In Part II, the topic was the case of Barbara Nitke and the National Coalition for Sexual Freedom v. John Ashcroft, a constitutional challenge to the practice of judging the offensiveness or prurient appeal of sexually themed material—two of the three elements of the crime of obscenity—by the local community standards of the area most likely to be offended by them. This First Amendment case, in which I have the honor of representing the plaintiffs, presents an opportunity to win recognition of the uniquely non-local nature of the Internet, and the special concerns raised by the mechanistic application of local standards to this medium.

Great, if the plaintiffs win, I can almost hear the reader thinking, but what can the individual adult Webmaster and Webmistress do now to be safe?

The depressing answer is that there is no sure guaranteed set of actions that a content provider can take to be absolutely safe from prosecution or even conviction. The standards defining obscenity (set out at length in part I) are very broadly phrased, and quite vague. What is material appealing to the “prurient” interest? What is “patently offensive” to the local community? What is the “local community standard” to be applied? Federal and state prosecutors have a lot of discretion in deciding how they view these questions and in selecting whom to charge; a jury applying these standards has no authoritative source to go to. Not even judges can give any kind of authoritative answer. Justice Potter Stewart once figuratively threw up his hands, and admitted that he could not define obscenity but that “I know it when I see it.” In the book The Brethren by Bob Woodward and Scott Armstrong (1979) they have it that a clerk once daringly asked the Justice if he in fact had ever seen it. The reply was, “Once, in Algiers.”

Many clients and prospective clients ask me if there is a checklist of what is safe. The answer is simply no. And that is simply that. This is not to say that there is no advice that a content provider can obtain to minimize risk. But there is a world of difference between managing an accepted fact that there is risk inherent in the provision of sexually themed materials, and looking for some imaginary safe harbor. What follows is not legal advice; the individual circumstances of where a content provider posts from, what topics their materials depict, and many other individual factors can change the analysis, and every content provider should evaluate their risks with an experienced First Amendment / criminal defense lawyer. However, a few thoughts may provide some assistance in formulating a risk-avoidance strategy.

1. 2257 Compliance

The easiest way for a web content provider to be prosecuted is not, surprisingly, on obscenity charges. All of the difficulties that have been discussed in parts I and II in comprehending the obscenity (or not) of any given speech flows both ways. It is no easier for the government to show obscenity than it is for a content provider to refute it. Many cases have been won at the jury level by skilled lawyering, and exploitation of the inherent vagueness of the definition of obscenity. And a tie, as a matter of law, is supposed to go to the defense. So a prosecutor who can get a content provider more easily, whether on tax evasion charges or other easily charged and proven legal violations, is very likely to do that. It’s elementary to go for the easy win.

The easiest of easy wins in the world of sexually themed materials (outside the realm of child porn, of course) is to catch a content provider for not obeying Section 2257 of Title 18 of the United States Code. Now, YNOT has run several admirable and recent articles concerning this statute, and the regulations the Department of Justice has enacted to enforce it. (Check out the three-part primer by attorney Joe Obenberger in the legal section of the article archives, here at YNOTMasters.) This provision, requiring record keeping establishing the names, ages and proof of each model, on the part of content providers whose materials fall within its scope, has several significant opportunities for the unwary to violate the law in good faith, and thus to set themselves up for prosecution. Make sure you do not fall into these traps; keep the records, name a specific individual as your custodian, and check your compliance out with a lawyer who can explain to you what the section means and how to comply with it.

2. Age Verification

Every content provider will tell you that “age verification” procedures can be easily circumvented by minors. Too bad. To undertake such procedures at least shows good faith on the part of the provider. Even if it is the rote “I affirm that I am of age in the state in which I reside” clause it is some kind of effort, although unlikely to shield you much. Age verification procedures that at least require some thought and effort to get around are far more helpful, and may even establish the “safe harbor” defense against prosecution under the CDA. (Don’t get too excited, though. There are plenty of other obscenity laws which impact on the Web.). A serious age verification procedure will at least give the prosecutor pause in selecting you as the sacrificial lamb. Much better to get the provider who doesn’t care about exposing children to smut; it’s not as easy as it used to be to get a jury all worked up over adults viewing adult material.

3. Terms of Usage

This one is also of limited utility, but carefully crafting the terms of usage and making the customer certify that he or she is familiar with the local community standards of the area in which he or she resides and that the materials about to be viewed do not violate those standards could provide some level of disincentive to choose a site for prosecution. Again, this is not to say that such a statement provides actual protection; it almost certainly does not. But it does raise the question of good faith; what’s a Webmaster to do, in view of the nature of the Internet, if not rely on the consumer?

4. Site Review

Many experienced First Amendment lawyers offer a facility called site review – they will pre-screen your site and the materials posted on it as part of a risk evaluation strategy. The key here is to establish a relationship with competent and credible counsel. The lawyer who tells you “you’re at no risk at all” is likely not too credible unless your site is very mild in content. As a general matter, the lawyer who is willing to give you not a blanket assurance but an assessment of risk factors is your best bet.

5. “Ah, the redeeming Social Value…”

If your site is serving a niche market, or is an “unconventional sex” site, and is likely to affront the sensibilities of law enforcement, you might want to try to establish “serious literary, artistic, political or scientific social value,” by encouraging forum discussions, providing information, etc., concerning the “niche” topic your site addresses. Such materials can provide a context for the more graphic material and can provide a more credible defense.

The Supreme Court, as long ago as Roth v. United States, 354 U.S. 576, 487 (1957), pointed out that “the portrayal of sex, e.g., in art literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind throughout the ages; it is one of the vital problems of human interest and public concern.”

Of course, the change from the Warren Court era, which allowed for the protection of any work as long as it is not “utterly without redeeming social importance” to the present, where only serious content will protect speech deemed prurient and offensive means that the quotation from Marx on the flyleaf of a book (or, for that matter, on a site page) will no longer do. Serious discussion of the whys, or of the cultural heritage of sexual practices, could go a long way to challenging a prosecution.

John Wirenius is a New York-based attorney with the civil rights-civil liberties firm Leeds, Morelli & Brown, P.C. John specializes in free speech, Internet and entertainment law and criminal defense. John has written extensively regarding these areas, and is the author of FIRST AMENDMENT, FIRST PRINCIPLES: VERBAL ACTS AND FREEDOM OF SPEECH. Contact him at JWirenius@lmblaw.com, or at (516) 873-9550.

The thoughts in this article are not meant to serve as a substitute for legal advice, but to start your own analysis, and to prompt reflection as to how to be a less appetizing prospect for the prosecutorial hunger.

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