The creativity applied in human expression can be so dynamic and so elastic that it is virtually impossible to conceive of a particular sexual act or depiction that categorically could not ever become an essential and integrated part of a work worthy of social acceptance as literature of value. If you can imagine an act that disgusts you, I can imagine a literary setting that would not only justify its graphic depiction, but mandate it: Not only is one man's erotica another man's bellylaugh, but it may be part of yet another person's epic poetry. There is no variety of coupling so degenerate, no rape so vile, no practice so hopelessly perverted, that its graphic depiction could not become the pivotal and defining moment of serious drama in a work that has something of significance to say about the human condition. However, the corollary principle is that it may take quite a bit of contextual value to establish the serious value of a work containing material capable of truly shocking the contemporary viewer. Literary aims, serious literary accomplishment, and mere pretext are all different things; The distinctions among these categories is unlikely to be lost on a prosecutor or a jury. The publication of a serious work of literature in the common domain interspersed with unrelated lurid images of a nature and characher that would otherwise render them obscene is still likely to form an obscene whole. Keep in mind that if the graphic content is extreme enough, it may be close to impossible to imagine, conceive, and execute a work of serious literary value, which simultaneously integrates that extreme content in a real and nonpretextual manner and yet has commercial value and worth in the realm of the contemporary adult internet. The use of images of bestiality comes to mind as one of those extreme matters whose inclusion in a work would present a most serious challenge to the aspiring author of serious nonpretextual literature, and to the advocate in the defense, in any readily imaginable context.
The Inevitable Uncertainty in Identifying the Obscene and Criminal Responsibility
The need under obscenity law to judge both amorphous factors - prurience and serious value - leads to such practical uncertainty that it is essentially impossible to predict reliably, when they are created and published, whether many works, including websites, may be obscene; It is only when the jury returns with a verdict that we can know with any certainty. The obvious and risky implication here is that the web site publisher acts at peril of criminal liability for obscenity when he publishes material to his site, the exact parameters of the Forbidden Zone being unascertainable by him before accusation, trial, and verdict. You should know that it is most definitely not the law that a publisher must realize that the work he publishes is obscene before criminal liability may attach; It is enough that he knows the character and nature of the materials he distributes. Hamling v. United States, 418 U.S. 87, 123 (1974); Rosen v. United States, 161 U.S. 29 (1896); see also Ward v. Illinois, 431 U.S. 767 (1977).
The unfairly vague consequences of this uncertainty was recognized early by at least three justices of the United States Supreme Court, justices who felt, too, that these risks not only chilled free expression impermissibly, but who felt that unposted speed limits are fundamentally and conceptually unfair.
In this context, even the most painstaking efforts to determine in advance whether certain sexually oriented expression is obscene must inevitably prove unavailing. For the insufficiency of the notice compels persons to guess not only whether their conduct is covered by a criminal statute, but also whether their conduct falls within the constitutionally permissible reach of the statute.
- Paris Adult Theatre v. Slayton, Dissent, 413 U.S. 49, 88 (1972)
It is important to note that these words are from a dissent. The state of the law is such that anyone dealing in what he knows to be generally pornographic materials will incur liability for obscenity if a court concludes that one of the works is obscene, and at least one decision suggests liability even for child pornography without any particularized knowledge that a model was underage. United States v. X-Citement Video, Inc., ___ U.S. ___ (1994).
The Uncertain Condition of "Community Standards" Law
In order for a work to be obscene, it must also, when viewed as a whole, and in light of contemporary community values, both appeal to a prurient interest in sex and also depict sex in a patently offensive way. Miller v. California, 413 U.S. 15 (1073). At present, we do not know with much precision whose "community standards" may be applied by prosecutors to bring successful obscenity prosecutions against the webmaster. Historically, venue, that is the place of criminal prosecution, the place from which a jury is to be selected to hear a criminal case, and the place whose standards shall be applied in evaluating whether the constitutionally mandated elements of Miller exist to justify a conviction, was the intended destination in the case of mailed material such as videotapes and brochures, and Congress, in the laws governing the mailing of obscene materials, aspired to fix appropriate venue at any place through which the mail traveled. In United States v. Thomas, 1996 FED App. 0032P (6th Cir.), 74 F.3d 701, cert. denied, 117 S. Ct. 74. (1996), a case I regard as extreme, and of questionable authority in view of more recent statements from the Supreme Court, the Sixth Circuit fixed venue in Memphis not only for videotapes mailed to Memphis but for .gif images downloaded in Memphis from a California BBS, without knowledge of the BBS operator that the files were being downloaded in that venue, and the distant and remote defendants were prosecuted and convicted of obscenity under the community standards of Memphis. The jury cannot be expected to apply the community standards of a place whose values are foreign to it, and accordingly, the rule has been that, in criminal obscenity prosecutions, federal courts apply the community standards of the federal district in which they sit - usually several counties of a state, or in less populous states that have only one district, that state - and state courts apply the community standards of the entire state in which they sit, unless the state legislature has, by law, defined the "community" to be a different area, a county for example. However, there seems to be no particular requirement in the law that the exact nature geographical extent of the community be defined for the jury in obscenity prosecutions. See generally Jenkins v. Georgia, 418 U.S. 153 (1974).
On April 16, 2002, in Ashhahahahaha v. ACLU, the United States Supreme Court gave us at least a glint of a hint of the things to come in regard to community values. It appears that only three members of the Court, Chief Justice Rhenquist and Justices Thomas and Scalia, would permit the application of the standards of local geographical communities so that a webmaster could be convicted under those standards anywhere in the country that his site is viewed. The remaining six justices appear to be gravitating in the direction of a national community standard for evaluating Internet obscenity, though it seems barely possible that juries may permissibly go uninstructed by the judge as to the boundaries of the community whose standards they are to apply. It appears almost certain that the Court will not permit the standards of any community through which the signal is transmitted to control. This case can be confusing for anyone to read because there is no single written opinion that is joined by a majority of the members of the Supreme Court; I have prepared a tabular breakdown of the position of each of the justices, as expressed in the various opinions and concurrences and the dissent, in a table found at
www.execpc.com/~xxxlaw/focus.htm. Inasmuch as the application of a community's standards are part of the elements of the offense of obscenity, this confusion also adds to the webmaster's uncertainty.