LegallyObscenity laws are a concern for anyone in the adult entertainment business. Now that the Supreme Court has struck down the Child Pornography Protection Act, the next order of Court business that affects adult Webmasters is consideration of the Child Online Protection Act (COPA). Since the pending COPA case deals with the constitutionality of the “local community standards” test as applied to the Internet, Connor Young says that there is a golden opportunity – albeit a slim chance – to basically invalidate all obscenity laws that affect adult Webmasters. Taking a look at why the Court has previously allowed censorship of “obscenity,” Connor suggests that the best offensive against obscenity laws might be in exposing the “chilling effect” that they have on protected speech.

Did you see the news regarding the Supreme Court’s decision to strike down the Child Pornography Prevention Act (CPPA)? CPPA would have criminalized two forms of currently protected speech: computer-generated child pornography and youthful-adult erotica. By youthful-adult erotica, I am referring to any form of pornography that either “conveys the impression” that the participants are minors, or has participants that “appear to be” minors – no matter how old the participants actually are. Indeed that would have meant that most “barely legal” teen porn sites would have been prime targets for prosecution under CPPA, and since teen porn sites are the most popular niche on the adult Web, you can see how CPPA could have wreaked more havoc than a naked woman at a Morality in Media fundraiser.

While I was pleased with the decision of the Court to strike down CPPA, I wanted to read the wording of the Court opinion to see if it would provide any clues as to the eventual outcome of the pending Child Online Protection Act (COPA) case. For those of you not already familiar with COPA, the goal of this law is to require adult Web sites to place all materials “harmful to minors” behind some sort of an age verification screen. COPA could allow for stiff penalties (even jail time) for any adult Webmaster who places the COPA-targeted materials in a location accessible by children. Just what type of content is affected? Opponents argue that there is no way to be sure exactly what is included under COPA’s umbrella, but if you deal in erotica you can bet that it includes the content on your Web site.

PROS AND CONS OF COPA

Now placing uncensored adult material behind an age verification screen isn’t exactly a bad thing – in fact I already do this on my own. If others were forced to do the same, there would be less free adult content available on the Web, forcing more surfers to pay for porn rather than endlessly sucking the free porn tit like some leech-faced demon baby. COPA wouldn’t eliminate free porn by any stretch of the imagination – foreign countries would not be affected and many Americans would simply risk prosecution – but it would make the problem somewhat less, well, problematic. That aside, I have been hoping against hope that COPA would be defeated in our nation’s highest court for two primary reasons: I vehemently oppose censorship in almost every form this side of the ban on actual child pornography, and the defeat of COPA could in theory de-fang modern obscenity laws as they relate to the Internet.

I got your attention now, don’t I? The Third Circuit Court of Appeals has already ruled that COPA was unconstitutional, and in that ruling the panel claimed that obscenity laws based on community standards can not be applied to the Internet because to do so would limit online speech to that which is acceptable to the least tolerant community in America. From their decision:

Because of the peculiar geography-free nature of cyberspace, [COPA’s] community standards test would essentially require every Web communication to abide by the most restrictive community’s standards.

Amen! Adult Webmasters know all too well that this “chilling effect” on protected speech is in fact a harsh reality of modern obscenity laws. I personally shy away from posting any form of hardcore sex pictures on the Net not because I don’t want to provide such images for my customers, but rather because the risk of prosecution is unacceptably high for my liking. How many Webmasters avoid pictures of “fisting” for fear that they might be prosecuted in the deepest, darkest and most conservative community in the south? Why should a California community which views scenes of fisting as acceptable be denied access to such materials online simply because it offends the sensibilities of a staunchly religious community in Tennessee?

SLIM CHANCE BUT WORTH THE FIGHT

Unfortunately the chances of the Supreme Court simply striking down COPA while invalidating obscenity laws are slim. We have a very conservative court, and there is no doubt considerable pressure from the White House to give Ashcroft the tools he needs to tackle online porn. In the recent CPPA decision, Supreme Court Justice Kennedy seemed to go out of his way to remind everyone that government may ban materials that are deemed legally obscene. (This is where George Carlin would ask, “Legally obscene? If it’s legal then what’s the fucking problem, officer?”) At the verbal arguments for the COPA case, many of the Supreme Court Justices seemed unimpressed with the arguments against COPA. The signs don’t look positive, but as that famous Yankees catcher once said, it ain’t over ‘till it’s over!

As I understand it, eliminating the threat of obscenity laws, in so far as adult Webmasters are concerned, would require one of two things to happen: Congress passing a law eliminating criminal penalties for distributing obscenity (yeah right!), or the Supreme Court determining that an obscenity law, when applied to the Net, is unconstitutional on First Amendment grounds. Now as far as I know the Supreme Court can’t just invalidate all forms of obscenity penalties with one broad stroke, but they could set a legal precedent that obscenity laws – when applied to the Internet – provide an unnecessary burden on protected speech. Such a decision could make it impossible for the Justice Department to combat online porn through use of obscenity prosecutions. But don’t hold your breath waiting for that to happen! COPA doesn’t deal directly with obscenity (although another case in the lower courts does), but it does deal with one aspect of modern obscenity laws – the local community standards test. If the Court invalidates the “local community standards” test, online obscenity convictions could be near impossible for prosecutors to win because current obscenity laws rely on it. That is, unless the Supreme Court replaces the local community standards test with something more relevant to the Web, like a national community standards test. That replacement would help Webmasters a little, but it wouldn’t eliminate the threat of an obscenity prosecution in some city named something like Lovers of Jesus, Alabama.

So how the hell did “obscenity” become unprotected speech in the first place? Most Webmasters are familiar with the “Miller Test,” which is used in obscenity prosecutions as a way of determining IF a work is obscene, but WHY was government able to criminalize obscenity at all? The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” so how did “obscenity” somehow fall out of the category of protected speech? To answer that question I had to jump back to 1\’57 and a Supreme Court case by the name of Roth v. United States, 354 U.S. 476. In reading the decision of the Court in Roth, I suddenly had an understanding of just how we all got into this predicament, and to be honest it’s going to be difficult to get out of it.

IDEALISTIC ROOTS

First understand that America wasn’t always so motivated by money. In our younger years, the thirst for knowledge and human achievement was tantamount, and those values were apparent in our leaders. While American leaders today are far more interested in helping rich corporations get richer, maintaining their own personal power and keeping the rest of us in line (everything Dubya does domestically fits one of those three goals), leaders from America’s youth were concerned with scientific advancements, philosophy, literature, art and other traditional academics. (It’s no coincidence that content must lack literary, scientific, artistic or social significance in order to be unprotected speech. These things were once considered very important categories of human achievement rather than avenues to a healthy financial portfolio.)

Back to 1\’57 and Roth v. United States. Justice Brennan delivered the opinion of the Court, in which he stated that the purpose of the First Amendment is not to protect every “utterance” that an individual might make, and in doing so he distinguishes between words that are spoken with the purpose of sharing thoughts and ideas intended to change society, and words that are spoken with no such intent. As an example of spoken words that are not protected, Brennan refers to libelous speech.

…it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech.

So in other words, Brennan is saying that if libelous speech can be banned, then obviously the First Amendment wasn’t meant to protect any and every word that can come out of a person’s mouth, despite the fact that the First Amendment is phrased in a way that sounds unconditional. He rather suggests, in the spirit of a true academic, that the real intention of the First Amendment is to ensure that the free exchange of thoughts and ideas intended to change American society – even if unpopular – are not be stifled by Congress.

All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.

HARMFUL SECONDARY EFFECTS

That last part is where the “harmful secondary effects” argument comes in. Brennan is saying that if the government can show a legitimate reason why banning a form of expression is more beneficial to American society than the benefits we reap from free speech, then banning such expression would not run afoul of the First Amendment. This argument was used successfully in a recent Supreme Court case where the Court unfortunately ruled that banning nude dancing is permissible if the local government enacting the ban is doing so to combat “harmful secondary effects” that result from the dancing. That decision was another example of the political bias and conservative slant that plagues our current Court – a bias that was also seen in the handling of the last presidential election. There has never been any evidence to suggest that banning nude dancing establishments would reduce crime, and the Supreme Court Justices know as well as anyone that the true purpose behind such bans is religiously motivated. People offended by this form of expression seek to silence it, and the First Amendment certainly should have protected the rights of nude dancers in such a case.

Furthering the case that obscenity isn’t protected, Brennan went on to quote a previous case, Chaplinsky v. New Hampshire:

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. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .

GENERAL MORALITY VERSUS RELIGIOUS MORALITY

Oh no, there’s that “morality” word. Most of us can appreciate how morality plays an important role in American society. Morality keeps individuals from giving in to some of their darker impulses. Without morality, murder rates would be higher, rapes would be rampant, theft would be intolerable, and prisons would be too numerous to count. Empathy and morality are actually first cousins, and it is through them that human beings learn to behave in a “civilized” manner – which is what allows us to cooperate with one another and better American society. So there’s nothing wrong with morality in and of itself, but what the Supreme Court seemed to fail to assert is that morality is highly subjective. For example, some people consider premarital sex to be an immoral act. I obviously disagree strongly. The problem with the Court’s use of “morality” in this case is that it does not distinguish between general morality that serves a common goal for all Americans (such as respect for human life, personal property, etc.), and “religious” or “philosophical” morality, which serves a goal only for individuals who subscribe to that particular religion or philosophy. A person trying to live a life in which he or she does not kill animals for food might subscribe to a religion or philosophy which states that consuming animals is immoral. That sense of “morality” might help the individual in question resist the temptation of pigging out on bacon once in a while, but that doesn’t mean that eating bacon is generally immoral for all Americans. In fact, if I were to consume bacon daily I would not be affecting the quality of that individual’s vegetarian lifestyle in any way. I may offend the vegetarian if I advocate pig slaughter for the purpose of greasy bacon cheeseburgers, but the First Amendment is designed to protect my right to advocate change that offends others. How might I advocate that more people eat bacon cheeseburgers? Well, I might write a book titled Why I Advocate Eating Bacon Cheeseburgers, or I might paint a picture of a juicy bacon cheeseburger and place it on the Net, or I might just continue to eat them publicly in the face of overwhelming public pressure from my vegetarian peers.

Finally, Brennan argues that since anything found to be obscene is not protected speech, it makes no difference if the banning of that speech serves a purpose or not.

Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase “clear and present danger.” Certainly no one would contend that obscene speech, [p*487] for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class.

That gives Congress carte blanche to punish you however they choose to do so if you are found to have distributed “obscene” materials, even if the materials in question do not in any way cause harm to other Americans. That’s how the religiously-based morality police are able to put pornographers in jail even if the pornographer’s product hurts nobody in particular yet offends self-righteous conservative members of the Klan. Nice, huh?

“You might start by arguing that pornography is beneficial to society in numerous ways, and that it intends to deliver thoughts and ideas about sexuality. The Court would likely counter that your motivations for running an adult site are financial, and that such motivations betray your true intentions as selfish and not an attempt to change society.”

Now let’s say you had a chance to argue with the Supreme Court in regards to the constitutionality of obscenity laws. Here is your chance to argue that obscenity laws violate the First Amendment, and that the Court should overturn the previous decision made in Roth v. United States. You might start by arguing that pornography is beneficial to society in numerous ways, and that it intends to deliver thoughts and ideas about sexuality. The Court would likely counter that your motivations for running an adult site are financial, and that such motivations betray your true intentions as selfish and not an attempt to change society. Consider the following from the recent CPPA decision:

See Ginzburg v. United States, 383 U. S. 463, 474 (1\’66) (‘[I]n close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the [obscenity] test ‘). Where a defendant engages in the ‘commercial exploitation of erotica solely for the sake of their prurient appeal,’ id., at 466, the context he or she creates may itself be relevant to the evaluation of the materials.

You could then argue that your motivations are both financial and artistic, such as a painter who sells his painting to support his art. Yet you wouldn’t get far with that argument because the court would simply argue that if such was the case then you have nothing to fear from obscenity laws. You see the problem?

You could argue that society has changed, and that those things which offended American society at the time of the last confirmation of obscenity laws no longer apply. Again the Court would argue that if such was the case then the “local community standards” obscenity test would protect you from conviction.

THE BEST SHOT IS CHILLING

I can envision only one argument that might convince the Court that obscenity laws, at least when applied to the Internet, are unconstitutional on First Amendment grounds. That would be to argue that obscenity laws have very little benefit to American society, and that it’s impossible to allow the existence of obscenity laws applied to the Net without causing some Americans to voluntarily refrain from protected speech out of fear of prosecution. In other words, any benefit that the government could find in banning any form of obscenity does not outweigh the fact that protected speech will be silenced as a result. Since the Government would have a very hard time showing a legitimate “secondary effects” argument against obscenity, and since it would not be difficult to show that Americans are engaging in self-censorship to avoid obscenity prosecutions, this approach might stand a chance.

So keep an eye on the upcoming COPA case. Obscenity laws burden our industry in all kinds of unfortunate ways, and while they aren’t likely to go anywhere in the near future, an adult Webmaster can hope… can’t he?

Connor Young is Editor-in-Chief of The ADULTWEBMASTER Magazine.

LegallyObscenity laws are a concern for anyone in the adult entertainment business. Now that the Supreme Court has struck down the Child Pornography Protection Act, the next order of Court business that affects adult Webmasters is consideration of the Child Online Protection Act (COPA). Since the pending COPA case deals with the constitutionality of the “local community standards” test as applied to the Internet, Connor Young says that there is a golden opportunity – albeit a slim chance – to basically invalidate all obscenity laws that affect adult Webmasters. Taking a look at why the Court has previously allowed censorship of “obscenity,” Connor suggests that the best offensive against obscenity laws might be in exposing the “chilling effect” that they have on protected speech.

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