This month’s cover-story topic – softcore versus extreme content – perhaps has the greatest legal implications of anything facing this industry, and it is certainly the most complex. Regulations like 18 U.S.C. §2257, COPA, and the child pornography laws all are simple by comparison, and compliance with them is manageable.
The obscenity issue that is raised by extreme content is what the Supreme Court has described as an “elusive” and “intractable” problem, defined by what it repeatedly has referred to as the “dim and uncertain line” between that which is protected by the First Amendment and that which is not. In 1977, the Court described challengers of prison sentences arising from obscenity convictions as “engaged in the dicey business of marketing films subject to possible challenge.” (See 383 U.S. 413, 456, 460; 509 U.S. 544, 573; and 430 U.S. 188, 195.). The Miller test and its unfairness have been examined in depth on previous occasions, and if this topic is near and dear to you – as it should be – a perusal of my previous AVN articles would be in order, including “The Miller Test, the Topic from Hell!” (AVN, May-July, 2002, three-part series) and “Can You Fax Me the List of the Places I Can’t Ship?” AVN April 2002).
What is “extreme”? During the 1950s it was, for the most, part racy novels, coupled with a sprinkling of “nudie” magazines—Playboy was overwhelmingly controversial. During the 1960s, “extreme” ranged from 32-page glossies to 8 mm loops. The 1970s, which started with Deep Throat – which quickly became a cult film – saw the introduction of the Betamax (the first in-home videocassette player), its VHS successor, and the dawn of hardcore video rentals. The 1980s brought the paradox of the Reagan-Bush Sr. Administration’s “anti-smut” campaign squaring off against an exploding hardcore, home video market. The 1990s brought former U.S. Attorney General Janet Reno, the end of federal obscenity enforcement, and the Internet, described in those days as the “Electronic Wild West.” And now the 2000s have brought us “Dubya,” along with his commitment to the religious right, which was briefly derailed by Sept. 11, but now ostensibly is back on track.
So what is too extreme in 2006? The line is perhaps more dim and uncertain than ever, and the reason has to do with all that has transpired since Bush Sr. was booted from office in 1992. The last federal obscenity prosecutions ended around then, and much has changed since.
Importantly, jurors are now 15 years older. Assuming that the average juror is age 50, 2006’s average juror graduated from high school in 1974, and 2006’s oldest juror (usually those over 65 are excused) graduated in 1959, not 1944.
What a difference 15 years makes here! Deep Throat premiered in New York in 1972, and young people lined up around the block to witness 63 minutes of hardcore sex – and admitted to their friends that they did – while older folks were aghast and shocked. Deep Throat brought awareness of a suppressed genre of movie to the American public, as articles about it were everywhere in the mainstream press, and commentary about it went from Johnny Carson to the nightly news—while older folks were still aghast and shocked. But in 1972, today’s 65-year-old juror was 31, and a 50-year-old juror was 16—as opposed to 46 and 31, respectively, 15 years ago. The point of all of these dizzying numbers is that the 2006 jury is very different than the 1991 jury, most importantly as to life perspective on erotica. It is now controlled (or at least influenced) by the generation that experienced the sexual revolution, Studio 54, Plato’s Retreat, and Deep Throat.
Another factor is that, despite protestations from the right, hardcore pornography has flourished in the past 15 years. It has done so in an unprecedented way, fueled by both the Internet and public acceptance.
How has that impacted juries? To compare apples to apples, so to speak, a recent trial in Dallas is a good start, as it involved the sale of adult movies. That trial netted a conviction for sale of the video BVW 23, featuring bloody piercing of women’s nipples and other bondage, but also netted acquittals both of Real Rape 001, which features just what the title advertises, plus fisting, bondage, and urination, and of Scat 4, which also features precisely what the title advertises.
Notably, the defense attorney in that case, Andy Chatham, has racked up an impressive streak of acquittals in Dallas in recent years with garden-variety hardcore materials. A rather amusing account of his feats was chronicled in the Dallas Observer several years ago (T. Korosec’s “The Naked Truth,” May 23, 2002).
In terms of what has been targeted in the recent case, however, Chatham’s experience is not unusual. Indeed, other than some obscenity counts that were added, perhaps only as window dressing, to two recent federal tax cases in Dallas (both involving adult bookstore operators and both initiated before George W. Bush was sworn in), most of the targeted content has been violent, where the object of sexual violence has been women. Notwithstanding the fact that some of the grossest, bloodiest scenes you can imagine are sailing out of mainstream Hollywood every summer, it seems not to play so well in the adult genre.
However, in terms of today’s focus, perhaps the most significant factor is hardcore content on unprotected Web sites. No matter which way you turn, from confirmation hearings of Supreme Court justices to talk radio, America’s No. 1 gripe with this industry is that little Susie can access all of the porn she wants on the Internet, and much that she doesn’t. Mainstream America hates that—and juries will hate it, too.
How you want to walk the line, wherever it is located, is your choice. But the fact is, those on the wrong side of that line can expect long prison sentences.
Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online’s offices, or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe that anything reported in this column might impact them should contact their personal attorneys.
