XXXLAW's Obscenity Law Resource Page

Obscenity


Cases, Statutes, Tables, Articles and Materials About the Defense and Criminal Punishment of Sexual Expression in American Law.



   Avoiding and Defending Obscenity Cases



   police-tape
Critical Execuitive Information for Webmasters and Content Producers: Our experiences in defending obscenity cases has taught us that, in a large and significant number of cases, the most critical moment is the execution of a search warrant on the premises of a producer, web operation, or retailer. The legal requirements for a warrant and its execution are different in important ways than those present in a drug or general crime case. We have seen investigations fizzle into nothing because of irregularities that even the prosecutor seemed to realize would torpedo a criminal case; in another case, we prevailed in the suppression of all evidence obtained under an obscenity search warrant, ending the case. In each case, we had already been retained and immediately took forceful action to document the errors as they took place and to demand immediate redress. Without the prior existsing relationship, we believe that it is unlikely that the outcome would have been the same. It takes experience and knowledge derived from experience to recognize the special critical issues exsisting in cases involving expression and to exploit those issues for the advantage of a client. Our experience also tells us that the risk of obscenity prosecution can be reduced by a hard-working, self-disciplined, creative webmaster working under solid legal advice. We believe it to be critical that producers, webmasters, and retailers establish a continuous relationship with competent counsel particularly experienced in the field of obscenity before trouble arises and that, in any event, such counsel be contacted immediately when law enforcement knocks at the door - or breaks it down. We also believe that a big part of why the Department of Justice is so heavily invested in the health and vitality of Section 2257 is provide its agents a safe entry into the premises of producers that overcomes the considerable procedural protections of the First Amendment and to give them a handy and cocercive forum to interrogate producers.  We can be reached in any emergency through 312.558-6420.

Obscenity Law Resources on XXXLAW.COM  -  Have Law Books, Will Travel. 

- The article below serves as an introduction to and explaination of the American law of obscenity with constructive tips for webmasters and content producers to plan ahead in order to reduce the risk of violating these most unusual criminal offenses.

- Appeals and trial court memorandum decisions in recent high-profile obscenity cases are set out in the Cases Section of this site (the Cases link just provided also leads you to capsule summaries and analysis of the most important issues in each of the more than one-hundred cases set out, from the 1890's to date.)  Max Hardcore, Extreme Associates (here and here), John Stagliano (here, here, and here, too) and many more are presesnted, together with the detailed story of a rural-Arkansas obscenity prosecution in 2010, so far as we know, the only feature-length article about a state-law obscenity prosecution written in three decades. It's a story whose local backdrop included Klan lynchings, castrations, and the DVD selection that Wal-Mart choses to sell on the main street.

 - We've prepared a Table that surveys the large majority of criminal obscenity cases initiated since 2003, federal and state, which will provide you with access to the names of the defendants, the date and jurisdiction of prosecution (with court file numbers in most cases as well as to citations to reported cases concerning them), the charges, the best description of what the charged material contains, and the ultimate outcome, the dispostition. At the time of writing, three cases had no dispostion and appeared to be pending. We have also compiled the same information concerning earlier cases, going back roughly to the mid-nineties. That information is available to our clients and academic researchers by email request. This will give you a valuable insight into what kind of content has triggered criminal prosecution and at least some small view into what juries have acquitted and convicted.

 - The federal criminal statutes proscribing obscenity are available though the Statutes section of this website.

- State Statutes from the 45-odd states with enforceable obscenity statutes on the books are linked in our State Laws resource page.

 - Numerous important reported federal and state judicial decisions which are critical to both the substantive law of obscenity and the procecdrual law that limits the power of federal agents, police, and prosecutors in the handling of obscenity cases are set out and explained in the Cases section of this website.

- In 2006, we researched, coast to coast, what the various states had to say about the scope of the "local community" whose standards of prurience and patent offensiveness form an important yardstick for the definition of criminal obscenity in their respective courts. We determined that it appeared that five states then had no state-wide obscenity statute of general applicability (it looks like the list now amounts to six by our reading of what the Oregon Supreme Court has to say about freedom of speech) and that 29 states had established clear definitions of the applicable community by statute or judicial determination, 19 of them determining that a statewide standard applied (essentially recognizing that the state itself was the "community"). The remaining states with obscenity statutes either defined more local communities or left the issue unresolved and undefined. We believe that the latter creates a serious violation of due process of law. Tables of that research are found here. Given the date of the research, no important legal decisions should be made without verifying the continued accuracy of the information because it is not updated. (In federal proseuctions outside the Ninth Circuit, the "community" as issue is definded by the territorial limits of the federal District in which the court sits; As a result of the holding in Killbride, set out on this site and cited many times, in the Ninth Circuit, a federal court can be expected to follow the standards of a nationwide community for content published on the Internet.)

- Many articles dealing with issues of obscenity law, and two articles discussing particular obscenity trials at length,  are set out in the Articles section of this website.

   

Position Sought – Legal 

Have Lawbooks. Will Travel.

Small but zealous and creative two-attorney law firm based in America’s Heartland seeks clients facing obscenity charges in order to passionately defend them. Able to advise other clients on risk avoidance. We are attorneys experienced in obscenity cases who live and breathe for the opportunity to defend personal privacy and individual freedom against the over-reach of governmental intrusion. Licensed in Illinois and various federal courts only, but ready to travel to any American jurisdiction and seek admission pro hac vice from the court to afford you your Sixth Amendment right to effective counsel of choice. It may be impossible to find local lawyers who will or can fight  obscenity cases in much of the US or who have experience at it. Tough, conservative, Bible-belt jurisdictions specially invited. Subject to all the fine print linked above to make this a legal and ethical advertisement. Locally admitted counsel a "must". Call 312.558.6420   24/7.

Freedom

The Multifaceted Risks of Obscenity Law and  How to Minimize  the Associated Risks of Being an Adult Webmaster or Content Producer

 

By J. D. Obenberger,
Attorney at Law
Copyright 2005-2011, All rights reserved.

      

The law of obscenity in the United States applies distinctive principles that are different in important ways from the laws governing other kinds of human conduct. The law generally keeps erotic expression and entertainment on a shorter leash than other kinds of expression despite the evasions of the courts in such cases as Renton; our courts have tolerated a substantial degree of vagueness, imprecision, and overreach in obscenity that simply is not tolerated in other kinds of serious crime. None of this is acceptable under the constitutional values that form the foundation of our society. An important part of obscenity defense is to keep the essential principles of Liberty on the table and in plain sight at all times and to fight and argue against what is unfair and unreasonable at every step. 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 - the nature of the "community" whose values apply to prurience and patent offensiveness and the question of what amounts to a "work as a whole" are yet emerging. These unanswered Internet issues add to the confusion. For those reasons, neither this article nor any other article or book, can pretend to give you a full and concrete explanation, in depth, of obscenity law as it is applied in the modern era, especially as regards publication on the Internet. The best anyone can do is to try to project future prosecutions, convictions, and acquittals by recourse to past cases, and that is both subjective and imprecise. However, exceptional risk is not hard to identify and steps designed to reduce risk can always be implemented. None of what follows 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. But, from the time of Lewis and Clark to that of Neal Armstrong, explorers have always appropriately tired to reduce unnecessary risk, and it's that purpose that inspires these words. Consider them a beacon, a lighthouse, that warns against the most obvious hazards and provides safer alternatives for your transit through troubled waters.

What Obscenity Means and Its Place in the Law

The law looks as obscenity as an exception to the rule, as one of a short list of narrowly-defined categories of expression which historically were not given privileged protection under the First Amendment such as "fighting words" and defamation and state secrets. 

    The huge elephant in the corner under that view is that it only works if you forget that Blasphemy was part of that listing to begin with and that the cases mention Blasphemy along with Indecency without distinction; look at the old Supreme Court cases such as Robertson and Chaplinsky v. New Hampsire315 U.S. 568 (1942) ["There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words." id. at 571-2, emphasis added.]; while just about no one would expect the few remaining Blasphemy statutes to be enforced today - despite their apparent historical exclusion from free speech protection - the laws designed to protect indecency, defined now as obscenity, are still enforced. A very smart majority of the Oregon Supreme Court, not long ago, drove a wooden stake through the heart of this "historical" justification in its jurisdiction not many years ago in State v. Ciancanelli339 Or. 282, 121 P.3d 613 (2005) by its seemingly profound observation that the existence of mere statutes in place at the time of a constitutional convention is no evidence of what the constitution was intended to mean; convention delegates understood that the charter of freedom that they were writing possessed an enduring value for the ages that transcended the value of any particular statute on the books; it is not inappropriate to consider that these delegates may have recognized that some of the laws on the contemporary books might not survive the constitution they drafted - and the mere existence of contemporary laws contrary to the broad sweep of constitutional charters of freedom cannot blindly be understood to restrict, confine, or limit the freedoms they announce. For better or for worse, our national Supreme Court has, especially lately, been using colonial and early state laws existing early in our history to discern the meaning (and perceived limitation!) of key provisions in the Bill of Rights. But I think it's right to say that such laws may say nothing at all about what the framers actually meant about the Bill of Rights. Does anyone imagine that the Framers thought that some of the more colorful punishments imposed in the Colonial Era might also be imposed by the federal government nothwithstsanding the Eighth Amendment's prohibition of cruel and unusual punishments? Our national Supreme Court has also ignored the simple truth that, in this early era before the enactment of the Fourteenth Amendment, when the War Between the States closed, before the Due Process Clause of the federal constitution applied to state action, the First Amendment did not apply at all to state laws! (Not any part of it, not even the Establishment Clause; several states funded religious enterprise in that era; at least ten of thirteen colonies had laws against Catholic priests and/or Quakers or both; the Massachusetts law imposed the death penalty on priests.) It really makes no sense to construe the First Amendment by recourse to laws that it did not affect. Yet our Supreme Court draws on the history of early colonial and state legislation to understand the Bill of Rights. It's judicial nonsense, but it's how our laws are interpreted at the highest level. A true "strict constructionist", adopting the view that the Bill of Rights preserved the historic exceptionss reflected in contemporary state and then-recent colonial laws would necessarily conclude that the First Amendment did not guarantee religious freedom to Catholics or blasphemers when adopted and it cannot do so now. I do think we have moved beyond that point in our constitutional jurisprudence, and it's past due for our courts to recognize that obscenity statutes cannot stand. 

No state is required to enact any obscenity statute. But if a state - or the federal government - wishes to create an obscenity crime, as both have done, it must follow the limitations arising from the First Amendment. The story of those limitations is the story of obscenity law. 

A publisher is subject to federal obscenity statutes, and if in a state with obscenity laws, to those laws as well. All of the federal laws amount to felonies punishible by five years imprisonment on the first offense; the state laws run the gamut from six month and 364-day misdemeanors to felony convictions calling for hard labor on the chain gang, depending on the state. All of the state crimes must follow the First Amendment limitations on obscenity prosecution.

The two cases which most importantly limit federal and state power to criminalize the creation or traffic in obscenity in the present era are Miller v. California and Brockett v. Spokane Arcades, both of which are found on this site with commentary in the Cases section.

      Miller was decided in 1973; along with the other cases decided on the same day, it remains the Supreme Court's last comprehensive discussion of obscenity law and contains the famous "Miller Test" which frames the jury instructions in all obscenity jury trials and defines the limits to which American governments, federal, state, and local, may go in proscribing sexual expression on the basis of its content without offense to the First Amendment. (It changed the law significantly from the view of obscenity earlier articulated by Roth's majority and later plurality decisions by asserting - I would say legislating - the controlling affect of "local" community standards instead of national standards, which it took to be a myth, and giving no protection to works that did not have "serious" value.) Advancing notions wrapped up in President Nixon's "New Federalism", it permitted governments to apply local community standards of prurience in defining what is and is not obscene and held also that a work meeting the prurience and patent offensiveness forks would be obscene unless it possessed a serious, not a trivial, social value. It holds that the First Amendment is a limitation on all obscenity statutes in all American jurisdictions. No such statute may form the basis of a criminal prosecution unless the kinds of depictions or descriptions that are subject to the obscenity law are defined by legislation or construed by authoritative judicial construction, to put the public on reasonable notice as to what may be prosecuted. 

        Three elements are set out in Miller which are constitutionally necessary to support a conviction under an obscenity statute, commonly called The Miller Test: a) Whether an average person, applying contemporary community standards, would find that the work, taken as a whole, predominantly appeals to a "prurient" interest in sex, nudity, or excretion as judged by local community standards; b) whether the work depicts or describes, in a patently offensive way affronting the standards of the local community, sexual conduct specifically defined by the applicable state law; and c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value, as measured objectively and without regard to local community standards. (Some of the Test, as I have set it out, are the product of later cases adding a gloss to Miller.) These elements must be proved by legal and competent evidence beyond a reasonable doubt for a conviction to stand. This burden sounds more arduous for the prosecutor than, perhaps, it really is; it is enough for the prosecutor, to survive a motion for a directed verdict of Not Guilty, to merely introduce the charged material and to tie the defendant's activity to the charge. 

            "Prurient" means shamefull or morbid. There is little doubt that, at the time of Roth, direct sexual excitation was enough to make a work predominantly prurient in its appeal. One need only look at the California jury instructions footnoted in the Roth opinion.

 Brockett was Significant because it construes the Roth-Miller definition of obscenity to constitutionally protect material that appeals to a normal sexual lust. The dichotomy between a prurient appeal and a healthy appeal was highlighted by the unfortunate wording of a Washington State statute that defined obscenity to include, among other things, materials that incited "lust".  The Supreme Court protected sexual expression that appeals to a normal, healthy sexual lust. At the same time, it concluded that the Ninth Circuit erred in invalidating the entire Washington statute and held that the Ninth Circuit should have applied a construction to the statute that limited its application to the constitutionally permitted proscription of material with a prurient appeal, i.e. to a shameful or morbid interest in sex, nudity or excretion somewhere beyond an appeal to a health lust. The impact of Brockett cannot be overstated. The courts have given little guidance as to what a "shameful" interest in sex might be, but it is a term that must be judged according to contemporary community standards just as morbidity is judged.

As I said above, it's time for the courts to invalidate the obscenity statutes. If the courts fail to do so, a campaign of public education should be waged and a battle fought for the repeal of these laws. Few Americans have a clue that they can become federal felons and be imprisoned for five years for merely downloading what is criminally obscene, material featuring only adults. Check out Whorley and the associated comments in our Cases Section. Were the public to widley know about this five-year-penalty statute, dangling over the heads of massive numbers of Americans, with all the associated uncertainties about what is "obscene", I suspect it would view the situation as intolerable and all of the statutes relating to adult obscenity would fall immediatly. These laws remain on the books only because they are enforced only infrequently, and then against generally unsympathetic defendants. The reality is that there is little enthusiasm for them in prosecutors or law enforcement, and that, too, should signal that the time for their repeal has been reached. That they remain on the books at all is a consequence of a small but quite vocal consortium of moralizers who lie in bed at night fantasizing that our sex drive is truly evil, probably a consequence of the Fall in the Garden of Eden, that it can only be redeemed by a procreative opportunity in marriage, and that concupiscence must be extirpated as far as law can control. These people are born chaparones at high school dances. In distinction from them, most people in this country seem to agree with God, who, after making humans, immediately directed those humans, as their first item of business, in no uncertain terms and before they got to know each other, to do what, among other things, sometimes but certainly far from always, leads to procreation - and he called it all good. (It's always been my hunch that they actually starting thinking about doing that from the moment they first laid eyes upon one another - and before they had much opportunity to reflect about having progeny - but that they got some comfort about their unspoken plan when God gave them the green light and established doing this as mankind's Prime Directive. It explains a lot, I think, that the inspired writer of scripure put this down as God's very first direction to mankind, way before He mentioned anything about forbidden fruit and way before they met the serpent.)

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.

This issue 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

 This is because there is an important social dimension to free speech under our constitution that makes any such “bright line” rule with respect to adult pornography impossible. One unchanging axiom that runs through all of the Supreme Court cases dealing with obscenity in the modern era is that no work can be proscribed and criminally outlawed if, taken as a whole, it has serious literary, artistic, or scientific value. Were it possible to ban speech with serious value, American society itself would become the victim of censorship though its loss of a work of serious value, and that is a result that the constitution cannot permit.

The creativity 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 character 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. One Chicago judge opined in a bench trial that nothing was obscene in Cook County unless its appeal involved animals, pain, or children, and that may approximate the standards of the communities across the nation. But not entirely. It cannot explain the convictions in the Rick Krial case in Virginia that involved group sex and it cannot explain some of the results in the Max Hardcore case that seem to have involved degradation and auto-felching more than pain. There remains in our standards something of disgust and degradation that may tip the scales. The use of images of bestiality immediately 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 nonpretextually valuable or important literature, and to the advocate in the defense, in any readily imaginable context. 

That being said, there is no convenient bright-line rule that will define the obscene in the way a speed limit can define speeding. If the law were to articulate a three-finger penetration limit without reference to redeeming serious  literary, scientific, or political value, the statute would necessarily fall. This is despite the anxious desire of some in the adult community to have such lines of certainty created; it is simply impossible because of the third fork of the Miller Test.

The Inevitable Uncertainty in Identifying the Obscene and Criminal Responsibility

 The need under obscenity law to judge both amorphous factors - prurience and serious value - leads to such practical uncertainty that it is essentially impossible to predict reliably, when they are created and published, whether many works, including websites, may be obscene; It is only when the jury returns with a verdict that we can know with any certainty. The obvious and risky implication here is that the web site publisher acts at peril of criminal liability for obscenity when he publishes material to his site, the exact parameters of the Forbidden Zone being unascertainable by him before accusation, trial, and verdict. You should know that it is most definitely not the law that a publisher must realize that the work he publishes is obscene before criminal liability may attach; It is enough that he knows the character and nature of the materials he distributes. Hamling v. United States, 418 U.S. 87, 123 (1974); Rosen v. United States, 161 U.S. 29 (1896); see also Ward v. Illinois, 431 U.S. 767 (1977).

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. Slaton, 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 - that is sexually explicit - materials will incur liability for obscenity if a court concludes that one of the works is obscene.  (People often blur the distinction between obscenity and child pornograph. While no court holds that a defendant can be convicted only if he knows the work to be obscene, in the child pornography arena, it is a necessary element that the defendant knew that the minor depicted was underage.  United States v. X-Citement Video, Inc., 513 U.S. 64 (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 patently offensive 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), 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. 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.

In United States v. Killbride, in 2009, the Ninth Circuit determined that the "contemporary community standards" - to be applied to alleged Internet distribution of  obscene materials under the Miller test - is to be a nationwide standard rather than a local standard, finding this conclusion to arise from its reading of the fractured opinion of the United States Supreme Court in Ashcroft v. ACLU, 535 U.S. 564 (2002). The Ninth Circuit's conclusion has been rejected by the two later courts which considered it, the 11th Circuit in Max Hardcore's appeal of his obscenity conviction, and the United States District Court for the District of Columbia in disposing of a pre-trial motion in the trial of John Stagliano (the "Evil Angel" case), which ended in a dismissal amounting to an acquittal. Both cases are set out on this site in its Cases section. (This Opinion did no good for Mr. Killbride; the Ninth Circuit said that any objection to the erroneous jury instruction was waived by failure to object at the time.) Neither side applied for review in the United States Supreme Court.

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.


The Keys to Risk Avoidance in Webmastering                                                                    

 

 So far, I have addressed some of the issues in the law of obscenity which pose risk to webmasters. By no means can any particular article address all of the issues that affect obscenity. There is a broader and more diffuse range of issues that create the potential of danger to the webmaster beyond the letter of the cases. Like any article dealing with the complexities of human conduct, article is approximate and incomplete as to all of the many situations that webmasters may get involved in, and it is the ideas and spirit behind the words rather than any fixed rules that may provide guidance to decision-making. And, as any legal writing written for a broad public audience, it cannot substitute for particularized advice from a legal practitioner familiar with the issues in this part of law and society.

To put the legal suggestions set out above into context, I’ll start with some non-legal guidance that suggests my approach to the business at hand and set out a few principles I think most important to adult webmasters and to content producers who serve the needs of the adult Internet.

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 decently, no worse than you would want to be treated in like circumstances, and the chances that someone will manufacture bad luck for you decrease tremendously.

4. Don’t browse porn recreationally and don’t hold on to other people’s porn. Keep business and personal physically separate. If you do look at porn, don’t keep any of its fruits where you do business as a Webmaster. Because you sell porn for a living, the presumption of the police, the prosecutor, and the grand jury, will be that you indented to distribute whatever they have found on your computers. Even if it is a file you deleted which was resurrected in a forensic computer lab. Your own commercial site may have the most innocuous and tame content imaginable that would violate the obscenity laws of no jurisdiction whatsoever, but if they find a series called “My Really, Really Good and Intimate Equine Friend, Flicka”, there may be a reasonable basis to charge you with intent to distribute it based on where it was found in connection with what you do for a living. There is a ton of material out there that is age borderline-questionable, and you simply can’t afford to have it on your computer. Use Window Washer or Evidence Eliminator and Norton’s WipeInfo, Eraser, or the equivalent every single time you shut down after going online. Clear your cache, and scrub the slack disc space constantly. Disable javascript unless you need it for a particular site. You can never know all of the places that javascripting can lead you to, because it can act in the background. But the prosecution team may and likely will hold you responsible for everything a forensic analysis of your disc uncovers, and nothing the analysts find is likely to tell them that it is there without your knowledge as a result of javascripting. Don’t run your web business from your home if you can avoid it: If there’s a search warrant executed in your home, they’ll take all your family financial records, your checkbooks, and they will learn all sort of things that may hurt you, things that may have nothing to do with your professional Internet work, things that can get you criminally charged. And your children will resent you forever for causing the agents to go through their private stuff.

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.

             
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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 xxxlaw@execpc.com