A Porn Primer

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JohnWarren -> A Porn Primer (10/14/2005 5:30:34 PM)
Given the amount of discussion on the boards, 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. In short this is not an easy thing to deal with. The enemy has bottomless pockets, the rules are written to make it easy for them, and most people really don’t care until it is too late.

HentaiGamerKitty -> RE: A Porn Primer (10/14/2005 5:49:17 PM)
Thanks for the informative post. I was really curious about the details of these obscenity laws. How does this apply to fiction? Can't you write stories about whatever you want (since they are just fiction?) I ask this because my Dom is trying to get a story published on an erotic story site and it keeps being rejected because the moderators of the site are scared of posting anything "edgy." (The story in question is an ageplay story with no actual sexual contact described.)

JohnWarren -> RE: A Porn Primer (10/14/2005 5:56:45 PM)
quote: ORIGINAL: HentaiGamerKitty Thanks for the informative post. I was really curious about the details of these obscenity laws. How does this apply to fiction? Can't you write stories about whatever you want (since they are just fiction?) I ask this because my Dom is trying to get a story published on an erotic story site and it keeps being rejected because the moderators of the site are scared of posting anything "edgy." (The story in question is an ageplay story with no actual sexual contact described.) The law makes no distinction between text and pictures, both can be found to be indecent or obscene.

daddysprop247 -> RE: A Porn Primer (10/14/2005 6:14:04 PM)
it's because of laws such as these that the local lifestyle club we attend has such a difficult time staying open. unlike most BDSM or D/s clubs, it is not based on demos and scening (although there is a little of that). it is like any other club...you can go have a drink, chat with friends, dance the night away...but in a lifestyle friendly environment where folks are encouraged to be themselves. which means hitting outside of scening, and discreet sexual activity, if that is what you desire. however because it's a place where alcohol is sold, and because the club is located a few blocks from the white house and capitol building, the laws regarding what can and cannot take place there are amazingly rigid. no sex, no nudity, no partial nudity, no "lewdness" (which can mean anything), etc. obviously, the owner of the club does not follow the letter of the law...and i fall to my knees before him regularly in gratitude for that ;) ...however, he has been forced to shut down countless times. but he never gives up...he re-opens again and again...a new location, perhaps a more underground crowd, whatever...and never changes the rules. He believes there should be a public place for those in the lifestyle to congregate and do whatever the heck they please, and he has spent who knows how many thousands of dollars to keep such a place alive and thriving. but it makes you wonder if things are going backwards instead of forwards...15, 20 yrs ago, in certain areas...adult theaters flourished...public gloryholes and bathhouses thrived with hardly a knock from the authorities...according to my Master, the same lifestyle club we attend now which is considered risque by today's prim standards, 10 yrs back had few if any restrictions, with young girls well underaged in regular attendance, whipping shows to the blood, open sex everywhere you turned, etc. it seems our world is becoming more and more conservative as time goes on, and those of us who do not fit the current socially acceptable standard are only going to be more and more persecuted and restricted.

FunFriend -> RE: A Porn Primer (10/14/2005 7:26:40 PM)
As a lawyer who has looked into this I must say your analysis of the current state of the law is right on target. Also, I was at the Tess convention in New Brunswick which I believe was the convention you were alluding to in your message. As you may know, the locals tried one thing after another to shut the party down. Ironically, no alcohol was served anywhere near where the play area or markets were. We were actually in a separate builing, but the mere fact the hotel had a liquor liscense is enough to give the state the authority to regulate all types of conduct. This is why in many states there can be total nudity in a "juice bar" but not in a strip club. (This is a throw back to prohibition and its repeal). Yes, there is something very wrong with a legal standard so vague that one justice has said he can't put it in words but he "knows it when he sees it". When it comes to the regulation of our sexual freedoms, I have always found it boggling that the same folks who bitch and moan about smaller government and less regulation want more gov't interference and more rules and regulations. Anyway, I wanted to thank you for a thoughtful and acurate description of the perverse laws that threaten our freedoms in the BDSM community.

JohnWarren -> RE: A Porn Primer (10/14/2005 7:33:25 PM)
quote: ORIGINAL: FunFriend As a lawyer who has looked into this I must say your analysis of the current state of the law is right on target. Also, I was at the Tess convention in New Brunswick which I believe was the convention you were alluding to in your message. As you may know, the locals tried one thing after another to shut the party down. Ironically, no alcohol was served anywhere near where the play area or markets were. We were actually in a separate builing, but the mere fact the hotel had a liquor liscense is enough to give the state the authority to regulate all types of conduct. This is why in many states there can be total nudity in a "juice bar" but not in a strip club. (This is a throw back to prohibition and its repeal). Yes, there is something very wrong with a legal standard so vague that one justice has said he can't put it in words but he "knows it when he sees it". When it comes to the regulation of our sexual freedoms, I have always found it boggling that the same folks who bitch and moan about smaller government and less regulation want more gov't interference and more rules and regulations. Anyway, I wanted to thank you for a thoughtful and acurate description of the perverse laws that threaten our freedoms in the BDSM community. Exactly, it was TES30 in New Brunswick. The "know it when I see it" quote was from Justice Stevens, a disappointing statement from someone from whom I'd have expected better. Thank you for your note

Soulhuntre -> RE: A Porn Primer (10/14/2005 7:49:15 PM)
quote: ORIGINAL: FunFriend As a lawyer who has looked into this I must say your analysis of the current state of the law is right on target. Also, I was at the Tess convention in New Brunswick which I believe was the convention you were alluding to in your message. It's TES. quote: ORIGINAL: FunFriend As you may know, the locals tried one thing after another to shut the party down. No, the locals didn't. In fact the local police were very, very co-operative. They did not shut down the event when they were clearly capable of doing so legally, the did not charge anyone, confiscate anything nor arrest a single person. In other words, other than one "raid" to see what was happening they did not in any way harrass or disrupt the event at all. Everyone who had inventory that was technically illegal was allowed to move it off premises and none of it was confiscated. Had they police been intending to harass us they coudl have shut the event down, charged the organizers and confistated inventory. They did none of that. quote: ORIGINAL: FunFriend Ironically, no alcohol was served anywhere near where the play area or markets were. We were actually in a separate builing, but the mere fact the hotel had a liquor liscense is enough to give the state the authority to regulate all types of conduct. That was not the problem at all. In fact the hotels licenses was not the problem in any fashion. The problems were... That venue did in fact have alchohol and bar facilities on site. It often DID serve alchohol during events, and did in fact have a liquor licence. It was really and truely supposed to comply with those laws. This wasn't a "trick" by the police. The manager of the venue neglected to inform TES that there woudl be any problem, even after he was specifically asked. The manager of the event attempted to "fly under the radar" with the event and in fact did not apply for the proper event permits... he also did not tell the local police that there woudl be thousands of peopel in the building at all hours fo the night. He attempted to HIDE the convention by turning off the parking lot lights. So, what we have is a facility manager who lied about the legal status. The true and real presence of alchohol. The real presence of a liquor licence and its restrictions. Add to that the idiotic idea tha tyou coudl pretend an event with thousands and thousands of attendees wasn't happening without the local police getting a little bit curious and it was a recipie for disaster. The problem was not "NJ". It wasn't harassment. It wasn't intolerace. It was fraud on the part fo the facility staff and naivity (at best) ont he part of the people from TES who interfaced with them.

Soulhuntre -> RE: A Porn Primer (10/14/2005 7:54:44 PM)
quote: ORIGINAL: daddysprop247 but it makes you wonder if things are going backwards instead of forwards...15, 20 yrs ago, in certain areas...adult theaters flourished... The VCR, not the law, killed the adult theatre. quote: ORIGINAL: daddysprop247 public gloryholes and bathhouses thrived with hardly a knock from the authorities... Destroyed by AIDS. Not the law. quote: ORIGINAL: daddysprop247 it seems our world is becoming more and more conservative as time goes on, and those of us who do not fit the current socially acceptable standard are only going to be more and more persecuted and restricted. I see the world getting more and more open all the time. While there are minor setbacks the reality of the progress is staggering. There was recently a national ruling preventing states from making sodomy criminal, for instance. The Extreme Associates case was a major win for free speech. There is more adult mateiel available in more forms than ever before - on TV let alone the Internet. The BDSM community operates openly (granted there are problems, but it is far from "repressed" the way it was 30 years ago). I can understand why people get frustrated... but any attempt to make progress towards freedom is simply bound to fail without an open, honest look at where we are and how we got here. Saying 'the sky is falling" and blaming the Republicans isn't the answer :)

Wolfie648 -> RE: A Porn Primer (10/14/2005 8:28:01 PM)
A porn primer: Porn DVD (or media) of preferred type (bought, borrowed or rented via legal means), DVD player on, lube, maybe toys, partner(s) or not, TV on. Woohoo. D (owner of j)

thetammyjo -> RE: A Porn Primer (10/14/2005 8:54:56 PM)
I recommend the book edited by Maureen Harrison and Steve Gilbert entitled "Utterly Without Redeeming Social Value" -- it tracks cases and gives the written up decisions from the US Supreme Court from 1933 to 1998. I think a lot of folks are doing the job of the folks who hate sexual material and BDSM by getting scared and removing materials.

NakedOnMyChain -> RE: A Porn Primer (10/14/2005 11:43:49 PM)
Thank you for sharing the details of something we're all curious about. Just to let you all know, they've been pulling books from my local library left and right, including one of yours, John. This doesn't come as much of a surprise, as they pulled all the copies of 1984 out of the county library a couple of years ago, claiming it was brainwashing (ah, the irony) or some such nonesense. It's a mad world, and I think I'm going to go listen to Tears for Fears now.

JohnWarren -> RE: A Porn Primer (10/15/2005 5:16:32 AM)
quote: ORIGINAL: NakedOnMyChain This doesn't come as much of a surprise, as they pulled all the copies of 1984 out of the county library a couple of years ago, claiming it was brainwashing (ah, the irony) or some such nonesense. It's a mad world, and I think I'm going to go listen to Tears for Fears now. It's amazing how some people can't see the irony in their actions. Just try to laugh occasionally. It helps.

WickedKev -> RE: A Porn Primer (10/15/2005 6:51:36 AM)
Oh goody another book burning session havn't had one of those since 1937/8

FunFriend -> RE: A Porn Primer (10/15/2005 7:01:46 AM)
quote: ORIGINAL: Soulhuntre quote: ORIGINAL: FunFriend As a lawyer who has looked into this I must say your analysis of the current state of the law is right on target. Also, I was at the Tess convention in New Brunswick which I believe was the convention you were alluding to in your message. It's TES. quote: ORIGINAL: FunFriend As you may know, the locals tried one thing after another to shut the party down. No, the locals didn't. In fact the local police were very, very co-operative. They did not shut down the event when they were clearly capable of doing so legally, the did not charge anyone, confiscate anything nor arrest a single person. In other words, other than one "raid" to see what was happening they did not in any way harrass or disrupt the event at all. Everyone who had inventory that was technically illegal was allowed to move it off premises and none of it was confiscated. Had they police been intending to harass us they coudl have shut the event down, charged the organizers and confistated inventory. They did none of that. quote: ORIGINAL: FunFriend Ironically, no alcohol was served anywhere near where the play area or markets were. We were actually in a separate builing, but the mere fact the hotel had a liquor liscense is enough to give the state the authority to regulate all types of conduct. That was not the problem at all. In fact the hotels licenses was not the problem in any fashion. The problems were... That venue did in fact have alchohol and bar facilities on site. It often DID serve alchohol during events, and did in fact have a liquor licence. It was really and truely supposed to comply with those laws. This wasn't a "trick" by the police. The manager of the venue neglected to inform TES that there woudl be any problem, even after he was specifically asked. The manager of the event attempted to "fly under the radar" with the event and in fact did not apply for the proper event permits... he also did not tell the local police that there woudl be thousands of peopel in the building at all hours fo the night. He attempted to HIDE the convention by turning off the parking lot lights. So, what we have is a facility manager who lied about the legal status. The true and real presence of alchohol. The real presence of a liquor licence and its restrictions. Add to that the idiotic idea tha tyou coudl pretend an event with thousands and thousands of attendees wasn't happening without the local police getting a little bit curious and it was a recipie for disaster. The problem was not "NJ". It wasn't harassment. It wasn't intolerace. It was fraud on the part fo the facility staff and naivity (at best) ont he part of the people from TES who interfaced with them.

sinbetweens -> RE: A Porn Primer (10/16/2005 11:32:57 PM)
Thanks for a fantastic and informative post! I actually have been wondering about this; I had a literary mag send back a story arguing that it was too obscene for publication and that furthermore I could have gotten in a lot of trouble for sending it unsolicited through the mail. Scared the shit out of me. I've beem a little hesitant about sending in any stories with BDSM themes since. Out of curiosity, what do you think the future holds for obscenity rulings? Are things getting easier or harder for us artistic perverts?

JohnWarren -> RE: A Porn Primer (10/17/2005 1:05:46 AM)
quote: ORIGINAL: sinbetweens Thanks for a fantastic and informative post! I actually have been wondering about this; I had a literary mag send back a story arguing that it was too obscene for publication and that furthermore I could have gotten in a lot of trouble for sending it unsolicited through the mail. Scared the shit out of me. I've beem a little hesitant about sending in any stories with BDSM themes since. Out of curiosity, what do you think the future holds for obscenity rulings? Are things getting easier or harder for us artistic perverts? Given the current makeup of the court and the sitting president, I'm nervous. I hope the administration will overreach in such an extreme way that even the current court will have to take a deep breath and say "Back off" but I have my doubts. Only a year or so ago, I'd have said that text was pretty safe. Clearly that's not the case any more. All things move in waves, but this looks like a pretty long trough.

ExistentialSteel -> RE: A Porn Primer (10/17/2005 2:33:41 AM)
Justice Stevens, speaking of porn, said, “I know it when I see it.” Well, I think I know harassment when I see it. Let me preface this by saying I’m also a conservative Republican and have respect for police in their difficult work at times. However, from reading the reports of John Warren and, even, Soulhuntre, it seems obvious that the police went too far. That one raid carried out to see what was happening violated more constitutional tenets than all the “illegal” toys combined in the building. By the way, what is considered an illegal toy? Police enter a place in a raid mode because there are many cars in a parking lot? I would be willing to bet if a vanilla group had been having a meeting, things would have been handled much differently than pulling guns on those there. To think that police all over the country don’t do outlandish things to make political hay is being unrealistic. In my hometown a porn shop was closed because it was on a street that connected to another street leading into the city. The government officials said it was an eyesore and created a bad impression for fist-time visitors. Give me a Sheriff Andy Taylor who uses common sense and says something like, “Y’all be good and keep things quiet so the church folk don’t get all riled up.” (Yeah, I know those damn cars in the parking lot were raising hell.)

thetammyjo -> RE: A Porn Primer (10/17/2005 6:15:50 AM)
quote: ORIGINAL: sinbetweens Thanks for a fantastic and informative post! I actually have been wondering about this; I had a literary mag send back a story arguing that it was too obscene for publication and that furthermore I could have gotten in a lot of trouble for sending it unsolicited through the mail. Scared the shit out of me. I've beem a little hesitant about sending in any stories with BDSM themes since. Out of curiosity, what do you think the future holds for obscenity rulings? Are things getting easier or harder for us artistic perverts? I think you also have to know the place you are sending manuscripts too. And in general a query letter is best before you send something in. I'd also question their comment about getting into trouble about sending it unsolicited -- they may have meant that the story made the reader (meaning the person who wades through all submissions at the company) very uncomfortable. Was it that person lashing out because they were uncomfortable? Is it company policy? Frankly the post office didn't open it now did they and send you a federal notice so consider the source of the threat.

thetammyjo -> RE: A Porn Primer (10/17/2005 6:21:30 AM)
Just in general I wanted to add that currently I'm teaching a college seminar on "The History of Erotic Literature" and we are discussing all these issues of law and different types of sexual materials in the written form (we are not covering visuals). In general, we are discovering that when governments or even religious groups crack down on "obscene" materials it last for a short time during which the amount money to be made from the materials (found either legally or illegally) skyrockets (you want it, you pay for it and you pay more). The most effective way to curb erotic, pornographic or obscene materials has been to let the market drive it. When it all legal, the customers aren't driven to buy just anything they can find and the quality of the material rises while the overall money-making of it decreases. I think of people are afraid of censorship and want to be able to read SM erotica they can do two things: buy it (thus giving the publishers a reason to continue to put it out) and create it and share it (showing those who would control it that they can't).

frenchpet -> RE: A Porn Primer (10/17/2005 7:02:06 AM)
It's interesting to see that the idea of obscenity is becoming the same as in Saudi Arabia and other exemplary countries. You're not giving me any reason to cross the pond guys, as I guess my idea of obscenity would get me into some trouble : death penalty seems more obscene than any sexual act, to me... a CEO who retires with a €20M+ bonus after laying off thousands of employees, losing huge markets and "building" a multi billion debt is another thing that comes to mind when I hear "obscene". ...Pulling Nineteen Eighty Four out of the library, I have some trouble believing that. Seriously, was that in an american library or a north korean one ???

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