Any website that has content containing "bestiality, urination, defecation, as well as sadistic and masochistic behavior" should be forewarned that prosecution is possible. Additionally, Federal sentencing guidelines state that any obscenity- related punishment should be "enhanced for sadomasochistic material."
Forty people and businesses have been convicted of obscenity since 2001, and 20 additional indictments are pending according to Andrew Oosterbaan, chief of the Justice Department's child exploitation and obscenity section. There were only four obscenity prosecutions during the eight years of the Clinton administration.
Though adult content is, in theory, protected by the First Amendment, only a jury can determine if a work is obscene or not under the subjective set of standards that vary from one community to the next established in the 1973 Supreme Court ruling, Miller v. California.
Text is not inherently more protected than images when it comes to obscenity charges. The erotic fiction website Red Rose Stories is facing obscenity charges after federal agents raided the owner's home on October 3rd, taking computer equipment and diskettes that contained all of their files and site information.
The Department of Justice is clearly hoping that websites will self-censor or remove their content entirely. Midori, a fetish model and SM educator who teaches classes on bondage, has removed her website, BeautyBound.com, citing fear of obscenity prosecution. The owner of three SM websites, known as GrandPa DeSade, removed his websites from the Internet. SuicideGirls.com also announced they are self-censoring their materials over concerns about a possible obscenity crackdown.
Recent prosecutions of obscenity on websites include: A former police officer in Lakeland, Florida, was arrested on October 7th on over 300 obscenity-related charges for the sexual content posted on his website. The same day, webmaster Chris Wilson, owner of amateur website NowThatsFuckedUp.com, was raided on charges of obscenity by a local Sheriff's office.
"I think it's crucial for us to stand up for consensual sadomasochism and other alternative sexual practices," says Barbara Nitke, fetish photographer. "This is a battle worth fighting, and I hope everyone who can will just censor out the most provocative material from their websites, but keep them up. I also appeal to the lawyers in our community to help us find ways to keep people's websites up."
Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) have proactively challenged federal obscenity laws as applied to the Internet, arguing that obscenity laws based on "local community standards" are too vague and their existence burdens protected speech, resulting in self-censorship due to the fear of prosecution. A district court three-judge panel in New York ruled that while Nitke and the NCSF members were at risk, more proof was needed that obscenity laws cause otherwise protected speech to be restrained through acts of self-censorship. The case is currently on appeal to the United States Supreme Court.
"The effect of silencing alternative lifestyle speech was exactly why we brought the lawsuit," says attorney John Wirenius, lead counsel for NCSF. "The self- censorship we are seeing underscores the importance of supporting our ongoing obscenity challenge."
To contribute to the appeal of the CDA lawsuit, go to: www.ncsfreedom.org/donations.htm
Barbara Nitke - www.barbaranitke.com
NCSF's Communications Decency Act lawsuit with Barbara Nitke made history by challenging the Miller standard of obscenity as it applies to the Internet.
Media reports covering the Communications Decency Act lawsuit launched by co-plaintiffs NCSF and Barbara Nitke: