It's official: A Romney presidency would mean a renewed war on porn. This week, the Republican Party added the following line to its party platform: "Current laws on all forms of pornography and obscenity need to be vigorously enforced."
Vigorously enforced. Just what does that mean? Which genres would be safe, and which taboos would be targeted? Would they go after wildly popular tube sites like PornHub or industry bigwigs like Hustler? I decided to talk to some experts to find out.
Before we go any further, it's worth reviewing the legal definition of obscenity. The 1973 Miller decision established a three-pronged test: It must appeal "to the prurient interest," based on "community standards"; depict sexual behavior "in a patently offensive way"; and lack "serious literary, artistic, political, or scientific value." But, clearly, "community standards" not only vary but are ever-changing -- there is no master list of approved pornographic acts. This makes obscenity prosecutions at once more difficult and more accessible.
Clay Calvert, director of the Marion B. Brechner First Amendment Project, says, “They would lose prosecutions if they went after vanilla sex, like Wicked Pictures and Vivid.” Instead, federal prosecutors are likelier to go after edgier fetish films where “it appears like there is violence happening.” We certainly saw that with some Bush-era obscenity prosecutions. Take the indictment in 2003 of Extreme Associates for films involving simulated kidnapping, murder and rape (as well as, um, vomit-ingestion). Then there’s the conviction of Paul F. Little, aka Max Hardcore in 2008: His work featured intense slapping and choking -- indeed, scenes where “it appears like there is violence happening” -- as well as vomiting and urination. (As journalist Susannah Breslin wrote, “Watching Little's work is less like watching a porn movie than it is akin to witnessing a vivisection.”)
Continuing the theme of bodily fluids, if not physical violence, Ira Isaacs -- whom I was subpoenaed to testify against earlier this year -- was prosecuted in 2008 for movies featuring “poo-play” (although he says the feces were fake) and redistributing a Dutch bestiality film.
But these were among the more extreme targets of Bush-era prosecution of adult pornography. In 2008, popular porn producer John Stagliano was indicted for distributing films featuring the comparably tame acts of milk enemas and female ejaculation; prosecutors waged a bet that jurors would nonetheless determine these acts a violation of “community standards.” (Stagliano was ultimately acquitted thanks to prosecutorial missteps.) There’s Adam Glasser, aka Seymore Butts, who was targeted for the vaginal fisting video, “Tampa Tushy Fest 1,” and Jeff Steward, who was indicted for producing and distributing bukakke films. Then there was the case against Karen Fletcher, “a 56-year-old recluse living on disability payments,” as the New York Times put it, who wrote and sold stories about children being molested (she claimed it helped her work through her own memories of child abuse).
To recap: It could be anything from faux poo play to female ejaculation. The parameters are not clearly defined -- that's not how obscenity law works.
These are just a handful of the more notable examples of the 361 defendants charged for obscenity under the Bush administration (for comparison, under Obama, only holdovers from his predecessor have proceeded). Then-Attorney General Alberto Gonzales promised to even pursue obscenity cases that inhabited the nebulous area of “sadistic and masochistic behavior." The latter seems patently absurd in the age of “Fifty Shades,” but you can safely bet a Romney administration would do the same.
Another fascinating artifact from Bush-era prosecutions is the Cambria List, created in January 2001, after Bush was sworn in, by adult industry lawyer Paul Cambria. It details the sex acts that Cambria advised pornographers to avoid in order to prevent prosecution. Many of the no-nos will make the list seem awfully quaint to anyone with even a cursory knowledge of today’s porn marketplace: facials, spitting, fisting, squirting and “degrading dialogue,” for example -- all current hallmarks of the industry. In fact, some of the prohibitions seemed absurd even at the time -- I mean, no blindfolds, really? The list says a lot about the climate of fear during that time, as well as the speed with which sexual mores change (just over a decade later, the list can be read as a guide to porn’s most celebrated themes).
Beyond just the First Amendment issues surrounding censorship of certain "prurient" acts (that is, sex that squicks out conservatives) is the practical issue of effectiveness. Eugene Volokh, a professor at the UCLA School of Law, explains, “The traditional means of enforcement of obscenity laws has been to prosecute distributors,” he says. “The trouble is these days, even if you could shut down every American distributor of porn -- and that’s pretty unlikely, but let’s say you could -- there would be vast amount of material offshore.” To really curtail Americans’ access to “obscene” material, they would have to “to essentially require intermediaries, like Internet Service Providers, to block access to foreign sites known to contain porn” -- or they could just go after consumers.
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