Guilt by Extreme Association
by Lawrence Walters, www.firstamendment.com
The prosecution of Extreme Associates and the adult industry's response thereto is, and must be, the single most important issue for adult webmasters to presently consider. Therefore, an analysis of the contours and implications generated by this case is worthy of substantial consideration.
Marybeth Buchanan, the Assistant United States Attorney heading up the prosecution against Extreme Associates, claims that even Playboy may be obscene in parts of the country. Yes, ladies and gentlemen, this is the United States, in year 2003. The Department of Justice refuses to inform the public where it will draw the line regarding what it believes to be obscene, but it promises that at least 49 other federal obscenity prosecutions are in the works. If history is to be any guide as to what to expect in the future, it is likely that the feds will start prosecuting extreme, fringe, fetish material, and slowly work their way towards more acceptable forms of alternative erotica, like BDSM, interracial, facial, or even gay material. The nation's Obscenity Czar, Andrew Osterbaan, recently pointed out that even producers of "mainstream" erotica are not immune, and that cases currently in the works include one of the largest producers of adult videos in the world. There is no list of what content is or is not legal that webmasters can use as a guide in producing erotica. All adult materials are presumed to be protected by the United States Constitution unless and until declared obscene by a judge or jury.
The single most significant fact to be gleaned from the Extreme Associates prosecution is the government's contention that individual video clips appearing on ExtremeAssociates.com can be independently alleged to be obscene without taking into consideration any other materials appearing on the site; ignoring the requirement that material be considered as a whole. Should that view prevail, Internet obscenity cases will immediately become significantly more difficult to defend. Currently, many webmasters rely on significant amounts of artistic or literary material appearing on their sites as a means to satisfy the Miller Test for obscenity, which provides a defense against charges that a work is obscene, if, taken as a whole, the work either lacks prurient appeal or contains serious literary, artistic, scientific or political value. If the courts will now allow the government to single out individual video clips, or potentially specific images, for prosecution under federal obscenity laws, that would be tantamount to ripping out pages of a book and asking a judge or jury to declare each of those specific pages obscene, without considering the whole book. While the practice of charging individual video clips as independently obscene will certainly be challenged in the Extreme Associates case, it evidences the government's creative, yet sinister, approach to federal obscenity prosecutions.
Equally diabolical is the Department of Justice's decision to bring this case in the Western District of Pennsylvania on the basis that: 1) Video tapes were allegedly sent to that location from Extreme Associates in California, and 2) The video clips were downloaded in Pennsylvania. Mixing the online delivery of Web site content across state borders with the physical delivery of tangible media to that same location confuses the community standards issue for the courts and the jury, and muddies the waters on the arguments relating to the difficulties in applying the concept of local community standards to online communications.
Part 2: The Argument...
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