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Obscenity Basics: Part 1

Obscenity Basics: Part 1

March 10, 2005
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" it is simply critical that you know and understand how these laws apply to you and your business "

If you distribute explicit depictions of hardcore sexual activity, via the Internet or otherwise, you are subject to the federal obscenity laws. These are serious criminal laws. They are federal felonies that carry substantial penalties for their violation, including lengthy prison terms, fines and crushing forfeitures.

Every webmaster distributing adult content should know, and know well, how material is determined to be "obscene." This is because obscenity prosecutions have traditionally been the legal weapon of choice by the federal government against adult entertainment entrepreneurs and their companies. And now, after a 12-year hiatus in which the federal government did not bring a single obscenity-based prosecution, they're back.

Federal obscenity prosecutions commenced again in 2003. Moreover, in that year, 25 attorneys were hired by the Justice Department to prosecute violations of the federal obscenity laws and the record keeping and labeling laws (18 U.S.C. Sect. 2257).

The Justice Department has subsequently indicated that 50 obscenity cases are currently being worked up. Many adult entertainment attorneys believe that the next round of prosecutions will almost certainly focus on Internet distribution of pornography.

If you are still wondering whether you should take the time to become familiar with the obscenity laws, consider this:

  • A conviction for a single violation of the federal obscenity laws can result in incarceration of up to five years and a fine.
  • A second conviction can get you 10 years and a fine.
  • Knowingly transferring obscene matter to a minor can result a sentence of up to 10 years and a fine.
  • Each separate distribution of obscene material can be charged as a separate and individual violation of the obscenity statutes. This means that penalties can be multiplied almost indefinitely if a prosecutor can charge multiple counts of obscenity violations and secure convictions on those multiple counts.
  • Federal obscenity prosecutions involving two or more acts of distribution of obscene material can trigger additional counts under the Racketeer Influenced and Corrupt Organizations Act, also known as RICO. A single RICO conviction can result in a prison sentence of up to 20 years.
  • Persons and entities convicted under the RICO statute are required to forfeit to the government all property constituting, or derived from, any proceeds which the person or entity obtained, directly or indirectly, from racketeering activity. This can include homes, cars, equipment, stocks, intellectual property and cash.

Consequently, if you are an online adult entertainment entrepreneur, it is simply critical that you know and understand how these laws apply to you and your business.

When Is It Obscene?
Most adult webmasters and other distributors of sexually explicit materials are aware that there is some kind of relationship between what is depicted in the content and the likelihood of prosecution and conviction under the obscenity laws.

Unfortunately, few know just what that relationship is. Even worse, many webmasters' understanding of the obscenity laws is limited to erroneous information picked up on the boards, what they see others "getting away with," or simply no understanding at all.

I am sorry to say that if you distribute explicit hardcore erotic materials via the Internet and you are looking for a clear and simple test to help you figure out what is obscene and what isn't, no such simple test exists. In fact, if you are distributing explicit hardcore erotic materials throughout the United States, over the web, for example, there is no business practice or regime that will guarantee that you will not be convicted of violating the federal obscenity laws.

This is the cold, hard reality of distributing explicit hardcore depictions throughout the United States. It is a risky business. But the flip side of this reality is the fact that it is largely because of these criminal risks that the adult entertainment industry has not been dominated by large mainstream entertainment companies, despite the industry's huge revenues and multi-decade recession-proof growth.

So, in an odd sort of way, one might say that adult entrepreneurs have benefited from the Draconian nature of the obscenity laws. Such benefit is of little concern, however, to a person facing upon an obscenity prosecution. Consequently, long-term success in this business has traditionally been accorded those who were able to gauge what was likely to be deemed to be obscene, and act accordingly. That requires a real understanding of obscenity.

In Part 2, we'll examine what obscenity is, and issues of compliance. Stay tuned!

Gregory A. Piccionelli, Esq,. is a senior member of Piccionelli & Sarno, one of the world's most experienced Internet and adult entertainment law firms. He can be reached at (310) 553-3375 or www.piccionellisarno.com.


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