"In contrast to previous economic eras,
intellectual property will be the primary source
of new wealth in the 21st century."
- Gregory A Piccionelli, 1989
 
AREAS OF PRACTICE
• Internet Matters
• Music & Other Entertainment Matters
• Intellectual Property Rights Enforcement
• Crowdfunding Matters
• Freedom of Expression Matters

Taking Seriously The Need For Serious Value In Your Content

NOVEMBER 2011

Most adult entertainment business owners know that distributing sexually explicit materials exposes them to the possibility of prosecution for violation of obscenity laws. But while many know that the risk exists, over the years I have found that most distributors of adult content are generally unfamiliar with the obscenity laws themselves and just what constitutes obscenity.

 

As the number of federal obscenity prosecutions tends to increase during republican administrations, and given the very real possibility that the republicans could take back the White House in 2012, I think that it is a good time for distributors of adult content to evaluate their exposure to the possibility of obscenity prosecution. To do so, it is important to understand why the distribution of sexually explicit works lacking literary, artistic, political or scientific value exposes the distributor to the risk of obscenity prosecution.

 

Obscene Porn Penalties.

 

The thought of a federal obscenity prosecution should scare the hell out of just about any adult entertainment entrepreneur, and for good reason. Consider the following:

 

  1. Conviction of the federal crime of distributing obscene matter is punishable by up to five years in a federal prison for each depiction found to be obscene. Conviction can also result in enormous fines and the forfeiture of money obtained from the distribution of the obscene matter. This should be a particularly sobering fact for every online adult content provider given the large number of potentially obscene depictions distributed via a typical adult website. For example, if a website has eight allegedly obscene videoclips with running times of a few seconds to a few minutes, the government could charge each of the clips as a separate obscenity violation, exposing the defendant to a total of forty years of imprisonment. This is, in fact, what the government did in the obscenity prosecution of Extreme Associates that was commenced under the Bush Administration nearly ten years ago. Today most adult websites have hundreds or even thousands of explicit video clips.

 

  1. Distribution of two or more obscene items is a specified predicate act that can also trigger simultaneous prosecution under the federal law known as the Racketeering Influenced and Corrupt Organizations Act, a.k.a. “RICO”. This is a heavy hitter criminal law that was enacted to destroy the mafia and other organized crime operations. Persons convicted of a RICO offense face the possibility of an additional ten years in jail above and beyond any penalties imposed for their obscenity convictions. Also, persons convicted under RICO can be forced to forfeit all property associated with the criminal enterprise that distributed the obscene items. This is a more expansive kind of forfeiture than under the obscenity laws alone. Moreover, courts have broadly construed the RICO forfeiture provisions to include virtually any assets purchased with proceeds generated by the “corrupt” enterprise. Thus, for example, a webmaster running an online business from his or her home who has been charged with distributing as few as two obscene video clips from a website could face an obscenity-based RICO action that could ultimately result in the forfeiture of the home. RICO forfeitures have commonly included commercial buildings, cars, stocks, and other assets, including other businesses.

 

  1. Monies generated from the distribution of obscene materials are also subject to the federal money laundering statutes. Money laundering is an extremely serious federal crime that can send a person to federal prison for up to ten additional years for domestic money laundering, and up to twenty additional years if the money generated from a specified criminal act, such as distribution of obscene matter, was earned or moved offshore. Foreign money laundering could apply, for example, to a U.S. company distributing obscene material from a website for which money is received from foreign consumers.

 

  1. If more than one person is involved in the distribution of allegedly obscene materials, all parties could face an additional charge of criminal conspiracy, which can add up to another ten years to a convicted defendant’s sentence.

 

Thus, for example, if you and a business partner operate an adult membership site depicting two or more sexually explicit images or video clips, you could each, in theory, face up to 50 years in prison! That’s right, in the USA, in the 21st century, persons can be sent to jail for 50 years for merely publishing a couple of hardcore photographs. In my opinion, that is an obscenity much greater than anything that could be depicted in a photograph. The federal obscenity laws provide for obscene penalties indeed. And if that isn’t scary enough, consider the fact that the federal government can prosecute the distribution of obscenity in more than one federal district simultaneously and that most states have their own obscenity laws, which they can prosecute independently of the feds!

 

Unfair? Of course it’s unfair. But sadly, seemingly nobody goes to bat for the free speech rights of adult content publishers except for first amendment attorneys and civil rights advocacy groups. And that is fundamentally why politicians see such great political opportunities and reap such great political benefits by piling on more and more possible punishments for pornographers during each election cycle. After all, what politician, particularly in today’s sorry crop, is going to risk his or her career doing anything to help an industry that is often portrayed as either a greedy exploiter of women or a subverter of the morality of our nation? But you can also bet with even greater certainty that the same country-bankrupting bastards aren’t going to ever complain about the generation of hundreds of millions of dollars in tax revenue the industry generates each year.

 

So, What Is Obscene?

 

If you are a distributor or would-be distributor of explicit adult content, after reading about the draconian penalties associated with obscenity law violations, you might well be asking the question “What then is kind of content that will be considered to be obscene?” Well, unfortunately I can’t give you a simple answer to that question, at least not regarding any particular explicit sexual depiction thanks to the way erotic content is evaluated in obscenity cases.

 

Many people think that courts employ an “ I know it when I see it” test to determine whether sexually explicit content is or is not obscene. This is, in large part due to the fact that the phrase was famously used by United States Supreme Court Justice Potter Stewart in 1964 to describe his threshold test for pornography in Jacobellis v. Ohio. The “I know it when I see it” test is not, however, the test used to evaluate whether a sexual depiction is obscene. While the expression may well have become one of the most famous phrases in the entire history of the Supreme Court, it has also, unfortunately, helped to further cloud the already murky issue of just what kind of sexual depictions can be adjudged to be obscene.

 

The actual test used by courts in the United States today originated in a 1973 ruling by the Supreme Court in Miller v. California. In that case the Court established a three-tiered test to determine what was obscene—and thus not protected, versus what was merely erotic and fully protected by the First Amendment of the Constitution. In Miller v. California the Court ruled that the basic guidelines for the trier of fact in an obscenity case must be:

“(a) whether 'the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest,

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

The first two prongs of what is often referred to as the “Miller test” are applied to the material as a whole by the trier of fact, which is usually a jury.

 

Until recently courts have held that the determination of whether content is obscene is a matter of evaluation of the materials through the application of the standards of a local community in which the publication was made (i.e, transmitted or received). This means that an adult entertainment entrepreneur must be mindful that the local community standards of the community from which the content is being sent or the standards of the community in which the content is received may each be used to evaluate the materials.

 

Because the first two prongs of the Miller test have traditionally required a jury to apply their local community standards, prosecutors have traditionally preferred to bring obscenity cases almost exclusively in very conservative communities. On many occasions the government has prosecuted obscenity cases in communities generally known to have an unusual intolerance for erotic expression. Because of this, the risk of obscenity prosecution for distribution of sexual content via the Internet has been a particularly worrisome problem because of the likelihood that the content distributed via the Web will be received in a large number of these very conservative communities.

 

Fortunately, the government’s traditional exploitation of conservative local community standards in obscenity prosecutions may have to change to some degree regarding distribution of content via the Internet as a result of a case I argued before the Ninth Circuit Court of Appeals a couple of years ago. In United States v. Kilbride the court ruled that in obscenity cases where the subject content was distributed via the Internet, a national community standard must be used to evaluate the material. Unfortunately, the ruling applying this more liberal national standard formulation only applies in the nine states under the jurisdiction of the Ninth Circuit (Arizona, Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington). Even more unfortunate is the fact that some courts, such as the Eleventh Circuit Court of Appeals (covering Alabama, Georgia and Florida), have expressly rejected the national standard in favor of retaining the local community standard formulation.

 

Regardless of the great ruling we obtained in the Kilbride case, however, unless and until the United States Supreme Court adopts a national standard for evaluation of content distributed via the Internet in obscenity cases (which I believe it ultimately will), adult entertainment entrepreneurs will have to contend with the fact that their chances in an obscenity prosecution regarding the first two prongs of the Miller test will likely continue to be effectively stacked against them by federal prosecutors.

 

Serious Value.”

 

Unlike the first two prongs of the Miller test, the third prong does not require an application of any community standards. It is essentially an objective inquiry regarding whether the charged materials, when taken as a whole, materially possess literary, artistic, political or scientific value. Because of this, the third prong of the Miller test offers to adult entertainment distributors a golden opportunity to reduce the likelihood of obscenity prosecution through the discipline of only distributing content that materially possesses literary, artistic, political or scientific value components. For example, the use of a thematic “hook” or plotline, or even the artistic use of music, can often dramatically increase the “serious value” of erotic content. But in some cases the use of such elements may not be sufficiently integral to the work for a trier of fact to find that they provide “serious” value to the work.

 

Thus, what will likely be determined by a trier of fact to constitute “serious literary, artistic, political or scientific value” in a given context or regarding a specific erotic work cannot be guaranteed or described with formulaic precision. Nevertheless, with the help of an experienced adult entertainment attorney, adult entertainment companies can be shown how to produce or license content that is more likely to be determined to possess “serious value”.

 

Erotic works most at risk of failing the third prong of the Miller test are those that essentially merely document sexually explicit conduct. Unfortunately (from a prosecution risk perspective), explicit sexual content such as amateur and “wall-to-wall” depictions which often contain little or no dialogue, plot, theme, message, music, sets, etc., have become very popular. Because these types of works may be difficult to defend in an obscenity prosecution, distributors of such content are strongly advised to seek the counsel of a qualified adult entertainment attorney to help evaluate and minimize their risk of prosecution.

 

A Note Regarding Quality Porn.

 

As a free speech advocate I am heartened by the fact that there is much greater acceptance of erotic expression today than there was twenty years ago. This has make it more difficult for those who want the Justice Department to act as a national morality police force to prevent persons from disseminating explicit sexual depictions of adults to other consenting adults. In many ways, one might say that the adult entertainment industry is winning the war against the culture warriors in regard to the dissemination of depictions of sexual expression. Of course, I think this is a good thing.

 

But with broad acceptance of adult content, and as a result of it, the amount of “mainstream” or “normal” depictions of adult content freely available via the Internet has become truly staggering. As a result an increasing number of adult companies are apparently desiring to cultivate new markets by producing and distributing more and more extreme and deviant “shock” content. I am very concerned about this trend. And personally, I think that this is not a good thing.

 

As a free speech advocate it is not my job to promote any particular style or genre of constitutionally protected sexual content. But as an individual and as a businessperson I can, and do, advocate the creation of sexually explicit works that contain a thematic or psychological “hook” or other form of artistic value. In my experience, companies that strive to create and/or distribute works that have one or more of these elements are generally more financially successful than those that do not. Now when you add to this the fact that content with such artistic value is less likely to result in an obscenity prosecution, it has always seemed to me to be a no-brainer for adult entrepreneurs to steer clear of abusive and extreme content in favor of such higher quality content.

 

I guess you could say that as an adult entertainment lawyer, as a businessman, and as a consumer of adult content, I think that good porn just makes good sense.

 

1Greg Piccionelli is an adult entertainment attorney. He can be reached at Piccionelli & Sarno at (818) 201-3955 or greg@piccionellisarno.com.

 

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