LEGAL BRIEFS

On January 6, 2002, I had the privilege of speaking on a legal affairs panel at the AVN Internext convention in Las Vegas. During my fifteen minutes of fame (actually ten, but who’s counting?), I was able to reach the decision makers for those global websites whose Internet content defines and meets the sexual fantasies and tastes of much of the world.LEGAL BRIEFS

On January 6, 2002, I had the privilege of speaking on a legal affairs panel at the AVN Internext convention in Las Vegas. During my fifteen minutes of fame (actually ten, but who’s counting?), I was able to reach the decision makers for those global websites whose Internet content defines and meets the sexual fantasies and tastes of much of the world. When I am in that setting, I usually talk about free speech, about Liberty, and about the unique role of adult webmasters in protecting everybody’s Expressive Liberty by standing on the forward edge of the battle arena against repression. But, this time, I chose to talk to them about the kinds of Internet content that create the biggest risks of criminal and civil liability. Whether the medium is an Internet website, a videotape, or a book or magazine, the danger areas are pretty much the same.

Essential to the notion of obscenity, since the 1973 decision in Miller, is the notion of Community Standards: Material is not punishable as obscene under American constitutional law unless it violates local community standards of frankness and explicitness. “Community Standards” will, of course vary by community, but the story of the twentieth century has pretty largely been a history of the erosion of the geographic differences that make Americans different from one another. You can attribute that to radio, to cinema, to TV, to the whole phenomenon of pop music, to the national press and to broadcast networks, and certainly to the Internet. And while islands of very distinct cultural diversity, such as Brownsville, Texas and New Orleans, remain and probably always will remain specially distinctive, there seems to be a general trend towards greater convergence in attitudes among the regions. It is not wrong to talk about an emerging national standard in this regard, despite case-by-case and locale-by-locale variations on the general theme of what is tolerated in America.

Locally, I’ve heard reports of a Circuit Court of Cook County judge who explained that if content in a videotape doesn’t involve children, animals, or pain, it can’t be considered obscene. It’s hard to know what a jury would do because these matters so seldom get prosecuted, and when they are charged, it’s just so haphazard and random. Meanwhile, in Los Angeles County, California (a place where the license plates could justifiably mimic those of Wisconsin by declaring Southern California to be “America’s Pornland”), there have been two recent prosecutions, one for a tape that included fisting and another for bathroom sexual fetish material involving micturation.

The broadest rule of thumb (subject to the imperfections and exceptions that afflict every kind of rule of thumb!) is that those things that appeal to a healthy sense of lust are not prurient, and accordingly, under the Supreme Court’s opinion in Brocket v. Spokane Arcades, they cannot be criminally obscene. A “healthy sense of lust”, in my estimation, is best understood as what we expect people to do for and with one another to put a smile on someone else’s face when they like one another. The further adult content material deviates from the range of what society expects people to be doing to achieve that aim, the more dangerous the content becomes.

What I gave the Las Vegas audience, and what I share with you this month, is a sneak preview of an article in progress that will cover dangerous content, marginal content, and good adult content in three parts, each category divided into seven circles. I illustrated my talk in Las Vegas by mentioning Dante’s Inferno. (There are of course two other parts to Dante’s Comedia Divina, the Purgatorio and Paradiso, but people are naturally drawn to the grotesque, and that’s why Inferno alone is usually remembered. Think about that for awhile, and you’ll understand the lure of some of the Seven Circles to a lot of people.)

I drew seven circles of Internet Content Hell, describing the places where webmasters and content providers were most likely to get into trouble for the dangerous nature of the content. To make each easy to remember, I associated each with a title or lyric from the best days of rock music.

So, join me on a tour of Content Hell.

1. “She was just seventeen, you know what I mean.” Child pornography is about as serious as heroin in American law: About as serious as “serious” can be. Its distribution carries a fifteen year federal prison term. And “child” means anyone under eighteen. When a Cook County State’s Attorney has a seventeen year old indicted and tries him or her, he does not call that person a child; He calls that person a defendant. The law of Illinois treats seventeen year olds as adults for the purposes of criminal accountability and even for consent to sex with anyone other than those who have power or control over them. Absent that special relationship, it is lawful to have sex in this State with such a person; But if you were to take a lewd photograph, that image could cost you five years of freedom and brand you as a child pornographer for its possession. Distribution of the image, including its use on a website, under federal law, could cost you fifteen years of freedom in very, very hard time done in the Bureau of Prisons. One would have to be nuts to get involved with any kind of content showing persons under the age of eighteen lewdly or depicting them in sexual conduct. If you ever see it on your computer, stop, exit, and run a disc-scrubbing program on your hard drive immediately. As a result of this danger more than any other, any webmaster who plucks images from newsgroups and uses these images on his site without knowledge of their provenance, is so recklessly acting as to present a serious danger to his own health and well being.

2. “I would not let her be one of sixteen vestal virgins who were leaving for the coast.” There exist so-called “Teen Model” sites that try to flirt with the boundary between child pornography and art or glamour photography. Typical of the genre are pictures of some semi-cute fifteen-year-old girl, probably living in a trailer in Florida, in the process of peeling off a shirt while tight jeans ride low on her hips. This stuff, too, is incredibly dangerous content, and no one with common sense unaffected by reckless greed or out-of-control-pedophilia would have anything to do with it if he understood the risks clearly. One reported decision, United States v. Knox, 32 F.3d 733, supports a conviction, as child porn, for materials lewdly depicting the model’s genitals, even though they were covered with opaque clothing. This should be enough of a warning about the danger of this area. Let kids be kids. If they are destined to have serious problems in life, let them develop the problems by themselves without the complication of avaricious adults making the problems worse.

3. “You and me and a dog named Boo”. The defense of bestiality strikes me as just about the most difficult of all obscenity cases to defend. It is hard to show that attraction to the sexual congress of barnyard animals with people is part of what any community anywhere would consider a “healthy lust”. (And the only work of literature that comes to my mind concerning it is the parodoic Jonathon Branmeyer song, “Moo, Moo, I Love You”, hardly a lyric love poem.) That suggests prurience. It is my sense that most of the images out there in this genre show women being sexually compromised by the animals, and this may have something to say about the attitudes of the fans of such images toward women. Not very healthy, not very PC. My hunch is that it is precisely the degradation of women in a grotesque manner that is the attraction here, and, let me tell you, not only will women almost certainly be members of any jury trying the case, but I doubt that a jury of all men would find it non-prurient very often, if at all. It would much more than challenge anyone’s creativity to formulate some text content that would take it out of the realm of obscenity with serious literary, artistic, or scientific value. (And I don’t think that setting up off-shore entities with off-shore servers will help those who pump it out: I think that circumstance will attract the curious attention of law enforcement more than any other factor.)

4. “Girl by the whirlpool looking for a new fool.” There is an inescapable reality that some folks chose to forget: Prostitution is not a “hobby”, it is a crime. Prostitution is against the law just about anywhere in the United States except in a few places where cactuses are more numerous than people are populous. The commercial promotion of prostitution by means of the Internet can be prosecuted under a wide array of state laws and several federal laws as well. Massive forfeitures are possible under RICO laws that will destroy any business in their wake. Leave your personal opinion about what should be the law aside until the law is changed, especially when it comes to business decisions that could put you in an orange jumpsuit.

5. “Why don’t we do it in the road?”. Voyeuristic and exhibitionist content present their own problems. An increasing number of states, including Wisconsin, have criminalized the online publication of photographs of persons in the nude without their consent. It is merely a matter of time before a federal statute is passed on this subject. “Hidden Cam” images certainly implicate that part of the law of privacy known as the right of seclusion. A variety of statutes and judicial decisions have emerged to deal with upskirt images since the press became aware of that practice and started reporting about it. Even where the subjects appear in public and know they are being photographed, as in the Mardi Gras images taken on Bourbon Street, the subjects of the photos may have a right to recover for the unauthorized commercial exploitation of their nudity unless the publisher can, when publishing it, demonstrate a real purpose of news reportage. Exploitation of the images for their own sake will be seen for what it is, should the matter become the centerpiece of litigation.

6. “Baby you can drive my car.” For reasons very similar to those just mentioned, celebrity images, celebrity nude images, and celebrity sites pose very special problems. The right to commercial exploitation of one’s appearance is something that each of us owns, and in the case of a real celebrity, it is an asset of great value. Freedom of Speech has certain implications in this regard which protect bona fide news reportage, parody, and reviews of movies and plays, and the like, but the law is smart enough to smell subterfuge when it passes by disguised as reporting.

7. “Some of them want to abuse you. Some of them want to be abused.” The area of bondage, domination, and sado-masochism, along with torture and abuse in a sexual context and sex involving excretory activity present the most common garden-variety materials that suggest obscenity to the prosecutorial and law enforcement mind. Especially if BDSM participants are gay or transsexual, or in the South, interracial. Going hand-in-hand with these matters are the images of unusual insertions of such things as fists and baseball bats into bodily apertures that most people would think aren’t big enough to fit them comfortably, let alone pleasurably. Also traveling in the same pack are gangbang and bukake images. My advice to the content provider, distributor, and retailer is pretty simple. If it’s difficult or impossible to imagine as part of what otherwise healthy people do in a healthy relationship to make the other person happy, it is dangerous, and you will proceed in that territory at the risk of arrest, embarrassment to your family, an expensive defense, and possible conviction. Most grownups eventually learn that sexuality is a continuum, not a series of discrete points. The actuality is that we change, vary, or fluctuate at least a bit in the place we hold on, that continuum during the course of our lives and as a function of the situations in which we may find ourselves, and that few of us fit exactly and precisely into the niche prescribed for sexuality by tradition. Men, especially, seem to have a far wider range of fetish and interest areas than women do (they have their range of deviation from the norm, of course, it’s just narrower), and a stroll down the aisle of any adult book store will convince you rapidly how diverse that range is. With apology to Robert Heinlein and his Lazarus Long for the appropriation, one man’s erotica is another man’s belly laugh. And it is certainly true that people sometimes feel alone in guilt and shame for practices or interests that really are widespread but not much spoken about in normal social situations, though less so than in the pre-Howard Stern era. Nevertheless, when a jury of twelve strangers coming from very different places in life meets under fluorescent lights in an uncomfortable room to make a decision that will have serious consequences on your life and livelihood, you cannot expect them to share intimate and amusing stories among themselves about rimjobs or felching or cross-dressing.

Now, none of the “circles of hell” are intended by me to be absolutely categorical prohibitions, except the first one regarding minors; It is conceivable that some mind far more brilliant and creative than mine could actually write beautiful literature about baseball bat insertions or the cascade of bukake or the like, and one must always consider the work as a whole and determine whether it has serious value before assessing it as obscene. I personally would choose to live in a place that had no obscenity statutes at all, and I think that, in time, they will disappear just as blasphemy statutes disappeared before them. But, in the meantime, and in the short term of the present administration, I do see a bad moon arisin’, I think that the words of the prophets are written on the subway walls and tenement halls, and that a hard rain’s gonna fall. The common sense answer for all content providers, distributors, Internet publishers, and retailers is to take a good and close look, with an attorney versed in content issues, at what’s on the site, on the shelf, and in the trucks, and to make some important decisions about what is worth the enhanced risk. We have an administration that wants faith-based social services, after all.

I do not believe that there will be a frontal assault on explicit sexual materials, but I think that the odds are great that extreme content and material, included within the circles above, will be prosecuted in the months and years to come. I believe that there will be an increase in privacy and products liability litigation brought against adult content providers, and that large judgments will be awarded that will destroy some adult enterprises. Finally, I believe that the focus of attention by the federal government on terrorism in the present time provides the adult industry its last clear opportunity to clean itself up before it comes under serious and intense scrutiny.

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, consent to nothing, but make no resistance, 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 or paged in any emergency at (312) 250-4118. His e-mail address is xxxlaw@execpc.com. His website URL on the World Wide Web is http://www.xxxlaw.net.