways in which that erotic materials were distributed when Miller and Paris Adult Books were decided, mainly then by mail order and in stores. My view is that the changing media and different circumstances have only intensified the merit of the dissenters’s arguments as to unconstitutional vagueness in obscenity law and lessened whatever wisdom was contained in the majority opinions in those cases. My realistic sense, however, reminds me to be cautious of the generally conservative nature of the present Court’s majority.
Some Practical Observations
And though neither I nor anyone else can tell you with precision what is and what is not criminally punishable adult-content obscenity, nor yet even with precision whose laws will apply or can apply to any downloaded material, there are some fundamental concepts, simple principles, that will go far to decrease a webmaster’s chances of winding up in Jail. Remember, it is not a videotape or an image or a book or a website that goes on trial for obscenity, it is a person. And it is a person who gets punished, in a punishment that almost always works hardships on spouses, children and other family members.
In my remarks at Internext in January, 2002 (and in my article summarizing those remarks, The Seven Circles of Internet Content Hell, found elsewhere on this site, I explained my basic principle of risk avoidance in adult content: The closer erotic content material resembles the broad American understanding of what men and women who like each other do for and with one another when they are alone to please one another, or when they are alone, the safer the material is from the perspective of obscenity law. The further material diverges from this societal icon, the riskier it becomes. I derive this observation from a principle underlying the decision in Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985): Nothing is obscene which is not prurient, and healthy lust is not prurient.
The depiction of practices that are outside this icon of what Americans expect goes on in healthy but frankly sexual situations is more likely to appear prurient, that is shameful or morbid, and it becomes more dangerous than depictions of practices within the icon. Works that focus on conduct that is degrading or insulting to one or another of the subjects of the work, images that convey abuse, hopelessness, despair, and victimization, are matters that will be identified as such by a prosecutor in support of his argument that they appeal to an unhealthy and prurient interest in sex. This is not to say that content focused on bondage, domination, and sado-masochism cannot be successfully defended on prurience, but the defense must necessarily overcome a popular conception that these practices are aberrant and unhealthy. That will challenge the defense in proportion to the extremity of the images. Depictions of painful, restrained, and forced sexual activity and of the reduction of human beings to objectification as things to be used, abused and exploited, together with bestiality, would all be among the most difficult images to defend.
As the prurient nature and orientation of a site’s explicit and graphic content increases, it becomes essential that the online work exhibit serious value as art, literature, or science. For, if its contents are both explicit and extreme enough, both patently offensive and prurient, taken as a whole, and in light of contemporary community standards, all that separates it from criminal obscenity, is that social value.
Keep in mind that there are no magic bullets, no charmed magical robes, that will insulate you from liability. The inclusion of text stories of little or no value, or of sexual health articles, or of guides to unusual sexual practices of the far east related to yoga, or aspiring to teach techniques of penile growth, if not integrated closely into and connected with your imagery, if not formed by your creative process into a whole that has real value, invite the appearance and suggestion of content included only as a pretext to justify the graphic images. Obvious and unconnected pretextual content is unlikely to help in an obscenity defense. Whether the website itself will be the “whole” work to be evaluated for value, or whether, like a magazine, its parts will be evaluated separately, may be a factor you can control as you decide how much integration the various parts of you site will have. Think creatively, with defense of your site as a whole work in mind, as you design it and write it. I believe that the use of offshore servers and business entities are factors far more likely to invite the attention of agencies which are charged with the enforcement of the law, and far more likely to be damning proof of knowingly criminal intent, than they are likely to protect you
There should come a point of self-restraint when the risks of criminal prosecution for violating this unposted speed limit become apparent and palpable in a reasonable mind. It is hard, though, for any webmaster to keep the necessary perspective with objectivity, and harder still for the actual content provider and designer to maintain perspective and objectivity over the own work, and this alone is an important reason for independent content review by a lawyer practicing in the area of adult content. A content lawyer is not a censor and he or she cannot and will not tell you what you can and cannot do. A skilled content lawyer can, however, with independence, objectivity, and experience that you will find hard to locate elsewhere, candidly advise you just how risky the site appears. A good content lawyer will also make suggestions toward literary or artistic development that will both enhance the actual social value and appeal of your site and provide some defense ammunition in case of a criminal prosecution for obscenity.
Part Two: The Keys to Risk Avoidance in Webmastering
To put the legal suggestions in context, I’ll start with some non-legal guidance that suggests my approach to the business at hand.
1. Do what you do best. Just about anything you can point to on any pay site is available to the zealous Internet user, free, whether from a free site, in the newsgroups, or through P2P file sharing protocols. What you call “exclusive content” will not be exclusive for long no matter what you do, if it is any good. And even before it becomes traded about, it is comparable and identical - for all intents and purposes relevant to the surfers - with the other material that is out there - no matter how exclusive the particular model and shoot may be. There is simply lots of everything out there for the taking. You must understand that clearly to make smart business decisions. What you really provide is a service of making content conveniently available to your customers. You provide the customer convenience and speed of uncomplicated access to what he is looking for, packaging, topical concentration, and organization. Anything that gets in the way of those selling points will drive business away from you. And, in the end, with a few exceptions, that’s all an adult Webmaster can sell because, no matter how good it is, with few exceptions, the same content or its equivalent is out there for the surfer willing to pan in the stream (or go crawling in the ditch!) for it. (I will concede that certain means and techniques of photography that involve skill and creativity will be hard to duplicate. Nevertheless, it ultimately will be shared. You may attract a customer because of a particular image or model, but your retention will be linked to how frequently you update and replenish the content he is after, and the customer’s difficulty in finding elsewhere what he is looking for as easily, as quickly, and as inexpensively.) That is why a narrow niche has a higher site loyalty than a broader range: It is much harder to find such material in great numbers in any one place at any one time. The megasites with broad range content that do prosper are those well organized, easy to use, and providing good value with a huge selection of high quality images.
2. If you aspire to meet the needs of a narrow niche, pick one that offends broadly American sensibilities the least while attracting a customer base with inescapable magnetism. I’ve heard the quasi-funny rhetorical question posed many times: What did guys with a pantyhose fetish do before they invented pantyhose? The real answer is that there are fetishes that emerge and take off quickly, fetishes that are willing to be discovered, and niches that simply haven’t been explored, but which, like deposits in oil fields, will yield gushers. (Pardon the metaphor!). The fetish you cater to, the niche you occupy, need not be disgusting. Going for the shockingly disgusting in content, that stuff which blatantly invites criminal law enforcement attention, is a true sign of lack of creativity and imagination. It also points to some serious issues of death-wish. The recent flurry of interest in Arab, Indian, and Pakistani talent, a phenomenon related to global politics, shows that a strong niche need not be shocking to attract powerfully and to meet an intense but new emerging demand. You are limited only by your imagination in this regard. I have seen genres of solo girl material using unconventional but hardly disturbing mechanisms of self-arousal that seem to be attracting a new following. There is a small but intensely loyal following of some fairly tame activities that fall into the broad range of extended foreplay rather than the main event. Keep your eyes open, keep looking for new customer interests to meet, and keep thinking about how likely the niche or fetish is to be viewed as degrading to women or disgusting to ordinary people of ordinary sensibilities, avoid them if they are, and you will be starting down the right path. And as with speed on the highway, keep up with prevailing traffic. The guy passing everybody else is the first one nailed, every time.
3. In everything you do, aspire to give your customers good value and fair treatment. Treat your talent, those with whom you deal, and even your competitors fairly and decently. You just don’t need complaints to the Federal Trade Commission, your hosting company and service provider, the US Attorney or the local sheriff, anonymous calls to Crime Stoppers that falsely report that you are spamming, cheating or misleading your customers, filming pre-teens, or any of the other dishonest means of harassment to which you are liable as a person involved in adult content. At a minimum, your time will be wasted and you will go through a payback of needless anxiety and maybe terror. At worst, your name can go in the paper, you can be arrested, and if there is a search warrant executed, the enforcing agents will be looking for anything in plain view that can hang you. They won’t like you because you are a pornographer, and being ever-mindful of the possibility of civil rights lawsuits, and knowing the uncertainties of obscenity prosecution, they will be looking for something to redeem their intrusion even if the reports on which the search was based are unjustified and also to make all the time and trouble involved in the search worthwhile. Once law enforcement is involved, these things can develop a life of their own, no matter how baselessly the investigation started. Bad luck doesn’t always just happen, sometimes it’s made. Don’t push people to the edge of the cliff and invite them to jump off. Don’t lie, cheat or steal. Pay your taxes. Don’t treat your models as though they are prostitutes. A prostitute doesn’t have to stand in front of your camera taking your directions to make money. Don’t use models who are on drugs and don’t get them high or drunk yourself. Respect people. Treat people fairly, and the chances that someone will manufacture bad luck for you decrease tremendously.
5. Know, learn, embrace, and become intimate with Section 2257, staying faithful to it all the days of your life. The New Testament says that man was not made for the law, but the law was made for man; That observation readily makes some sense if you think about the Ten Commandments and why they have endured over the millennia. Section 2257, despite providing for a maximum two-year prison term upon violation [UPDATE: IT'S NOW A FIVE YEAR PENALTY] , is like that. It is designed to protect the publisher and content provider by preventing his or her violation of the far more serious child pornography statutes: Congress was of the mind that if the photographers and other producers complied with this law, no new child pornography would emerge and the problem would go away. The current problem is that 2257 and the implementing regulations were written with tapes and magazines in mind and accordingly their application to the Internet is confusing at best. Section 2257 certainly does apply, but how compliance can be achieved or approximated is significantly difficult in both concept and practice. I have seen few sites, if any that comply exactly and a great many with only token efforts or none at all. This gives law enforcement an easy means to destroy a great many sites, and the incomes that come with them. This is not a problem that can be fixed by buying a $99.95 package of forms from anybody. All forms alone can do is to repeat the confusion already existing in the law and regulations. Nor is it a matter of copying the compliance statement of another site that probably is not in compliance, either. The precious few sites that approximate compliance didn’t obtain their practices, procedures, and notice from a form kit. 2257 Compliance mandates a real effort to understand the regulation and tailor a program of compliance, under the guidance of a lawyer who is familiar with the law, regulations, and cases, and who can help you apply those to your site. Keep your 2257 records, retrievable both by the name of the work and all the names every one of your models has ever used, constantly updated. Attach 2257 Notices from the moment of creation of the images. Keep lots of redundant copies of your 2257 data all over the place so that neither fire, theft, nor the execution of a search warrant will ever leave you without the means to use your images in interstate commerce. And gladly show them to any law enforcement agent on request, whether he or she is authorized by the Attorney General to inspect or not. Candor in dealings of this sort with law enforcement can dispel false beliefs about you, influence events and buy you some good faith. Destroy all images you discover that are not in conformity with the law as you discover them: Don’t do so after any official investigation concerning your activities becomes known to you because that will be viewed and may be charged as Obstruction of Justice. If you think you can get all of your releases and compliance forms free online from the Too-Cheap-To-Use-A-Lawyer-and-we-Hate-Lawyers-Anyway Webmaster Support Forum.com™ or from what amounts to a legal formstore for a cool two-digit price, you stand to find out for yourself who is holding the bag when it’s time for a criminal defense based on those forms. Try to picture what you’ll say to Bubba or Kevin with the tattoos, the first day in the lockup, when they “asks” you what you’re in for. Imagine trying to explain to these characters the difference between child pornography and the record-keeping requirements. It’s not a scene at which you want to be the guest of honor. And when the guards walk away and leave you alone with Bubba or Leon, try to fix your concentration on the concept that you got a really good deal on those forms and that you avoided the high cost of content legal review.
6. Have nothing to do with uncertain content. We’re talking about your freedom here. Take no chances. Deal only with content providers who have a reputation to protect. Deal only with people who have as much to lose as you do: No matter how strong the language in the license is, the person selling the content won’t go to jail for you and it is pretty unlikely that he’ll be paying for your lawyers and expert witnesses in a criminal defense. Don’t count on a wire transfer of your bond money from that content provider in Odessa in the Ukraine. If you are a content provider, don’t accept anything on trust or faith. Don’t just copy the required ID; If there is even the slightest ground for doubt, check it out to see if its stolen or fake. There are ways to screen identification documents. As a Webmaster, try to deal with providers who will give you copies of the 2257 data. Be wary about material that claims to be exempt from US law because of where or when it was created and avoid it like the plague. If the model featured is young, and if there is a chance that you’ll be sitting as a defendant in a courtroom while a government expert pediatrician is testifying that she appears to be fifteen to sixteen years of age, to a reasonable degree of medical certainly, whatever price you paid for the content, it won’t seem like much of a bargain to you then. Whatever you do, don’t steal content, don’t pluck it from the newsgroups, and just don’t use any undocumented images at all. Use only your own content with adequate releases or that for which you have bona fide licenses. These warnings go for text as well as images, and for clips as well as still images. Be very suspicious of content originating in countries with a slack attitude towards child porn. Be afraid of identification documents written in Cyrillics unless you read Slavic languages. Maybe you’ll be more afraid of some of them if you can understand what you are reading! If you can’t recognize from its genre where different kinds of content originate, get somebody on your team who does recognize those things before you buy the content or use it. No matter how much you trust a photographer, do spot checks from time to time on his records. Hire a lawyer who knows content and is prepared to defend you and it in court. Don’t infringe the trademarks of other persons. A trade name and mark are valuable property that people invest their time, sweat, hopes, and money in building; To use such a name or mark without authority is to steal those things from someone.
Free speech in America comes with the highest guarantee known to law, the First Amendment. It is a powerful tool. But it has limits, too. The limits of free expression have been hazy since the Miller decision, and the Internet has made the lines hazier still. It is an area that calls out for legal navigation more strongly than most.
Those who seek their legal solutions from free forms available online, or from a cheap form kit, stand some chance of learning the hard way that the US Attorney’s office does not buy its supporting affidavits for search warrant or indictments as a $99.95 online form kit. The prosecutors will apply real legal talent to acquire evidence of wrongdoing, to prosecute it, and to punish it. Those who wish to avoid learning painful and expensive lessons about how the US Attorney does business are best advised to secure the services of a navigator who knows something about the sea in which the adult webmaster and content provider swims. The adult web tends to attract ruggedly take-charge self-reliant entrepreneurs, the exact kind of people who hate lawyers more than average. Those who can’t deal with those feelings and overcome them should be prepared to take up residence in certain institutions that are just crammed with people who hate lawyers.
Copyright 2002-2011 J. D. Obenberger. All rights reserved.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is firstname.lastname@example.org.
J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.