NonFiction

A Porn Primer

 I thought it might be time to do a little background on how obscenity law exists now.

First, it is clear from a long line of rulings obscenity is not protected by the First Amendment.

Second: it’s equally clear that no one really knows what obscenity is.

It’s funny (if you have a really really sick sense of humor) that an obscenity trial is the reverse of any other trial.  In most trials, the jury is called upon to decide if the accused committed a crime.  In an obscenity trial, the purpose of the jury is to decide if a crime has been committed.  The law assumes the a guilty party knows what he or she did is a crime or at least has a fighting chance to find out.  It’s only in obscenity that the state has to empanel a bunch of citizens to debate, often for days, to figure out what the accused is expected to know.

The basic obscenity law we have today comes from a decision written by Judge Burger (thank you so much President Nixon) in Miller v. California in 1973.  Burger put forward a three part test.  The material must be judged by an “average person” applying contemporary standard, it must be “patently offensive sexual conduct” and it must be, when taken as a whole, without serious literary, artistic, political or scientific value.

The third part is why the government goes mostly after pictures and steers clear of nonfiction since most things that give information are seen to have serious value in our society.

The first part is the real trap for the internet since “the internet” itself has never been successfully defended as being a “community” so the government is free to “jurisdiction-shop” and bring charges in the most repressive and backward parts of the country.  This is a two-fold benefit.  Not only is a conviction more likely, but even if the defendant isn’t convicted he or she will lose tens of thousands and perhaps hundreds of thousand of dollars mounting a defense far from where he or she lives.

Actually, this is the least repressive of the tools the government has at its disposal. 

I was threatened with arrest for selling books like The Ultimate Guide to Anal Sex for Women and SM101 at a convention in New Jersey.  You see, the organizers had failed to learn that the building where the convention was being held had a liquor license.  Places with liquor licenses fall under different rules for “sexual display.”   My wares were clearly protected under the third part of the Miller test.  I tried arguing this with a state trooper who drew his pistol and informed me that “one more word and I’m going to bust you so hard your mother will spit blood.”  Having decided the a 9mm trumps immediate protest, I returned home and found that this rule was legal because of what is called “time, place and manner.  The state can restrict speech in a given area as long as it is allowed in others.  This means that my argument that these books were being sold up the road in a Borders actually weighed against, rather than for, me.

Much of the internet legislation in force and being planned tries to get around the Miller test by attacking “indecency” rather than obscenity.  This comes about because broadcast media like radio and TV are held to stricter standards because they “come into the home uninvited.”  There is no standard for indecency aside from someone in authority saying “it bothers me.”  Note the fines levied over the Janet Jackson clothing malfunction that no one on the networks had planned or authorized.

One favorite tactic is making what seems like a “reasonable rule” that is actually so timeconsuming or vague as to almost guarantee someone will slip up.  A current one is the requirement that every participant in a sexually explicit picture have photocopies of a driver’s license or other document for every picture he or she appears in on file.  This, from a government that misplaced the City of New Orleans for three days!  One missing form and the website owner goes to jail or gets a huge fine.

Another is having a couple of “reasonable rules” that contradict each other.  When my prodom business was closed down in Boston the argument was that I was in the wrong area.  They wouldn’t bother me if I located in The Combat Zone.  When I applied for a modified business license, the licensing board told me they would be glad to grant a license in any area except the combat zone since that was scheduled for renewal… it had been “scheduled for renewal for about a decade then.”