If you’ve been a part of the adult industry for more than a decade then you may remember how “obscenity” was once a very frightening word.

In the United States, adult entertainment featuring consenting adults is legal to produce and legal to distribute, as long as what you’re distributing isn’t considered “obscene” by a jury. That’s the simple part. Trying to determine what is and what is not “obscene” is where it gets confusing. It’s beyond the scope of this article to get into that specific topic, but suffice it to say the more adult content strays from the “mainstream” culture, the more it brings legal risk to its producers and distributors.

A simple example of a relatively recent and high profile obscenity conviction can be found in the case of Max Hardcore, aka Paul Little, an adult entertainment producer and actor whose offices were raided by the FBI in 2005, during the George W. Bush administration. Little was known for producing content that pushed the boundaries of good taste. In 2007, the Justice Department indicted Little on obscenity-related charges pertaining to content that depicted vomiting, fisting and urination. He was found guilty on all charges and sentenced to prison for four years, a term he started serving in 2009.

Although 2009 isn’t that long ago, a lot has changed since then. The global Internet has really had an effect on tolerance for adult entertainment, and the government seems to understand that it can’t police the online activities of an entire planet. Plus the United States has been under the leadership of a more liberal administration since 2009, one that was never likely to prioritize the policing of adult content online.

So where are we at in the United States when it comes to obscenity law? Is it finally, at long last, time to take a deep breath and celebrate a more permissive reality? Or would forgetting about the existence of obscenity laws be unwise, especially in light of the distinct possibility that a more conservative administration may soon again take control over the Justice Department and many other federal agencies?

YNOT reached out to noted First Amendment attorney Larry Walters of the Walters Law Group, a veteran defender of the free speech rights and an expert on the specific topic of obscenity law in the United States.

Attorney Larry Walters

“Obviously, obscenity prosecutions have taken a marked downturn since President Obama took office,” Walters said. “The existing cases were allowed to conclude naturally, but few new cases were initiated.”

According to Walters, there have been new cases that relate to obscenity laws in America, but they haven’t been the big headline-grabbing incidents that the adult industry has seen in the past.

“One of those cases, involving Frank McCoy, filed in the Middle District of Georgia, has received little attention, but could turn out to be a significant, precedent setting decision,” Walters explained. “The Department of Justice attempted to obtain a warrant in McCoy’s home state of Minnesota, but the magistrate refused to find probable cause that the obscenity statutes were violated.  However, the Government found willing assistants in the state of Georgia, where the federal agents ‘downloaded’ the allegedly obscene material from the Internet, and obtained a Grand Jury indictment.”

In the case of Mr. McCoy, the content under question was not even visual. He had written a series of extremely graphic and disturbing stories that caught the attention of government censors. TechDirt author Mike Masnick covered that case in some detail, for those interested in learning more.

“The content is, naturally, extremely graphic, and the facts relating to McCoy’s actual involvement with distributing the material were tenuous,” said Walters. “However, this case seems to be going all the way, and is one step away from full consideration by the U.S. Supreme Court.  The adult industry will presumably start to care about the case, and its extreme implications, if the Justices grant ‘cert’ and agree to hear the case.”

So while there may be at least one case to watch carefully, it’s pretty clear that for the moment at least the federal government isn’t using obscenity law like a weapon against the commercial adult entertainment business. That’s probably wise for the politicians in power too, since American voters might not look too kindly on tax dollars being spent to curtail the right of consenting adults to look at online porn.

But what if the targets weren’t adult content producers per se, but human traffickers? On the surface cracking down on human trafficking is something that almost everyone can get behind, even adult entertainment companies.

“As I’ve written about recently, concerns with obscenity prosecutions and pornography have quickly been replaced by the new political juggernaut branded the War on Human Trafficking,” Walters explained. “This effort transcends political boundaries, as the recent passage of The Save Act by a vote of 99/0 in the Senate reveals.  The Save Act prohibits the advertising of sexual activity by someone who may be a minor or who engages in the behavior under coercion, duress, or fraud.  The law has the potential to criminalize common advertising networks, such as Backpage, which permit escort advertising, or even advertisements for web cam sites that involve models who are minors or coerced adults.”

That act on the surface appears to be targeting individuals who profit off victims who were forced into prostitution, but as logic would suggest it may be hard for the operator of a live sex cam network to know if a model was coerced when he or she joined the network. It seems that simple ignorance of a model’s coercion would not be a sufficient defense.

“While obscenity convictions seem to be difficult to win, in these times the censors have found a new way to clamp down on the adult entertainment industry – by capitalizing on the fears associated with human sex trafficking.”

Others have noted the risk to lawful businesses posed by the new legislation.

“This is a major liability risk for operators of user-generated content platforms, who host high volumes of content and have little to no control over what users decide to upload,” said Emma Llansó from the Center for Democracy and Technology.

A post on Reason.com went further in explaining what’s at stake.

The SAVE Act would also require all sites that host adult advertising (whether paid or free/user-generated) to review ads before publication, request a valid telephone number and credit card number from each poster, “prohibit the use of euphemism and codewords” in ads, and prohibit the use of prepaid debit cards or cryptocurrencies in placing paid ads. For sites that run paid adult advertisements, publishers would be responsible for verifying the identity of every person who placed an adult ad by obtaining a copy of a government-issued ID containing their name, photo, and date of birth. The publisher would have to hold on to these records for seven years and make them “available to the (U.S.) Attorney General, any designee of the Attorney General, the attorney general of a State, and any designee of the attorney general of a State for inspection at all reasonable times.”

It may well be that the adult entertainment industry has won the culture wars in America, and that the United States government of today (and future versions) will stay focused on real criminals while letting responsible adult entertainment firms continue to exist in peace. Still, it’s always smart to keep one ear to the ground, and it may not hurt to keep a watchful eye on both The Save Act and the name Frank McCoy.