Will writing and publishing erotica become illegal in your state?

[Lifestyle66]

It’s pretty ironic isn’t it? Asking the admins to remove a thread about censorship?

Not remove or censor it. Merely move it to where it belongs: Politics.

There's a place for such discussions, and it's not in an area about writing. But as long as it's here ...

 

[MelissaBaby]

Not remove or censor it. Merely move it to where it belongs: Politics.

There's a place for such discussions, and it's not in an area about writing. But as long as it's here ...

Will you be asking to have Six Letter Post Office, Last Person to Win and other such threads moved as well?

 

[Lifestyle66]

They have a specific Politics Board.

 

[MelissaBaby]

They have a specific Politics Board.

There is also the Playground.

 

[SimonDoom]

Not remove or censor it. Merely move it to where it belongs: Politics.

It didn't start as a political thread. The OP expressed a concern about developments that might affect our ability to write and post stories here. That seems to me a vital concern to authors so an appropriate subject here. There's been some back and forth speculation about what might happen. You're the one who politicized it more than anyone. It would be a shame to see this thread sent to the Politics board because it's a cesspool where, as far as I can tell, no intelligent discussion takes place, and this is a topic worth having an intelligent discussion about among authors.

I DO think your comments suggest one of the difficulties of having a discussion about this issue, because there are assumptions underlying your comments that, at least with respect to the subject matter raised here, are not obviously true. If people think Literotica and similar sites TRULY present a risk of hurting children, they should offer proof rather than unsubstantiated allegations. They should be specific. Since freedom of speech is involved, they should offer narrowly-tailored solutions that address the alleged problems without unduly limiting everyone's speech rights.

Although I think free speech is under assault everywhere, constantly, from almost every political angle, I'm fairly sanguine about Literotica's chances. There are any number of reasons why it's not likely to be high on the list of zealous anti-sex partisans, and why, even if some of them do care, it's likely to enjoy significant protections in the courts under existing law.

 

[Zootonius]

A problem a state like Louisiana will have is enforcement. They have no authority over a website hosted in say, New York.

 

[Bramblethorn]

A problem a state like Louisiana will have is enforcement. They have no authority over a website hosted in say, New York.

That's how it ought to work, but in U.S. v Thomas the Sixth Circuit ruled that a website operator (or in this case a BBS operator) could be convicted under the laws and the community standards of any jurisdiction where the material is downloaded. The Thomases were running a BBS in San Francisco; a postal inspector in Tennessee signed up to their site, downloaded porn, and they were convicted and jailed for violating Tennessee law.

 

[SimonDoom]

That's how it ought to work, but in U.S. v Thomas the Sixth Circuit ruled that a website operator (or in this case a BBS operator) could be convicted under the laws and the community standards of any jurisdiction where the material is downloaded. The Thomases were running a BBS in San Francisco; a postal inspector in Tennessee signed up to their site, downloaded porn, and they were convicted and jailed for violating Tennessee law.

I suspect this is the reason, or at least a major reason, why Literotica has the content rules that it does. The risk to Lit comes when sexual material is made available in a more conservative part of the country where the definition of what's "obscene" (and therefore, by law, not protected by the First Amendment's Free Speech clause) is broader. Literotica is domiciled in the 9th Circuit, arguably the most liberal appellate circuit in the US, but it's at least theoretically at risk of liability in other circuits as well. The Lit owners don't want to take the risk that content on their site would be found, somewhere, to be obscene, so they've eliminated under-18 content, bestiality, and snuff/torture.

That seems fairly sensible, if one wants to take a cautious position, although there are plenty of sites out there that offer content that Lit prohibits, and there do not appear to be systematic attempts to shut them down or prosecute them. The courts would have to take a significantly different position on "obscenity" to put Lit, given its current content rules, at risk.

 

[XerXesXu]

The courts would have to take a significantly different position on "obscenity" to put Lit, given its current content rules, at risk.

It's state legislatures that make state laws under the state constitution, including obscenity laws. If necessary, the federal courts enforce the state laws under their interstate commerce and diversity jurisdiction. The view of the courts is neither here nor there, the state legislatures can and will make the law. The only requirement imposed by the Federal Supreme Court is that state legislation must be sufficiently specific that an offender would have been aware that the work was forbidden if he'd read the law before publishing in that jurisdiction.

If your peers, these ‘zealous anti-sex partisans’ who, through an incomprehensible constitutional oversight, have been given the right to vote, install a state legislature which stood on a manifesto those voters endorsed, and which subsequently gets passed into law, that law will stick.

Lits submission rules, as a platform, at best, offer a tentative defence against possible future state laws. It’s early days yet, but Lit has already been spotted and is on campaigners' hit lists. It’s the world’s biggest erotica site, it will attract attention in proportion to its popularity. Take a look at it's tag cloud. Do you see any tags that invite submissions on topics that a conservative state and conservative state jury might find in violation of state standards?

 

[Kumquatqueen]

My reference to "Playboy" was a simile to "sexualized material", which was clearly banned in U.S. public schools.

Either you don't know what a simile is, or you actually think the 'sexualized material' people object to in schools is Playboy rather than the much more boring examples like 'Jenny lives with Eric and Martin', 'And Tango Makes Three' (actually that's not boring, it's a lovely story about a family of cute penguins), and books explaining how your body works.

Or, more likely, you're trolling. Back under the block with you; I'm out.

 

[oggbashan]

At the moment I am not particulary worried about some states banning written porn. Any restrictions would be easy to get around with VPNs.

What concerns me more is the short attention spans of modern children brought up with Twitter and txt. My children like reading and could sit down wth Dickens or Hardy (and still do). My grandchildren wouldn't get past the first few pages and can only access abridged illustrated versions.

The extended written stories are becoming less mainstream.

 

[SimonDoom]

It's state legislatures that make state laws under the state constitution, including obscenity laws. If necessary, the federal courts enforce the state laws under their interstate commerce and diversity jurisdiction. The view of the courts is neither here nor there, the state legislatures can and will make the law. The only requirement imposed by the Federal Supreme Court is that state legislation must be sufficiently specific that an offender would have been aware that the work was forbidden if he'd read the law before publishing in that jurisdiction.

This is incorrect as a matter of US Constitutional law. Ultimately, the federal courts, with the US Supreme Court as the court of last resort, decide what is "obscene" within the meaning of its Free Speech Clause jurisprudence under the First Amendment of the Constitution. While that jurisprudence gives some deference to local communities to decide what their standards of obscenity are, the deference is not absolute. The US Supreme Court always has the last word on whether certain content is "obscene" and therefore falls outside the protection of the First Amendment. That's how our court system, under principles of federalism, works.

For instance, if the state of Kentucky passed a law that said it's obscene under any circumstances for a movie shown in the state of Kentucky to depict a naked human body, that law would not stand up under Supreme Court scrutiny. The Court undoubtedly would hold, under its many precedents, that Kentucky's law was overbroad, that it violated the Free Speech clause of the First Amendment, and that Kentucky's definition of obscenity was insufficiently rigorous and narrow to pass muster under the Court's own First Amendment test, as set forth in Miller v California in 1973. Obscenity is an unusual and opaque doctrine in that the Supreme Court's obscenity test under Miller v California takes into account community standards, but its deference to them is not absolute, and its Free Speech jurisprudence doesn't bind it to accept whatever definition a state legislature gives to the word "obscene." That concept would turn decades of Free Speech jurisprudence on its head.

There's an extensive history of reported decisions by federal courts on what kind of sexual content falls outside the protection of the First Amendment. Given that history, it's relatively safe to say that even if a state legislature were to pass a law criminalizing the kind of content found at Literotica (something that, as far as I know, no state legislature currently is contemplating), that law would be struck down by the federal courts under federal precedent. Of course, nobody knows for sure what courts will do, but the risk of criminal liability is very low.

 

[nice90sguy]

Will writing is becoming illegal too? That's terrible, a lot of people will be dying intestate

 

[MajorRewrite]

A problem a state like Louisiana will have is enforcement. They have no authority over a website hosted in say, New York.

They don’t care about enforcement. Passing these laws is simply political grandstanding.

 

[XerXesXu]

This is incorrect as a matter of US Constitutional law. Ultimately, the federal courts, with the US Supreme Court as the court of last resort, decide what is "obscene" within the meaning of its Free Speech Clause jurisprudence under the First Amendment of the Constitution.

You could start by reading the First Amendment.

‘Congress shall make no law… abridging the freedom of speech, or of the press ...’

It applies only to Congress.

Then read Miller v. California, 413 U.S. 15 (1973), see what it actually says.

The only matter reserved to the Federal Courts is whether an obscene work has a redeeming merit. That’s what catches the examples you give. A Federal Court may determine that a work forbidden by state laws and community standards has redeeming merit.

Do you see any works on Lit that may not have a claim to redeeming merit?

 

[SimonDoom]

You could start by reading the First Amendment.

‘Congress shall make no law… abridging the freedom of speech, or of the press ...’

It applies only to Congress.

Again, this is incorrect. The US Supreme Court has held, repeatedly, that the First Amendment applies to the states as well. It specifically held that the First Amendment applied to state laws through the application of the Fourteenth Amendment in Gitlow v. New York, 268 U.S. 652 (1925). This is known as the "incorporation doctrine"--it's the doctrine that when the 14th Amendment was enacted in the aftermath of the Civil War, its Due Process Clause incorporated many portions of the original Bill of Rights to limit the ability of state legislatures, not just Congress, to pass laws that abridged fundamental rights. There are many, many cases in which federal courts invalidated state laws on the ground that those laws infringed rights guaranteed under the First Amendment.

 

[MelissaBaby]

In 1940, in the case of Cantrell v. Connecticut, the Supreme Court ruled that the First Amendment free exercise clauses apply to the state legislatures as they do to Congress.

Just throwing that out there.

 

[XerXesXu]

Again, this is incorrect. The US Supreme Court has held, repeatedly, that the First Amendment applies to the states as well. It specifically held that the First Amendment applied to state laws through the application of the Fourteenth Amendment in Gitlow v. New York, 268 U.S. 652 (1925). This is known as the "incorporation doctrine"--it's the doctrine that when the 14th Amendment was enacted in the aftermath of the Civil War, its Due Process Clause incorporated many portions of the original Bill of Rights to limit the ability of state legislatures, not just Congress, to pass laws that abridged fundamental rights. There are many, many cases in which federal courts invalidated state laws on the ground that those laws infringed rights guaranteed under the First Amendment.

Specifically dealt with in Miller.

 

[Kumquatqueen]

At the moment I am not particulary worried about some states banning written porn. Any restrictions would be easy to get around with VPNs.

Yes, I'm sure in a worst case scenario we'd see equivalents of Radio Caroline transmitting from international waters/any country desperate for income.

What concerns me more is the short attention spans of modern children brought up with Twitter and txt. My children like reading and could sit down wth Dickens or Hardy (and still do). My grandchildren wouldn't get past the first few pages and can only access abridged illustrated versions.

The extended written stories are becoming less mainstream.

I disagree. Reading is more popular than ever among teenagers, and attention span isn't the issue - a generation of kids churned through all of Harry Potter and the Northern Lights trilogy, for example. My own kids will spend hours figuring out how to build something exactly how they want in Minecraft or defeat a level in the computer game of the moment.

Sure, Dickens and Hardy aren't popular among many teenagers, but the main reason is simply the generation gap and the amount of history and cultural knowledge you need to understand what is going on (also the epic amounts of filler in Dickens - you can really tell he was being paid by the word to entertain for a certain length of time). My kids and ones going through school now suggest that for every 25 years, children need to be a couple years older to properly understand the text.

So the Enid Blytons that original readers read as soon as they could read, I enjoyed age 7, my kids grasped age 8-10 - and some of the plots didn't stand up to that age group. With Laura Ingalls Wilder, they were aimed at pre-teens when written, I got into them age 13-14 and had to explain a lot of context to British friends, I tried reading the first couple to my kids when they were 10ish and it took forever, having to explain the entire concept of The Wild West when they'd never played Cowboys & Indians nor seen a Western movie (in my youth, often the only thing on TV on a weekend afternoon), not to mention trying to explain 'activities suitable for a Sunday' and that corporal punishment didn't mean that that adult was a villain.

Multiply that by another couple generations to Dickens, Hardy, and Austen, and you'll find that adults often get into them in their late 20s or middle age, after watching enough historical documentaries and relevant fiction. The good plots and quotes will endure.

I'm currently in a room with a 15 and 11yo who both complain they don't get to do enough Shakespeare at school, so there you go.

 

[oggbashan]

Shakespeare? Some plays are more accessible than others. Some required maturity that teenagers don't have and they discover more later.

I enjoyed Chaucer in the original aged 12 - but I was odd.

 

[AwkwardlySet]

Many of these new legislation start as posturing and grandstanding, but over time slowly develop into something we simply accept as a new normal.
The whole world is definitely riding a wave of human rights and free speech reduction, and I don't see the situation getting better any time soon, considering the generations that are growing up now. Something truly big would need to happen to reverse the trend, yet we all know what are the only truly big things we are capable of now...

 

[Kumquatqueen]

Shakespeare? Some plays are more accessible than others. Some required maturity that teenagers don't have and they discover more later.

I enjoyed Chaucer in the original aged 12 - but I was odd.

CBeebies (the BBC TV channel aimed at children age 1 to 6) did excellent productions of the Tempest and Midsummer Night's Dream. I'd like to see CBBC (aimed at 7-12yos) try Macbeth. Marcia Williams also made amazing graphic novels summarising pretty much all of Western culture - there's ones on Shakespeare, Chaucer, the Bible, the Romans, etc. Also there's some excellent abridged versions being used in primary schools.

I actually read the Canterbury Tales as a perfect bedtime story through college, with footnotes and knowledge of German and Geordie getting me through. Unfortunately I finished it a few weeks before my finals and struggled to sleep after that.

 

[lovecraft68]

Well, seeing the mod doesn't seem to think this should be in the politics forum where it belongs, I'll weigh in. To understand my POV, I'm center in my politics, I feel each side has some good and bad things to offer, but these days are as disgusted with both as many of you are with one or the other. But not being beholden to either ideology, or suffering from the far too common herd mentality that if I don't say what I'm 'supposed to" I'll be seen as being one of them whoever them is to each of you I try to see things more objectively.

What this thread is, is the perfect example of the media and politicians most powerful weapon-more so in the days of the blessed net and the division it causes-is good old fashioned fear mongering.

Both sides do this. The media and 'leaders' on the right want their base to think every democrat is a far left lunatic and the Dems want their base to think every conservative voter is from the far right and straight out of the 50's.

If you have a brain, you know not only is neither true, but the leftists and wing nuts are small percentages of the base, but media makes them seem like its everyone to inspire that fear, and people buy in because they can't think for themselves or want to be popular with like minded halfwits.

On this topic? This has been an ongoing thing, and makes me scratch my head because its so outdated. Porn is something my parents generation of conservatives thinks is an issue, or the hardcore bible type. I know a lot of Republican voters who are my age or younger and either they watch porn themselves or they just don't care about it. For that matter most may be pro life, but don't think RvW should have been over turned, they think one thing, but aren't forcing it on the other, same for being a lot more open to other sexualties, its not their thing, but whatever.

So the anti porn crusade in this day and age seem dumber and more irrelevant as time goes on. They're appealing to a dwindling and dying breed. Worth mentioning is I know 'left leaning' people who are anti porn because its so sexist and demeaning to women because they don't understand that these days many of these women are 'self employed' making all their own money without studios and no one is making them do anything, they're sex workers. But that's not easy to get across to people predisposed against porn.

In the end everything here is fear and generalizations that lead to the divide seen here.

Good job mindless masses, you're a great microcosm of this failing society.

But I can't resist the parting shot of noting the same people who go into hysterics over an under aged story here are fine with teachers talking sexuality of any kind-and I include 'straight' in this- to a second grader. Under ages story=pedophile, but talking to an 8 year old about their genitals and gender sexual identity? That's just fine.

This is your cue to take that pointing finger and point it elsewhere, like at yourself.

 

[SimonDoom]

Reading is more popular than ever among teenagers, and attention span isn't the issue - a generation of kids churned through all of Harry Potter and the Northern Lights trilogy, for example.

I want to believe this is true, but I'm not sure. Harry Potter is children's fiction. It is about children, and even the last and most sophisticated of the books is written at no more than a young adult level.

A big change from before is the tendency of schools to want to teach books that have "current" interest. I think this is a mistake. I don't believe that I was inherently more capable of reading novels from the 18th and 19th century as a teen than my kids were, a generation later, but I did so, to a much greater degree than my kids ever did. I believe one of the benefits of reading is transporting yourself into a world that you have nothing to do with, and being able to empathize with characters with whom you share no cultural or political background. My sense, from my experience with my own kids and paying attention to what they and their peers are reading, is that kids are less willing to do this, unless it means entering fantasy and sci fi worlds, which are, again, being offered at young adult levels, like The Hunger Games or Twilight books.

My perception as a parent is that attention span is very much an issue. Another issue, in America at least, is helicopter parenting, which I tried to avoid but which is very difficult to escape. Young people are far more likely to be tended to all the time, to be driven places, to have safety and risk-aversion beaten into them as a paramount value, to have music and videos put before them at all times, keeping them busy. They seem far less likely simply to get out of the house and explore things. They have less of a sense of direction because between their parents and their apps somebody is always telling them where they need to go. They can't tolerate periods without stimulation.

These might just be short term phenomena and have no impact on long-term habits or abilities, but I wonder.

 

[Bramblethorn]

But I can't resist the parting shot of noting the same people who go into hysterics over an under aged story here are fine with teachers talking sexuality of any kind-and I include 'straight' in this- to a second grader. Under ages story=pedophile, but talking to an 8 year old about their genitals and gender sexual identity? That's just fine.

About one in 25 girls - in an all-girls school, that'd be about one per classroom, or one per two in mixed classes - will have their first period by age 9; about one in 100, by age 8. Having a period come on in the middle of class, without knowing what it is or how to deal with it, can be terrifying and humiliating. I am just fine with teachers talking to 8-year-olds about their genitals as necessary to prepare them for dealing with that situation without freaking out.

And for boys, age 8 is definitely not too young for the "this is why you don't kick your classmates in the balls or wedgie them so hard you cause permanent injury" talk.