Prosecuting the Consumer

Alex Henderson
In recent decades, obscenity law in many major industrialized Western democracies has focused on creation, manufacturing and distribution rather than simple possession. Prosecutors in the U.S. and the U.K. — which are among the democracies where obscenity prosecution has been common — have been going after adult companies, adult stars and adult stores, but not adult entertainment fans. However, that may change in the U.K. if Parliament passes what is being called the “extreme porn” law, which would make it a felony (punishable by up to three years in prison) to possess what British politicians have been loosely describing as “extreme pornography” or “violent pornography.” And supporters of the proposed legislation have been saying that they hope other Western democracies — including the U.S. — will follow Britain’s example and pass possession- oriented “extreme porn” laws of their own.

Britain’s proposed “extreme porn” law would target possession of material depicting any of the four following things: sexual interference with a human corpse, intercourse or oral sex with an animal, serious violence in a sexual context and serious sexual violence — and a long list of civil libertarians and BDSM activists in the U.K. have been arguing that if the law passes, U.K. residents may end up spending three years in prison for simply downloading erotica from a spanking or bondage website. The London-based Demolition Red (of the organization Backlash) has said that if the law passes, “Britain will have the most draconian antiporn legislation of any modern Western democracy.” And civil libertarians also fear that if Britain’s “extreme porn” law passes, antiporn politicians in other democracies will propose similar possession-oriented laws. In the U.S., such a law would be prohibited by the U.S. Supreme Court’s unanimous 1969 ruling in Stanley vs. Georgia. But how safe is that ruling? And is it possible that the Supreme Court will alter or reevaluate that ruling at some point in the future, thus paving the way for an American version of Britain’s “extreme porn” law?

One of the most important decisions in the history of American obscenity law, Stanley vs. Georgia came about because of Robert Eli Stanley — a Georgia resident and suspected bookie whose home was raided by police. The officers didn’t find the betting paraphernalia they were looking for, but they did find reels of erotica; Stanley was charged with possession of obscene material, which was a crime in Georgia at the time. Stanley’s conviction was upheld by Georgia’s Supreme Court, but when Stanley appealed the case all the way to the U.S. Supreme Court, Chief Justice Earl Warren and all of the other justices overturned the Georgia Supreme Court’s ruling and declared that Americans could not be prosecuted for mere possession of adult erotica — even if the material is obscene.

“Stanley vs. Georgia wasn’t really a First Amendment case,” explained First Amendment attorney Jennifer M. Kinsley, of the firm Sirkin, Pinales & Schwartz. “It was a privacy case. It was about the sanctity of the home.”

As long as Stanley vs. Georgia is upheld, Kinsley said, an “extreme porn” law modeled after the proposed British law would not be constitutional in the U.S.

“One question that looms with respect to the British law if it passes is how and how often it will be enforced,” Kinsley said. “I think if you see large-scale prosecutions in the U.K. or very public prosecutions in the U.K., it certainly could spread the word to the U.S. and cause a rogue congressman here to want to adopt a similar kind of proposal. I can’t tell you how far such a proposal would be likely to get in Congress, but I can tell you how far it is likely to get in the courts — not far at all. Stanley was decided by the Supreme Court a long time ago, and the Court has not retreated from it; in fact, they have strengthened it with cases like Lawrence vs. Texas in 2003. I don’t see a law like the one in the U.K. having any chance of being upheld in our American courts.”

All of the First Amendment attorneys who were interviewed for this article — including Kinsley, Lawrence G. Walters and Gregory Piccionelli — said that while it wouldn’t be impossible for the U.S. Supreme Court to overturn or alter Stanley in the future, they thought it was most unlikely.

Walters, of the firm Weston, Garrou, Walters & Mooney, said: “The Supreme Court can change or overrule any prior decision, but I can’t imagine that we are anywhere close to a reevaluation of Stanley — particularly in light of the Supreme Court’s decision in Lawrence. That case looked at the privacy rights of homosexuals and reaffirmed, to a certain degree, the basic principles of Stanley. For that entire line of constitutional law to be overruled so quickly after a reaffirmation like that would be very unusual. I suppose it could happen if the social conservatives took over the Court and enough of them said, ‘Look, Stanley was wrongly decided. We believe that it should be changed, and it never should have come down the way it did.’ I don’t see that happening, but it certainly could happen.”

New York City-based BDSM rights activist Susan Wright, who is the founder and president of the National Coalition for Sexual Freedom, said that so far, the British “extreme porn” law hasn’t been a major topic of discussion in America’s BDSM community. But she expects that more Americans — especially adult webmasters who publish BDSM websites — will take notice of the law if Parliament actually passes it.

‘We’re not hearing a lot about this proposed law in the U.S. because it hasn’t passed in the U.K. yet,” Wright explained. “It hasn’t really hit a lot of people’s radars here. The general BDSM community in the U.S. probably doesn’t know that this has been going on in the U.K, but if it passes, you will definitely hear the discussions escalate; it will be on more Americans’ radars at that point.”

Wright continued: “One of the problems with the British law is that the wording is so vague. What are they interpreting as violence in the U.K.? Where will the line be drawn? If they want to outlaw the possession of BDSM images in the U.K., that’s a problem. It goes beyond the people who will be arrested and have to go through having their lives ruined in order to fight this — it continues the stigma that BDSM has been fighting all along, which is the myth that BDSM is about violence. BDSM is not about violence.”

One of the U.K. residents who has been vehemently outspoken against the “extreme porn” law is journalist-author Daryl Champion, who has been a contributing editor to the London-based, fetish-themed Skin Two Magazine and wrote the political book “The Paradoxical Kingdom: Saudi Arabia and the Momentum of Reform.” Champion said that if Britain’s “extreme porn” law passes, it will set a dangerous precedent for a major Western democracy — and he believes that the U.S. and Great Britain are both moving in an authoritarian, socially repressive direction that will have negative consequences for the adult industry on both sides of the Atlantic Ocean.

“The U.S. and Great Britain might be on their own roads when it comes to obscenity and extreme pornography, but they are traveling in the same direction,” Champion asserted. “There seems to be a conservative, reactionary trend in society and politics. People in mainstream society are feeling insecure and want to be reassured in the aftermath of 9/11 and ‘the war on terror,’ etc. — and there are politicians who play to this fear and offer ‘protection’ and ‘security.’ One way they do this is to pick on easy targets that represent something negative in the mainstream mind, or that can easily be made to appear negative. We are looking at old-fashioned scare campaigns, moral outrages and witch-hunts. It is easy to see how BDSM can fall into the easy-target category.”

Champion continued: “The U.S. is worse than Britain in some ways — such as including text in obscenity considerations — and Britain is worse than the U.S. in other ways, such as the blanket targeting of consumers of any material the state deems abhorrent. I would expect the two parallel but separate legal and moralistic roads these two political and cultural allies are traveling to eventually intersect and then merge. I think this is likely, and then today’s oppression will seem relatively mild.”

Kinsley said that Stanley’s right-to-privacy principle has not only been beneficial for consumers of adult entertainment, but also for social conservatives. “Certainly, we are in a more conservative environment in terms of the Supreme Court than existed at the time Stanley was decided,” Kinsley said. “But because the principle is based on the sanctity of the home and not necessarily on free speech principles, I think that Stanley continues to sell, even to social conservatives. In the same way that those of us who advocate for free speech don’t want the government interfering in our bedroom, people who are social conservatives don’t want the government interfering in the schooling of their kids or their religious decision making.”

Piccionelli, of the firm Piccionelli & Sarno, isn’t sure that even Antonin Scalia or Clarence Thomas — two of the socially conservative Supreme Court justices who dissented in Lawrence — would want to overturn Stanley. “The only person who might want to overturn Stanley is probably Scalia, who has wondered out loud whether or not adult material is really speech that is protected by the Constitution — and maybe Clarence Thomas would go along with him on it,” Piccionelli said. “But I doubt anybody else would, and I’m not even sure that Scalia or Thomas would want to overturn Stanley. There are such profound implications for the U.S. if the mere possession of adult material that might be obscene could generate a potential prosecution.

“That leaves us with a question of, ‘What if foreign countries do it?’ I think the natural instinct for Americans in the adult industry is to evaluate this British law if it passes and say, ‘What does it mean for me?’ But I think the most unlikely scenario is that if this law passes in the U.K., it will have any affect whatsoever on the constitutional posture that protects the possession of non-child pornographic adult materials, even if they have been the subject of a successful obscenity prosecution. I doubt that the precedent in Stanley is ever going to be overturned in any significant way in the U.S.”


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