Unlike a magazine or video, the infinite nature of works displayed on the Internet — with capabilities for linking to other sites and streaming live content — comes into question. Is it possible to freeze a moment in virtual time on affiliated websites, to distinguish a body of work that could be considered obscene?
And while one man’s feltching video is another man’s Shakespeare, attempts to interpret what is “offensive” or which materials lack in literary, artistic, political or scientific value have always been a philosophical albatross around the necks of filmmakers and the feds alike.
In an appeal of the 1999 injunction issued against the Child Online Protection Act, the 3rd U.S. Circuit Court of Appeals explicitly held that the Miller test “has no applicability to the Internet, where web publishers are currently without the ability to control the geographic scope of the recipients of their communications.”
Although the Supreme Court overturned the lower court’s decision in May 2002, saying COPA’s use of the Miller test did not make the statute unconstitutional, the court noted other potential problems and sent it back to the 3rd Circuit for additional review.
The debate over COPA continues, nearly eight years after it was signed into law, as the courts try to determine whether children would be better protected from online adult material by age-verification programs installed by adult webmasters or filtering tools controlled by parents.
In the meantime, content producers are left on their own to decide what materials may or may not be singled out for prosecution. The only sure-fire violation of obscenity laws that guarantees prosecution and eventual conviction, if proved, is content that portrays actual criminal acts like child pornography.
However, in August 2005, when the FBI began actively recruiting agents for its anti-obscenity task force, a memo that circulated from FBI headquarters to all field offices stated that, in an attempt to gather evidence against “manufacturers and purveyors” of pornography, the task force would be examining materials that depict and are marketed to consenting adults.
“Based on a review of past successful cases,” the memo said, the types of pornography that have better odds of resulting in convictions include “bestiality, urination and defecation, as well as sadistic and masochistic behavior.”
“I would love to see what these people would do if they could go to jail for making X-rated movies,” industry old-timer Bill Margold says. “All of these people, Hardcore, Black and JM, all came after the Freeman decision. They all came into the business after we were made legal.”
A performer since 1973, Margold is a strong advocate of what he calls “common censorship” and has outlined a plan for an industry self-regulatory committee he would like to see called the Adult Media Entertainment Responsibilities Association.
A veteran of several vice squad investigations, in the days when making adult entertainment was considered criminal, Margold favors the so-called “chilling effect” that legal statutes had on old-school content producers unsure of how far they could go without risking prosecution.
He believes the extreme producers of today hide behind their 1st Amendment rights, which enables them to bring to market large volumes of pornography that is exploitive, offensive and, perhaps worst of all, boring.
“I’ve always looked upon a lot of this stuff as basically lacking creativity — contempt for their own inability to create any more than they can and to just simply turn on the camera and shoot,” Margold says. “Video gives anybody, even the lowest cretin, the opportunity to make a movie. Frankly, I don’t think that they do it with any great intent because they’re blatantly stupid in the first place, and they simply do it because they have nothing else that they can do. They’re certainly not going to take the time to have dialogue read. They’re not going to take the time to ask these people to act. They’re simply going to take out their own sexual frustrations on anything that’s unfortunate enough to stumble onto their set.”
This type of pornography, Margold believes, is doing more harm to the industry than good. That’s tough talk coming from a man who admits to performing in a scene (from “The Disco Dolls: Hot Skin in 3D,” 1977) where he sodomizes a woman while drowning her in a vat of chicken soup. Margold emphasizes that the scene was necessary to the plot of the film.
Some, like attorney Walters, agree that some self-regulation should at least be considered by the industry.
“From a realistic standpoint, the industry needs to get a handle on the fact that some sort of best practices and voluntary regulation on its activity is appropriate,” Walters says. “I’m not suggesting censorship of certain types of protected speech but the way in which it is presented and marketed, all the way to age verification for the users and the performers; those kinds of things should be looked at.”
Strangely enough, on the flip-side of Margold’s opinion of producers’ lack of creativity, attorney Douglas believes the restrictions placed on sexual speech by obscenity laws are actually preventing higher-quality content from being produced.
“If you want to see explicit human sexuality,” Douglas says, “that means you are limited to X-rated material. Hollywood won’t touch it and it can’t be integrated into other forms of communication.”
In the parallel universe that is Hollywood, censorship concerns are felt more and more, even with industry regulation in the form of the Motion Picture Association of America’s rating guidelines. Mainstream producers, directors, artists and critics have long railed against the “force of censorship” and chilling effect that the ratings system has on the creative process of filmmaking.
In an article from the March 13 issue of weekly Variety, author Elizabeth Guider wrote on media wariness in the wake of unpredictable political and religious climates in the U.S. and abroad.
Self-Censorship at Work?
“In many cases, the pressure is coming from government watchdogs and religious zealots,” the article states. “But in others, self-censorship is at work, as media companies, filmmakers and even once-outspoken artists are caving to government pressures, prejudices and fears of inciting social unrest.”
Guider goes on to say, “Those in the media and entertainment biz are increasingly second-guessing their own creative choices, declining to take on particularly risky subjects, toning them down, qualifying them in some way, or postponing them until whatever wave of outrage subsides.”
The 2005 documentary “The Aristocrats” profiles what is supposedly the world’s dirtiest joke; told since vaudevillian times, it’s a comedy insider’s secret handshake.
The premise is simple. The first line is, “A guy walks into a talent agent’s office and says, ‘I’ve got an act for you…’” which he proceeds to describe to the agent.
The body of the joke is an improvisational onslaught, describing in gratuitous detail a stage act that usually includes incest, excrement eating, urination, acrobatics and the family dog. The idea is to make it as filthy as possible.
When Gilbert Gottfried delivered the joke at the 2001 Friar’s Club Roast of Hugh Hefner, it went something like this:
“A talent agent is sitting in his office. A family walks in; a man, a woman, their two kids and their little dog.
“The talent agent goes, ‘What kind of act do you do?’ The father starts fucking his wife. The wife starts jerking off the son. The son starts going down on the sister. The sister starts fingering the dog’s asshole.
“Then, the son starts blowing his father. Then, the daughter starts licking out the father’s asshole. Then the father shits on the floor. The mother shits. The dog shits and pisses on the floor. Then, they all jump down into the shit and piss and cum, and they start fucking and sucking each other.
“And then they take a bow, and the talent agent says, ‘Well, that’s an interesting act. What do you call yourselves?’
There are worse tellings of the joke by other comics in the documentary, even a version recited as poetry in a cameo appearance by Ron Jeremy. The profanity seems sophomoric and laughable because everyone understands that it’s only words.
It’s a joke — right?
Interesting to note that “The Aristocrats” was released unrated, with a statement proclaiming that the film has protection under the 1st Amendment.