“Adult entertainment” and “art” are not often found in the same sentence. However, distributing graphic sexual depictions without any serious artistic value is exactly the type of content that can get you into very serious trouble with the government. This is because the law prohibits and severely criminalizes the distribution of “obscene” matter. Just what constitutes obscene material, however, is, unfortunately, not an easy question to answer. What’s worse is that the answer depends on where the material is sent to or whom it’s from.
Despite the difficulties, every adult entertainment entrepreneur should take the time and make the effort to become familiar with the basics of obscenity law, including the law’s built-in constitutional defenses available to distributors of adult content. Here’s why:
A conviction for a single violation of the federal obscenity laws can result in imprisonment for up to five years for a first offense (10 years for second and further offenses), and a fine of up to $250,000 per count.
The federal obscenity laws can be violated in a number of different ways. For example, federal law separately criminalizes importing or transporting obscene matter (18 USC § 1462); transporting obscene matter for sale or distribution (18 USC § 1465); and engaging in the business of selling or transferring obscene matter (18 USC § 1466).
Knowingly transferring obscene matter to a minor is also a violation of federal law and can independently result in a sentence of up to 10 years and a $250,000 fine.
Additionally, violation of the obscenity laws also entitles prosecutors to bring charges under the Racketeer Influenced and Corrupt Organizations Act, otherwise known as “RICO”. A single RICO conviction can result in a prison sentence of up to 20 years. Persons and entities convicted under the RICO statute can also be required to forfeit to the government all property constituting, or derived from, any proceeds which the person or entity obtained, directly or indirectly, from racketeering activity. This can include homes, cars, equipment, stocks, intellectual property, and cash.
Obscenity law violations can also trigger prosecution under the federal money laundering statutes, potentially adding 10 years’ imprisonment for domestic money laundering and 20 years for foreign money laundering.
As any serious player in the business knows, the federal government has recently become much more active in prosecuting obscenity cases. And although the pornography-related federal obscenity prosecutions between 1992 and 2004 (and only a handful since) were all child-porn cases, the Department of Justice has announced that it now considers all obscenity prosecutions to be a high priority. Another cause for concern for purveyors of adult material is that federal prosecutors have the discretion of bringing obscenity prosecutions in one or more locations from which the allegedly obscene material is either sent or received.
Consequently, if you publish or distribute adult content, you should know that the obscenity laws are serious regulations that you are deemed to understand whether in fact you do or not. Ignorance of what the obscenity laws prohibit is not a defense. But art is.
The “serious value defense”
An obscene photograph, DVD, website, video clip, live chat show, or other matter is an expressive work that has lost the protection originally afforded it by the First Amendment of the U. S. Constitution. Expressive material may be stripped of its constitutional protection, however, only after a criminal trial in which the trier of fact (a jury or the judge in cases without a jury), applying a three-part test to the material at issue, determines that the matter is “obscene.” The test is often referred to as the “Miller Test” because it was first announced by the Supreme Court in the case of Miller vs. California, 413 U.S. 15 (1973). The test requires that before a work can lose its constitutional protection and be deemed obscene, a jury must determine:
1. Whether the average person would find that the work, taken as a whole and applying contemporary community standards, appeals to the prurient interest;
2. Whether the work depicts or describes sexual conduct in a patently offensive way, when applying contemporary community standards
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (emphasis added).
Thus, only after the trier of fact finds in the affirmative for all three parts of the Miller Test can a defendant be convicted of an obscenity offense. However, it’s unlikely that the government will prosecute material in a jurisdiction where the feds are not reasonably confident they can empanel a jury that will probably find the material to be outside its community standards (the subject of the first two prongs). Consequently, convincing a court that the accused materials do not objectively lack any serious literary, artistic, political, or scientific value will likely be the defendant’s best hope for acquittal.
“Serious literary, artistic, political or scientific” value
The first two prongs of the Miller Test are designed to serve the interests of the community. They can be viewed as filters to protect a community’s subjective sensitivity to sexually explicit materials. The third prong, however, limits the community’s ability to censor or otherwise control the content of such materials. It functions to prevent a community from silencing protected speech through actual or threatened obscenity prosecution. In doing so, the third prong is a valuable guarantor of free speech rights.
To determine whether a work lacks serious literary, artistic, political, or scientific value, the trier of fact in an obscenity case is required to look at the subject material as a whole and not just focus on one or more parts of the material, which if severed and viewed alone might not be deemed to have serious value. For example, in one famous case where Penthouse, Hustler, and a number of other adult entertainment companies successfully sued the solicitor general for Fulton County, Georgia, to enjoin a number of obscenity prosecutions of vendors of the plaintiff’s magazines, the Court held that while certain sections of the magazines at issue exhibited less literary value and “taste,” there were enough articles of sufficient literary value so that it could not be said that the magazines taken as a whole lacked serious literary, artistic, political, or scientific value (Penthouse International, Ltd. vs. Mc Auliffe, 610 F.2d 1353, 1980).
Unfortunately, there is no simple or clear answer other than anything that persuades a trier of an obscenity trial to conclude that the work possesses such value. “Serious value” has sometimes been characterized as that which “aids in learning,” “shows imagination,” “demonstrates skill in its execution,” “attempts to affect public policy,” or “assists in the exploration for or discussion of scientific knowledge” (Commonwealth vs. 707 Main Corp, 357 N.E. 2d 753, 1976).
In some instances the serious value explicit materials possess can be found in the plot line of the story underlying an explicit video. In some cases, it’s the quality of the acting or production. In others, it’s the editing or the choice of music composed or selected to fit the action.
Make art, not war (on porn)
Sometimes the serious value of a work is the combination of some or all of the above. For example, high-budget adult features such as Digital Playground’s Pirates and Red Light District’s Darkside clearly contain serious literary and artistic value from a multiplicity of perspectives.
Therefore, if a hypothetical video producer’s goal is to increase the probability that a potentially obscene work would fail the third prong of the Miller test, the producer might want to design and create the work to clearly include features commonly associated with works characterized as possessing serious literary, artistic, political, or scientific value. For example, in the case of audiovisual works, such as adult DVD motion pictures and explicit video-clips on websites, plot, dialogue, and/or music, thematically integrated into the work, could provide an effective argument that the work, when viewed as a whole, possesses the requisite serious value to rescue it from an obscenity ruling.
Similarly, with respect to adult websites, publication of opinion, particularly political opinion; educational material, such as information pertaining to sex and sexuality; and of course, the inclusion of music, if thematically woven into the website as a whole, could provide an effective argument that the site does have serious value.
Appropriate and effective inclusion of serious value in adult content also may provide another, albeit less obvious, protective benefit to the adult content producer or distributor. Since so much content distributed on the Web and elsewhere comprises little more than graphic depictions of sexually explicit conduct, material which can clearly be viewed as possessing serious value is likely to be viewed by prosecutors as a relatively difficult obscenity prosecution target by comparison. As such, all other factors being equal, it is likely that a prosecutor would choose the easier target lacking serious value.
The Sound of Music
To assist adult video producers and distributors, adult website companies, and others in the business, a number of companies have sprung up to provide nonadult content to the industry. For example, one of my favorites with whom I am affiliated as a music composer and performer is a supplier of high-quality music for adult entertainment businesses: Skin Muzik (Skinmuzik.com). Recently, for example, Skin Muzik provided the score to Pirates. Another new provider of nonadult content to the online adult entertainment industry is SexCultureOnline.com.
If you acquire content from a third-party source for inclusion into explicit material that arguably doesn’t otherwise possess serious value, in the hope that by doing so you will stave off an obscenity prosecution, you should understand that the inclusion might not necessarily decrease your chances of prosecution or conviction. For although there is no sure way of obtaining a guaranteed finding that a work will have serious value, it is clear that a sham addition or inclusion of literary, artistic, political, or scientific material within or surrounding matter that would otherwise be deemed to be obscene will probably not protect the material.
As one court put it “A truly pornographic film will not be rescued by a few verses from the Psalms” (United States vs. A Motion Picture Entitled “I Am Curious Yellow,” 404 F.2d 196, 1968). Consequently, if you acquire third-party content such as music, you should take care to select material that truly artistically and thematically integrates with your work in a substantive way. Also, you are well advised only to work with reputable content licensors that can demonstrate that they have all the intellectual property rights necessary to grant you the right to use the material in association with explicit adult content.
Graphic arts
Because there were no nonchild-pornography-related federal obscenity prosecutions between 1992 and 2004, it is understandable that many in the business discount their risk of losing everything they own and going to jail for a long time as a consequence of an obscenity conviction. As a result, many adult content producers do not take the time to create works that are more than raw depictions of explicit sexual conduct. Other producers claim that their production of such material is in response to consumer demand and that purchasers of hardcore adult entertainment simply do not want “artistic pornography.” According to this viewpoint, production of material containing serious artistic value will just cost more money and lose customers.
On the other hand, many producers claim that content with serious value is simply better content and that the extra effort required to produce it pays off in the long run.
It is likely that both positions are supportable. However, if you are a producer who has made the decision to take the risk and produce content that has a relatively high probability of being found to be lacking any serious value, and you have made that decision for purely economic reasons, I strongly suggest that you reconsider. Given the substantial penalties and risk of total forfeiture associated with obscenity prosecution, and given the government’s resurgent prosecutorial activism, an old saying comes to mind: “In business, it ain’t what you make, it’s what you keep.”
Gregory A. Piccionelli, Esq. is a senior member of Piccionelli & Sarno, one of the world’s most experienced Internet and adult entertainment law firms. He can be reached at (310) 553-3375 or at Piccionellisarno.com.
