LEGAL BRIEFS

During the year 2001, I’ve traveled the length and breadth of America and beyond as the keynote legal speaker for the Cybererotica (http://www.cybererotica.com) sponsored Adult Webmaster Events in Chicago, Los Angeles, Atlanta, Portland, and Denver, twice at the AVN Online Internext Show (http://www.avnonline.com) in Las Vegas, at Cybernet Expo in Miami, and at the Great Lakes Webmaster Conference (http://www.GreatLakesWebmasters.com) in Windsor, Ontario.LEGAL BRIEFS

During the year 2001, I’ve traveled the length and breadth of America and beyond as the keynote legal speaker for the Cybererotica (http://www.cybererotica.com) sponsored Adult Webmaster Events in Chicago, Los Angeles, Atlanta, Portland, and Denver, twice at the AVN Online Internext Show (http://www.avnonline.com) in Las Vegas, at Cybernet Expo in Miami, and at the Great Lakes Webmaster Conference (http://www.GreatLakesWebmasters.com) in Windsor, Ontario. It has really been a rare privilege and honor for any lawyer to speak before hundreds of webmasters, content providers, and the businessmen and women providing support to the adult Internet in every region of the USA and in Canada. I have come to know these people in a special way, the interesting, industrious, creative, courageous people who shape the sexual fantasies of two nations and much of the world.

I encountered some of the brightest lights in this industry, persons who would be impressive in any setting, and I found them both in the audiences and next to me on the dais; I discovered among them some amazing people and saw in their midst some of the most brilliant personal spectrums that I have ever seen, powerful, bold, and inspiring.

The adult webmasters stand on the forward edge of the battle area in the perpetual struggle for personal freedom, and they have my admiration and respect as a result. When Fantasyman and I first spoke about the AWE speaking tour that started me on this journey, I had little idea of what the experience would become. It rapidly became much more than just speaking about the important concepts and principles of law that apply to adult webmasters for an hour-and-a-half and taking questions. Though I spent time in the Law Library before the trips to learn about such matters as whether Oregon and Colorado had constitutionally valid obscenity statutes before my trips there, the truth is that I learned more of enduring importance from and about the attendees than I did from that research, and I am left with the strong conviction that from them I acquired far more than I imparted.

Special thanks goes to the AWE Road Crew members and to the representatives of the Event Sponsors, Kaiser and Big John and Kath and Amanda and Allie and KB and Bestat and Dialer Dave and Raven and Rocki and Susan and all of the others who helped bring all of this about, and to AJ who provided constant inspiration to me.

At each of the AWE events, I spoke for an hour and told the audience that I would address any topic it cared to suggest so long as I felt that it was within my competence. I reserved a half hour for audience questions, and we never ran out of those in any city. Though I never actually wrote any of the questions down, and though this article may therefore imperfectly render the actual questions asked from the floor and in the adjacent halls and during the parties, the following is a sense of the questions I was most frequently asked during this odyssey, and of the best answers I could provide as I walked in the midst of the men and women who define and meet the sexual fantasies of the contemporary world.

1. If I include some text on my site, will that help me avoid an obscenity prosecution?

Maybe, but not if it’s only a mere pretext for obscenity! A justice of the United States Supreme Court once wrote that a quotation from Voltaire on the flyleaf of an otherwise obscene work will not render it nonobscene.

No work may be determined obscene if it has serious literary, artistic, or scientific value as viewed by a reasonable person, and when taken as a whole. It does not need to be high art to be nonobscene, it just needs to have a serious aim and result that has some reasonable literary or artistic or scientific value. Mad Magazine has enough serious literary value that, even if it included very graphic sexual material, it would be difficult to imagine how any court could rationally find it obscene. Especially with the development of hyperlinks, it is not painful or destructive to the eroticism of the sexual imagery on contemporary adult sites to include and integrate such linked text as creates a work with serious artistic or literary or scientific value when considered as a whole. The jury will have to consider all of its contents, including the linked pages.

You don’t need a weatherman to know which way the wind blows. Now is the time to add content or to modify it to assure that your site has a serious expressive purpose. It takes little more than imagination and effort and work to do so.

2. What’s obscene? Is Gay Sex Obscene? Anal?

A comprehensive discussion of obscenity is outside the scope or space limitations of this article, and so I will not attempt to summarize the entire body of law. All of that begins with Miller v. California, found on my website, www.xxxlaw.net .

The first amendment law of obscenity is a limitation on the power of the state and federal government to ban, proscribe, and criminalize the possession and distribution of presumptively protected expressive materials. In that sense, the First Amendment is a limitation on the powers of democracy, because it elevates expressive freedom above the wishes of a democratically elected majority of Congress or of state legislatures.

If a work, judged as a whole, has serious artistic, literary or scientific value, it cannot be criminalized.

Even should it have no such serious value, unless a work appeals to a prurient interest in sex or other bodily functions, it cannot be obscene. “Prurient” means morbid or shameful. “Morbid”, in turn, means diseased. In Brockett v. Spokane Arcade, found also on my site, the United States Supreme Court suggested that material that appeals to a healthy interest in sexuality is not prurient, even if graphic.

The suggestion here is that the activities that society takes for granted as being part and parcel of what adult men and women do with one another to please each other sexually should not be regarded as obscene. The further the material deviates from this societal image or icon, the more dangerous the sexual content is because there is a greater likelihood that the finder of fact will find it prurient.

If the work appeals to a prurient interest in sex, it becomes mandatory that it have serious value, at the risk of being found obscene.

Serious scientific purpose can be found in material that is used to treat or deal with psychosexual problems. A successful defense to an obscenity charge based on this avenue will require a scientific expert who finds the material useful for that purpose.

The law of obscenity is as unlike well posted speed limits as possible. There is no list of particular acts which, if depicted, will be obscene. A determination of obscenity depends on context, the work as a whole. It depends on prurience. It depends on social value. And of course, it depends on contemporary community values, a matter now before the Supreme Court in a somewhat different context, the “harmful to minors” area.

If you can’t live without firm and unchanging rules that clearly tell you what you can and cannot do, you should become a structural engineer. So long as you swim in the sea inhabited by adult webmasters, you will have to learn to accept the possibility of risk.

The intelligent webmaster and content provider, especially in this era, will minimize that risk by carefully assessing content and taking all reasonable steps to minimize prurience and to maximize legitimate serious purpose.

3. Do I have to be concerned with state and local laws?

You bet!… Most of the sates have obscenity statutes and statutes relating to the protection of minors from sexual exploitation in pornography and sexual abuse. While the federal constitution limits the extent to which a state may proscribe the manufacture and distribution of obscenity, not all of them have legislated to the extent of their powers. Despite the holding in California’s People v. Freeman, some prosecutors may attempt to prosecute the production of hard core materials as prostitution, and this is a factor that should be considered. Some of the states have criminal forfeiture statutes under which obscenity is a predicate offense to trigger the statute. Some have statutes related to the depiction of criminal conduct. Many of them have statutes designed to protect minors from exposure to pornography. An increasing number of states have statues or case law decisions affecting voyeuristic content. The entire law of privacy, dealing with such things as commercial exploitation of the images of models and celebrities, and of portraying them in a false light, is a creature of state law. Many states have statutes relating to consumer fraud and deceptive business practices, and this may have bearing on billing practices, advertising, and terms and conditions.

As we have seen in the Voyeurdorm case, now on appeal in the federal courts (Editor’s note: As of press time, Voyeurdorm won its appeal), local zoning authorities argue that they have the power to regulate the location of online expressive businesses as part of their power to reasonably regulate the time, place, and manner of erotic expression. The key here is whether the so-called adverse secondary effects of adult entertainment often associated in some minds with adult book stores and exotic dance cabarets can legitimately be presumed to exist in the absence of exterior advertising or foot traffic, in a purely online business. It is my strong conviction that there are no such adverse secondary effects that can act to justify adult use zoning for purely online businesses, and the suggestion that they do arise, or that it is within the power of local zoning officials to speculate that they may arise, is tantamount to the assertion that the content itself is tainted and dangerous. I don’t think that even the conservative judiciary now wearing black robes on the federal bench is prepared in the main to accept that proposition.

And don’t forget about local business licenses.

4. How many forms of ID should I require before a shoot? Is it OK to take a picture of the ID?

If it’s the right kind of ID, you only need one. That means a government-issued ID with the name, date of birth, and photograph of the performer or model. If the “Offcial” ID does not contain a photograph, you will need a second form of ID that does bear a photo. The conventional practice in this industry is to require two photo ID’s, at least one of which is of the type mandated by law, with a photograph, and that is a good policy.

You need a legible copy of the ID in your 2257 records. A photocopy is perfect because it can’t get zapped or lost by a film processor and it can be easily stored with the release and 2257 data acquisition form, from the time of creation.. The problem with digital or film images of the ID is that they are subject to more problems along the way which may result in their loss. Videotape is just hard to file in a binder, and harder to scan and make a digital file of.

5. How long do I have to keep 2257 Records?

You have to maintain 2257 records as long as you or your organization exists and for five years thereafter, permitting them to be examined by the Attorney General of the United States or his or her designee at all reasonable times.

© 2001 J. D. Obenberger, All rights reserved. Written specially for YNOTnews and the members of the YNOT community.

LEGAL BRIEFS

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