stories in extreme section

[A Cracker Slut]

Hi Guys

Just a general whine really, I have submitted four chapters of a series of mine. They have all been clearly marked as stories that should go in the EXTREME section of Lit. However despite being submitted about four months ago and then again over the last month they do not seem to ever make it as far as the section itself.

I always get notification that they are being moved and that seems to be it. I have mailed the webmaster a couple of times but got no response.

Any other authors know anything about this, is there a minimum amount of stories they move across at a time ? Id love to hear from anyone else with similiar problems.

 

[SexyChele]

I don't have anything in the Extreme section, but from what I understand it takes a good deal more time to format the stories for that section. I also think there are not that many stories submitted to the site, unlike Literotica. I heard once that Laurel tries to upload monthly, but that there is a much greater lag time recently. Not sure exactly why. Maybe just one very busy lady.

 

[Pure]

I've heard there can be a six month delay, or more, from submission to public posting.

 

[Chicklet]

The extreme section was updated this fall, I think...but a bunch of stories I know of (some submitted by me) didn't make it on the site at that time.

I'm sorry to say that since the site doesn't update very often, you could be waiting as long as I have (this particular story I submitted was submitted in April of '02)

Chicklet

 

[SlickTony]

Why on earth should it take longer to format Extreme stories?

 

[MathGirl]

Why on earth should it take longer to format Extreme stories?

Possibly because the editor has to use rubber gloves and tongs.

 

[KillerMuffin]

The problem is a single acronym:

COPA (Children's Online Protection Act)


I know this is the problem; but why it's the problem, I couldn't tell you.

 

[Pure]

COPA is not such a damn mystery;
The report mandated by the act is at

http://www.copacommission.org/report/
http://www.copacommission.org/report/recommendations.shtml

Congress want to "protect" minors from objectionable materials on the internet. The above report finds most methods ineffective
(e.g., requirement for credit card number).

It also finds no method around now could constitute "affirmative defense", i.e., could allow a supplier or transmitter of internet material to say s/he took reasonable precautions.

It doesn't take training in the Supreme Ct. to see that all suppliers of 'iffy' material, if that material is accessed by minors, are liable to prosecution. And, as above, there's no clear way to stop that access.

Now ask yourself: If you were literotica, knowing of this vulnerability, would you be putting lots of funds and effort into a subsite of the most objectionable material (in the eyes of some): build it up into a well known, flourishing and attractive entity?

I am assuming a connection of lit and the 'extreme section'. I am assuming if 'extreme' gets into trouble, the owners of lit might be in trouble. If that is wrong, some of the above argument still holds in that the owners of 'extreme', supposing them NOT to be connected with lit., would still have good reason NOT to want a high profile site.

 

[A Cracker Slut]

thanks

Thanks for all the feedback guys nice to see im not the only one struggling.

I guess the answer is to stop writting stuff thats extreme, actually scrub that wheres the fun.

 

[Pure]

ASC said,

I guess the answer is to stop writting stuff thats extreme, actually scrub that wheres the fun.

Pretty close. Don't bother writing it for the 'extreme' of literotica; try asstr, and a number of other sites. Just my personal take on things.

There are many opportunities at lit; it's very tolerant; just have the lead characters 'pierce' the woman with their dicks, not their knives, and eat her pussy, not her liver.

And you probably know you are free to submit your four chapters elsewhere (in addition).

 

[Pookie]

Pure,

You are right. COPA doesn't make sexual content illegal. It makes allowing access by minors illegal. Literotica is no more protected than the Extreme site that is set up. If a minor can click a link that will provide them easy access to Literotica, then under the law, Literotica would be in deep legal trouble just as the Extreme site would be.

This also applies to stories involving minors. No law makes those stories illegal. COPA only deals with "access by minors" not "content". There are laws that make certain pictures of minors illegal, but not literature. There are plenty of free and pay sites with extreme and underage stories that operate without any problems or restrictions as are stated here at Literotica.

At the moment, the law can't be enforced because of the US Supreme Court's injuction, so it is a moot point for now.

From epic.org:
The Supreme Court on May 13, 2002, issued a decision on Congress's latest attempt to censor the Internet. The Court did not decide any of the core legal questions, but ordered a lower court to decide the case on a wider range of First Amendment issues. Meanwhile, a majority of justices appeared to have grave doubts about the law's ultimate constitutionality, and the Court left in place an injunction barring enforcement of the law. The case has to do with a law passed by Congress in 1998 called the Child Online Protection Act (COPA), a broad censorship law that severely restricts any speech on the Web that is "harmful to minors," and imposes steep fines and prison terms for violators.

 

[Pure]

Hi PG,
how are ya?



You are right. COPA doesn't make sexual content illegal. It makes allowing access by minors illegal. Literotica is no more protected than the Extreme site that is set up. If a minor can click a link that will provide them easy access to Literotica, then under the law, Literotica would be in deep legal trouble just as the Extreme site would be.



I think we basically agree, but simple 'fuck' stories are a dime a dozen, and 12 year old Johnny may have a few hidden under his bed. They are widely available in various media, except regular primetime TV. So ask yourself (as a site owner), would you rather be dragged to court 1) by someone saying 'your' fuck story corrupted their son, or 2) by someone saying there was harm to their son from your story "we raped her, slashed her throat, tore her open and cooked her liver over the campfire"??

 

[Pookie]

Hi Pure! Doing great here.

I’m sure we agree with each other regarding COPA. Also, I think I would prefer the former option you stated if I was running a website. Even this forum in its present format would violate COPA. Pick your poison I guess if you happen to be the admin of all three sites. Also remember, COPA applies to the Internet or "online access" and not other media outlet.

But with your options, under COPA, the penalty would still be the same. If a child accessed Literotica or the Extreme site, the administrators here would be facing the same steep fines and/or imprisonment regardless of which site the child accessed if charges were pressed under COPA. The admins would have to put up all kinds of “front doors” like strict adult verification systems to insulate themselves from angry parents of a child that accessed either site.

It will be of little consolation to the site administrators, sitting in prison or bankrupt, that the story was about a married couple enjoying a Valentine’s Day romp together at home, and wasn’t about a sadistic rapist-murderer eating the remains of his victim over a campfire.

My point is that the admins here are not restricted by COPA (or any other law) as to the content that appears here in a written format. There are no laws that make content in ANY story illegal on the Internet unless they include slander, libel or copyright infringements. COPA only makes “access by minors” illegal, with serious penalties.

At this time, the admins can’t be dragged into court (under COPA) for either type of story accessed by a minor, with the injunction from the US Supreme Court in place. IMO, COPA will see the same fate as its predecessor.

 

[Pure]

Hi PG,

Again, we are mostly in agreement.

One small note, however:

Pooky Grrl
My point is that the admins here are not restricted by COPA (or any other law) as to the content that appears here in a written format. There are no laws that make content in ANY story illegal on the Internet unless they include slander, libel or copyright infringements. COPA only makes “access by minors” illegal, with serious penalties.


While I am a lay person, and this is a vast field, recently complicated by the appearance of the internet, etc., I give some links, below; the one for webmasters is the most concise. A recent federal case, Alexander, involving gifs, is also cited. Notably the case also involved seizure, under RICO, of all his business assets.

There certainly are federal obscenity laws, which encompass written matter, still in force, as well as state obscenity laws.
Federally, there is 18 USC 1460-68, and 47 USC 223. I believe you are more commenting on the lack of federal enforcement, regarding written matter, of late. These laws, however, exist, independently of COPA, and the 'harm to minors' issue; if COPA falls, they do NOT fall, but remain. And they apply, as Alexander indicates to stuff that's transmitted electronically or by internet.

Federal Law on Obscenity
18 USC 1460

http://www4.law.cornell.edu/uscode/18/pIch71.html

review:

http://gsulaw.gsu.edu/lawand/papers/fa01/caldwell/

notes for webmasters

http://www.adultweblaw.com/laws/obscene.htm

state and fed statutes

http://www.moralityinmedia.org/nolc/index.htm?statutesIndex.htm

Alexander v US 1993

http://supct.law.cornell.edu/supct/html/91-1526.ZO.html

 

[LGL]

great information, everytime I visit this site i get a little smarter.

 

[Pure]

Hi PG,

I thought you might be interested in the results of some searching. The US Inspector General summarized obscenity prosecutions in a letter. There have been about 200, since 1992.
Most, of course, would not merely be written matter. Further, it's clear that the US gov is going mostly after the 'big fish', esp. porn distributors with organized crime links. What that means is that the states, and their various obscenity laws are going to take on most of the cases.

Inspector General Fine's letter:

http://www.usdoj.gov/oig/i0107/results.htm

A rather nice list of SC decisions on obscenity is at

http://www.usscplus.com/online/subindx/results_subj.asp?subj=1960

The Miller 1973 decision defines obscenity. Of most interest to our discussion is the Kaplan v. California. This was 30 years ago, but decisions remain, as you know, till revised later. It deals with written words, books: Here is a bit of it. Note particularly the bolded portion.

http://www.usscplus.com/online/index.asp?case=4130115


Kaplan v. California, 413 U.S. 115 (1973)

Syllabus

Petitioner, a proprietor of an "adult" bookstore, was convicted of violating a California obscenity statute by selling a plain-covered unillustrated book containing repetitively descriptive material of an explicitly sexual nature. Both sides offered testimony as to the nature and content of the book, but there was no "expert" testimony that the book was "utterly without redeeming social importance." The trial court used a state community standard in applying and construing the statute. The appellate court, affirming, held that the book was not protected by the First Amendment.

Held: 1. Obscene material in book form is not entitled to First Amendment protection merely because it has no pictorial content. A State may control commerce in such a book, even distribution to consenting adults, to avoid the deleterious consequences it can reasonably conclude (conclusive proof is not required) result from the continuing circulation of obscene literature. See Paris Adult Theatre I v. Slaton, ante p. 49. Pp. 118-120.

2. Appraisal of the nature of the book by "the contemporary community standards of the State of California" was an adequate basis for establishing whether the book here involved was obscene. See Miller v. California, ante, p. 15. P. 121. [...]

BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to the Appellate Department of the Superior Court of California for the County of Los Angeles to review the petitioner's conviction for violation of California statutes regarding obscenity.

Petitioner was the proprietor of the Peek-A-Boo Bookstore, one of the approximately 250 "adult" bookstores in the city of Los Angeles, California.{1} On May 14, 1969, in response to citizen complaints, an undercover police officer entered the store and began to peruse several books and magazines. Petitioner advised the officer that the store "was not a library." The officer then asked petitioner if he had "any good sexy books." Petitioner replied that "all of our books are sexy" and exhibited a lewd photograph. At petitioner's recommendation, and after petitioner had read aloud a sample paragraph, the officer purchased the book Suite 69. On the basis of this sale, petitioner was convicted by a jury of violating California Penal Code § 311.2,{2} a misdemeanor.

The book, Suite 69, has a plain cover and contains no pictures. It is made up entirely of repetitive descriptions of physical, sexual conduct, "clinically" explicit [413 U.S. 117] and offensive to the point of being nauseous; there is only the most tenuous "plot." Almost every conceivable variety of sexual contact, homosexual and heterosexual, is described. Whether one samples every 5th, 10th, or 20th page, beginning at any point or page at random, the content is unvarying.

At trial, both sides presented testimony, by persons accepted to be "experts," as to the content and nature of the book. The book itself was received in evidence, and read, in its entirety, to the jury. Each juror inspected the book. But the State offered no "expert" evidence that the book was "utterly without socially redeeming value," or any evidence of "national standards." [413 U.S. 118]

On appeal, the Appellate Department of the Superior Court of California for the County of Los Angeles affirmed petitioner's conviction. Relying on the dissenting opinions in Jacobellis v. Ohio, 378 U.S. 184, 199, 203 (1964), and MR. JUSTICE WHITE's dissent in Memoirs v. Massachusetts, 383 U.S. 413, 462 (1966), it concluded that evidence of a "national" standard of obscenity was not required. It also decided that the State did not always have to present "expert" evidence that the book lacked "socially redeeming value," and that "n light . . . of the circumstances surrounding the sale" and the nature of the book itself, there was sufficient evidence to sustain petitioner's conviction. Finally, the state court considered petitioner's argument that the book was not "obscene" as a matter of constitutional law. Pointing out that petitioner was arguing, in part, that all books were constitutionally protected in an absolute sense, it rejected that thesis. On "independent review," it concluded "Suite 69 appeals to a prurient interest in sex and is beyond the customary limits of candor within the State of California." It held that the book was not protected by the First Amendment. We agree.

This case squarely presents the issue of whether expression by words alone can be legally "obscene" in the sense of being unprotected by the First Amendment.{3} When [413 U.S. 119] the Court declared that obscenity is not a form of expression protected by the First Amendment, no distinction was made as to the medium of the expression. See Roth v. United States, 354 U.S. 476, 481-485 (1957). Obscenity can, of course, manifest itself in conduct, in the pictorial representation of conduct, or in the written and oral description of conduct. The Court has applied similarly conceived First Amendment standards to moving pictures, to photographs, and to words in books. See Freedman v. Maryland, 380 U.S. 51, 57 (1965); Jacobellis v. Ohio, supra, at 187-188; Times Film Corp. v. Chicago, 365 U.S. 43, 46 (1961); id. at 51 (Warren, C.J., dissenting); Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 689-690 (1959); Superior Films, Inc. v. Dept. of Education, 346 U.S. 587, 589 (1954) (DOUGLAS, J., concurring); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952).


Because of a profound commitment to protecting communication of ideas, any restraint on expression by way of the printed word or in speech stimulates a traditional and emotional response, unlike the response to obscene pictures of flagrant human conduct. A book seems to have a different and preferred place in our hierarchy of values, and so it should be. But this generalization, like so many, is qualified by the book's content. As with pictures, films, paintings, drawings, and engravings, both oral utterance and the printed word have First Amendment [413 U.S. 120] protection until they collide with the long-settled position of this Court that obscenity is not protected by the Constitution. Miller v. California, ante at 23-25; Roth v. United States, supra, at 483-485.

For good or ill, a book has a continuing life. It is passed hand to hand, and we can take note of the tendency of widely circulated books of this category to reach the impressionable young and have a continuing impact.{4} A State could reasonably regard the "hard core" conduct described by Suite 69 as capable of encouraging or causing antisocial behavior, especially in its impact on young people. States need not wait until behavioral experts or educators can provide empirical data before enacting controls of commerce in obscene materials unprotected by the First Amendment or by a constitutional right to privacy. We have noted the power of a legislative body to enact such regulatory laws on the basis of unprovable assumptions. See Paris Adult Theatre I v. Slaton, ante at 60-63.

Prior to trial, petitioner moved to dismiss the complaint on the basis that sale of sexually oriented material to consenting adults is constitutionally protected. In connection with this motion only, the prosecution stipulated that it did not claim that petitioner either disseminated any material to minors or thrust it upon the general public. The trial court denied the motion. Today, this Court, in Paris Adult Theatre I v. Slaton, ante at 68-69, reaffirms that commercial exposure and sale of obscene materials to anyone, including consenting adults, is subject to state regulation. See also United States v. Orito, post at 141-144; United States v. 12 200-ft. Reels of Film, post at 128; United States v. Thirty-seven Photographs, 402 U.S. 363, 376 (1971) (opinion of [413 U.S. 121] WHITE, J.); United States v. Reidel, 402 U.S. 351, 355-356 (1971). The denial of petitioner's motion was, therefore, not error.

 

[Pookie]

Very good info, Pure. Thanks.

Glancing through some of the links, I have yet to find anything related specifically to literature on the Internet though that would make it illegal to post obscene stories. The few I have glanced through deal with mail order or hard copy literature sold in local stores, which are found by local standards to be obscene. It could be there, but I have yet to find it. I would tend to think that if it were illegal, very few websites would risk the penalties involved, even if the Federal government were not actively enforcing the laws that might apply.

In one situation I did read in the links provided, a tape that was air at midnight by accident on a television station only showed a guy masturbating. It was ruled by the Nebraska Supreme Court as "obscene". Take a look at some of the categories here at Literotica. Laurel better close up shop really quick if those laws apply to the Internet, before they are enforced! But again, this was a "local" case dealing with a local situation unrelated to the Internet.

Here is a quote from related to COPA: http://gsulaw.gsu.edu/lawand/papers/fa01/caldwell/
"At oral argument, the Justices focused on how COPA would apply to the virtual Internet world, since it restricts material that offends "contemporary community standards." Federal law already prohibits obscenity and child pornography. In deciding whether something is obscene, the court looks at the local community standards. (See Declan McCullagh, High Court Focuses on Kids, Web, Wired.com.)

The community standards test, as articulated in Miller v. California, 413 U.S. 15 (1973), looks at the following to determine what is obscene speech:
"a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest,
b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Under this test, speech that is legal in one community, but deemed obscene in another, generally is not protected by the First Amendment. The Court's decision in this COPA case may turn on how a community standards test can be visualized for the world-wide Internet community, or on whether some sort of national standard can be articulated."
*end of quote*


I know that many adult websites choose to use or place their servers in certain communities that have very relaxed standards for obscenity. But I also know some don't. A prosecutor in another locale could file charges that it violates their obscenity laws. That’s a risk a Webmaster takes, but I have found nothing yet where such a conviction was made that held up on appeal, when it relates solely to the Internet. One conviction I saw involved the Internet AND use of an interstate telephone call to provide a key into a BBS. Also, It didn’t involve literature as I recall.


Also, another important Supreme Court ruling comes into play regarding "obscenity":

"The Supreme Court has ruled that adults legally may possess obscenity in the privacy of their own homes. Stanley v. Georgia, 394 U.S. 557 (1969)."

A quote from the decision:
"These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases - the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as "obscene" is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. "

The ruling can be found at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=394&invol=557


In the Baker case regarding posting a story on a Usenet group found to be obscene:

"Baker was charged with 5 counts of transmitting threats across state lines in connection with his email. Charges related to his stories have been dropped. Baker's defense lawyer, Douglas Mullkoff, petitioned the court to dismiss the charges. US District Judge Avern Cohn dismissed the charges, citing the government's lack of evidence that Baker planned to act on his writings. The 6th U.S. Circuit Court of Appeals upheld the dismissal, ruling that the writings did not constitute a threat. "

Some reaction on the Baker case:
http://www.pub.umich.edu/daily/1997/jan/01-31-97/news/news4.html
http://www.mit.edu:8001/activities/safe/safe/cases/umich-baker-story/Baker/Jake_Baker.html

It’s an area that the Supreme Court has yet to definitively rule. The Internet is so different from a local bookstore or mail order. It will be interesting to see how COPA eventually turns. Hopefully the courts will make some ruling that clears up the picture. At this point though, any website now COULD be gone after by a prosecutor anywhere in the USA depending on their local standards. Doesn’t mean they will be successful as yet when it involves sites like Literotica.

Pure, I’m not trying to be disagreeable with you. I'm enjoying looking up the cases myself! As authors of porn stories, it’s important to discuss these types of things and be informed. There is so much undecided about the Internet right now when it comes to regulating obscenity.

 

[Pure]

Hi Pookie Grrl,

Yes, that's interesting material! I'm glad you're looking into the matters and aren't just mouthing off as one often sees. Your points are thoughtful and well stated.

I see you want to address the question of obscenity, written matter and the internet. Again, I'm just updating myself in this area, but it seems to me that, apart from COPA, there are laws which would apply; i.e., you don't have to get into the 'harmful to minors' question. So none of what I say below is related to COPA, and the laws don't fall if COPA falls, as far as I can see.


The Thomas decision was an appeal ct. decision, and the SC refused to review it. Though it applies to gifs, I think the argument can likely be extended to written matter, if you agree that some written matter can be adjudged obscene, as per Miller and Kaplan.

The Baker decision you mention does involve the internet, but the rape (and murder iirc) story he posted was about a (ex) girl friend, named. And clearly that involves other issues.

Note: As far as I can see, the federal laws against child pornography 18 USC 2256 apply to visual depictions only. So afaik, a text about a child does not fall under that law. I reason, however, that a text about a child could still fall under the obscenity law(s) we're discussing, Miller in particular.


Here is a bit of the Thomas decision,

http://laws.lp.findlaw.com/6th/960032p.html

File Name: 96a0032p.06

Nos. 94-6648/6649

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT ALAN THOMAS (94-6648) and CARLEEN THOMAS (94-6649), Defendants-Appellants. > ON APPEAL from the United States District Court for the Western District of Tennessee
__________________

Decided and Filed January 29, 1996

__________________
Before: MARTIN and BATCHELDER, Circuit Judges; EDMUNDS, District Judge. [*] NANCY G. EDMUNDS, District Judge. Defendants Robert and Carleen Thomas appeal their convictions and sentences for violating 18 U.S.C. §§ 1462 and 1465, federal obscenity laws, in connection with their operation of an electronic bulletin board. For the following reasons, we AFFIRM Robert and Carleen Thomas' convictions and sentences.
I.
Robert Thomas and his wife Carleen Thomas began operating the Amateur Action Computer Bulletin Board System ("AABBS") from their home in Milpitas, California in February 1991. The AABBS was a computer bulletin board system that operated by using telephones, modems, and personal computers. Its features included e-mail, chat lines, public messages, and files that members could access, transfer, and download to their own computers and printers. Information loaded onto the bulletin board was first converted into binary code, i.e., 0's and 1's, through the use of a scanning device. After purchasing sexually-explicit magazines from public adult book stores in California, Defendant Robert Thomas used an electronic device called a scanner to convert pictures from the magazines into computer files called Graphic Interchange Format files or "GIF" files. The AABBS contained approximately 14,000 GIF files.

Mr. Thomas also purchased, sold, and delivered sexually-explicit videotapes to AABBS members. Customers ordered the tapes by sending Robert Thomas an e-mail message, and Thomas typically delivered them by use of the United Parcel Service ("U.P.S."). Persons calling the AABBS without a password could view the introductory screens of the system which contained brief, sexually-explicit descriptions of the GIF files and adult videotapes that were offered for sale.

Access to the GIF files, however, was limited to members who were given a password after they paid a membership fee and submitted a signed application form that Defendant Robert Thomas reviewed. The application form requested the applicant's age, address, and telephone number and required a signature. Members accessed the GIF files by using a telephone, modem and personal computer. A modem located in the Defendants' home answered the calls. After they established membership by typing in a password, members could then select, retrieve, and instantly transport GIF files to their own computer. A caller could then view the GIF file on his computer screen and print the image out using his printer. The GIF files contained the AABBS name and access telephone number; many also had "Distribute Freely" printed on the image itself.

In July 1993, a United States Postal Inspector, Agent David Dirmeyer ("Dirmeyer"), received a complaint regarding the AABBS from an individual who resided in the Western District of Tennessee. Dirmeyer dialed the AABBS' telephone number. As a non-member, he viewed a screen that read "Welcome to AABBS, the Nastiest Place On Earth," and was able to select various "menus" and read graphic descriptions of the GIF files and videotapes that were offered for sale. Subsequently, Dirmeyer used an assumed name and sent in $55 along with an executed application form to the AABBS. Defendant Robert Thomas called Dirmeyer at his undercover telephone number in Memphis, Tennessee, acknowledged receipt of his application, and authorized him to log-on with his personal password.

Thereafter, Dirmeyer dialed the AABBS's telephone number, logged-on and, using his computer/modem in Memphis, downloaded the GIF files listed in counts 2-7 of the Defendants' indictments. These GIF files depicted images of bestiality, oral sex, incest, sado-masochistic abuse, and sex scenes involving urination. Dirmeyer also ordered six sexually-explicit videotapes from the AABBS and received them via U.P.S. at a Memphis, Tennessee address. Dirmeyer also had several e-mail and chat-mode conversations with Defendant Robert Thomas.

[...]






Defendants contend that their conduct, as charged in counts 1-7 of their indictments, does not constitute a violation of 18 U.S.C. § 1465. This presents a question of statutory interpretation, a matter of law, and is reviewed by this court under a de novo standard. United States v. Hans , 921 F.2d 81, 82 (6th Cir. 1990). [1] Defendants' challenge to their convictions under counts 1-7, rests on two basic premises:

1) Section 1465 does not apply to intangible objects like the computer GIF files at issue here, [2]

Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution, or knowingly travels in interstate commerce, or uses a facility or means of interstate commerce for the purpose of transporting obscene material in interstate or foreign commerce, any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both. The transportation as aforesaid of two or more copies of any publication or two or more of any article of the character described above, or a combined total of five such publications and articles, shall create a presumption that such publications or articles are intended for sale or distribution, but such presumption is rebuttable. 42 U.S.C.A. § 1465 (West 1995 Supp.).

and 2) Congress did not intend to regulate computer transmissions such as those involved here because 18 U.S.C. § 1465 does not expressly prohibit such conduct. In support of their first premise, Defendants cite a Tenth Circuit dial-a-porn decision which holds that 18 U.S.C. §§ 1462 and 1465 prohibit the interstate transportation of tangible objects; not intangible articles like pre-recorded telephone messages. See United States v. Carlin Commun., Inc. , 815 F.2d 1367, 1371 (10th Cir. 1987).

Defendants claim Carlin is controlling because transmission of the GIF files at issue under counts 1-7 involved an intangible string of 0's and 1's which became viewable images only after they were decoded by an AABBS member's computer. We disagree. The subject matter in Carlin --telephonic communication of pre-recorded sexually suggestive comments or proposals--is inherently different from the obscene computer-generated materials that were electronically transmitted from California to Tennessee in this case. Defendants erroneously conclude that the GIF files are intangible, and thus outside the scope of § 1465, by focusing solely on the manner and form in which the computer-generated images are transmitted from one destination to another. United States v. Gilboe , 684 F.2d 235 (2nd Cir. 1982), cert. denied , 459 U.S. 1201 (1983), illustrates this point.

In Gilboe , the Second Circuit rejected the argument that the defendant's transmission of electronic impulses could not be prosecuted under a criminal statute prohibiting the transportation of money obtained by fraud. The Gilboe court reasoned that: [e]lectronic signals in this context are the means by which funds are transported. The beginning of the transaction is money in one account and the ending is money in another. The manner in which the funds were moved does not affect the ability to obtain tangible paper dollars or a bank check from the receiving account. Id . at 238. The same rationale applies here.

Defendants focus on the means by which the GIF files were transferred rather than the fact that the transmissions began with computer-generated images in California and ended with the same computer-generated images in Tennessee. The manner in which the images moved does not affect their ability to be viewed on a computer screen in Tennessee or their ability to be printed out in hard copy in that distant location.

The record does not support Defendants' argument that they had no knowledge, intent or expectation that members of their AABBS would download and print the images contained in their GIF files. They ran a business that advertised and promised its members the availability and transportation of the sexually-explicit GIF files they selected. In light of the overwhelming evidence produced at trial, it is spurious for Defendants to claim now that they did not intend to sell, disseminate, or share the obscene GIF files they advertised on the AABBS with members outside their home and in other states.

We also disagree with Defendants' corollary position, raised at oral argument, that they were prosecuted under the wrong statute and that their conduct, if criminal at all, falls within the prohibitions under 47 U.S.C. § 223(b) [3] (1) Whoever knowingly (A) within the United States, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or (B) permits any telephone facility under such person's control to be used for an activity prohibited by subparagraph (A), shall be fined in accordance with Title 18, or imprisoned not more than two years, or both. rather than 18 U.S.C. § 1465.

As recognized by the Supreme Court, Section 223(b) of the Communications Act of 1934, was drafted and enacted by Congress in 1982 "explicitly to address 'dial-a-porn.'" Sable Communications of Cal., Inc. v. F.C.C. , 492 U.S. 115, 120-121 (1989). Congress amended Section 223(b) in 1988 to impose a total ban "on dial-a-porn, making it illegal for adults, as well as children, to have access to sexually-explicit messages" that are indecent or obscene. Id . at 122-123. [4] 47 U.S.C. § 223(b) addresses commercial dial-a-porn operations that communicate sexually-explicit telephone messages; not commercial computer bulletin boards that use telephone facilities for the purpose of transmitting obscene, computer-generated images to approved members.


Defendants' second premise, that Congress did not intend to regulate computer transmissions because the statute does not expressly prohibit such conduct, is faulty as well. We have consistently recognized that when construing federal statutes, our duty is to "'construe the language so as to give effect to the intent of Congress.'" United States v. Underhill , 813 F.2d 105, 111 (6th Cir.), cert. denied , 482 U.S. 906 (1987) (quoting United States v. American Trucking Associations, Inc. , 310 U.S. 534, 542-44 (1940)). The Supreme Court observed this principle when it rejected an argument similar to one Defendants raise here, i.e., that Congress could not possibly have intended to include conduct not expressly prohibited in the statute. See United States v. Alpers , 338 U.S. 680 (1950).

In United States v. Alpers , the Supreme Court considered the question whether obscene phonograph records--at the time, a novel means of transmitting obscenity--came within the prohibition of 18 U.S.C. § 1462. Initially, the Court acknowledged that criminal statutes are to be strictly construed and that "no offense may be created except by the words of Congress used in their usual and ordinary way." Id. at 681. The Court emphasized, however, that Congress' intent is the most important determination and statutory language is not to be construed in a manner that would defeat that intent. Applying those principles, the Court held that the rule of ejusdem generis [5] should not be "employed to render general words meaningless" or "be used to defeat the obvious purpose of legislation." Id . at 681-83. It recognized that "[t]he obvious purpose of [Section 1462] was to prevent the channels of interstate commerce from being used to disseminate" any obscene matter. Id. at 683.

The Court further recognized that Section 1462 "is a comprehensive statute, which should not be constricted by a mechanical rule of construction." Id. at 684. Accordingly, the Court rejected the defendant's argument that the general words "other matter of indecent character" could not be interpreted to include objects comprehensible by hearing (phonographic recordings) rather than sight; an argument similar to the tangible/intangible one raised here, and held that obscene records fell within the scope of the criminal statute.

In reaching its decision, the Alpers Court found that the legislative history of Section 1462 did not support defendant's sight/sound distinction. It was not persuaded that Congress' amendment of Section 1462 to add motion picture films to the list of prohibited materials "evidenced an intent that obscene matter not specifically added was without the prohibition of the statute." Id. Rather, the Court concluded that the amendment evidenced Congress' preoccupation "with making doubly sure that motion-picture film was within the Act, and was concerned with nothing more or less." Id.

We are similarly unpersuaded by Defendants' arguments that the absence of the words "including by computer" in Section 1465, despite Congress' addition of those words in other legislation, is evidence of its intent not to criminalize conduct, such as Defendants' that falls within the plain language and intent of Section 1465.



Furthermore, under similar facts, the U.S. Air Force Court of Criminal Appeals recently considered § 1465's plain language and its intended purpose. In United States v. Maxwell , 42 M.J. 568, 1995 WL 259269 (A.F. Ct. Crim. App. 1995), a defendant was charged with violating Section 1465 because he had transmitted obscene visual images electronically through the use of an on-line computer service. He argued that since the statute is silent concerning computer transmissions, such transmissions were not to be included within the terms "transporting obscene materials in interstate or foreign commerce."

The court observed that well-established principles of statutory construction require a court to look first to the statute's plain language. Maxwell , 1995 WL 259269 at *10 (citing Rubin v. United States , 449 U.S. 424, 430 (1981)). Applying that principle, the Maxwell court concluded that the defendant's conduct fell within the plain language of Section 1465. Specifically, the court held: [t]he use of the terms "transports," "distribution," "picture," "image" and "electrical transcription" leads us to the inescapable conclusion the statute is fully applicable to the activities engaged in by applicant. . . . It is clear Congress intended to stem the transportation of obscene material in interstate commerce regardless of the means used to effect that end. Maxwell , 1995 WL 259269 at *10.

Likewise, we conclude that Defendants' conduct here falls within the plain language of Section 1465. [6] Moreover, our interpretation of Section 1465 is consistent with Congress' intent to legislate comprehensively the interstate distribution of obscene materials. Id .

 

[hiddenself]

Furthermore, under similar facts, the U.S. Air Force Court of Criminal Appeals recently considered § 1465's plain language and its intended purpose.

Just pointing out that military courts are totally irrelevant. The legal principles and rules they use are very different from civilian courts. Cases tried there do not constitute any indication regarding disposition of similar cases in regular courts.

hs

 

[Pure]

Hi Hidden Self,

I'm glad you are coming unhidden. You raise an interesting point, however, not against me:


quote:
--------------------------------------------------------------------------------
Originally posted by Pure
Furthermore, under similar facts, the U.S. Air Force Court of Criminal Appeals recently considered § 1465's plain language and its intended purpose.
--------------------------------------------------------------------------------

[hiddens self responds to above statement:]

Just pointing out that military courts are totally irrelevant. The legal principles and rules they use are very different from civilian courts. Cases tried there do not constitute any indication regarding disposition of similar cases in regular courts.

===

You neglect to mention you are not quoting me, but the Appeals Ct. I wish you had. Indeed, they may reason poorly, but it's on the books. I don't necessarily endorse their views.

You do not really address any of MY primary points, which are merely about what the law says; e.g, that computer transmitted 'obscene' material, is illegal, aside from COPA, by existing law, and extensions already made.

Glad to see you join in, and would like to hear of your views in more detail. Do you agree that there is not necessarily any legal problem about a (text only) story of sex involving minors?

Best,
J.

 

[hiddenself]

You neglect to mention you are not quoting me, but the Appeals Ct.

Guilty as charged.
Also, reading it again, I suppose the Appeals Court is using the military case to try to bolster its understanding and interpretation of the statute ("what did Congress mean--?"), rather than using it as precedent. I still find it rather curious, but...

As for the other arguments, I don't know. I am not an expert on constitutional law.

I would think it might be very difficult to argue that Lit stories are obscene. They may or may not appeal to prurient interest or be offensive by community standards (in whatever jurisdiction the case is heard), but as long as they have some social value, they are protected. Now, the whole way Lit is run would make it relatively easy to show that the stories are not simple porn -- the "literary" aspect of the site (an environment for learning to write erotic stories etc) would make the case very hard to prosecute.

I feel that the generic obscenity laws are infinetely harder to use against purely written material as opposed to visual porn. Traditionally, courts seem to have applied free speech protections more liberally for the former. So, I feel that Lit would be pretty safe even with underage and hard-core rape stories. I'll cite Baker's case in Mich as a much more egregious example of a story, but one that did not even go to trial (was dismissed by judge).

hs

 

[Pookie]

Pure,

That's an interesting case. I did notice it didn't include written material. I have been trying to locate a case related strictly to that and can't find it yet. I tend to agree with hiddenself that the courts are less likely to find a story to be in violation of obscenity laws than they would a picture that depicted the same story.

The other thing I noticed in the case was (correct me if I mis-read this) that the violation involved the actual purchase of the material. Since Literotica is not a "pay" site, I would tend to think a case like that wouldn't apply. Most of the things I have read to date involved "commerce", a purchase of the material, or transportation (usually a combination of more than one). Also, technically the case didn't involve the internet since it involved a direct dial-in connection to a computer running bbs software specifically with the material. Could a county in Kentucky charge me under their obscenity laws if material on my web server (I wish LOL) in South Carolina happened to pass through a server in Kentucky before it reached its destination in North Dakota? That's some of the problem the internet creates for existing laws.

The key thing I see right now is obscenity laws are right now based on "local" standards. That creates a major dilemma for the courts. I believe that is why I can't find any specific cases either since the area creates a real problem for prosecutors. What if the server and person that runs it are in another country? Thats the problem when it comes to trying to censor the internet.

Very helpful and interesting info! Thanks, Pure and hiddenself

 

[bridgeburner]

Perhaps those interested in reading/writing Extreme stories should form an exchange list to trade stories through email? I know there are also other sites out there that will post extreme stories, but if people were interested in trading with mainly other Literotica members then much as I hate to mention the Evil Ones, Yahoo Groups offers some solutions.

If it's only a matter of not having time to update the site perhaps some web-savvy "extremist" could volunteer his/her services.


---B

 

[Pure]

Hi HS,

you said,

I would think it might be very difficult to argue that Lit stories are obscene. They may or may not appeal to prurient interest or be offensive by community standards (in whatever jurisdiction the case is heard), but as long as they have some social value, they are protected. Now, the whole way Lit is run would make it relatively easy to show that the stories are not simple porn -- the "literary" aspect of the site (an environment for learning to write erotic stories etc) would make the case very hard to prosecute.

I feel that the generic obscenity laws are infinetely harder to use against purely written material as opposed to visual porn. Traditionally, courts seem to have applied free speech protections more liberally for the former. So, I feel that Lit would be pretty safe even with underage and hard-core rape stories. I'll cite Baker's case in Mich as a much more egregious example of a story, but one that did not even go to trial (was dismissed by judge).

======
I think I generally agree, though there would be some exceptions: like 'counselling' to commit a crime.

You raise an interesting point: Is Literotica more like a store or like a magazine. A store can be prosecuted for selling obscene items including writing. It doesn't matter if the store also sells Bibles.
Iow the 'obscene' matter is IN the store; the store is not the obscene matter, but its purveyor.

A magazine, however is looked at as a whole (i.e., that issue) in its 'redeeming social value.' And as you know, some have 'sex info' or history-of-lingerie articles for that reason. The magazine is the putatively obscene matter. If Lit is like a magazine--as against the earlier situation--then the thing as a whole is judged: its 'info' articles counter balancing its 'hardcore' stories.

This magazine analogy seems to be your suggestion. It would follow that Lit's separating of 'extreme' stories would be the *wrong* thing to do; Lit should clearly include them, in the same site (so they are counterbalanced).

In the Thomas case, the BBS was treated more as a store, and its allegedly obscene gifs were sufficient (the question of what else the bbs offered was irrelevant). You can see that, if this is the analogy, the Lit *should separate 'extreme' stories; in effect, sell them at a different 'store.'

What do you think of this issue?

I think you and I and Pookie agreee that the written stuff is hard to prosecute, and unlikely. Indeed asstr has not been prosecuted for some stuff 'farther' than 'extreme', i.e., stories with kids. AFAIK.

It's relevant to this discussion, by the way, that there are state obscenity laws. But--as Pookie says-- the non-local properties of the internet make such prosecution a bit problematic (but not out of the question).

As I think of this issue, it become increasingly apparent that the alleged 'legal danger' of 'extreme,' aside from the harm to minors hysteria and COPA, is minimal. (And of course COPA is suspended now, anyway.) It follows, does it not, that Lit has simply made a decision about its image: it wants, so to speak, to be like Victoria's Secret. Iow the desire for respectability more than legal issues is the key; that also explains the low priority given to extreme stories.

Bridgeburner: Yes it's certainly feasible to exchange extreme stuff; indeed so long as the stuff is private, the messages might even go throught Lit. i.e., "I have a story of X, (involving xyz ... much as in asstr. ) anyone interested." This could be a thread here in authors, for instance. Of course, if that's unwelcome, a Yahoo page could serve as a message center. (again, the story wouldn't be there, so as not to make Yahoo too nervous).

 

[Pure]

The is a link to the subsite re Baker, mentioned by PG; it's the story out of which the Baker case arose. Since he named his gf in the story, one can see a reason for her apprehension, though whether it's a threat is debatable (courts said 'no', not legally).
I do find it offensive.

http://www.mit.edu:8001/activities/safe/safe/cases/umich-baker-story/Baker/stories/doe.html

From the UM paper

"The court dismissed the charges [against Baker] because they did not meet three elements of the law: "a transmission in interstate ... commerce, a communication containing a threat, and the threat must be a threat to injure [or kidnap] the person of another," the Court of Appeals ruling stated."


Note that this is a different law, from those we've been discussing; probably that's why the case failed, since a story for others is arguably not a direct threat to the person named.