Part One: The Multifaceted Risks of Obscenity Law
This is the first of two articles in a series designed to help new and amateur webmasters understand and apply some basic principles of legal risk avoidance. The first article, which follows, deals exclusively with one topic, the law of obscenity; The second article will cover a great many more varied topics.
The law of obscenity in the United States is an immense area with many distinctive principles that are different in important ways from the laws governing other kinds of human conduct. Neither this article nor any other article or book, can pretend to give you a full explanation, in depth, of obscenity law as it is applied in the modern era. It does not pretend to do so. Moreover, the Internet is still a new means of publishing with distinctive features that only now are first being addressed by the law. The principles that will govern obscenity prosecutions are yet emerging. Accordingly, this article is intended instead only as a lighthouse and beacon to generally warn the reader of the most dangerous areas that require skilled navigation and great care lest you run aground on the reefs and shoals. None of it is any substitute for the kind of careful legal advice and guidance that only a personal and professional relationship with a lawyer can provide.
The adult web has been a place where a relatively modest investment, coupled with talent, applied with perseverance over long hours, can still build a decent livelihood and create some real chance of wealth. As a result, the online adult entertainment industry continues to draw impressive persons into its ranks, bright, industrious, creative people with a sense of adventure. That spirit of adventure and willingness to undertake risk in a climate of Liberty is precisely what has defined America and fostered its many national achievements Like those explorers and pioneers, they share a willingness to incur some risk on the way to achieving their goals.
An Incursion into Foggy Terrain: Obscenity
There are certain unavoidable uncertainties inherent in conducting an online adult business, uncertainties that loom should loom on one level or another in the consciousness of everyone involved in this industry. Chief among these unsettled issues is the tenuous and uncertain line at which constitutionally protected erotic speech can cross the boundary into unprotected criminal obscenity. There is not even a prominent "sign post up ahead" as Rod Serling spoke of, though the place where the adult webmasters and content providers make their living surely can resemble a legal twilight zone, nonetheless. There are no speed limit signs here. It might be convenient for the producer if there was a "three finger" rule or the like, but they just don't exist in the world of adult erotic expression under the First Amendment, and they can't.
This issue becomes critical to content providers and webmasters because, in the economy of attracting customers to a particular site, the appearance is that it is far easier from a technical, marketing, and creative perspective to offer so-called "extreme" content than it is to compete in quality. Apparently painful insertions of anatomical parts and man-made objects into orifices seemingly too small to comfortably accept them, gag-inducing felations, and the like - all passing these days as "extreme content" - will always attract a crowd just as injury car accidents do, and perhaps for the same dark reasons deeply within the human soul. It cannot be categorically stated that graphic depictions of any of the acts that pass as "extreme" are, in isolation from their context, obscene: No fixed rule describing specific conduct as obscene per se could remain fixed for long.
Why There Are No Fast and Fixed Rules Prohibiting Certain Adult Sexual Depictions
This is because there is an important social dimension to free speech under our constitution that makes any such "bright line" rule with respect to adult pornography impossible. One unchanging axiom that runs through all of the Supreme Court cases dealing with obscenity in the modern era is that no work can be proscribed and criminally outlawed if, taken as a whole, it has serious literary, artistic, or scientific value. Were it possible to ban speech with serious value, American society itself would become the victim of censorship though its loss of a work of serious value, and that is a result that the constitution cannot permit.