OBSCENITY

Displaying obscene content on your adult website or home page is a punishable crime in the United States. Unfortunately, which images or ideas are "obscene" varies widely within different minds and communities in the United States, and adult website webmasters should be aware that they can be prosecuted anywhere for violating obscenity laws. By using this webpage in any way you agree that you accept our Terms and Conditions.

1. The 1st Amendment

Distribution of pornographic content on the Internet that is not obscene or illegal is protected by the 1st Amendment to the Constitution of the United States. See Reno v. ACLU, 117 S.Ct. 2329 (1997). The 1st Amendment provides in relevant part:

"Congress shall make no law . . . abridging the freedom of speech, or of the press." (See the 1st Amendment to the U.S. Constitution )

The 1st Amendment has been interpreted by the Supreme Court to mean that the federal and state governments should not pass laws that interfere with speech unless it is necessary to protect some perceived public interest. "Speech" in the context of an adult website includes text, images, sound and video files, and other visual and aural forms of communication. "Public interest" means whatever the Court says it means.

In its infinite wisdom, the Supreme Court has decided that the public interest is best served if "obscenity" is not protected by the 1st Amendment. Pornography is protected, but obscenity is not - it's anyone's guess what divides the two categories. See generally Roth v. United States, 354 U.S. 476 (1957) and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). Whether the Court's reasoning in these and similar cases is sound, and there is considerable debate about that, there is no doubt that publishing obscene content is illegal in the United States. Federal obscenity statutes are found in 18 U.S.C. §§ 1460-1469, and each state has its own obscenity statutes.


2. Miller v. California

The current definition of obscenity requires the application of a three-part test enunciated by the Court in Miller v. California, 413 U.S. 15 (1973). Under the so-called "Miller Test," a jury from the jurisdiction where an obscenity charge is brought will decide whether the content in question is obscene by asking:

"(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

A. Average Person

There is no useful definition of who the average person is or what he or she thinks. If you see Michelangelo's David as art and believe that it does not appeal to any "prurient interest," your views probably resemble those of most people and you could safely guess that the "average person" in your community would agree with you. On the other hand, images of anal fisting, believe it or not, are considered "obscene" in many communities in United States. Between content that the average person considers "art" and that considered "obscene" there is a lot of gray area.

B. Contemporary Community Standards

What is considered "art" versus "obscenity" varies in different jurisdictions, based on the prevailing "contemporary community standards." Juries in obscenity prosecutions are asked to guess what most people in their community would think about the content in question. This means that if obscenity is charged in Hollywood or Manhattan, "obscenity" will probably mean something different than if the crime is charged in, for example, Cincinnati, Ohio.

The Internet is a unique forum in at least one regard: while other forms of communication such as magazines or videos must be physically brought into a hostile jurisdiction, allowing you to choose whether to do business there, the content of your adult website can be viewed by anyone anywhere with a computer and Internet access. What this means for adult site webmasters is that it doesn't matter where you, your pictures, or server are located - you risk prosecution if a prosecutor anywhere views your adult website or home page and believes that the content is obscene.

For example, a husband and wife operating a Bulletin Board System (BBS) from their house in Milpitas, California, were prosecuted and convicted in Tennessee for displaying obscene content. The BBS provided, among other things, access to GIF scans for a membership fee. A U.S. Postal Inspector purchased a membership from Memphis, Tennessee. The husband called the Inspector in Memphis and gave him an access code.

The Inspector brought six counts against the couple under 18 U.S.C. § 1465 for using a means of interstate commerce (a combined computer and telephone system) for the purpose of transporting obscene images, namely GIF files containing images of "bestiality, oral sex, incest, sado-masochistic abuse, and sex scenes involving urination." The couple was convicted on all six counts, and a few others including mailing a sexually explicit video to Tennessee. Their computer system was "forfeited" (the government took their property by force without compensation - see 18 U.S.C. § 1467), the husband was sentenced to 37 months in prison, and the wife was sentenced to 30 months. The Appeals Court upheld their convictions, and the Supreme Court refused to hear the case. See United States v. Thomas, 74 F.3d 701 (6th Cir.), Cert. denied, 117 S.Ct. 74 (1996).

Image files are not the only medium that can land you in jail. In another case, Jake Baker published stories in an Internet newsgroup entitled "alt.sex.stories," that graphically described the torture, rape, and murder of a woman with the same name of one of Baker's classmates at the University of Michigan. He also sent similar stories and communication via email to a friend. Baker was charged under 18 U.S.C. § 875(c) with threatening to kidnap and injure another person. A true threat to injure or kidnap another person is not protected speech under the 1st Amendment. The charges against Baker were eventually dismissed because his words were not "true threats," but he was kicked out of school, denied bail, and he spent one month incarcerated. Plain text, if it explicitly describes sexual conduct, might provide the basis for an obscenity charge.

C. Prurient Interest

A dictionary definition of "prurient" is anything "causing lascivious or lustful thoughts." A similarly vague legal definition of prurient interest is a "shameful and morbid interest in nudity, sex, or excretion." To be safe, any content that makes you sexually aroused probably "appeals to the prurient interest" in some communities within the United States.

To recap, if a conservative jury thinks that most people in their community would decide that the content on your adult website causes too much sexual arousal, you're in trouble under the first prong of Miller.

D. Patently Offensive Sexual Conduct Specifically Defined by State Law

The second prong of the Miller Test requires that the content in question must be patently offensive sexual conduct specifically defined by state law. "Patently offensive" means whatever a jury thinks it means, much like "prurient interest" or "the average person." In states that have made oral or anal sex a crime, any content that depicts such conduct could probably be considered "patently offensive" by a jury in that state. The Supreme Court in Miller made it clear that they will allow states to define offensive sexual conduct:

"We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under [Miller]:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals."

In some jurisdictions this definition could be construed to include the content of almost any adult website or home page on the Internet. For a typical state obscenity statute that meets the "patently offensive . . . sexual conduct specifically defined" requirement of Miller, see California Penal Code §§ 311-312.7.

E. Literary, Artistic, Political, or Scientific Value

This last part of the Miller Test should put to rest any fears that the United States has become an intolerant totalitarianist state. If you can prove that the content on your adult website has some literary, artistic, political, or scientific value, the criminal charges against you might be dismissed. Imagine how happy you'll be after you finally get out of jail. You can go home (if you haven't been evicted), try to get your job back, and start paying your legal bills. Good luck getting your computer back. In light of this, you might want to consider displaying or linking to content that has something other than masturbatory value such as information about health care issues in the adult entertainment industry, safe sex information, a discussion of fetishes, or political links to other websites.


3. Conclusion:

If you have any content on your adult website that might be considered obscene and without redeeming value by some communities, you are the potential victim of a "zealous" prosecutor. If you want to play it safe, censor all images of penetration and anything else "hardcore" on the free section of your site. Hide the good stuff in a members' section and charge for access - don't give a prosecutor anywhere a reason to target your site.




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