No matter how the issue of community standards is ultimately resolved, the development of the Internet is a fundamental change in the ways in which that erotic materials were distributed when Miller and Paris Adult Books were decided, mainly then by mail order and in stores. My view is that the changing media and different circumstances have only intensified the merit of the dissenters's arguments as to unconstitutional vagueness in obscenity law and lessened whatever wisdom was contained in the majority opinions in those cases. My realistic sense, however, reminds me to be cautious of the generally conservative nature of the present Court's majority.
Some Practical Observations
And though neither I nor anyone else can tell you with precision what is and what is not criminally punishable adult-content obscenity, nor yet even with precision whose laws will apply or can apply to any downloaded material, there are some fundamental concepts, simple principles, that will go far to decrease a webmaster's chances of winding up in Jail. Remember, it is not a videotape or an image or a book or a website that goes on trial for obscenity, it is a person. And it is a person who gets punished, in a punishment that almost always works hardships on spouses, children and other family members.
In my remarks at Internext in January, 2002 (and in my article summarizing those remarks, The Seven Circles of Internet Content Hell, found on
www.xxxlaw.net) I explained my basic principle of risk avoidance in adult content: The closer erotic content material resembles the broad American understanding of what men and women who like each other do for and with one another when they are alone to please one another, or when they are alone, the safer the material is from the perspective of obscenity law. The further material diverges from this societal icon, the riskier it becomes. I derive this observation from a principle underlying the decision in Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985): Nothing is obscene which is not prurient, and healthy lust is not prurient.
The depiction of practices that are outside this icon of what Americans expect goes on in healthy but frankly sexual situations is more likely to appear prurient, that is shameful or morbid, and it becomes more dangerous than depictions of practices within the icon. Works that focus on conduct that is degrading or insulting to one or another of the subjects of the work, images that convey abuse, hopelessness, despair, and victimization, are matters that will be identified as such by a prosecutor in support of his argument that they appeal to an unhealthy and prurient interest in sex. This is not to say that content focused on bondage, domination, and sado-masochism cannot be successfully defended on prurience, but the defense must necessarily overcome a popular conception that these practices are aberrant and unhealthy. That will challenge the defense in proportion to the extremity of the images. Depictions of painful, restrained, and forced sexual activity and of the reduction of human beings to objectification as things to be used, abused and exploited, together with bestiality, would all be among the most difficult images to defend.
As the prurient nature and orientation of a site's explicit and graphic content increases, it becomes essential that the online work exhibit serious value as art, literature, or science. For, if its contents are both explicit and extreme enough, both patently offensive and prurient, taken as a whole, and in light of contemporary community standards, all that separates it from criminal obscenity, is that social value.
Keep in mind that there are no magic bullets, no charmed magical robes, that will insulate you from liability. The inclusion of text stories of little or no value, or of sexual health articles, or of guides to unusual sexual practices of the far east related to yoga, or aspiring to teach techniques of penile growth, if not integrated closely into and connected with your imagery, if not formed by your creative process into a whole that has real value, invite the appearance and suggestion of content included only as a pretext to justify the graphic images. Obvious and unconnected pretextual content is unlikely to help in an obscenity defense. Whether the website itself will be the "whole" work to be evaluated for value, or whether, like a magazine, its parts will be evaluated separately, may be a factor you can control as you decide how much integration the various parts of you site will have. Think creatively, with defense of your site as a whole work in mind, as you design it and write it. I believe that the use of offshore servers and business entities are factors far more likely to invite the attention of agencies which are charged with the enforcement of the law, and far more likely to be damning proof of knowingly criminal intent, than they are likely to protect you.
There should come a point of self-restraint when the risks of criminal prosecution for violating this unposted speed limit become apparent and palpable in a reasonable mind. It is hard, though, for any webmaster to keep the necessary perspective with objectivity, and harder still for the actual content provider and designer to maintain perspective and objectivity over the own work, and this alone is an important reason for independent content review by a lawyer practicing in the area of adult content. A content lawyer is not a censor and he or she cannot and will not tell you what you can and cannot do. A skilled content lawyer can, however, with independence, objectivity, and experience that you will find hard to locate elsewhere, candidly advise you just how risky the site appears. A good content lawyer will also make suggestions toward literary or artistic development that will both enhance the actual social value and appeal of your site and provide some defense ammunition in case of a criminal prosecution for obscenity.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He represents and advises websites in many regions of the United States and in Canada. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is
[email protected]. His website URL on the World Wide Web is
www.xxxlaw.net.