In January, Sen. Mark Pryor (D-Ark.) finally gave official voice to a fear that periodically raises its head in adult entertainment circles, only to be discussed vociferously before falling by the wayside in the face of some other concern: federal regulation. During a hearing about pornography and the Internet before the Senate Committee on Commerce, Science, and Transportation, Pryor politely but firmly put the adult industry on notice when he warned pre-eminent First Amendment attorney Paul Cambria (who was invited to address the committee), “Clean up your act, or we’ll do it for you.”
Pryor quickly explained that his remark was intended as a “shot across the bow” of the industry and not a direct threat. Nevertheless, two months later Pryor and fellow senator Max Baucus (D-Mont.) presented Congress with the Cyber Safety for Kids Act of 2006. The bill, which remained in committee in May, seeks to mandate that all commercial websites offering “material that is harmful to minors” operate within a Top-Level Domain specifically set aside for that purpose. Although domain registries that stand to profit from such a move undoubtedly felt at least a mild rush with the realization that Congress might be willing to force adult websites into a walled garden, the adult industry – predictably – reacted with promises to challenge the bill should Congress be shortsighted enough to pass it. Interestingly, the long and controversial bid by ICM Registry to manage the dot.xxx top-level domain recently went down in flames when ICANN voted against the proposed agreement.
The threat of further regulation is nothing new to the adult industry. In fact, as Free Speech Coalition Communications Director Tom Hymes suggests, “adult is an extremely regulated industry already. The idea that this is an unregulated industry is absurd.” Still, various political bodies periodically engage in breast beating and saber rattling while outlining how additional laws might lessen the societal ills precipitated by pornography, and the adult industry cusses and discusses the notion that self-regulation might ward off what it perceives as governmental interference with free speech. In recent years, 18 U.S.C. 2257; the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM), Child Online Protection (COPA), and Communications Decency (CDA) acts, and state child-protection email registries have at least attempted to impose restrictions about which the adult industry continues to complain bitterly but with which it complies.
What’s more, new federal bills – including the Baucus-Pryor bill and a bicameral, so-called “porn tax bill” proposed by a group of congressional democrats led by Arkansas Sen. Blanche Lincoln – as well as occasional state legislation and repeated attempts by various congressmen to attach “porn control” riders to appropriations acts have the adult industry once more considering if it, like television, movies, and other industries, should attempt to head legislators off at the pass by establishing industry-wide behavioral guidelines.
How real is the threat?
The U.S. Congress and various states have a distinguished history of passing legislation that appeases certain vocal special interest groups while trampling the rights of others, especially where sex is concerned. Several Southern states effectively outlaw gay physical relationships by enforcing onerous sodomy statutes. Others recently have found longstanding “sexual devices” laws facing public and legal scrutiny. At the federal level, the Child Pornography Prevention Act (CPPA) and COPA have been enjoined, at least in part, but CDA, CAN-SPAM, most of 2257, and others remain. In addition to the Baucus-Pryor bill and the one proposed by Lincoln, Rep. Mike Pence (R-Ind.), added a rider to the Children’s Safety Act of 2005 that would amend 2257 to include draconian search and forfeiture provisions as well as a section that would criminalize the mere production – not just distribution – of presumptively obscene material.
Is the adult industry in serious jeopardy? It depends upon whom you ask. Adult entertainment entrepreneurs like Las Vegas-based Dirty Danza believe the industry brought increased attention upon itself by pushing the content envelope constantly and excessively—and then flaunting its disregard for governmental efforts to rein it in. “The more noise you make, the more the government thinks you have something to hide,” he says. “Where do we get off being all high and mighty and saying ‘You can’t regulate us’? It’s just ignorant.” Others believe Congress is overreacting just because it can in the current sociopolitical climate. It’s a midterm election year, after all.
“Even if 100 percent of all webmasters and content producers back off the extreme content, legislation is inevitable,” says Wasteland.com owner and 11-year veteran of the adult Web Colin Rowntree. “Even if we all back all the way down to showing only sweet, romantic sexual activity, some people are still going to be offended because it’s [gasp] sex.”
Chad Belville, an Arizona attorney who served as a prosecutor before entering a private practice that specializes in First Amendment issues, says the dance between the adult industry and the powers that be is intriguing. “We’re certainly facing the specter that [the government is] going to try [to regulate adult more stringently],” he says. “If the laws go too far, they’ll be easy to overturn. The greater danger is laws that cause nuisance without fulfilling any mission.” Calling the U.S. Congress “not terribly tech-savvy,” Belville says lawmakers face an uphill battle on several fronts as they consider imposing further regulations upon pornography. For one thing, world political situations have converged to create a backlash against U.S. policy in an increasing number of countries. Although in the past U.S. law has served as something of a de facto worldwide standard for the Internet, the U.S. could soon find itself alone and out on a very brittle limb if it tries to regulate the behavior of Internet users today. “I don’t think the U.S. Congress has the ability to fashion some sort of scheme that would apply to all content worldwide,” Belville opines. He quickly revises that by adding, “I don’t think the [U.S.] government can do anything effective, but I think they can do bad things to U.S. webmasters.”
What to do?
If adult entertainment workers think industry self-regulation is a potential solution, they may have another thing coming. Although attempting to meet legislators halfway and demonstrating a willingness to be part of the solution instead of the entirety of what lawmakers perceive as a problem is a laudable goal, “It’s not that simple,” Hymes warns. “There are many areas where you need to be cautious” when considering industry-wide rules. “You don’t want to give up more than you have to give up.”
Of course, a big part of the problem with attempting self-regulation in an industry as diverse and fiercely individualistic as adult entertainment is that it’s not easy to get a majority opinion about what to regulate, or even whether anything should be regulated at all. Most (but surprisingly, not all) adult webmasters agree they don’t want outside forces mandating how they operate, what kinds of content they can create and sell, and when, where, and how they can market it—but they’re equally adamant about not wanting insiders to order them around, either.
Simply put, despite a common mistrust of the government’s motives, adult entertainment entrepreneurs don’t always trust each other, either.
Belville has seen that first-hand. “It would be tough to get the [adult] industry to do anything as a group,” he says, because no matter where lines in the sand are drawn for the common good, someone is going to feel they’re too restrictive and step across them. After all, the “outlaw” image of the adult entertainment biz is what makes it attractive to some players.
Combine that with the lure of adult entertainment’s fabled quick-and-easy profitability, and the potential for problems with any self-regulation scheme becomes profound. According to Rowntree, “Market share is so diffuse that the guys who just want to make a quick buck are going as extreme as they can [with content production in order] to make as big a splash as they can.” Extremely hardcore content – especially that which incorporates misogynistic activity, literal abuse, urinary or scatological depictions, rape, incest, and other societal taboos – attracts the attention of potential regulators, but with the exception of literal child pornography, it really isn’t the kind of thing the industry should even attempt to address as a group. That would be censorship, and censorship is “a slippery road to hell,” Rowntree says. One thing on which the adult industry agrees: The style and content of a producer’s work is a matter of personal choice, not community consensus.
Longtime adult video producer and director Christian Mann puts it succinctly: “Freedom of speech is something that should be absolute, and it should respect the vilest content,” he says. However, he adds, “I think we do ourselves a disservice by putting out so much extreme material. We hand a loaded weapon into the hands of those who want to shoot us.” He calls some content – like that produced by Extreme Associates, Hustler, and Max World Entertainment – “irresponsible,” but accedes “those are the guys who blaze the trails.”
In the not-too-distant past, Mann did some trailblazing of his own. “‘Trial by fire’ isn’t just a metaphor for me,” he says. “I was literally on trial.” In the early 1990s, Mann appeared in federal court in Dallas to defend himself against obscenity charges for distributing two movies that seem tame by current standards. One pretended to depict incest; the other featured hardcore sex scenes between black men and white women. In some parts of the South, even in the 1990s, interracial sex was an unforgivable social scandal. Fortunately for Mann, Judge Barefoot Sanders and the Texas jury proved more liberal than prosecutors expected. As a consequence, interracial sex seldom is the stuff of obscenity prosecutions these days, and that’s significant, Mann says. “The good news is the envelope is elastic,” he notes. “The bad news is if you push it too hard, it can snap back and hurt you.”
Mann recalls that self-regulation has been discussed by the adult entertainment industry – and even attempted on some limited bases – at least since his father began making “blue movies” in the 1960s. In 2000, with the specter of John Ashcroft, then an ultra-conservative nominee for U.S. Attorney General, looming large, the so-called “Cambria list” of things adult video producers should avoid if they wanted to limit their risk of prosecution generated a good bit of attention and discussion. According to Mann, the Cambria list really was intended to be a private memo from Cambria to a few of his larger clients in the adult realm – and it was intended to be a review of the types of adult material that had been prosecuted successfully up to that point – but it escaped into the wild and was interpreted as a list of “don’ts” to which the adult industry should adhere. The industry’s initial reaction was a bit overblown, Mann says, and the Cambria list eventually became little more than a footnote—or, in some cases, a blueprint for the types of materials upstart studios with in-your-face attitudes should release.
From here to…somewhere else
All of this raises an interesting, and oft-debated, question: When legislators and the industry talk about regulating the adult industry, exactly what is it they want to regulate?
“What they want is to censor,” says one cynical webmaster who wishes to remain unidentified, “but they use the word ‘regulate’ because it’s more palatable.”
That may be true, but industry insiders and attorneys hasten to point out that there are some legitimate reasons for wanting to set guidelines for the distribution of adult content. The protection of children is chief among them.
On the surface, the reason for wanting to limit the distribution of adult materials to those of legal age is the pseudo-scientific notion that “below a certain age, exposure to explicit sex is harmful to minors,” says Washington attorney Robert Apgood, “but there are a hell of a lot of things that are harmful to minors that have nothing to do with adult entertainment.” Apgood and his colleagues believe regulations pertaining to content delivery are best served by filtering at the destination. An industry-wide recommendation to incorporate some sort of browser-readable tags into Web pages is the sort of self-regulation both adult webmasters and the Constitution could support, according to First Amendment attorney and FSC board member Reed Lee.
“Every time a legislative body contemplates regulating the Internet, there are issues with censorship,” he says. “[Constitutionally,] communication between a willing speaker and a willing listener must be allowed to stand. In the case of the Internet, it’s complicated because the communication is not one-on-one; however, I am far from convinced that Congress could require an Internet rating system that would pass Constitutional muster.
“There is room in the industry, though – perhaps room under the law, but not much – for filtering that allows specific end users to say ‘I don’t want to hear this stuff,’ Lee continues. “The Supreme Court has noted the difference between source filtering and destination filtering: In the COPA ruling, the justices indicated a preference for pinpoint destination filtering. If your goal is to protect unwilling listeners, then that is the way to do it.”
Apgood adds that metatags, which are invisible to users but easily read by browsers, would serve multiple purposes: Not only would they protect underage surfers whose browsers were set to recognize them from stumbling across explicit adult content, but added to email header data, they’d also be an effective method for ensuring explicit spam didn’t end up in the wrong email inbox.
According to Hymes, recent tests in Australia indicate destination filtering can be “100 percent successful. There is legislation pending over there that would make all Internet service providers filter out adult content” unless individual subscribers specifically request they be allowed access to it (much as adult content must be specifically requested on the cellular networks in Europe).
Of course, that scenario assumes all adult entrepreneurs would acquiesce to adding tags to all of their online ventures—and like it or not, that’s not likely to happen. Even as a trade association for the adult industry, the FSC only has so much influence over its members, Hymes admits, and even if such a move was mandated by American or Australian law, webmasters in other countries might feel no particular obligation to comply. That’s why Lee says the FSC is investigating technology that would reverse traditional thinking, filtering in adult content for those who choose to view it and set their browsers accordingly. In order for a browser to find adult content on the Web, a site would have to incorporate standardized adult metatags—otherwise, it would be invisible. Such a move would “remove any incentive on the part of [ISPs and other “switch points”] to try and block the tagged material,” Lee says.
Yes, but…
There still remain two nagging uncertainties: whether the industry will galvanize and attempt self-regulation, and whether the government will back off as a result.
“I think it’s very likely that people in this industry will work with government,” opines Apgood. “What is not likely is that government will work with us.”
Regardless, the FSC is polling members and investigating whether anything can or should be done to formalize certain “understood” best practices voluntarily. As far as content goes, Hymes says, “Nobody has any business imposing ratings above X.” He thinks “the webmaster community will be very receptive to labeling that specifies ‘X’ or ‘not X.’” The Internet Content Rating Association instituted a metatag labeling system during the Web’s youth, and its tags, readable by Web browsers and “safe surfing” software, are employed by many adult webmasters. Although Hymes admits “anything other than ICRA would be a gesture,” he also says the FSC is working on a standardized labeling system specific to adult websites.
As for the adult industry joining hands and engaging in a rousing chorus of “Kumbaya,” well, time will tell. Mann doesn’t see it happening. “As an organized effort, I think we’ve thrown in the towel and given up on the concept of self-regulation,” he says. “Self-regulation is a company-by-company thing. As an industry, we seem to have given up on anything more.”
Rowntree feels fairly certain that “we’re not going to organize this industry into some sort of Million Man March or immigration rally.” The better solution, he says, is for each adult entrepreneur to cover his own ass. “Protect yourself and don’t worry about anyone else,” he says. “I know that sounds callous, but it’s realistic. Just play it as safe and narrow as you can, and stay within the accepted boundaries of your community. In the BDSM world [which Wasteland.com serves], our motto is ‘safe, sane, and consensual.’ It’s helpful to remember that there’s nothing as destructive to a business as litigation or prosecution.”
Hymes says maybe that’s self-censorship instead of self-regulation, but if that’s the case, he’s actually in favor of it. “I think most people could use a heavy dose of self-censorship,” he says facetiously. “In other words, learn to keep your mouth shut more often.”
