The Check Box: We are not prurient

By Susan Wright, NCSF Spokesperson

The U.S. Small Business Administration’s (“SBA”) COVID-19 Economic Injury Disaster Loan Application has one box you have to check or your business is not eligible to receive a loan. It says: “Applicant does not present live performances of a prurient sexual nature or derive directly or indirectly more than de minimis gross revenue through the sale of products or services, or the presentation of any depictions or displays, of a prurient sexual nature.”

This language dates back to 1995 when the SBA proposed a rule to exclude “small businesses engaging in lawful activities of an obscene, pornographic, or prurient sexual nature.” The SBA included examples such as “nude dancing, or a book, magazine or video store containing merchandise of a prurient sexual nature.”

You may be wondering if this applies to your club or business. What does prurient really mean?

Prurient entered the U.S. constitutional jargon in Roth v. US, 354 US 476 (1957), and was defined on p. 487, in footnote 20, where Justice Brennan gave us the only definition of prurience SCOTUS has ever provided: “. . . Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd…”

Prurient is a much broader (and vaguer) term than “obscenity” which is defined by the Supreme Court in Miller v California, 473 US (1973). The Miller Test requires that all three criteria must be met in order for something to be obscene and therefore not protected by the 1st Amendment:

  1. A thing must be prurient in nature
  2. A thing must be devoid of serious scientific, political, educational, or social value
  3. A thing must violate the local community standards

Therefore, it appears this SBA rule is unconstitutional because it discriminates based on content that is protected by the 1st Amendment. Adult entertainers, porn producers, strip clubs and other sexually oriented businesses may have a sound legal basis for challenging this SBA rule.

The word “prurient” has been further defined in state obscenity laws as a “shameful or morbid interest in nudity, sexual conduct.”

“Shameful” is the state of consciousness of wrong or foolish behavior according to Oxford. On the contrary, our community groups and businesses help people realize there is no shame in consenting adults expressing their sexual desires.

“Morbid” is an abnormal and unhealthy interest according to Oxford. Yet the role of a sex educator is to help people have better sex and healthy, consensual relationships. We also know the American Psychological Association has determined that people who participate in BDSM “community networks” are mentally healthy as a group.

Therefore, NCSF believes that kink and non-monogamy groups and businesses can’t be considered prurient. We are candid and proud of providing social and educational services and supplies for consenting adults.

Please consult with your attorney to evaluate whether your business is excluded by the SBA provision before concluding that you don’t qualify.

If the SBA does deny loans based on this “prurient” exclusion, then it will have to be fought through a legal challenge. NCSF can help connect you with legal professionals who are already working on this issue and can advise your business.

If your loan application has been denied, please help NCSF track what is happening by filling out an IRR report.