Pending before the 3rd U.S. Circuit Court of Appeals is the government's appeal of the dismissal of the federal obscenity indictment against Extreme Associates. The government appealed to the 3rd Circuit, and oral arguments will occur in October.
The basis for Judge Gary L. Lancaster's Jan. 20 ruling, which dismissed all 10 criminal obscenity-related charges against Rob Zicari (aka Rob Black) on constitutional grounds, is fascinating and well worth reflection and study.
The Supreme Court held in Lawrence vs. Texas that states have no power to criminalize consensual, private sexual (homosexual) conduct. By doing so, the court overruled one of the great embarrassments of the century, Bowers vs. Hardwick, which had upheld a Georgia law barring homosexual sex. In dissent on Lawrence, Supreme Court Justice Antonin Scalia predicted that lifting this bar would cause the end of the world, specifically listing among his "parade of horribles" the end of obscenity laws.
Following the federal indictment of Extreme Associates, H. Louis Sirkin moved to dismiss charges based upon the ruling in Lawrence. He argued, in brief, that the government does not have the power to control even obscene images when only consenting adults choose to view or purchase them. The Extreme website required several steps, including subscription fees, before viewing the charged imagery. No unwilling viewers could accidentally be exposed and minors were as restricted as possible.
The government could not offer any justification for the law other than protecting morality, protecting minors and protecting unwilling adults. The problem with that argument is that the Lawrence decision held that protecting morality was invalid, and in the Extreme Associates situation, it was unrealistic that minors or unwilling adults could be exposed. Lancaster agreed with Sirkin and ruled that, as applied to these facts, the obscenity law was unconstitutional.
Opening A Window
In many ways, these events opened a window on a future that was seemingly unrealistic a few years ago — an America without the government behaving like some demented nanny, saying, "No! Those sexual pictures or words or ideas are too dirty for you. Someone must go to prison for communicating them."
And what could the world look like without anti-obscenity ninnies like Auntie Bruce Taylor or Auntie Andrew Oosterbaan being in control of America's sexual fantasy life?
First of all, the industry will likely become a lot more like its close cousin, Hollywood. There will be more violence, more perversion, even more appealing to fragmented markets. Shock value likely will define the new emerging market. Any time a theme is barred, the theme becomes artificially compelling. Bestiality, for example, is incredibly boring. Once the arbitrary obscenity laws offer no threat, expect such taboo themes to have a burst of interest – then fizzle out.
Likewise, content emphasizing excretion, incest, fist insertion and even necrophilia (simulated, one hopes) will have its moment in the sun, so to speak. But once the consumer demand actually defines the content available, instead of fear of arbitrary or politically opportunistic prosecutions, the bizarre content likely will fade to an insignificant part of the sexually explicit genre, like so many other trendy fashions.
Sexual violence also is more likely to stay. The intermingling of sex and violence has been part of Hollywood since the silent era. In Alfred Hitchcock movies, if a woman has sex, she dies. In holiday exploitation films, if the bra comes off, the woman dies. The operators of Extreme Associates complained that it was unreasonable that an X-rated film could not show homicides without brutal federal sanctions, but in R-rated films, carnage is the order of the day.
The existing tendency for the market to be fragmented, aiming at smaller and smaller segments will of course be accelerated. You are unlikely to see the same label offering bestiality materials and couples films.
This will bring more social disgrace to an industry already not well respected. Further, the trend toward shock material likely will fragment more than the market — it will fragment the industry itself. For decades, the less mainstream content producers have been looked down upon by the "establishment." In response, the outsiders always claim the mantle of "the next Larry Flynt," or the "true freedom fighter," etc. That split will be even more pronounced when materials historically regarded as beyond the pale gain a share of the market. There will be efforts to create "good sex seals of approval" to establish that the content is free of violence, bestiality, excretion and the like.
And if there is no threat of obscenity prosecutions, the prices will come down, way down. If all you are putting out is shock value material, productions costs will be low. You can undercut the price of mainstream businesses that are paying two or three actors, instead of an actor and sheepdog. More importantly, the last barrier to entry into the adult entertainment business will be gone.
The last explosion of new production companies occurred when the technology made movie making extremely affordable, and when it became clear that the Clinton Administration was not expending resources to prosecute materials depicting consenting adults, marketed to consenting adults. One can anticipate that there will be many new producers when there is no longer any fear of criminal prosecution.
An even greater challenge for existing enterprises be the specter of competing with the likes of Sony, Universal or Disney. Why is it that Sony (for example) does not make hardcore movies? Is it that someone in the policy-making department is offended at the sight of an erect penis? More likely it is the very rational calculus that if the business is already making billions of dollars, why risk a criminal prosecution with the attendant loss of liberty and potential limitless forfeiture, even if the risk is one-in-a-million?
If that one-in-a-million threat is eliminated, what would stop a major (or minor) studio from entering the adult industry? Perhaps they would fear the social stigma of being a "pornographer." Maybe. Remember, Disney Studios did what everyone knew they would never do — distribute R-rated movies by the simple expedient of creating Touchstone Pictures. Does anybody want to bet that Universal won't create an X-rated division? It all depends on how much money they think they can make.
It is likely that there will be consolidation of existing enterprises. Labels will be swallowed up by the bigger players because of the difficulties of low prices and new market forces. The better businesses will thrive, those with better marketing and more efficient operations, and gobble up the "back of the herd."
End Of Prosecutions?
In the long run (maybe the very long run), the end of obscenity prosecutions will be good for the industry, even as in the short run it will be good for free expression. Whenever the marketplace dictates what is communicated instead of arbitrary government rules, we are all better off.
In the immediate aftermath of the end of obscenity prosecutions, the world we know will be subjected to revolutionary forces. The predictions of this article may well be wrong, but it is in your best interest to think about a future where the only forces defining your product line are the sexual fantasies of the audience, rather than the sexual fears of censors.