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Freedom of speach?

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September 8, 2008

Text size: XBIZ POLL


Are you marketing adult content to mobile users?



I'd like to

I used to

Why bother?





" it isn't the subject matter that is being prosecuted; it is what consenting adults think about a subject that is under direct attack from the government "



Editor's Note: This article originally appeared in the July, 2008, issue of XBIZ World Magazine.

If you have been paying attention to the news lately you've probably seen dozens of reports about melting ice caps and the dangers of allowing the edges of the polar ice fields to erode. As each huge shelf of ice disintegrates and gets absorbed into the ocean, the danger is increased because greater areas of ice become exposed and large scale changes in climate become a real threat. Several events in the adult online industry have taken place in recent months that are eroding away the legal underpinnings of our industry in much the same way, yet counter-intuitively it's as if the people standing a few feet from the edge are cheering when more and more of the ice protecting us all falls into the murky waters of legal prosecution.


Much has been made of the legal struggles of the 1960s and '70s when men like Larry Flynt stood up to the federal government of The United States and risked personal assets, personal freedoms and ultimately even personal health to defend the First Amendment right to free speech. Even opponents of the adult industry recognize the profound importance of the precedents set during the era when porn and print media began to merge into the mainstream.


Now, only a couple of decades later the stakes are no smaller and the fight is no less fierce as the government seeks to use the money of the masses collected in the form of taxes to fund its campaign to corral free speech and curtail the rights of privacy that impact the daily life of every American citizen — whether those citizens acknowledge it or not.


Paul Little, more publicly known as Max Hardcore was hauled into court in Florida earlier this year and charged with twenty counts of criminal conduct stemming from the distribution of adult films that some may find unpopular. Half of the counts were for distributing the content through the mail and the other half were for selling memberships to view the content online. After less than one day of deliberations Mr. Little and his company were found guilty on all charges.


The mailing charges were particularly interesting because all of the DVD mailings were done by another company, Jaded Video. Jaded Video agreed to testify against Mr. Little in exchange for immunity from prosecution as the company that actually did in fact mail the content to consumers. The logical inconsistency of a guilty verdict for mailing materials when in fact they were mailed by another company will no doubt be the subject of an appeal.


As to the online distribution charges that affect most anyone in the online adult industry, the jury initially asked for more time and even tried to find out if the judge would allow them to give a verdict on some of the charges without resolving others before finally reaching a guilty verdict on all of them — even though they had been asked to base their decision only on material found in trailer videos from the site itself without taking the content as a whole.


The willingness of the government to prosecute Paul Little and the decision of a jury to find him guilty after watching hours of his films which depict women of legal age pretending to be young runaways is not shocking given the current political climate. Little's work often centered on video of women vomiting or urinating on each other and engaging in other acts that some may find offensive. However, these were charges solely within the scope of obscenity law. Not a single charge of underage performers or other 'black letter law' violations was presented by the government. In essence the prosecution successfully argued that these movies were legally made and contained nothing within them that had previously been codified as illegal; but that they were simply too obscene to be allowed now that they were being viewed. Mr. Little was convicted of twenty counts that each include a prison term of more than a decade because his movies were retroactively found to be illegal.


To put the punishment in perspective, if all of the penalties are run consecutively and appeals are rejected, Mr. Little will be spending the rest of his life in prison for creating entertainment the government decided was obscene long after it had already been created and marketed. In strange contrast, Shane Della-Vedova, a 46-year-old Australian Army Captain, was released from prison last month after serving a maximum ten year sentence for selling rocket launchers; nine of which still have not been recovered.


A thorough scan of industry message boards didn't reveal much ire toward the government. It didn't include too many comments aimed at pointing out the inherent injustice of obscenity law. It didn't even include much in the way of empathy for a man who might face life in prison for making artwork others found disturbing. Instead the boards were littered with posts by somewhat anonymous commentators who presumably make their living in the same business, offering a combination of 'yeah, his stuff is gross and I never liked him' and 'well, it's a good thing my company doesn't make that sort of stuff' as the two thematic sentiments.


Returning to the ice analogy, Mr. Little was undoubtedly prosecuted because his artwork dared to step the closest to the edge of what society finds unpalatable. The fact that your own company is standing twenty feet further away from the edge than where Max World Entertainment stood shouldn't make you feel safe. Now that he and his company have been cast into the cold waters of obscenity prosecution, you might well be standing on the newly defined edge… or at the very least you just got a lot closer to whatever the new edge may become. As any act of consenting adults becomes forbidden by the government, all other acts become that much closer to prohibition as well.


For proof that this is a problem worthy of global warning rather than a single isolated incident, take a look at the Red Rose case which was settled last month. Karen Fletcher, known online as "Red Rose" ran an adult paysite that included zero pictures and zero videos of any kind. The site was entirely text-based and amounted to a series of 'dirty stories' which were securely stored in a passworded member's area and required consenting adults to purchase access to them with a valid credit card.


Ms. Fletcher was arrested and charged with obscenity violations because her text was deemed to be too offensive by the government to be allowable by law. Again, no codified bright-line law was allegedly broken, only the constantly shifting and scantily defined claim of obscenity was alleged. The stories Ms. Fletcher had been writing included fictional accounts of incest, rape and other unpopular subjects. After more than two years of fighting prosecution and countless thousands of dollars spent fending off the government, Ms. Fletcher was forced to accept a plea agreement due to her fragile emotional state. She is now serving time under house-arrest and suffering the financial strain of the ordeal — all because the government decided to attack a woman for writing fiction and showing it to other people. The series of text letters Red Rose chose in the English language were arranged in a way that formed words that consenting adults were able to use to allow them to imagine unpopular events. Think about that for a moment...


Ms. Fletcher's website never had more than a handful of members and never generated much revenue. It contained no videos, no 2257 violations and was based entirely in the fiction her mind was able to create through imagination and the text-based centuries old art of writing.


Conversely, Hollywood actress Jody Foster won an Academy Award in 1989 as Best Actress in a Leading Role for her portrayal of Sarah Tobias, a woman who is raped on camera as a crowd of drunken men cheer-on her assailant. That movie includes graphic visual depictions of the fictional crime being committed and wins Oscars. Karen Fletcher writes stories about rape that included only text and is now under house-arrest.


The point is simple, it isn't the subject matter that is being prosecuted; it is what consenting adults think about a subject that is under direct attack from the government. It is precisely that level of personal freedom at stake in cases where unpopular people make unpopular art and are attacked for sharing their thought-process with other consenting adults.


The next time you write a blog, post a video, put out a DVD, buy a domain name, link to another site, make a message-board post or read a book in the privacy of your own home, you now need to ask yourself "will the government decide a few years from now that what I am thinking should have been illegal?" So, when you hear a ker-plunk on the not too distant landscape as new ice falls into the government's ocean, stop patting yourself on the back for standing out of harms way this one time and maybe look up over the horizon a little to see what can be done to restore the vast amount of protection being eroded away from you.

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