Displaying obscene content on your adult website or home page is a punishable crime in the United States. Unfortunately, which images or ideas are "obscene" varies widely within different minds and communities in the United States, and adult website webmasters should be aware that they can be prosecuted anywhere for violating obscenity laws. By using this webpage in any way you agree that you accept the Terms and Conditions
The 1st Amendment
Distribution of pornographic content on the Internet that is not obscene or illegal is protected by the 1st Amendment to the Constitution of the United States. See Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) The 1st Amendment provides in relevant part: "Congress shall make no law . . . abridging the freedom of speech, or of the press." (See the 1st Amendment to the U.S. Constitution )
The 1st Amendment has been interpreted by the Supreme Court to mean that the federal and state governments should not pass laws that interfere with speech unless it is necessary to protect some perceived public interest. "Speech" in the context of an adult website includes text, images, sound and video files, and other visual and aural forms of communication. "Public interest" means whatever the Court says it means.
In its infinite wisdom, the Supreme Court has decided that the public interest is best served if "obscenity" is not protected by the 1st Amendment. Pornography is protected, but obscenity is not - it's anyone's guess what divides the two categories. See generally Roth v. United States, 354 U.S. 476 (1957) and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). Whether the Court's reasoning in these and similar cases is sound, and there is considerable debate about that, there is no doubt that publishing obscene content is illegal in the United States. Federal obscenity statutes are found in 18 U.S.C. 1460-1469 , and each state has its own obscenity statutes.
Miller v. California
The current definition of obscenity requires the application of a three-part test enunciated by the Court in Miller v. California, 413 U.S. 15 (1973). Under the so-called "Miller Test," a jury from the jurisdiction where an obscenity charge is brought will decide whether the content in question is obscene by asking:
Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
There is no useful definition of who the average person is or what he or she thinks. If you see Michelangelo's David as art and believe that it does not appeal to any "prurient interest," your views probably resemble those of most people and you could safely guess that the "average person" in your community would agree with you. On the other hand, images of anal fisting, believe it or not, are considered "obscene" in many communities in United States. Between content that the average person considers "art" and that considered "obscene" there is a lot of gray area.
Contemporary Community Standards
What is considered "art" versus "obscenity" varies in different jurisdictions, based on the prevailing "contemporary community standards." Juries in obscenity prosecutions are asked to guess what most people in their community would think about the content in question. This means that if obscenity is charged in Hollywood or Manhattan, "obscenity" will probably mean something different than if the crime is charged in, for example, Cincinnati, Ohio.
The Internet is a unique forum in at least one regard: while other forms of communication such as magazines or videos must be physically brought into a hostile jurisdiction, allowing you to choose whether to do business there, the content of your adult website can be viewed by anyone anywhere with a computer and Internet access. What this means for adult site webmasters is that it doesn't matter where you, your pictures, or server are located - you risk prosecution if a prosecutor anywhere views your adult website or home page and believes that the content is obscene.
For example, a husband and wife operating a Bulletin Board System (BBS) from their house in Milpitas, California, were prosecuted and convicted in Tennessee for displaying obscene content. The BBS provided, among other things, access to GIF scans for a membership fee. A U.S. Postal Inspector purchased a membership from Memphis, Tennessee. The husband called the Inspector in Memphis and gave him an access code.
The Inspector brought six counts against the couple under United States Code: Title 18,1465. Production and transportation of obscene matters for sale or distribution | LII / Legal Information Institute for using a means of interstate commerce (a combined computer and telephone system) for the purpose of transporting obscene images, namely GIF files containing images of "bestiality, oral sex, incest, sadomasochistic abuse, and sex scenes involving urination." The couple was convicted on all six counts, and a few others including mailing a sexually explicit video to Tennessee. Their computer system was "forfeited" (the government took their property by force without compensation, the husband was sentenced to 37 months in prison, and the wife was sentenced to 30 months. The Appeals Court upheld their convictions, and the Supreme Court refused to hear the case. See United States v. Thomas, 74 F.3d 701 (6th Cir.) , Cert. denied, 117 S.Ct. 74 (1996).
Image files are not the only medium that can land you in jail. In another case, Jake Baker published stories in an Internet newsgroup entitled "alt.sex.stories," that graphically described the torture, rape, and murder of a woman with the same name of one of Baker's classmates at the University of Michigan. He also sent similar stories and communication via email to a friend. Baker was charged under 18 U.S.C. 875(c) with threatening to kidnap and injure another person. A true threat to injure or kidnap another person is not protected speech under the 1st Amendment. The charges against Baker were eventually dismissed because his words were not "true threats," but he was kicked out of school, denied bail, and he spent one month incarcerated. Plain text, if it explicitly describes sexual conduct, might provide the basis for an obscenity charge.
A dictionary definition of "prurient" is anything "causing lascivious or lustful thoughts." A similarly vague legal definition of prurient interest is a "shameful and morbid interest in nudity, sex, or excretion." To be safe, any content that makes you sexually aroused probably "appeals to the prurient interest" in some communities within the United States.
To recap, if a conservative jury thinks that most people in their community would decide that the content on your adult website causes too much sexual arousal, you're in trouble under the first prong of Miller .
Patently Offensive Sexual Conduct Specifically Defined by State Law
The second prong of the Miller Test requires that the content in question must be patently offensive sexual conduct specifically defined by state law. "Patently offensive" means whatever a jury thinks it means, much like "prurient interest" or "the average person." In states that have made oral or anal sex a crime, any content that depicts such conduct could probably be considered "patently offensive" by a jury in that state. The Supreme Court in Miller made it clear that they will allow states to define offensive sexual conduct:
"We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under [Miller]:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals."
In some jurisdictions this definition could be construed to include the content of almost any adult website or home page on the Internet. For a typical state obscenity statute that meets the "patently offensive . . . sexual conduct specifically defined" requirement of Miller , see California Penal Code 311-312.7 .
Literary, Artistic, Political, or Scientific Value
This last part of the Miller Test should put to rest any fears that the United States has become an intolerant totalitarian state. If you can prove that the content on your adult website has some literary, artistic, political, or scientific value, the criminal charges against you might be dismissed. Imagine how happy you'll be after you finally get out of jail. You can go home (if you haven't been evicted), try to get your job back, and start paying your legal bills. Good luck getting your computer back. In light of this, you might want to consider displaying or linking to content that has something other than masturbatory value such as information about health care issues in the adult entertainment industry, safe sex information , a discussion of fetishes , or political links to other websites.
If you need to be further confused read Indecency on Line
There are file sharing sites and sites that distribute stolen adult media. They do not have documentation on hand to prove that the participants are not minors. Aren't they violating the law that requires Title 18 Section 2257 documentation for any site that distributes adult media?
If you have any content on your adult website that might be considered obscene and without redeeming value by some communities, you are the potential victim of a "zealous" prosecutor. If you want to play it safe, censor all images of penetration and anything else "hardcore" on the free section of your site. Hide the good stuff in a members' section and charge for access - don't give a prosecutor anywhere a reason to target your site
Our site has no minors. This is an article where such issues are reviewed
Child pornography Displaying child pornography or "kiddie porn" on the Internet is illegal in the United States and many other countries of the world. "Child pornography" is easier to define than more elusive concepts such as " obscenity ," but several categories of content exist that may or may not constitute child pornography, depending upon the circumstances.
Introduction Producing, possessing or distributing images of minors (anyone under the age of 18) engaged in sexual conduct is illegal. Some states in the United States and many countries allow sexual conduct and marriage between adults and minors, but visual depictions of that conduct are prohibited in the United States by federal law. Similarly, sexual conduct between minors or by a minor is often tolerated but visual depictions of that conduct are also prohibited. Child Pornography laws in the United States exist to protect children and are strictly enforced - websites that display any content that might be considered child pornography should expect to be prosecuted.
The First Amendment
Unlike pornographic images of adults, the First Amendment does not protect the possession or distribution of child pornography. Content that depicts children engaged in sexual conduct is "a category of material outside the protection of the First Amendment." New York v. Ferber, 458 U.S. 747 1982. The First Amendment does protect some material that could be considered child pornography, for example images in a medical textbook that show a child's genitalia. Although the possession or distribution of such images might be protected by the First Amendment when used in a pediatric context, the same images would probably not be protected if they were displayed on an adult website. Unless you have the resources of, for example, Calvin Klein , and can afford the legal battle, play it safe and do not display any questionable images of minors on your website.
Title 18 of the United States Code governs child pornography. See Chapter 110 , Sexual Exploitation and Other Abuse of Children. 18 U.S.C. 2256 defines "Child pornography" as:
Any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct
(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct . . .
Even though this law originally attempted to cover both the actual child pornography and so-called "virtual child pornography", this attempt was unsuccessful. In Ashcroft v. The Free Speech Coalition, which came down on April 16, 2003, the Supreme Court struck down provisions of 18 U.S.C. 2256(8)(B) and 2256(8)(D), finding them unconstitutional. The problem, according to the Supreme Court, is that these sections ban images that "appear to be" of minors engaging in sexually explicit conduct. Such images are frequently created using computer technology, and do not involve actual children. There is also no "child pornography" simply because something is "advertised" as child porn while the actual images themselves are not. According to some analysts, this decision by the Supreme Court was not surprising. The present Court has consistently resisted legislative efforts to use new technology to justify new restraints on speech.
If your adult website displays images that arguably appear to have minors engaged in sexually explicit conduct, make sure that you are prepared and have proper legal forms that you need to comply with federal record keeping requirements. You should also have plenty of money and a desire to make the headlines. Remember, if you are prosecuted for violating child pornography laws, a jury will decide whether the content on your adult website is child pornography. Without a doubt, some juries will see child pornography where there is none. So, if you make an error, make it on the safe side.
Sexually Explicit Conduct
18 U.S.C. 2252 prohibits the production, transportation, or knowing receipt or distribution of any visual depiction "of a minor engaging in sexually explicit conduct." For the purposes of Title 18, 18 U.S.C. 2256 defines a "minor" as any person under the age of eighteen years, and "sexually explicit conduct" as actual or simulated:
(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or pubic area of any person"
"Sexual intercourse" and "bestiality" (sex with an animal) seem pretty clear - if your website displays images that a prosecutor believes involve minors engaged in sexual intercourse or bestiality, expect to be prosecuted. Which acts constitute "masturbation" or "sadistic or masochistic abuse" may be more difficult to define, because participants engaged in such activities tend to do so for a sexual purpose. Clearly a child could appear to be engaged in such activities without intending a sexual purpose. What a child intends by his or her actions is irrelevant, however, because Federal law prohibits "simulated" as well as actual acts. Many states also address this issue by prohibiting images of minors touching or displaying their bodies "for the purpose of sexual stimulation of the viewer." (See, for example, California Penal Code 311.3-312.7 ).
Section (E) prohibits images of "lascivious exhibition of the genitals or pubic area." Courts that have interpreted this section have done so broadly - "as used in the child pornography statute, the ordinary meaning of the phrase "lascivious exhibition" means a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer." States v Knox (1994). You may risk prosecution if your website displays images of minors depicted in a way that excites viewers.
United States v Knox
In Knox , a man who had previously been convicted of receiving child pornography through the mail ordered video tapes (by mail) of girls between the ages of ten and seventeen who, in the Court's words, "were dancing or gyrating in a fashion not natural for their age." The girls wore bikini bathing suits, leotards, or underwear - none of the girls in the videos was nude. The videos were set to music, and it appeared that someone off-camera was directing the girls. The photographer videotaped the girls dancing, and zoomed in on each girl's pubic area for an extended period of time. Knox was prosecuted under United States Child Pornography laws.
Legal counsel for Knox argued that "lascivious exhibition of the genitals or pubic area" meant that the girls had to be nude - wearing clothing meant that that genitals and pubic area were clearly not exhibited. The Court disagreed and held that there was no nudity requirement in the statute: "the statutory term "lascivious exhibition of the genitals or pubic area," as used in 18 U.S.C. 2256(2)(E), does not contain any requirement that the child subject's genitals or pubic area be fully or partially exposed or discernible through his or her opaque clothing."
Unanswered Questions: The Courts will likely continue to define what is prohibited under the child pornography laws. For example, if a website displays legal images of children, perhaps scanned from magazines and other legal sources, in a way that a prosecutor believes could excite some viewers, can that website be prosecuted under the child pornography laws? In many states and countries the age of consent is younger than 18. Can the USA prosecute a webmaster in another country who is displaying images of a 16 year old nude model, even if the images are not illegal in the webmaster's home country? The USA invades other countries to enforce its drug laws, so it's possible that webmasters in other countries might find themselves hauled to the USA to face criminal charges if they violate USA child pornography laws.
If you want to be safe, do not display any images of minors on your adult website and do not advertise or suggest that your models are minors. If your website displays any arguably sexual images of minors, you may risk prosecution if it appears that your site exists for the sexual stimulation of viewers. If you display any questionable images of minors on your website, make sure you have a good lawyer. If you have any questionable images on your site, but you know that the model depicted is of legal age, make sure that you have the necessary legal records you will need to produce if you are prosecuted.
Child Abuse Website Links
A list of online websites and organizations dedicated to stopping child abuse and child pornography Child Pornography on the Internet
Adult Sites Against Child Pornography (ASACP)
An organization dedicated to raising awareness about the subject of child pornography. Child Pornography Issues
THE COPA The Supreme Court is going to hear the Justice Department's appeal of a unanimous decision by the United States Court of Appeals for the 3rd Circuit that upheld the ACLU's preliminary injunction against the Child Online Protection Act (COPA). The COPA was on hold after the ACLU won a preliminary injunction against the Act in 1999. This decision could have a huge impact on how adult webmasters do business - get ready! By using this webpage in any way you agree that you accept our Terms and Conditions .
The Communications Decency Act of 1996Title V of the Telecommunications Act of 1996, also called the "Communications Decency Act of 1996" (CDA), prohibited the use of a computer to display "in a manner available to a person under 18 years of age, any [content that] depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The ACLU and others challenged the legislation. The United States, led by Janet Reno, took the dispute all the way to the Supreme Court.
The Court had two options - treat the Internet like broadcast media or treat it like print media. Legislation and regulations that censor broadcast media are generally upheld on the premise that because television and radio are broadcast to the public, without regard to who receives the material being broadcast, minors might accidentally encounter sexual material. Conversely, print media such as magazines and books is easier to keep away from minors, for example by prohibiting sales to anyone under 18, and it enjoys a greater level of protection.
The Supreme Court in Reno v. ACLU decided that communication on the Internet deserves the same high level of protection as communication in print media. The Court noted the growing importance of the Internet as a public forum, and struck down the CDA because it prohibited adults from engaging in Constitutionally protected speech. Enter the 105th Congress.
The Child Online Protection Act
The 105th Congress came up with and passed the Child Online Protection Act of 1998 ( COPA ). President Clinton immediately zipped his pants and dutifully signed the legislation into law. The relevant section of the COPA provides that:
"Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both." In addition, the Act provides fines and penalties for "intentional violations" (if you refuse to remove the offending material) of up to $100,000 for each day that the material remains on your site.
A. Commercial Purposes
Under the Act, a person is engaged in making communications for commercial purposes if that person "devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities." If you intend to make any money off of any part of your website, you are engaged in making "communication for commercial purposes" and the Act applies to you.
B. Harmful to Minors
The Act defines a minor as "any person under 17 years of age" and material that is "harmful to minors" as:
"any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that: (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest
Depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."
The COPA expands the definition of obscenity by adding an "as to minors" focus and by including material that is currently considered pornography ("lewd exhibition"). Of particular interest to adult site webmasters is the prohibition of depictions of "an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast." If you run a website that contains adult content that is not covered by this definition, here's some good news: you are probably not running an adult website. The definition of "harmful to minors" in COPA appears to include display of all sexual material.
The COPA prohibits any depiction of nudity or sexual conduct that the most conservative community in the United States might find offensive as to minors. Remember, prosecutors in conservative jurisdictions can prosecute adult site webmasters for transmitting prohibited material, regardless of where the webmaster lives or where the server for the site is located. See United States v. Thomas, 74 F.3d 701 (6th Cir.) , Cert. denied, 117 S.Ct. 74 (1996). Do you really want a jury in a small county in the South (no offense) to decide whether an image on your publicly accessible website constitutes a "lewd exhibition" of the female breast?
It is an affirmative defense to prosecution under [the COPA] that the defendant, in good faith, has restricted access by minors to material that is harmful to minors
(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number
(B) by accepting a digital certificate that verifies age; or
(C) by any other reasonable measures that are feasible under available technology."
Essentially, the COPA prohibits making pornographic material available free to minors. If you hide every image of nudity or sexual conduct on your site in a "member's area," protected by credit card or other age verification system, you probably won't be prosecuted under the COPA. Of course no one will stay long at your site if there aren't any free pictures, but at least you'll be doing your part to protect the children.
In the event that the COPA or similar legislation passes, the most likely scenario is that obvious targets will be prosecuted first. If the index page on your site contains an 800 X 600 greasy close-up of deep anal fisting in full-color, and the name of your site is "thehappylionking.com," you're in trouble. Similarly, if free hardcore material is available just a few clicks into your site, you may be a target for prosecution. If you want to be safe, censor all genitalia, "lewd images," and images of sexual conduct on the free section of your site. Hide the good stuff in your members' section and charge for access - don't give the censors a reason to target your site.
If it bothers you that you pay taxes to a government that wastes your money trying to censor the Internet, get involved in the process. You can bet that people who don't want little Jimmy to get excited by looking at a bare breast online are organized, and they work very hard to influence their Representatives in Congress. Contribute to the debate by sending email, faxes, and letters to your Representatives, especially if they support the COPA or similar legislation. Let them know what you think about pornography and free speech on the Internet. The following links should get you started:
The American Civil Liberties Union Electronic Frontier Foundation Electronic Privacy Information Center
Burden of Title 18 section 2257
At Bossy Girls we do not have any material that shows real or simulated sex acts, such as strap-on because it would force us to comply with Title 18 section 18 2257 and all the documentation keeping burden and visits by the authorities to our office to see the PC where the material is located. We obey the law. We are strongly opposed to any child pornography. We do not believe that this law helps a lot to prevent these immoral activities and punish the perpetrators. We do not have to like the law, we have to obey it.