Table of Contents
Here in America, can I get this porno stuff legally?
Can I get my smut in Europe?
So am I out of luck if I am in England?
What's the situation in Australia?
I am in America and I have some European tapes (with some "taboo" parts) and I am not sure how I can swap or sell them... I mean are they illegal?
What does that "made before July 3, 1995" sticker mean?
Why doesn't the creation of an adult video run afoul of laws against pimping and prostitution?
Who are the "Erotic Eleven" and what does it have to do with Nina Hartley's ban from Canada?
Is there a movie based on this event?
Are Ben Dover's "Banned in Britain" tapes really banned in Britain?
Why is fisting illegal in the United States?
So what can't I watch in America, the home of the free?
Where'd the Cherry Poppers tapes go?!?
Was Rough Sex pulled because it was illegal?
What's the deal with porn in Canada? Can I see some things or all things or what?
How about the Australian porn laws? What are they like?
You said something about "nuisance prosecutions." Could you clarify the illegality issue again?
What is censorship?
What does the First Amendment have to do with it?
So what has it got to do with r.a.m.e.?
So what is actually illegal to watch/own/produce/sell?
Who are these censorious bastards? Lets go get 'em!
Andrea Dworkin/Catherine MacKinnon
Am I on my own with sword and shield, or is anyone else in this with me?
F.O.X.E (Fans of X-rated entertainment)
Free Speech Coalition
Mike Ross, Advocate
So how about the Dworkin/MacKinnon stuff already?
NOTICE: The information contained within this document, especially this part, is meant for informational purposes only. No attempt is made to provide legal opinions or offer legal advice. I, or the people contributing cannot and will not be held responsible if harm should come to you. Any legal questions you may have should be discussed with a licensed legal professional familiar with the laws of your locality.
A lot of the information in this part was written in 1996 and laws change all the time, far faster than we can keep up. So chances are, the law discussed here has had some revisions to it.
Please consult a real lawyer if you are about to do something you feel opens you up to risk. Please. For your own sake. Spring the hundred bucks and talk to someone who knows his shit, not us... while we'd like to think we're right, we are really just talking out our asses.
Laws vary by country and by state. A common belief is that you can get most anything in New York City's Times Square, or in San Francisco. Some states however have NO local sources of x-rated movies.
Mail-order is an option. (Some distributors in the US: Adam & Eve, Good Vibrations, Excalibur, The Stamford Collection, etc.) However, it should be noted that some companies won't mail to certain cities, because the company can be charged for violating the "community standards" for the city they are sending to.
Peter van Aarle tells me that the situation in Europe also differs from country to country.
In the UK (United Kingdom of Great Britain & Northern Ireland) hard-core pornography is illegal, but I've been told you can get it if you know where to go (No big surprise there).(Thank you Peter!)
Holland, Germany, Italy, France, Scandinavia, Greece: hard-core is legal, and there is no (self)-censorship as there is in the US. One can say that just about the only thing which is illegal is kiddie-porn. (for instance, the laws in Holland are about to be changed, and there will be a 4 year maximum penalty on producing or distributing kiddie-porn.) And the age of consent in most countries is 16, which means that Traci Lords movies (which she made while 16-18 years of age) are NOT considered illegal, and are freely available.
This also means that most of the kinks which are deemed obscene in many communities in the US (and are therefore unobtainable due to self-censorship of the producers) are freely available in Continental Europe.
These include Bondage and/or S&M with hardcore sex, really hard S&M (whipping until bleeding, needles, that sort of thing), Bestiality (in 2 of the video rental places I frequent they have some bestiality movies, and these stores are not sleazy backstreet things either. They are the two biggest stores in town), Fisting, Golden showers, Brown showers (i.e., shit).
But as far as mail-order is concerned, this is generally NOT a very usual method of buying anything in Europe. And the same goes for porn: I know a few companies who sell videos and sextoys by mail order, but there is nothing comparable to for instance Excalibur (I know, someone sent me one of Excalibur's catalogs since I was curious).
In August 2000 (or so) the UK more or less legalized the selling of hardcore material within their borders.
You can catch up on the threads in RAME from DejaNews: http://www.deja.com/dnquery.xp?groups=rec.arts.movies.erotica&QRY=R18&svcclass=dnyr
There's also some info in the reading room: http://www.rame.net/library/lists/r18.html
One of my operatives in the UK has this to say:
Videos can be mail ordered from the continent usually from Holland, France, etc. I recommend 'Your Choice' in Amsterdam, they'll send a tape within ten days of you sending a snail mail order. They even have an e-mail address..."Special thanks to Jon F. for locating their address...
Scipio, the thunder from down under, tells me about some interesting rules they have in Australia...
X-Rated videos are not illegal in Australia as they seem to be in the U.K. There are, however some odd laws relating to them.For addresses of some of these mail order shops, refer to Part 9.
In all states and territories, they are perfectly legal to own, so long as they have been classified by the Office of Film and Literature. I would imagine we have basically the same restrictions as the U.S. Nothing involving animals or children, no bondage with sex and no shit. The first two would be definitely illegal (and well so, IMHO), but the others may be due to our market being a macrocosm of the American one.
Now, as to the odd parts, they are illegal to sell commercially in all Australian states. They are legal to sell in the two territories, the Australian Capital Territory (ACT), and the Northern Territory (NT).
For those with an interest in localities, the ACT is located within New South Wales, halfway between Melbourne and Sydney, The NT is the top middle bit, with Ayers Rock and Alice Springs in it (no, not the actress).
Now, as we have free trade between states and territories here, this means that there is a thriving mail-order business from the two territories. The other thing we have of course, is a thriving not-quite-under-the-table business in videos at the Adult bookshops.
Most Melbourne (city) bookshops have a selection of videos, and most of those that do, have a bloody lot of them. Some shops are more subtle than others, and I won't go into anymore detail about them. I would assume it to be much the same in Sydney, and perhaps more under-the-table in other cities. The Vice squad know about this, and occasionally do raids, but more often seem to just leave it be.
There are also various swap-clubs and such, but I don't have any personal experience with them so I can't really comment.
I am in America and I have some European tapes (with some "taboo" parts) and I am not sure how I can swap or sell them... I mean are they illegal?
Mail order specialists Blowfish, have this to say on the subject:
Some guiding principles: On the Federal, nation-wide level, the only class of material that is specifically illegal is child pornography. Everything else falls under the vague definition of "obscenity," and that requires some district or federal attorney to decide that:Bill Majors, a producer and distributor, offers this perspective:
We can't offer a formula for staying out of trouble. If you refuse to ship across state lines, you've eliminated one major source of grief, and if you only sell to San Francisco, Los Angeles, or New York, it is unlikely that busting a small-time operator on obscenity charges will be worth the trouble of the DA.
Best of luck.
OK, first, nothing other than kiddie porn is illegal in the USA (as a federal community). Some states have different laws, but in most cases the Federal will supersede the state. *IN MOST CASES.* It should be noted that SOME states DO decide to go after folks on a state level. Illinois, and New Mexico might be two good examples as well as Kansas. These are just three that come to mind instantly.
Now on to the question of "verboten" materials that you mention. Those that you mentioned ARE exactly that, "verboten." If you were to just send them to a friend, no problem, unless the "friend objected, etc." However the minute you "sell them" then you stand a chance of being prosecuted. Stores don't always hire the smartest folks in the world and remember they are NOT involved in interstate transactions therefore they need only fear local police.
THE EXCEPTION: In Kentucky some poor folks found out that they COULD be part of a federal prosecution since they were named as "co-conspirators" in a federal indictment. After saying that they would NEVER settle they learned about the costs and the fact that if they were found guilty that the RICO act might be used to seize their stores... as was done to Ferris Alexander. (His case is still being worked on after the Supreme Court found that it was a violation of the 8th amendment to do so, however, no end is in sight).
If you ship between states then you are ripe for a federal bust, particularly since you probably don't have the 250,000 bucks (minimum) to defend yourself. Therefore you will make a plea bargain (or worse -- settle for a public defender!) to save yourself time and money. The feds get an easy conviction and they are happy and you are not. One other thing, if you decide to make copies (when you run out of your original stash) then copyright laws come into effect.
New York, is a special case. Some years ago a federal judge was asked to enjoin the city from prosecuting stores. The lawyers for the stores pointed out that community standards were supposed to apply. Then they pointed out that after theatre at the entrance to the Lincoln tunnel there were prostitutes who were nude in the streets. Well it turned out that the judge had seen that, been there, and ruled that since the "community standards" were so lax that in New York county (Manhattan) nothing could be obscene except for kiddy porn. I don't know about S.F.
Final advice, trade to your hearts content. Sell, and while probably nothing will happen be prepared to face the worst, you never can tell when they will come swooping down.
N.P. Trist, our law student on the go, told us back in 1996 or so that the labeling law may very well mean the end of the adult video industry. He may have been overstating things a little...
Ostensibly to fix a loophole in the laws which forbid child pornography, Congress passed the Child Protection and Obscenity Enforcement Act of 1988. The Meese Commission had noted that so many legal-age performers looked under-age that it was impossible to tell if a performer was legal or not by viewing the videotape. And if the feds got a search warrant for the producer's office, there would be little or no records of the performer, who may have already left town. Thus, child pornography could, at least hypothetically, be created with impunity.
The Act has two primary components.
First, producers of depictions of actual sexual conduct must maintain records on the performers' age, identity and other stage names. These recordkeeping requirements are quite onerous: every performer, every previously used alias, specific types of identifying documents, etc. The government has even gone so far as to mandate the indexing system to be used.
Second, all materials depicting actual sexual conduct must have a label indicating certain information, most notably the name of the custodian of records and the street address at which the records are kept. Depictions of actual sexual conduct shot before July 3, 1995, or depictions of wholly simulated sexual conduct (such as fetish or truly softcore tapes) are exempt from the requirements, but should carry a label making that clear.
By themselves, these regulations -- while intrusive, burdensome and expensive -- would be tolerable. They are not, after all, any more or less ludicrous than the thousands of dense regulations with which businesses of every stripe must comply.
Except that failing to comply with these regulations is a Felony.
If Fantastic Pictures fails to obtain the proper age records from the senior citizens in its next "Sugar Mommies" release, the responsible party may be sentenced to up to two years in prison for a first offense.
Creating kiddie porn is not the crime; failing to comply with the recordkeeping and labeling requirements is the crime.
The adult video industry does not seem to be blessed with a plethora of highly-organized, detail-obsessive clerks and paralegals. Clyde DeWitt spends part of his January 1996 AVN column detailing any number of violations which have recently crossed his desk.
And, as we all know, the Department of Justice is not going to be lax in its enforcement, or allow grace periods, or give fair warnings. Industry attorneys had to pull teeth just to get DOJ to stipulate the law's effective date!
What all of the above means is that prosecutors have a new weapon in their efforts to shut down law-abiding pornographers. One slip in recordkeeping or labeling (no matter how trivial) can lead to a bankrupting criminal suit and the threat of jail.
The initial challenge to the law has been lost. The U.S. Court of Appeals for the District of Columbia ruled that the law passes initial constitutional muster. American Library Assoc. v. Reno, 33 F.3d 78 (D.C. Cir. 1994).
The next step in combating this law is to question its constitutionality as applied -- which means that some poor schmuck will have to be the first person charged with violating it.
I don't envy that trend setter.
As it turns out, Mr. Trist's observations were a little off the mark. The adult video industry did not come to a screeching halt; and as far as I know there have not yet been any prosecutions under the record keeping act. However, just because it hasn't happened yet does not mean it won't happen. My prediction is that we'll see it happen with relation to some adult website owner who doesn't have the foggiest idea that he has a legal requirement to have records for these images he's stolen from Usenet that he puts behind an AdultCheck to make his millions :-)
Time will tell...
A HUGE thank you to N.P.Trist for doing the legal research on this one... hopefully it will settle a few debates. He writes:
It can. But not in California :-)S. Andrew Roberts adds this:
In the mid 1980s, an anti-pornography initiative by the Los Angeles County District Attorney's Office backfired (to put it mildly) -- the DA's prosecution of adult video producer Harold Freeman led to a California Supreme Court ruling which explicitly legalized non- obscene hard-core pornographic videos.
The state's anti-pimping law was changed in 1982 to mandate a minimum three-year sentence if a defendant were found guilty of "pandering," the legal term for a type of pimping. Sponsored by Democratic state senator David A. Roberti, the law was designed to reduce the street prostitution that plagued the senator's Hollywood district.
Although the law's undisputed intent was to combat streetwalking, the Los Angeles County DA's Office decided to use it in an admittedly novel manner. Pandering prosecutions were brought against several producers of hard-core pornographic videos.
The DA's legal theory was that the exchange of money for sex equaled prostitution, regardless of whether or not the sex acts were filmed. The DA's practical theory was that California would cease to be the world capital of blue movies if the very act of producing an adult video were criminalized.
The first person charged was Harold Freeman, a veteran producer of more than 100 adult videos. In September of 1983, the 47- year-old Freeman had shot the anal-themed "Caught From Behind, Part II" in Rancho Palos Verdes, a suburb south of Los Angeles. Freeman was charged with five counts of pandering, one count for each woman whom he paid to perform in the film. (Curiously, Freeman was not charged for paying the male performers.) In what would later become a crucial fact, Freeman was not charged with obscenity.
After a six-day jury trial in Van Nuys Superior Court, Freeman was found guilty on all counts. The trial judge refused to sentence Freeman to the mandatory three years on the grounds that such a sentence would be cruel and unusual punishment. Instead, Freeman was sentenced to 90 days in jail, fined $10,000 and placed on five years probation. The conviction was affirmed by the California Court of Appeals (188 Cal. App. 3d 618, 233 Cal. Rptr. 510). Freeman's attorneys, Stuart Goldfarb and Dennis A. Fischer, filed a routine appeal to the California Supreme Court, very few of which are successful.
Then a miracle happened.
Four justices of the California Supreme Court decided the case was worthy of review. Briefs were submitted. Oral arguments held. And the California Supreme Court threw out Freeman's conviction and explicitly legalized non-obscene, hard-core pornography. People v. Freeman, 46 Cal. 3d 419, 758 P.2d 1128, 250 Cal. Rptr. 598.
The legality of paying performers to engage in sex acts on film is founded on two, independent theories, one grounded in state law, one in federal law.
State Law: The statutory definition of "pandering" contains the word "prostitution". The statutory definition of "prostitution" contains the word "lewd". The common law definition of "lewd" requires, in relevant part, that the sex act be engaged in "for the purpose of sexual arousal or gratification of the customer or of the prostitute."
But the performers testified at trial that they were not having sex for pleasure, they were doing it for the money. Ditto Freeman. Moving up the chain of definition, Freeman -- and all producers -- are not guilty of pandering, and all performers are not guilty of prostitution.
Federal Law: The Court made a number of points regarding Freeman's federal constitutional protections.
The Powers That Be went apeshit over this ruling and appealed to the U.S. Supreme Court for a stay (a temporary suspension of the California Supreme Court's ruling). Not only did Justice Sandra Day O'Connor deny the stay, she said in no uncertain terms that the U.S. Supreme Court would not review the case.
Her orthodox reasoning: The U.S. Supreme Court can only rule on the federal law components of the decision; the definition of "lewd" is wholly a state question. Therefore, no action by the Court on the federal law component could effect the outcome of the case. The U.S. Supreme Court's opinion would be moot, an advisory opinion. And, since the day President Washington asked for one, the Court has refused to render advisory opinions.
Despite the ironclad logic of Justice O'Connor's decision, the California Attorney General's Office attempted three more times to obtain U.S. Supreme Court review. A petition was even submitted by the parents of deceased porn star Shauna Grant. Denied every time.
Today, the Freeman case is still good law in California. Pornography production in California has been so normalized that Ron Jeremy picks up his production permits at the same government office that certifies shoots for Disney.
The California adult video industry is not, however, immune from legal attack.
First and foremost, obscenity is still a crime, and the U.S. Supreme Court's "Miller test" for determining obscenity is so vague that no one knows for sure what's legal and what's not. One prosecutorial tactic is bankrupting defendants by bringing groundless obscenity charges, forcing them to incur legal fees.
Secondly, the California legislature could, theoretically, redefine "lewd", "prostitution" or "pandering" by deleting the pleasure requirement. This is unlikely, as redefining "lewd" would necessitate a wholesale redrafting of the Penal Code's sex offense statutes.
Finally, an overzealous prosecutor with a grudge against pornography will _always_ devise a stratagem to harass.
To counteract these threats, I recommend that adult video fans become members of legal groups which, directly or indirectly, help protect the adult video industry. Such groups include the Free Speech Coalition, the Cato Institute, People for the American Way and the ACLU. Membership fees are often nominal, so helping protect your right to adult videos might cost you $25.
It cost Harold Freeman more than $300,000.
At the Free Speech Coalition awards, we were strongly reminded that Hal Freeman fought that case "to protect OUR first amendment rights".
Bobby Lilly, president Of CalACT (Californians Against Censorship Together) and a SO of Nina Hartley, wrote this piece. I thank her for allowing me to use it here.
On January 8th, 1993 (or thereabouts) Nina Hartley, Sharon Mitchell, Patricia Kennedy, Ari, Danielle Cheeks, Naughty Angel, Lacey Rose, Shalene, Nina Suave, Trixi Tyler and Beatrice Valle were arrested along with Bill Margold, Seymore Butts and the owner of Pure Pleasure (an adult video store in Las Vegas) at the end of a four hour benefit performance for the Free Speech Coalition. Bill had produced similar events for several years before without incident. Unfortunately, the performers were told to "do whatever you want to do" when asked about _limits_ and these women of porn felt very comfortable with each other (if you know what I mean).
At first the women were all charged with prostitution and the men with pandering. While several of the women may have "woman-handled a couple members of the audience, no one was involved in any prostitution. So, because the DA didn't think he could get the original charges to stick, he turned around and indicted all the women, but Nina. with felony "lesbianism". Nina had only given a talk on how to make love to a woman while two of her friends demonstrated on each other.
The DA decided to single Nina out from the other women and indicted her as well as the men with pandering (even though he had dropped all prostitution charges). None of the charges made sense. It was all about local politics. The whole case was designed to send a strong message to Las Vegas hometown pornographers to tone down their business since Vegas was going family all the way. It took almost a year of fighting and a trip to the Nevada Supreme Court and over $100,000 before the women were allowed to plead guilty to a misdemeanor for their performances that night. they paid a $20,000 "contribution" to local Vegas charities instead of a "Fine". It took exactly one year from the time it started. Much of the money was raised outside the industry from fans, the swing community and the general public. Many people in the adult video industry were telling the women it was all their fault and that whatever they got they deserved.
Most of the women desperately wanted it to be over and were glad to accept a guilty plea to a relatively minor misdemeanor. The strain on all of them and their families was incredible. From the first phone call about the arrest to daily events unfolding, none of us knew what would come next. At first there were rumors of Feds behind everything and none of knew whether the next knock on the door would be the F.B.I. We'd wait weeks with nothing coming from the lawyers or DA's office, then suddenly a flurry of action and the women would have to jump, leaving work around the world to return to Vegas for another hearing. Several of them were mothers and worried about the possibility that social services might decide to take away their kids if there was too much publicity.
Two weeks later when Nina attempted to go to Canada for a series of personal appearances, Canada refused to let her in to work. She was told that the misdemeanor lewd performance charge that she pled guilty to would have been a felony in Canada and they didn't want HER KIND in that country. Well to make a long story short, she went anyway because she didn't want to stand-up her fans (lawyers advised her that as long as she didn't accept any $ for the appearances it would be OK).
A week later immigration caught up with her and she was held in the Winnipeg jail from Monday night until Thursday night before she was again sent home. She was firmly told that, although the women can request an exception in writing from Canadian officials, they are banned from entering that country for five years from the date they pled guilty.
Trying to sum up a year-long battle in a few short paragraphs means that there is much that I didn't cover here. I wrote about the case several times in Gauntlet, if you want to know more you might check out an old issue of the magazine. I know its hard to find but very interesting when you do.
Funny you should ask! ;-) Peter van Aarle tells me:
Very recently (it was reviewed in the Sept, 1995 issue of AVN, rating AAAA) a movie based on this episode was released by Summit Pictures, directed by Henri Pachard.
The title of the movie is Infamous Crimes Against Nature (apparently this was the official wording for the felony of lesbianism). Not surprisingly the movie stars many of the girls involved: Danyel Cheeks, Ariana, Nina Hartley, Pat Kennedy, Sharon Mitchell, Shelene, Trixie Tyler, Beatrice Valle, Nikki Sinn, Angela Faith and Samantha York.
Roger P. Tipe sez:
Well, all hardcore videos are banned in Britain. It is a serious crime to be caught filming one so he does take a risk shooting them. [...] Just like his US counterparts, Buttman and Seymore et al, Ben hires women to be in his movies. Most are more amateur than the US ladies, but still, Mandy, the little readhead, can be seen in Anabolic vids, Nicki Lewis from English Class, is a nude model and soon to be US porn star etc....
Well, it's not really illegal... but it is one of those things that can be easily "nuisance prosecuted."
The American laws do not restrict any specific type of sexual activity other then pedophilia a/k/a "kiddie porn." HOWEVER, the Supreme Court did have a say in what was considered obscene. Bill Majors says:
Just to give you some idea of what the Court thinks is obscene, masturbation is listed as an "ultimate sex act." it is that definition that leads us towards what may and may not be prosecuted.The very first adult films were documentaries and quasi- documentaries packed with 'redeeming social value' so as to prevent the possibility of convictions for obscenity (under the three pronged test for obscenity set by the US Supreme Court (Miller v. California):
However, the fact is that when the government decides to prosecute the filmmaker or manufacturer it is always on the losing side. A federal trial (and that is what most of them are) will cost from 250,000 to over 1 million bucks with no guarantee of the outcome. This is why so many folks make plea bargains, spend six months or so as a government guest and then we have the funny side of everything. Usually a large fine is levied against the corporation, but how do the figure the corporation will make the money to pay the fine? Not by making kids shows, but by making more of what they were just convicted of. So in effect the government becomes a partner in the porn business.
As you would imagine, a town in the Bible Belt has very different feelings about porn than a major metropolis like New York City or San Francisco. So, while fisting may be valid by New York's community standards, it probably wouldn't fly in Topeka.
So now you have different parts of the country tolerant of different things. Basically, it is a hassle to keep track of all the places that certain acts are "good" versus "bad." So, the industry self-censors itself, and leaves out the really raunchy stuff in their domestic releases. (Europe where they have their heads on straight about sex, is a free for all sexually, except for kiddie porn (though their age of consent is lower than ours)).
Nick Long says this about the fisting guidelines:
For clarification purposes and the information of the curious, during filming of any insertion scene coming close to fisting, the general rule to avoid legal complications is that:Tim Evanson says that (surprise!) things are different on the gay side:
An interesting tidbit from Peter van Aarle: On some sets (usually when Bionca and Debi Diamond play together ;-) fisting still occurs, and IS still filmed, but the footage is never released for US versions anymore (but often still IS released in Euro versions).
Fisting is increasingly common in gay videos, and in a few videos items such as shampoo bottles, beer bottles, and even traffic cones may be inserted into a man's anus. Most gay porn companies deal with the subsequent legal problems by editing the offensive scene out of the movie entirely. Many mail order companies offer a "mail order only" version which includes the fisting scene, while rental and local-sales copies of the movie do not have it included.
There are other 'controversial sexual practices' such as pissing, insertion of foreign objects (veggies, bottles, 'motor-oil' enemas, monks gangbanging Debi Diamond, etc.), and non-consensual sex (rape) -- the latter of which also includes B&D (bondage & domination); hence no hardcore sex in B&D movies in the US.
Bill Majors, a man who has spent time in jail because he produced adult B&D films, has this to say:
B&D can be rape, but it is many things else too. It is prohibited under a section of the law which defines what may be obscene as (I paraphrase) sucking, fucking, etc., AND Sado/Masochistic acts.Luc Wylder, fetish performer and producer in his own right, had this to say on the subject:
So all films ARE by their very nature obscene, it is just that it has proven very hard to get convictions even in conservative communities where normal heterosexual sex is being shown.
However, let's take anal. That has NOT been quite as hard and indeed has been prosecuted successfully many times. The government even has one favorite witness who testifies at every one of their cases, about how he was traumatized by seeing shit on a dick coming out of an ass. Now while that isn't shown (the girls clean themselves out first) he testifies that NO ONE can be sure there isn't a "speck" of feces on a dick...and that if there is (which he always manages to find) then it is horrid, etc.
The reason there is no sex in American bondage videos is because it is illegal to [exhibit] such videos in the US. I believe there are many European, particularly German, videos where there is hardcore sex with bondage, because they do not have the censorship laws that we have here. Supposedly, if a woman (or a man) is restrained and sex is performed on them, this a form of torture or rape, according to our government, no matter how willing the person actually is.
In real life, when we shoot bondage and we want things to get more heated, we turn off the cameras because there are no censors in our homes and we can do whatever we want, as long as it involves only consenting adults...
However, the pendulum swings both ways, and in 1999 we're seeing more extreme acts being released stateside.
Seymore Butts has been releasing XXXX versions of his films; XXXX being what we used to call "Euro versions." The fistings and the pissing are intact. More and more producers are putting the pissing back into movies -- why they are is a whole other story... -- but Anabolic's Gang Bang Girl 24 had Inari Vachs peeing thru her panties. Vomiting is also making some sort of entrance into mainstream porno, with Johnny Toxxic's Vomitorium getting media coverage from Howard Stern while in other flicks, chicks are gagging on Lex Steele's cock while deep throating, only to go outside and puke...
This resurgance seems to have been spearheaded by Bob Guccione and Larry Flynt who are pushing the envelope with their print magazines, Penthouse and Hustler, repectively. Penthouse recently ran a pissing pic which supposedly flooded the offices with mail (pun intended, I guess) so Guccione has been offering GS (golden showers) pix in almost every issue since. Larry Flynt, no stranger to controversy or making a buck, has started following suit.
Another challenge to the Man has been in the arena of "young looking" girls, which brings us to...
In late '96 Congress passed a huge law, one part of which was a small bill tacked on which basicially made it appear that visual depictions of performers posing as minors were now illegal... However, this is not really the case. (I am not a lawyer (tho I play one on TV) so I can only put forth quoted sections of the bill and a small bit of commentary from another non-lawyer.)
In 1999, this was overturned as unconsitiutional.
According to the X-Press News, a newsletter from the Free Speech Coalition:
After almost two years of silence, the Ninth Circuit has finally ruled in our favor on Free Speech Coalition v Reno, the FSC lawsuit challenging the constitutionality of certain portions of the Child Pornography Protection Act of 1996 (CPPA).
You will recall that this was the law that criminalized not only child pornography, i.e., material in which an actual child performs sexually and is therefore injured, but also computer-generated images in which no real child appears. Also implicated were images in which an adult portrays a character who "appears to be" underage, such as in Last Picture Show or People v. Larry Flynt.
It was the position of FSC and the other plaintiffs in the case that such a provision was too broad and violated the First Amendment.
In its ruling the court followed [FSC Lead Attoney] Sirkin's line of reasoning in making a precise surgical cut to remove only the offending phrases.
We find that the phrases "appears to be" a minor, and "convey[s] the impression" that the depiction portrays a minor, are vague and overbroad and thus do not meet the requirements of the First Amendment. Consequently we hold that while these two provisions of the Act do not pass constitutional muster, the balance of the Child Pornography Prevention Act is constitutional when the two phrases are stricken.
If you have been awaiting this decision, please remember that the opinion will not be final for states in the Ninth Circuit for a minimum of two months. And since two other circuits have recently ruled in the opposite way in criminal cases, review by the US Supreme Court is likely. So stay tuned, it ain't over yet.Paul Reed, a guide over at about.com wrote this on the subject:
The U.S. Ninth Circuit Court of Appeals in San Francisco has declared the Child Pornography Prevention Act of 1996 (CPPA) unconstitutional in so far as it bans 'virtual' child pornography.
In a decision handed down on December 17, a three-judge panel of the court ruled 2-1 that, as applied to images created by computers or other methods which do not use actual children in the production of pornographic materials depicting children, CPPA violates the free speech guarantee of the First Amendment because it criminalizes ideas:
The language of the statute questioned here can criminalize the use of fictional images that involve no human being, whether that fictional person is over the statutory age and looks younger, or indeed, a fictional person under the prohibited age. Images that are, or can be, entirely the product of the mind are criminalized. The CPPA's definition of child pornography extends to drawings or images that "appear" to be minors or visual depictions that "convey" the impression that a minor is engaging in sexually explicit conduct, whether an actual minor is involved or not. The constitutionality of this definition is not supported by existing case law.
The court's ruling focuses on portions of the statutory definition of "child pornography." The fatal portions include "any ... computer or computer-generated image or picture" that "appears to be ... of a minor engaging in sexually explicit conduct ... or ... that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct." See 18 U.S.C. § 2256. [emphasis added]
The court found that the government does not have the requisite compelling interest in regulating pornography when no actual children are involved in the illicit images either by production or depiction:
Because the 1996 Act attempts to criminalize disavowed impulses of the mind, manifested in illicit creative acts, we determine that censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment.
The court also went on to rule that CPPA is both unconstitutionally vague and unconstitutionally overbroad.
As to vagueness, the court said:
The two phrases in question are highly subjective. There is no explicit standard as to what the phrases mean. The phrases provide no measure to guide an ordinarily intelligent person about prohibited conduct and any such person could not be reasonably certain about whose perspective defines the appearance of a minor, or whose impression that a minor is involved leads to criminal prosecution.
As to overbreadth:
On its face, the CPPA prohibits material that has been accorded First Amendment protection. That is, non-obscene sexual expression that does not involve actual children is protected expression under the First Amendment. ... This rule abides even when the subject matter is distasteful.
Obviously, this is just the logical extension of the earlier conclusion that the portions of the statute that outlaw "virtual" child pornography violates free speech rights. However, perhaps the most interesting comment of the court comes with some concluding remarks:
The Senate considered the constitutional impediment discussed here but disagreed with the assertion that it could not prohibit visual depictions that "appear to be" of minors engaging in sexually explicit conduct when the depictions were produced without using actual children. See S. Rep. No. 104-358, at 21 (1996). The Senate reasoned that advances in technology distinguished [a prior U.S. Supreme Court case] because in 1982 when [that case] was decided "the technology to produce visual depictions of child sexual activity indistinguishable from unretouched photographs of actual children engaging in 'live performances' did not exist."
The danger with this analysis is that it suggests that the more realistic an imaginary creation is, the less protection it is entitled to under the First Amendment....The case is Free Speech Coalition v. Reno, 9th Circuit, December 17, 1999. Free Speech appears to be in conflict with the ruling of the First Circuit earlier this year in U.S. v. Hilton, 1st Circuit, January 27, 1999. As such the likelihood of review by the Supreme Court is quite high.
Anabolic's Rough Sex series was pulled mostly due to pressure from distributors.
Khan Tusion, director of the highly controversial Rough Sex series from Anabolic, says the series will no longer be available for sale after February 11. Tusion, however, is quick to point out that no tapes are being recalled and no tapes are being pulled off video shelves, but that the series and its two volumes will pass quiety into the night. It will be replaced by Tusion's new series, Oral Consumption which will be available February 15 . Tusion said an informal vote was taken at Anabolic, and, although owner Christopher Alexander, who Tusion describes as being "anti-authority" was for continuing the series, Alexander acceded to the wishes of his advisors.
"It was a business decision," said Tusion. "Anabolic puts out approximately 45 tapes a year. Rough Sex would have comprised another four. The prevailing thought was that there are forces in the business that would like some harm to come to them. They believed this series was ammunition for those forces. It was either put out 50 videos a year including Rough Sex or 46 without it. Either way, they'd continue in their lifestyle. They basically looked at me and said what do you think. I wanted to pull the line. Pornography is not my life, but if some harm would come to my friends over something I did, I couldn't live with myself. I didn't want to have this on my shoulders. That was my personal decision."
It depends upon where you are. In Canada, porn is a provincial jurisdiction so each province has her own set of rules. This means that something that is legal in Quebec isn't necessarily legal in Ontario.
For instance, fisting and golden showers (as long as you're not watching anyone pissing in anyone's mouth) are perfectly legal in Quebec; Ontario considers other things to be obscene, so they're illegal in Ontario.
A friend from Canada writes:
I don't know about the status of DP -- I have rented supposedly legal movies with it ;-) but, what you say about facials WAS true until recently. Apparently there have been some changes in the law in the past few months. The store I go to is part of a national chain (Adults Only Video), which I assume follows the law to the letter because they're a big target. One of the staff there told me that the laws had been relaxed and pointed me to some new movies. Some of the subjects that are allowed are facials, lactation, and pregnant girls.I'm told Ontario also recently approved pubic shaving.
European distributors send unedited versions movies and the local distributors just cut out the offending material based upon the local markets. US distributors take the easy way out and just send the American versions (not the European ones which may include "harder" scenes) which means there is rarely anything to cut in Quebec while there is almost always something to cut in Ontario.
But you can't always escape the prosecutor... For instance, not so long ago the owner of Ontario's largest chain of adult videos was taken to court for selling a Dr. Butts video that included a spanking scene. The video had been approved by the Ontario Film Review board, but was still in violation of obscenity laws that the police charged the owner with. I think the case was ruled in the owner's favor, because he didn't know it was obscenity, and believed it not to be because it had already been okayed by the appropriate government censors.
A friendly poster from Australia told the group:
The Federal Government of Australia classifies all films and literature. The goal of the classification system is to allow adults to read, see and hear whatever they wish while protecting children from damaging material and preventing people being affronted by offensive material in public places.
The classifications are:Publications
G, PG and M are advisory only and children can buy tickets/rent videos. MA, R and X are mandatory. X is effectively a video only classification.As well as the rating, advertising and video covers carry a short note on the major elements that determined the rating, eg.
The system works pretty well. The ratings are applied in a manner roughly comparable to the US MPAA ratings, perhaps a bit tighter on violence and a bit looser on sex. The unrated US version of "Basic Instinct" was rated R. "Henry & June", which was rated NC-17 in the US was rated M in Australia.
The ratings apply uniformly to cinema, video and television. MA rated films can't be shown on TV before 9:30pm. The rating is shown with the note at the start and momentarily in the lower right corner after each ad break. R rated films are generally edited back to MA for TV although some are shown uncut late at night on a special interest channel.
The situation with X rated material is a bit messy. The federal government allows X rated material and does the classifying. Most states' laws theoretically don't allow X rated videos to be openly sold/rented, but allow them to be obtained by mail order. This has lead to the comic situation that the Australian Capital Territory, which is outside any state law, has the largest porn industry in the country. In practice, some states just turn a blind eye to the retail trade.
The classifications are:
The goal is to prevent children browsing/buying adult material in newsagents and to keep offensive material out of public display.
A couple of states don't allow sex shops but anything can be obtained by mail order.
The publications classifications are basically directed at magazines, periodicals, etc. Books are very rarely classified as Restricted. About the only example in the last decade was 'American Psycho' which was classified as Restricted 1 after a short period of unrestricted sale because of extreme, sadistic violence.
The government cannot impose restrictions on what can be filmed. However, local governments can TRY to impose restrictions on what can be exhibited, but these have proven very hard to win. They can impose only ONE restriction at the present time. The interstate transportation of obscene material, this is always the charge that is made for most videos. (Thanks to Bill Majors for clearing this up).
It is more the threat of prosecution for obscenity (and the prosecution doesn't have to lead to a conviction, since the high cost of legal counsel is usually enough of a threat and has in the past led to bankruptcy of companies) is the reason why the producers heavily SELF-CENSOR their product.
Bill Majors confirms that if the above wasn't enough, the justice dept some years ago had a POLICY (found in a letter in their files that they forgot to shred) in which they said that their aim was to put all pornographers OUT of business, either by simultaneous prosecutions, jail time, excessive fines, or to just break them through legal expenses.
It is important to make this point that the producers 'voluntarily' censor their products because they know that adding these controversial scenes will leave them wide open for prosecution in many parts of the US, and prosecution will, even when acquitted, lead to huge legal bills and possible bankruptcy.
Tim Evanson, ever the poli-sci doctoral candidate, tells us that "the U.S. Department of Justice under President Bush prosecuted several national mail order companies in multiple jurisdictions at once, taking advantage of the Supreme Court's Miller ruling. By seeking obscenity convictions in very conservative jurisdictions, and by seeking multiple prosecutions at once, the Justice Department was able to often bankrupt some firms. Others were unable to defend themselves in all jurisdictions at once, and so courts entered default obscenity decrees against them (which included fines and prison sentences). This practice made national headlines (even the Wall Street Journal's front-page political column), but ceased under the Clinton administration."
Patrick Santucci wrote this next section, I merely edited it. I think it offers a good overview of the topic, but is by no means exhaustive. If you want to discuss this further, feel free to e-mail Patrick at ce549@cleveland.Freenet.Edu.
The topic of censorship and first amendment rights is vast and deep. Even if I were a much better scholar, I would be hard pressed to report thoroughly at anything less than book length. For the purposes of this FAQ, i'll try to limit myself to topics directly related to sex movies and rely on my editors to keep me on track. I would be happy to discuss any other first amendment issues at any time via email.
Formally, censorship is prior restraint of communication based on content and enforced by law. Less formal definitions include many things, usually covered by the umbrella of a 'chilling effect': law which exercises no prior restraint on speech, but makes speakers so fearful of reprisal that they refrain from expounding controversial ideas. The important point is that censorship always involves law; an agency which will not fund your painting is not engaging in censorship, even though it may be acting unjustly.
The first amendment to the U.S. constitution is the fundamental piece of law which protects U.S. Citizens from censorship. Here it is:
Amendment I (1791)
It would seem to leave little room for doubt or debate, agreed? This is not the language of equivocation. Yet U.S. history is rife with attempts to restrict expression - I mean, surely the first doesn't protect *THAT*! Yes, Virginia, it does. From Anti-abortion protests to insults to double fist fucking, Madelyn Murray O'Hare to Rush Limbaugh, it does. That is, in a legal theory sense. The practice is a bit different.
The most direct violation of the first amendment is of paramount concern to the readers of RAME is the legal notion of obscenity. It is the child of Roth v United_States, a 1957 Supreme Court decision. Justice William Brennan, writing the majority opinion, stated "obscenity is not within the area of constitutionally protected speech or press". Justice Brennan wasn't a fool; he knew that he would be asked to define obscenity (to be fair to the man, he has since repented of writing the above mentioned opinion) but his attempted fix is laughable:
[A work is obscene if, to the] "average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."And that vague, broad description is the law of the land in the land of the free.
Anything could be. Any expression whatever could be prosecuted under the obscenity standard. Here's a quick list in order of likelihood to be prosecuted, sticking only to items which can me in movie form:
I'm glad you feel that way, even if I did write it myself. Opposition to pornography comes from all sides. Here are some major bad guys:
Senator Helms is one of the loudest proponents of censorship from the political right. He is famed for his assaults on the photography of Robert Mapplethorpe, amongst other things.
Former US attorney General and he who commissioned the report on pornography which now bears his name. Read it sometime. You will find it slanted and vengeful from the start. Exercise for college students: give it to your psych, poli sci, or soc professors and see if any one of them can make the conclusions match the 'research' methods.
Impossible really to separate these two, except that Ms. Dworkin is more the rhetor and Ms. MacKinnon the scholastic. They are the leaders of the assault from the political left, and authors of legislation intended to eliminate porn - their way, their terms, their definitions. This legislation gets its own section later on.
The Republican senator from Utah, Hatch authored (some might say he snuck it into the massive Omnibus Budget Reconciliation bill) the Child Protection Act of 1996 which made it illegal to even imply that an actor engaged in explicit sexual conduct was under-age. The legality of the act has not been ruled on, although many publishers and studios have already pulled materials or altered ad copy, scripts, and/or titles in order to comply with the new law.
Relax, there are at least as many good guys as bad. For starters, how about the readership of a.s.m? We are well educated, moderately well financed, and like most netters, intellectually vicious as hell.
There are also at least three major political defense organizations.
FOXE is currently headed by Bill 'Bear' Margold, former porn actor/director/producer. Fan support group for the industry. Utilizing fans' membership dues to fight censorship battles. Dues are $25 per year. Membership card, newsletters, discounts on "industry items". Special invitations extended to membership for industry events.
To join, contact:
F.O.X.E. (Fans of X-rated Entertainment)
From their web page at http://www.freespeechcoalition.com/
The Free Speech Coalition is the trade association of the adult entertainment and products industry and gives you the big-company benefits that businesses throughout the country expect of a trade association.
We are in the process of developing other member services that are crucial to the health and growth of the adult products industry, including:
To join, contact the
FREE SPEECH COALITION
Membership fees vary. See their web page for more details.
Mike Ross is a professional lobbyist who represents many people in the adult entertainment industry from cabaret owners to video producers. Mike has had many years experience doing the lobbying thing and he seems to be good at it. He has a website set up at http://www.xxxadvocate.com which will fill you in on his activities and what you can do to get active in your local political arena.
"The focused goal of this site is simple: we aim to educate the owners, entertainers and consumers of adult entertainment about the actions that are being taken at the local, state and national levels with respect to political actions, statements and "movements" that affect the operations of adult entertainment."
Saved it for last because I think it is the greatest threat to porn (and civil liberty in general) we currently face. I won't expect you to take my word for it; here is a description of the model legislation in, quoted from Ms. Dworkin's book Pornography:
"The law itself is civil, not criminal. It allows people who have been hurt by pornography to sue for sex discrimination. Under this law, it is sex discrimination to coerce, intimidate, or fraudulently induce anyone into pornography; it is sex discrimination to force pornography on a person in any place of employment, education, home or any public place; it is sex discrimination to assault, physically attack, or injure any person in a way that is directly caused by a specific piece of pornography - the pornographers share responsibility for the assault; in the Bellingham version, it is also sex discrimination to defame any person through the unauthorized use in pornography of their [sic] name, image, and/or recognizable personal likeness; and it is sex discrimination to produce, sell, exhibit, or distribute pornography - to traffic in the exploitation of women, to traffic in material that probably causes aggression against and lower civil status for women in society.Arguably, this is not censorship. No prior restraint is involved. Practically, however, it is the greatest restriction on the exchange of ideas ever proposed. The legal theory involved descends from the notion of imminent harm, but warps it beyond recognition until speech - an idea expressed - is legally assumed to be capable of causing harm.
The law's definition of pornography is concrete, not abstract. Pornography is defined as the graphic, sexually explicit subordination of women in pictures and/or words that also includes women presented dehumanized as sexual objects, things, or commodities; or women presented as sexual objects who enjoy pain or humiliation; or women presented as sexual objects who experience sexual pleasure in being raped; or women presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or women presented in postures or positions of sexual submission, servility or display; or women's body parts - including but not limited to vaginas, breasts, buttocks - exhibited such that the women are reduced to those parts; or women presented as whores by nature; or women presented being penetrated by objects or animals; or women presented in scenarios of degradation, injury, torture, shown as filthy or inferior, bleeding, bruised or hurt in a context that makes these conditions sexual. If men, children or transsexuals are used in any of the same ways, the material also meets the definition of pornography." Pornography, p xxxiii
Not only that, but the harm it causes need not be identifiable or measurable. Feeling uncomfortable is harm. If that weren't enough, all parties involved in the expression are responsible for the harm. You see what kind of power that places in the hands of civil suit complainants?
I won't even dwell on the sexist nature of the document. Enough time on this for the FAQ.