The Wal-Mart Rule

Stephen Yagielowicz
It's no secret that the Bush administration is under tremendous pressure from religious groups and other ideologically driven special interests to increase the number of federal obscenity prosecutions. With two more years in which to do this, it is this observer's opinion that the right will attempt to curry pre-election favor with its base by making good on the administration's promises to clamp down on obscenity.

But what constitutes "obscenity" in America, circa 2007?

Much already has been written on the case history and evolution of obscenity laws; and I won't attempt to rehash all of that here. This isn't meant to be a legal guide but a strategy guide, focusing on practical measures rather than the letter of the law. I'm going to share with you some of my perspectives as I take another look at the material that I'm currently publishing online —the sole theater within which my comments here take place: I'm only concerned with American obscenity law compliance as it relates to websites, rather than trying to address every possible concern of traditional video producers, print publishers or others in adult. With that said, let's take a closer look.

You see, the problem is that unlike the 2257 statute which features bright-line guidance of covered clerical issues, there is no practical approach to obscenity law compliance due to the nebulous nature of the law, which is compounded by the vast and antiquated vagaries of "community standards" — a concept that needs re-definition in the digital age, where adult content is delivered directly to the consumer.

To clarify, what has typically passed as a practical approach is to consider Miller, which has been the standard since the '70's, causing careful adult website owners to include substantial, "valuable" materials as a proactive defense under Miller. But at the end of the day, a shield is only useful in battle — you'd have to be in court for it to matter.

So how do you minimize your chances of having to go to court and trust your fate to 12 people that don't know what the word "prurient" means?

The quick answer is "don't get charged with obscenity," which isn't really a smart-assed remark but instead, speaks to the goal — a goal that can be addressed. But how? Well, the first thing to do is to not violate the community standards of the jurisdictions where your website is available.

Howls, Nitpicking
Now, there can be endless, though legitimate, howls from the nitpickers over the issue of community standards and online adult; but remember, I said this isn't a legal article but a strategy guide, and as such, we're going to assume that community standards apply and can in fact not only be easily determined but taken into account when developing sites and marketing materials.

Given this, I've been thinking a lot lately about what constitutes an "appropriate level" of explicitness for images displayed in a nonage- verified environment — drawing a line, so to speak, that balances my own sense of risk and reward, while also maintaining a degree of respect for family, since our business is no secret.

As part of this balancing act, I'm 'separating' my content into three main categories: that which is displayed in the free areas, including tours, TGPs, free sites, etc.; that which is used for marketing exclusively on explicitly adult sites, such as TGP/MGP galleries; and that material that is only available within our secure members area.

While obscenity law makes no distinction as to where or how the material is available, the practical reality is that the distinction will be an area of concern for a prosecutor who is cherry-picking his next case. For example, material that is freely available on a non-explicitly adult domain (domains that do not have the words porn or sex in the name) may have a much higher chance of being targeted than does the same material appearing in a secure members area that the customer had to pay to enter. Likewise, material that may otherwise be found only in a members area might be used for galleries that are only linked to from TGP or MGP sites, etc., and this material might have a moderate chance of being targeted.

On the surface, this may seem a contradiction, since I just said that obscenity statutes don't consider the location of the material. But a prosecutor usually will have to make his or her case to a jury — a jury made of people: with all the emotions, hidden agendas and personal beliefs that humans are known for.

Given this, a much more winnable case can likely be made against a free site than against a paysite displaying the same material, since many jurors might feel that material that was sought out, paid for and consumed in the privacy of the customer's home could be much 'racier' than material displayed for free where their kids can easily stumble upon it. Taking this further, jurors might also feel that material, though free, that was available in an obvious sex shop (TGP or MGP), also might enjoy a higher level of constitutionally protected naughtiness.

But this all comes back to the issue of community standards, though, since what a juror in Las Vegas finds acceptable will be at a different level than what a juror in Salt Lake City might find acceptable. So where does this leave us? At Wal-Mart, of course!

Check Out Wal-Mart
As the nation's largest retailer, Wal-Mart is found in nearly every sizeable community. The store carries a large number of magazines; including a good variety of women's magazines, like Cosmopolitan. If your material is similar to that found in any of these periodicals (don't be too hasty to balk, you might be surprised at what you'll find there), then it clearly falls within the contemporary community standards of that jurisdiction.

If that was the standard which you adopted, you wouldn't have a lot to worry about — but this is porn, not Maxim — so despite how risqué some of these magazines are, we need to go further, though the Wal-Mart model will work great for your free areas.

The next step is what I like to call "the Cinemax level." Most of us have seen the cable giant's late-night lineup which is offered in nearly every community and features endless adult programming that includes solo action, lesbian encounters and simulated sex. While this is still a far cry from much of the material on the adult market, the level of explicitness here makes a good guide for the type of content you may want to offer on your galleries and other marketing tools.

By now, some of you are thinking that I'm crazy — this is porn, after all! But the fact remains that there are powerful voices calling for obscenity prosecutions of even the most 'vanilla' fare, rather than focusing on more extreme material. Such a case, if successful, would send a strong message that no matter how tame your content is, you might not be safe from federal obscenity charges. Publishing material similar to that which is commonly available on newsstands — and in Wal-Mart — coast-to-coast, along with adding material in accordance with Miller, will make you much less of a target for prosecution — and isn't that the goal?

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