Aggressive marketing got Marvin Miller in trouble with the law.
In 1972, Miller, operator of one of the largest mail-order businesses on the west coast dealing in adult materials, blithely embarked upon a mass mailing campaign of brochures promoting his line of pornographic films and books.
Five of Miller’s unsolicited brochures were mailed to a restaurant in Newport Beach, California. One of the envelopes was opened by the restaurant owner and his mother. They were startled by the contents of the brochure, material that according to court documents, “primarily … consist[ed] of pictures and drawings explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.”
As purveyors of adult entertainment, you probably know Miller’s junk mail marketing approach backfired. He was convicted on a misdemeanor count by a California court for violating a state law that prohibited the distribution of obscene materials. Miller’s appeal made it all the way to the Supreme Court of the United States in 1973, which ruled 5-4 that the conviction was constitutional under the First Amendment.
The landmark ruling that ensued in the case of Miller v. California – the so-called Miller Test – is often viewed by contemporary distributors and producers as some form of protective umbrella. But if you are distributing and selling material that contains “visual depictions of individuals engaged in sexually explicit conduct involving bestiality, defecation, urination, and torture”, the Miller Test is a lethal trap designed to haul you in front of a jury.
In considering Miller’s appeal, the Supreme Court indicated that “obscene material is not protected by the First Amendment” but the Justices fretted over “the inherent dangers of undertaking to regulate any form of expression.” They balked at the notion of establishing a firm definition of obscenity and instead lobbed the ball back into the territory of state law with the caveat that “state statutes designed to regulate obscene materials must be carefully limited.”
The Supreme Court Justices attempted to help individual states set such limits by devising a three-pronged set of criteria which must be met in order for a state to legitimately proceed with an obscenity conviction: (1) the “average person” applying “community standards” would agree that the work as a whole “appeals to prurient interest”; (2) the work depicts or describes “in a patently offensive way” sexual conduct specifically defined by applicable state law, and; (3) the work “as a whole” lacks “serious literary, artistic, political, or scientific value.”
The problem with the community standards prong of the Miller Test is that it has always encouraged “forum shopping” for the Department of Justice, prosecuting producers and distributors in locales with restrictive obscenity laws.
In prosecuting obscenity cases, says noted sex therapist, author, and radio personality Dr. Susan Block, the DOJ has “to find a group of jurors who will be horrified, but not so horrified that they would be disqualified.”
“It’s like trying to find the perfect sex partner,” Block tells AVN Online.
In attempting to find that elusive “perfect sex partner” in the jury pool, the DOJ quietly agreed upon five taboo elements that they felt were guaranteed to provoke a revulsive response from their legal bed mates: scat, golden showers, bestiality, fisting, and simulations of rape or torture.
When the DOJ established the Obscenity Prosecution Task Force in May 2005 they vowed to investigate and prosecute distributors “of hardcore pornography that meets the test for obscenity, as defined by the United States Supreme Court.”
That would be The Miller Test.
The threat of a new Justice Department crackdown “has an air of grim inevitability about it,” says Frederick Lane, lecturer and author of Obscene Profits and the forthcoming Decency Wars: The Campaign To Cleanse American Culture.
“They’ve got the personnel, the training, the legal tools, and the motivation to launch yet another futile crusade against sexual materials,” Lanesays.
Lane believes that the operators of fetish sites should be very, very concerned.
“It makes sense for the Justice Department to start at the fringes of accepted content and work in towards the heart of the mainstream. That approach is virtually dictated by the Miller Test. The challenge for the Justice Department is convincing a jury that even the most extreme fetish material does indeed violate community standards, given the fact that the Internet is everywhere and a growing number of people are looking for these materials.”
Indeed. A random Google search on “rape videos” – Scream and Cream videos, as fans like to call them – yielded 794 relevant hits out of 1,600,00 returns. A Yahoo search on “fisting videos” returned over 300 relevant hits.
The webmaster of a site devoted to gay fisting spoke to AVN Online on the condition of anonymity. He is so apprehensive about a perceived change in the tide that he didn’t even want his URL mentioned in this story.
“Fisting has been accepted and tolerated for some time now,” he says. “But it’s getting to be a problem finding a safe territorial jurisdiction.”
Fisting, he insists, is not seen as demeaning and degrading in the gay community. It is a sexual activity that “grown men become very passionate about.”
“The Justice Department wouldn’t have the data to appreciate the cultural importance of it in the gay community,” he says resignedly.
Dr. Susan Block agrees.
“Done properly, fisting is a very gentle thing. It’s safer than unprotected anal sex (when precautions are taken) because there is no exchange of body fluids,” she says. “It has to be done properly, slowly, with lots of lube … these people have very little sexual education if they think that fisting is violent.”
Tell that to fisting site operators hungry for visitors.
“See cute girls get whole hands up their pussy or ass while they scream!” an advertisement on Fistingking.com exclaims.
“Naughty little sluts get the brutal fisting they deserve!” shouts another ad.
At Fistinglessons.com a raven-haired beauty named Maya takes a baseball bat, a flashlight, and a fist in her ass (not at the same time, mind you).
Based on these traffic lures, one would think that the webmasters had been taking marketing courses from Marvin Miller.
Norway-based K. Jensen, who owns and operates Fistingking.com, says that his site attracted 1.2 million unique visitors in May 2005.
“What is the real problem with stuff like fisting and water sports?” Jensen asks. “Pretty harmless for the models and the people who like to view it. It’s not dangerous and I can’t honestly see why it should be banned and looked down upon. If people don’t like it, don’t watch it.”
The problem – from the morality-imposing view of the U.S. Justice Department – is that millions of people do like extreme sexual material and they are beating down cyber doors to get their hands on the product.
“The revolution of the Web has made the production and distribution of fetish materials economically viable and has contributed to a broadening of available sexual material,” says Frederick Lane.
In Marvin Miller’s days, when the main form of distribution were magazines and movies, it didn’t make economic sense, Lane explains, to sell “the more extreme type of materials” because the market was too small.
“In addition, since such materials are more rigorously targeted by law enforcement, it was simply too risky. However, a market clearly does exist, and webmasters are catering to it, he says.”
Brutalextreme.com lists the top 100 websites catering to the rape and torture crowd. It reads like Ted Bundy’s shopping list:
Gay Japanese rape videos, lesbian rape, prison rape, drunken rape, teen BDSM rape, alien rape (yes, alien rape), schoolgirl rape, she-male rape, animated rape, incest rape, a “young girl raped by Santa Claus,” a video of an alleged “tiny Iraqi girl raped at Abu Ghriab,” helpless teenagers “raped to death.”
Forced Witness is advertised as the Rape Bestseller of the Year, 2005.
“Imagine being made to watch as your loved ones are raped and tortured!” the ad copy shouts. “You are bound and gagged, powerless to help as they are force-fucked in every conceivable way!”
The rape portrayed on video offered on the Internet, says Dr. Susan Block, is “fictional and consensual.”
“People involved in making fetish videos are more often than not practitioners of the fetish,” Block asserts. “I never had a porn star come up to me and say, ‘I was forced to do a scat video,’ or ‘I was forced to do a rape video.’ They do it for money, the pleasure, or the adventure. The models aren’t forced into doing anything they don’t want to do. And they get hurt a lot less often than stunt performers in Hollywood or professional athletes.”
Though a staunch defender of fetish and fetish product, Block is deeply troubled by what she perceives as a profound cultural shift that has left millions of consumers salivating over the extreme product that the DOJ wants to take away.
“Why should we be surprised that these themes are coming up more and more in people’s sexual fantasies?” Block asks. “This reflects the zeitgeist, a sadomasochistic, humiliation-oriented, frat boy mentality.”
That zeitgeist, Block warns, is coming from the very government that seeks to curtail extreme fetish product.
We need to look at ourselves, Block says, and examine “the politics of what America is doing in the world, and think about how it is affecting our sexuality.”
“Here we’ve gone from the leader of the so-called Free World allegedly enjoying a hand job or a blow job every now and then, to a leader who relishes, in a frankly sexual sense, being a war president, a torture president, a Christian crusader … To some degree, our erotic fantasies follow our leaders’ cues.”
In the years since Sept. 11, Block believes, there has been an immense sexualization of “torture and death.”
“The images portrayed in fetish videos are fictional,” Block emphasizes. “But the images that came out of Abu Ghriab were real. The detainees in Abu Ghriab and Guantanamo are not acting consensually … [Attorney General] Gonzalez gave a green light to torture, and now he wants to go after legitimate business men and women for portraying the same thing in a fictional and consensual manner?”
America’s international politics, says Block, puts “humiliation over negotiation” and the zeitgeist, consciously or not, informs the choices of porn consumers.
At least one consumer on Google’s alt.sex.bestiality message board concurs with Block’s assessment where modern bestiality product is concerned. He writes: “It’s got nothing to do with zoophilia (arousal from animals) at all, and a lot more to do with the extreme degradation edge of BDSM. The market for this stuff is with people who want to see other people used as a tool with no control of their own.”
Those who believe that Internet purveyors are untouchable to the long arm of the DOJ had better think again.
The new Obscenity Prosecution Task Force will draw upon the expertise of several Criminal Division sections, including “the Computer Crime and Intellectual Property Section, which will assist in investigations focused on the Internet and other high-tech methods of distributing obscenity.”
The Task Force also will be supported by trial attorneys from the High-Tech Investigative Unit of the Child Exploitation and Obscenity Section (CEOS), which consists of “computer and forensic experts with knowledge of the Internet and other interactive computer systems such as peer-to-peer networks.”
Assistant Attorney General Christopher Wray states that while the Justice Department will continue to respect and protect individuals’ First Amendment rights, “the welfare of America’s families and children demands that we enforce the laws on the books.”
When the Assistant Attorney General begins tough talk about peer-to-peer networks (file sharing) it’s a safe bet that the protection of individual First Amendment rights is off the table.
“If they move forward unhindered.” one fetish webmaster says, “a new island nation will emerge somewhere, free of territorial jurisdictions, and the stuff will be pumped out anew and with even more vigor and lack of restraint.”
He likens the aftereffect of such a move to the fallout from the Volstead Act of 1919, when the federal government sought to prevent the large-scale production of alcoholic beverages.
“People were drinking bathtub gin and going blind from guzzling home brews mixed with furniture polish. There were no controls any longer and because liquor was suddenly illegal there was an even greater thirst for it,” he says.
Susan Block echoes the webmaster’s sentiments.
“A repressive society that says any kind of sex is bad, outside of marital procreative sex, helps to foster taboo fetishes,” she says. “When society says that your essentially innocent fantasies are bad, then eventually, anything bad is going to start looking good.”
Before fetish webmasters pack up their bags and head for the Caribbean, Frederick Lane cautions that a confrontation over the continuing viability of the community standard prong of The Miller Test is steadily brewing.
“And keep in mind that all of the fuss over obscenity prosecutions may be moot if the 3rd Circuit Court and/or the Supreme Court upholds the District Court decision in the Extreme Associates case, which holds that the government has no business attempting to regulate private morality,” he points out.
At a minimum, until the dust settles, webmasters peddling scat, golden showers, faux rape and brutality, fisting, and bestiality, would do well to meditate on a less-quoted element of the Supreme Court’s Miller decision:
“Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in public places.”
Proceed with extreme caution.
A former newspaper editor and amateur boxer, Dash Hamilton lives in the Pacific Northwest. When not scouring the Klondike for gold, Hamilton collects old Remington typewriters, shotguns, Victorian era bird cages, and business cards from traveling salesmen. He is currently writing a critical study on the works of Jacqueline Susanne.