Will writing and publishing erotica become illegal in your state?

[AwkwardlySet]

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.

I think you are drawing your conclusions from your own family's example too much. As someone who teaches High school, I can vouch that teenagers read far less than my generation did, and even the stuff they read is mostly some popular crap.
They aren't dumber or more shallow than we were, they simply have far, far more distractions in a way of computer games (even these are far simpler, compared to the time when I was a teenager) tik-tok funny videos and social networks. Older generations were maybe lucky enough that along with movies, books were their primary window into the world.
Anyway, it is what it is, and IMO there is no true way to change that so we need to adapt to the new world, such as it is.

 

[Bramblethorn]

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.

I agree with this assessment, but I'm not sure it really rebuts the point on attention span. No, they're not deep, but the later ones in the series are still bloody long and a certain amount of attention is required to get through that.

 

[SimonDoom]

I agree with this assessment, but I'm not sure it really rebuts the point on attention span. No, they're not deep, but the later ones in the series are still bloody long and a certain amount of attention is required to get through that.

We might be talking about different things. I know from personal experience that teens can sit at the computer or on the floor and play Minecraft or Call of Duty for hours on end, and I suppose one can call that attention span in a way. But I'm not sure I would call it that. There's a difference between reading material that makes it easy for you and reading material that challenges you. I read all the Harry Potter books when my kids were young, and I enjoyed them, but it's easy reading because they're kid books. They don't ask much of the reader to engage. If one never reads something more demanding than Harry Potter, then one may spend a lot of time reading, but one is still a lazy reader. I read Middlemarch and Anna Karenina in high school, on my own. I sense the willingness to do that has ticked downward, overall, but hopefully I'm wrong about that.

 

[Zootonius]

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.

Your example is about a violation of federal law. This is a case a a state law. State laws do not cross state lines.

 

[SimonDoom]

Your example is about a violation of federal law. This is a case a a state law. State laws do not cross state lines.

Not quite. If you make a product in Iowa and sell it in Nebraska, Nebraska state law can regulate your product. If you create "obscene" material in one state and sell it in another state, the other state's laws may in most cases regulate what you are doing.

 

[alohadave]

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.

Exposing kids to literature that is aimed at their level is more important than pushing a particular set of books on them. 18th and 19th century lit was not written for kids, it was written for adults. And not to disparage kids, because I think they are smarter than many adults give them credit for, but many of those lit books rely on the reader's experience of the world to appreciate.

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.

It shouldn't matter what specifically they are reading. Current lit stories address themes and subjects that people today are interested in reading, and they are written in a way that is accessible to them.

This is not dumbing-down, it's writing to your audience. Pulp fiction from the past did the same thing, and it was widely derided as being garbage, but a lot of people read it. It didn't diminish the craft then, and it's not doing that now.

Some will advance to read more literature style, some will read the genres they enjoy, and many won't read anything besides memes on their phones.

 

[alohadave]

There's a difference between reading material that makes it easy for you and reading material that challenges you.

Most people read for entertainment. You don't have to prove anything to anyone else in what you read.

If one never reads something more demanding than Harry Potter, then one may spend a lot of time reading, but one is still a lazy reader. I read Middlemarch and Anna Karenina in high school, on my own. I sense the willingness to do that has ticked downward, overall, but hopefully I'm wrong about that.

That's your own confirmation bias talking. You were an outlier and not representative of the general population. I read Clan of the Cave Bear (and the rest of the series later) in 6th grade. And while it isn't literature, it was way above my grade level. I was also an outlier in what I read, but that doesn't imply anything about what people should be reading.

 

[Zootonius]

Not quite. If you make a product in Iowa and sell it in Nebraska, Nebraska state law can regulate your product. If you create "obscene" material in one state and sell it in another state, the other state's laws may in most cases regulate what you are doing.

No, If you physically sell a product in Nebraska you are under Nebraska's jurisdiction. Where it is made is irrelevant. If a Nebraskan goes to Iowa to by the product, Nebraska has no jurisdiction over the sale.

 

[SteelPoint]

"State"..?

What's that, then..?

 

[TarnishedPenny]

Not quite. If you make a product in Iowa and sell it in Nebraska, Nebraska state law can regulate your product. If you create "obscene" material in one state and sell it in another state, the other state's laws may in most cases regulate what you are doing.

Again, I think, not quite. Unless I am very mistaken, using your example, Nebraska cannot in any way directly regulate production in another state. What it can do is regulate distribution within Nebraska.

In an obvious example, California has strict vehicle emission standards and vehicles being sold within that state must conform. Should a company set up an auto plant in Idaho to turn out cars not compliant with California law, the latter could not do much to stop them. Only when the cars are brought into California would the standards apply and only then could California regulate the sales of your product or take action against you for breaking state law.

Or have I missed something?

 

[SimonDoom]

Again, I think, not quite. Unless I am very mistaken, using your example, Nebraska cannot in any way directly regulate production in another state. What it can do is regulate distribution within Nebraska.

In an obvious example, California has strict vehicle emission standards and vehicles being sold within that state must conform. Should a company set up an auto plant in Idaho to turn out cars not compliant with California law, the latter could not do much to stop them. Only when the cars are brought into California would the standards apply and only then could California regulate the sales of your product or take action against you for breaking state law.

Or have I missed something?

That's what I meant. That's a useful clarification. California cannot control what an Idaho manufacturer sells in Idaho, but if the Idaho manufacturer intentionally puts the product into the stream of commerce directed at California then it does have some regulatory power over those products and the ability to penalize the manufacturer.

 

[XerXesXu]

Or have I missed something?

Yes and no. Lit is tendered to the world, every state in the union, and every other state in the world where it's not blocked. It's governed by the laws of the state it's viewed from. Within the USA that brings it within the interstate commerce jurisdiction of the Federal Courts if it's viewed from a state in which Lit is not resident, but the applicable law for actions brought in the viewing state is that of the viewing state, not the state of residence. It's true that the viewing state can't regulate - make the material 'obscene' - in the state of residence, and it may not be obscene in the state of residence, but it will be cold comfort knowing that while sitting in a prison cell.

 

[Bramblethorn]

Your example is about a violation of federal law. This is a case a a state law. State laws do not cross state lines.

Apologies - I mischaracterised the Thomas case, the conviction was indeed under federal law, but that doesn't make state considerations irrelevant. Internet-related obscenity cases in the USA tend to involve a combination of state and federal considerations, because they come under federal statutes but the legal test for "obscenity" involves considerations of "applicable state law" and "community standards".

See e.g. discussion in the Thomas case: https://caselaw.findlaw.com/us-6th-circuit/1343340.html

Defendants also challenge venue in the Western District of Tennessee for counts 2-7 of their indictments.   They argue that even if venue was proper under count 1 (conspiracy) and counts 8-10 (videotapes sent via U.P.S.), counts 2-7 (GIF files) should have been severed and transferred to California because Defendants did not cause the GIF files to be transmitted to the Western District of Tennessee.   Rather, Defendants assert, it was Dirmeyer, a government agent, who, without their knowledge, accessed and downloaded the GIF files and caused them to enter Tennessee.   We disagree.   To establish a Section 1465 violation, the Government must prove that a defendant knowingly used a facility or means of interstate commerce for the purpose of distributing obscene materials.   Contrary to Defendants' position, Section 1465 does not require the Government to prove that Defendants had specific knowledge of the destination of each transmittal at the time it occurred.

“Venue lies in any district in which the offense was committed,” and the Government is required to establish venue by a preponderance of the evidence.  United States v. Beddow, 957 F.2d 1330, 1335 (6th Cir.1992) (quoting United States v. Williams, 788 F.2d 1213, 1215 (6th Cir.1986)).   This court examines the propriety of venue by taking “ ‘into account a number of factors-the site of the defendant's acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate fact finding ․’ ”  Id.

Section 1465 is an obscenity statute, and federal obscenity laws, by virtue of their inherent nexus to interstate and foreign commerce, generally involve acts in more than one jurisdiction or state.   Furthermore, it is well-established that “there is no constitutional impediment to the government's power to prosecute pornography dealers in any district into which the material is sent.”  United States v. Bagnell, 679 F.2d 826, 830 (11th Cir.1982), cert. denied, 460 U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983);  United States v. Peraino, 645 F.2d 548, 551 (6th Cir.1981).   Thus, the question of venue has become one of legislative intent.  Bagnell, 679 F.2d at 830.

The Bagnell court examined both §§ 1462 and 1465 and found that each statute established a continuing offense within the venue provisions of 18 U.S.C. § 3237(a) “that occur in every judicial district which the material touches.”   Id. at 830.   This court likewise recognized that “venue for federal obscenity prosecutions lies ‘in any district from, through, or into which’ the allegedly obscene material moves.”  Peraino, 645 F.2d at 551 (citing 18 U.S.C. § 3237).

Substantial evidence introduced at trial demonstrated that the AABBS was set up so members located in other jurisdictions could access and order GIF files which would then be instantaneously transmitted in interstate commerce.   Moreover, AABBS materials were distributed to an approved AABBS member known to reside in the Western District of Tennessee.   Specifically, Defendant Robert Thomas knew of, approved, and had conversed with an AABBS member in that judicial district who had his permission to access and copy GIF files that ultimately ended up there.   Some of these GIF files were clearly marked “Distribute Freely.”   In light of the above, the effects of the Defendants' criminal conduct reached the Western District of Tennessee, and that district was suitable for accurate fact-finding.   Accordingly, we conclude venue was proper in that judicial district.

...

Under the first prong of the Miller obscenity test, the jury is to apply “contemporary community standards.”   Defendants acknowledge the general principle that, in cases involving interstate transportation of obscene material, juries are properly instructed to apply the community standards of the geographic area where the materials are sent.  Miller, 413 U.S. at 15, 30-34, 93 S.Ct. at 2610, 2618-20.   Nonetheless, Defendants assert that this principle does not apply here for the same reasons they claim venue was improper.   As demonstrated above, this argument cannot withstand scrutiny.   The computer-generated images described in counts 2-7 were electronically transferred from Defendants' home in California to the Western District of Tennessee.   Accordingly, the community standards of that judicial district were properly applied in this case.

Issues regarding which community's standards are to be applied are tied to those involving venue.   It is well-established that:

[v]enue for federal obscenity prosecutions lies “in any district from, through, or into which” the allegedly obscene material moves, according to 18 U.S.C. § 3237.   This may result in prosecutions of persons in a community to which they have sent materials which is obscene under that community's standards though the community from which it is sent would tolerate the same material.

United States v. Peraino, 645 F.2d 548, 551 (6th Cir.1981).   Prosecutions may be brought either in the district of dispatch or the district of receipt, Bagnell, 679 F.2d at 830-31, and obscenity is determined by the standards of the community where the trial takes place.   See Miller, 413 U.S. at 15, 30-34, 93 S.Ct. at 2610, 2618-20;  Hamling v. United States, 418 U.S. 87, 105-6, 94 S.Ct. 2887, 2901-02, 41 L.Ed.2d 590 (1974);  Sable, 492 U.S. at 125, 109 S.Ct. at 2836.   Moreover, the federal courts have consistently recognized that it is not unconstitutional to subject interstate distributors of obscenity to varying community standards.  Hamling, 418 U.S. at 106, 94 S.Ct. at 2901-02;  United States v. Sandy, 605 F.2d 210, 217 (6th Cir.), cert. denied, 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979).

At the end of the day: the Thomases ran a website from California, but were tried and convicted in Tennessee under Tennessee's community standards because they allowed somebody from Tennessee to download their material. Similar outcome in the Frank McCoy case: McCoy ran a website from Minnesota distributing child-abuse text stories, but was tried in Georgia. So if any state in the USA deems your content "obscene", and somebody downloads it from there, you could be in trouble.

On further reading, I'm curious as to just how the "applicable state law" wording of the Miller test is interpreted. I didn't see either the Thomas judgement or the McCoy one mentioning which specific state laws allowed the material to satisfy that condition of the test.

(edit: no idea what happened with the strikethrough there)

 

[Bramblethorn]

Exposing kids to literature that is aimed at their level is more important than pushing a particular set of books on them. 18th and 19th century lit was not written for kids, it was written for adults. And not to disparage kids, because I think they are smarter than many adults give them credit for, but many of those lit books rely on the reader's experience of the world to appreciate.

Uh huh. I studied Pride and Prejudice in high school, and the only reason I was able to appreciate it was because my parents saw me Not Getting It and took the time to fill in the historical context for me: the implications of entailment, the narrowness of Lizzie's options if she can't find a husband, the potentially catastrophic consequences of Lydia's elopement for her sisters.

Without that, it's kind of like being dropped into the Marvel Cinematic Universe twenty films in and being required to write essays about what's going on, for somebody who's never encountered a superhero story.

Shakespeare was easier, because the stories were old enough that teachers realised we needed context and a glossary, but for Austen they took too much for granted.

 

[lovecraft68]

One thing that would be a concern is if porn came under a full scale attack by the conservatives, are the democrats really going to defend it? Granted, they're not the 'family values' obsessed party, but porn is porn and unless you're writing it, filming it, starring in it, or a fan of it, its got a bad reputation.

The right looks at it simply from the moral aspect that its wrong, but as I said earlier some of the left can see it as misogynistic and demeaning towards women and the left is the side that has some of seriously toxic feminists who would sound that bell.

So, if it came to a full out war on porn I don't see many allies, it can't be a dirty little secret for a politician if they stand up there and defend it.

The other issue from the far left is porn is upsetting to them because female porn stars drive the industry and they don't like to use that term and don't want biological women to exist anymore, so there's that angle as well.

Having said all that at the core of the issue I'm seriously blown away that in this day and age and the fact its an industry worth billions(counting e-books, movies, sites, only fans etc... Porn is still this controversial and problematic to so many people.

But one question I'd like to ask any men who stand against it is do strip clubs count as porn? Because part of me thinks they see those places in a very different way, don't they?

 

[MrPixel]

One thing that would be a concern is if porn came under a full scale attack by the conservatives, are the democrats really going to defend it?

I brought this up in post #4. Where is this generation's Larry Flynt? I don't see one, anywhere.

 

[alohadave]

But one question I'd like to ask any men who stand against it is do strip clubs count as porn? Because part of me thinks they see those places in a very different way, don't they?

People who want to eliminate SOB don't care about distinctions. Strip clubs are as bad as porn to them.

Plus, they and police use the specter of increased crime as a way to rally support to fight against them.

 

[TarnishedPenny]

That's what I meant. That's a useful clarification. California cannot control what an Idaho manufacturer sells in Idaho, but if the Idaho manufacturer intentionally puts the product into the stream of commerce directed at California then it does have some regulatory power over those products and the ability to penalize the manufacturer

Agreed. I wonder how that hits the internet? A company based in Florida using servers in New York and selling (staying on topic) erotica across the country, in this case, say, in Texas?

 

[alohadave]

Agreed. I wonder how that hits the internet? A company based in Florida using servers in New York and selling (staying on topic) erotica across the country, in this case, say, in Texas?

AFAIK, it falls under interstate commerce and that's regulated at the federal level.

 

[XerXesXu]

On further reading, I'm curious as to just how the "applicable state law" wording of the Miller test is interpreted. I didn't see either the Thomas judgement or the McCoy one mentioning which specific state laws allowed the material to satisfy that condition of the test.

If it assists:

ChatGPT
Prompt: What was the law on obscenity in Tennessee in 1996 ?

Resonse: In 1996, the law on obscenity in Tennessee was governed by the Tennessee Code Annotated Title 39, Chapter 17, Part 3. Under this law, it was illegal to knowingly display or distribute material that is considered obscene.

Obscene material was defined as any material that the average person, applying contemporary community standards, would find to be of a prurient interest and that depicts or describes sexual conduct in a patently offensive way. The law also included provisions for determining whether a particular work had artistic or literary merit that might justify its distribution despite its potentially obscene content.

The law also prohibited the use of minors in the production of obscene material and the distribution of obscene material to minors. Violations of the law were considered Class A misdemeanors and could result in fines, imprisonment, and other penalties.

Current Law.Tennessee Code Title 39. Criminal Offenses § 39-17-902

(a) It is unlawful to knowingly produce, send or cause to be sent, or bring or cause to be brought, into this state for sale, distribution, exhibition or display, or in this state to prepare for distribution, publish, print, exhibit, distribute, or offer to distribute, or to possess with intent to distribute or to exhibit or offer to distribute any obscene matter, or to do any of the aforementioned with any matter found legally obscene that violates the requirements of 18 U.S.C. § 2257… It is unlawful to direct, present or produce any obscene theatrical production, peep show or live performance, and every person who participates in that part of the production which renders the production or performance obscene is guilty of the offense.

(e) It is an exception to this section that the obscene material is possessed by a person having scientific, educational, governmental or other similar justification

The following definitions apply in this part, unless the context requires otherwise:

......

(10) “Obscene” means:

(A) The average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;

(B) The average person applying contemporary community standards would find that the work depicts or describes, in a patently offensive way, sexual conduct;  and

(C) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value;

(11) “Patently offensive” means that which goes substantially beyond customary limits of candor in describing or representing such matters;

(12) “Prurient interest” means a shameful or morbid interest in sex;

(13) “Sadomasochistic abuse” means flagellation or torture or physical restraint by or upon a person for the purpose of sexual gratification of either person;

(14) “Sexual conduct” means:

(A) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.  A sexual act is simulated when it depicts explicit sexual activity that gives the appearance of ultimate sexual acts, anal, oral or genital.  “Ultimate sexual acts” means sexual intercourse, anal or otherwise, fellatio, cunnilingus or sodomy;  or

(B) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals;  and

(15) “Sexual excitement” means the condition of human male or female genitals when in a state of sexual stimulation or arousal.


Prompt: And the obscenity laws in Georgia in 2007

Response: In 2007, the law on obscenity in Georgia was governed by the Official Code of Georgia Annotated Title 16, Chapter 12, Article 2. Under this law, it was illegal to knowingly distribute, exhibit, or sell material that is considered obscene.

Obscene material was defined as any material that, taken as a whole, appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. The law also specified that the average person, applying contemporary community standards, must find the material as a whole to be lacking in serious value.

The law also included provisions for determining whether a particular work had artistic or literary merit that might justify its distribution despite its potentially obscene content. Additionally, the law prohibited the use of minors in the production of obscene material and the distribution of obscene material to minors.


Ga. Code § 16-12-80

Current through 2021-2022 Regular Session Chapter 884

Section 16-12-80 - Distributing obscene material; obscene material defined; penalty(a) A person commits the offense of distributing obscene material when he sells, lends, rents, leases, gives, advertises, publishes, exhibits, or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so, ..... , ..... (b) Material is obscene if1) To the average person, applying contemporary community standards, taken as a whole, it predominantly appeals to the prurient interest, that is, a shameful or morbid interest in nudity, sex, or excretion;(2) The material taken as a whole lacks serious literary, artistic, political, or scientific value; and(3) The material depicts or describes, in a patently offensive way, sexual conduct specifically defined in subparagraphs (A) through (E) of this paragraphA) Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated;(B) Acts of masturbation;(C) Acts involving excretory functions or lewd exhibition of the genitals;(D) Acts of bestiality or the fondling of sex organs of animals; or(E) Sexual acts of flagellation, torture, or other violence indicating a sadomasochistic sexual relationship.(c) Any device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material under this Code section.(d) Material not otherwise obscene may be obscene under this Code section if the distribution thereof, the offer to do so, or the possession with the intent to do so is a commercial exploitation of erotica solely for the sake of their prurient appeal.(e) It is an affirmative defense under this Code section that dissemination of the material was restricted to1) A person associated with an institution of higher learning, either as a member of the faculty or a matriculated student, teaching or pursuing a course of study related to such material; or(2) A person whose receipt of such material was authorized in writing by a licensed medical practitioner or psychiatrist.(f) A person who commits the offense of distributing obscene material shall be guilty of a misdemeanor of a high and aggravated nature.