CYBERSPACE – The owner of three BDSM websites, known in the BDSM community as GrandPa DeSade, announced today that he would be removing his websites from the internet out of fear of a possible obscenity crackdown by the federal government. The move comes after other BDSM sites have also removed content from the internet, lending additional credibility to arguments that federal obscenity attacks lead to an unwarranted chilling effect on what should be protected speech.“With a heavy heart, we make the following announcement,” read a statement written by DeSade and obtained by YNOT. “Our three sites, www houseofdesade.org, www.grandpadesade.com, and www.realbdsm.com are all going away. The current politics makes it too risky. The FBI is setting up a special task force to find and prosecute what they see as porn sites. One of the criteria for porn prosecution is if the site promotes or features S&M. If convicted they can confiscate anything involved and throw the owners in jail. Even if not convicted, or the conviction overturned, the process would financially break us.”
The statement underlines one of the primary problems with obscenity laws and their rigorous enforcement; although adult content is often, in theory, protected by the First Amendment, the ultimate decision of whether a work is obscene or not can only be determined by a jury that has applied a complex and highly subjective set of standards known as the Miller Test. If a website decides to defend itself in court from charges of obscenity, the experience would likely cost hundreds of thousands of dollars in legal fees – none of which the webmaster gets back if he/she prevails in court. Few webmasters have the financial means to mount such a defense. Obscenity cases can also drag on for years, leaving the webmaster uncertain about his or her fate for many sleepless nights. All of this means that federal obscenity efforts often result in a powerful chilling effect on what might otherwise be protected speech – as seen by the announcement from DeSade.
According to DeSade, the threat of an obscenity indictment is too much to risk, even though he feels the First Amendment should protect his websites. In addition to removing his own websites, he will also stop his hosting services for other S&M websites.
“We will also be sending individual e-mails to any sites we are hosting on our server that have S&M as their subjects, giving them until the end of the month to move their sites to another server. At that time we will be discontinuing any hosting of S&M based sites,” the announcement continued. “Given those criteria, we feel we have no choice but to follow the example of Midori and others in taking our sites down. Our sites will return if and when the current attitudes change again to reflect the average citizen’s viewpoint [about] freedom of speech.”
Midori, referred to in DeSade’s statement, is a fetish model and former professional domme who now teaches classes on rope bondage and other forms of BDSM. Midori previously removed her own website, BeautyBound.com, citing the same fear of an obscenity crackdown.
Additionally, popular goth/porn website SuicideGirls.com recently made headlines when a model posted concern over a possible obscenity crackdown, and announced that the company had decided to self-censor some of its materials.
“While we do not believe any of our images are illegal, SG has removed a number of images in order to ensure that we are not targeted by the U.S. Government’s new ‘War on Porn,’” the statement read. “We have received no formal government notice to remove these images, however, in the course of our involvement, as witnesses, in a federal criminal prosecution that does not target SG, we have been made aware of the risks posting such content poses the owners of the company. Given the U.S. Attorney General Alberto Gonzales’ new war on porn task force and it’s intent to bring obscenity charges against their loosely defined “Deviant” imagery, we have removed any images with fake blood and any images we felt could be wrongfully construed as sadist or masochist. Given the natural disasters in Louisiana and Texas, the U.S. Government’s numerous foreign war’s and the growing U.S. deficit, we feel there are far better uses of government resources then pursuing the legality of imagery created by consenting adults, but as is usually the case, our opinions are not shared by the Current U.S. Administration. Also, we really miss Bill Clinton.”
Some argue that the fetish community is at special risk in any “anti-obscenity” effort since its products are meant to appeal not to the average person, but to a specialized interest group. Obscenity laws focus on language such as “community standards” and “average person” when determining what is and what is not protected speech. That means sexuality groups with specialized interests not easily understood by the mainstream population can find themselves at an especially high risk of persecution. Additionally, federal sentancing guidelines state that any obscenty-related punishment should be “enhanced for sado masochistic material,” meaning the possibility of longer prison terms for BDSM webmasters convicted of obscenity.
Fetish photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) previously challenged federal obscenity laws as applied to the internet, arguing unsuccessfully that obscenity laws are too vague and their existence is an unjustified burden on protected speech, resulting in unwarranted self-censorship due to the fear of prosecution. A district court thee judge panel ruled that while Nitke and the NCSF were probably right, they failed to provide the necessary proof in court that obscenity laws would cause otherwise protected speech to be restrained through acts of self-censorship. The case is currently on appeal to the United States Supreme Court.
According to attorney John Wirenius, lead counsel for the NCSF, recent acts of self-censorship by the fetish community, such as the decision by DeSade and others to remove websites from the internet, underscore the importance of his organization’s ongoing obscenity law challenge.
“The effect of silencing alternative lifestyle speech was exactly why we brought the lawsuit, and the result we feared if we were not successful. Frankly the chickens are coming home to roost,” Wirenius told YNOT on Wednesday.
Wirenius also pointed to a recent Washington Post story, where it was revealed that the Justice Department was encouraging FBI officials to look at S&M content as one possible avenue for winning obscenity convictions. “Based on a review of past successful cases in a variety of jurisdictions,” the Justice Department memo said, the best way to win an obscenity conviction would be to target material that “includes bestiality, urination, defecation, as well as sadistic and masochistic behavior.” That story has caused considerable concern in the BDSM online community, as witnessed by the actions of DeSade, Midori, and Suicide Girls.
Last week, adult actor and producer Max Hardcore was raided by the FBI over charges of obscenity. Max Hardcore is known for his often violent brand of porn, although his specific style seems to exist somewhere outside of the established BDSM community. Just Friday, an erotic stories website, Red Rose Stories, was also raided by the FBI, apparently over obscenity. Additionally, webmaster Chris Wilson, owner of amateur website NowThatsFuckedUp.com, was raided Friday on charges of obscenity, although in Wilson’s case no federal authorities were known to be involved, and the raid was carried out by a local Sheriff’s office with a history of being hostile towards adult entertainment.
Even with all this bad news, to this point there have been no federal raids specifically against owners or operators of BDSM websites. According to attorney Jeffrey Douglas, who represents Max Hardcore, there are plenty of reasons why BDSM website owners shouldn’t let irrational fear get the better of their judgment.
“While it’s certainly understandable that, because the government has tried to create a climate of fear, it’s understandable that people are reacting by self censoring, even to the extreme of pulling down all of their content,” Douglas told YNOT. “However, I think that the risk is not as great as people fear. The history of federal prosecutions in the past suggests that the government hasn’t got a particular interest in targeting BDSM material, except when they’re in a position to argue [that] the participants are being permanently injured, limbs broken.”
”Despite the execution of the search warrant in Florida and California, there’s still no indication of a national effort to broadly attack consensual materials by and for adults. It’s certainly noteworthy that the two traditional producers of sexually explicit mater that have been targeted, Extreme Associates and Max Hardcore, that both of these companies’ content is regarded as being on the cutting edge. I question whether they would go after BDSM. I do not believe that there is greater vulnerability today than there has been in the previous five years.”
Douglas, who is also Chairman of the Free Speech Coalition, sees a possible problem for the Bush Administration if it pushes too hard against adult entertainment.
“A colleague of mine believes that this administration is fearful of alienating the so-called ‘NASCAR dad’ who is generally conservative but who appreciates a good fuck film, and that may be a significant factor,” Douglas said. “While it’s a fearful time because there are scoundrels in the Department of Justice, this is not a time to be most fearful.”
Asked about the Washington Post story, which disclosed the DOJ memo that specifically mentioned S&M, Douglas pointed out that self-censorship is likely one of the aims of the DOJ.
“I’m not suggesting that [the memo] is not a legitimate concern, I’m just saying that the government is extremely aware of its power to encourage self-censorship, and they go out of their way to do that, and I believe references to specific content is designed to do that.”
Douglas added that there are special considerations that come into play when the government chooses to target specialized content like BDSM. According to Douglas, if the judge in such a case follows the rules and issues the proper instructions, the jury would be asked to consider not the standards of the average person of the community, but the standard of the average person from the community which the material was targeted at – in this case, the BDSM community, which is unlikely to take offense at adult content. Nonetheless, Douglas admitted that there is always a concern that a judge will simply ignore the expected rules, or otherwise fail to properly inform the jury as to how they should consider the charges in front of them.
With few hard facts to be found and so much room for speculation about the intentions of the federal government, the industry may just find itself in another “wait and see” position over obscenity, just as it is with § 2257 record-keeping laws. At this point, the only thing that is certain is uncertainly itself, which seems to be the most damaging impact of the current climate of fear.
