Duck & Cover - Who's working on your behalf and what you can do to help
Part 3 of 5
By Sensuous Sadie
SensuousSadie@aol.com 
www.sensuoussadie.com 

 

The full series includes:

 
In September of 2005, the FBI formed an anti-obscenity task force to crack down on pornography. Any website that has content containing "sadistic and masochistic behavior" can be shut down. Not only can the FBI shut down your website, but they can initiate a criminal prosecution for obscenity, which is a felony and is punishable by jail time. It is this criminal charge that is the most challenging problem for any website owner, because once you are charged by the FBI with the federal offence of obscenity, you are pretty much screwed because the legal costs of defending yourself create an untenable situation. While the first amendment protects free speech, it does not include all speech, such as, for example, yelling "fire" in a crowded auditorium.

This article is not legal advice and should not be taken as such. The guidelines are a compilation of recommendations from many sources and are no guarantee that any particular website is safe from prosecution.


What Can you do to Change the Laws?
Consider volunteering or donating money to the National Coalition for Sexual Freedom (NCSF), the American Civil Liberties Union (ACLU), and the Free Speech Coalition. Also consider e-mailing, writing, or calling your congressperson. Every person's voice helps! The NCSF is currently working on a sample letter that can be personalized for sending to various representatives and there are sample on the ACLU website. "One of the things we really need to do is try to stand up together as a community," Nitke adds, "because if we each feel that we are alone in this, we can only fail. In addition, we need to ask the attorneys in our community to help us, even to work pro bono if necessary in order to change what is happening." Nitke would like to see a legal referral system set up so that people in the community have somewhere to go when the worst happens.

What is the Communications Decency Act (CDA)?
The Communcations Act was enacted by the U.S. Congress in 1934 which puts it's rather puritanical approach to obscenity in context. Among other initiatives it launched the Federal Communications Commission. This would later morph into the Communications Decency Act (CDA) and in 1997, the Supreme court confirmed that every website on the internet can be held to the CDA standards.

The CDA refers to interstate communications "by means of a telecommunications device knowingly makes, creates, or solicits, and initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent… knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication… uses any interactive computer service to display in a manner… or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.

The CDA is nearly 4500 words, so included below is a link below to the full text.
*Taken from the Electronic Privacy Information Center
http://www.epic.org/free_speech/CDA/cda.html

** Please note that I am unclear on the current legal status of this law and it is a complex issue. The notation on the website above states that the law was struck down, but since the NCSF continues to fight this issue, it is clearly not quite as struck down as it might appear.

The National Coalition For Sexual Freedom and Barbara Nitke
http://www.ncsfreedom.org/  
A Few years ago, fetish photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) brought a suit against former Attorney General John Ashcroft and the U.S. government, challenging the Communications Decency Act (CDA) which used "local community standards" to define what can be considered obscene on the Internet. For example, Barbara's website, which would be considered inoffensive to most people in New York City where she lives, might be offensive to people in certain bible belt communities. This law makes it possible for a federal obscenity charge to be brought against her in one of those areas of the country, since in their community her work may be considered obscene.

Nitke explains, "Here’s an example of how this bad law might affect the SM community: A leather organization in San Francisco has an educational website for it’s members and other interested people. Right wing groups are complaining about the site and want to have it taken down. Rather than try to bring an obscenity case against the site in liberal San Francisco, the government brings the case in rural Mississippi under the CDA. The SM organization will most likely not be able to afford to fight the case, especially out of state, and will be forced to plead guilty and take down the site. This same scenario would also happen to me, or any other artist working with sexual material."

In effect this makes the most conservative community the standard for the entire internet. That’s unfair to the adults who would like to be able to see work like Barbara's, or visit educational BDSM websites, or see other sexually overt material on the internet. Nitke adds that, "People who are opposed to sexual expression don’t care whether it’s safe or not. They don’t care whether it’s art or not. They don’t want the expression out there. They invariably tie mainstream porn to kiddie porn and the abuse of women for example. Irregardless of the facts. When people like Concerned Women of America target a scene event, the always find the most flamboyant sounding details of the event and plaster them all over the news. They don’t want to know if the event is educational and concerned with safety. They just want to get rid of the event and force people to stay underground."

Nitke's suit argued unsuccessfully that obscenity laws are too vague and their existence is an unjustified burden on protected speech, resulting in unwarranted self-censorship due to the fear of prosecution. A district court panel ruled that while Nitke and the NCSF were probably right, they failed to provide the necessary proof in court that obscenity laws would cause otherwise protected speech to be restrained through acts of self-censorship. Barbara and the NCLS filed an appeal with the US Supreme Court and are continuing to fight this law.





The American Civil Liberties Union (ACLU)
http://www.aclu.org/ 

The ACLU is the foremost national group protecting our civil liberties such as free speech. I am a member and I strongly support their work. I've included some information on them below, as well as their Action Checklist which is a very helpful list of items that you can do right now to help protect your rights. While the ACLU supports all areas of civil liberties, I've included information here only about internet free speech.

From the ACLU website:
"The ACLU is our nation's guardian of liberty. We work daily in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States. Our job is to conserve America's original civic values - the Constitution and the Bill of Rights."

"Historically, at times of national stress -- real or imagined -- First Amendment rights come under enormous pressure. During the Red Scare" of the early 1920s, thousands were deported for their political views. During the McCarthy period, the infamous blacklist ruined lives and careers. Today, the creators, producers and distributors of popular culture are often blamed for the nation’s deep social problems. Calls for censorship threaten to erode free speech. The First Amendment exists precisely to protect the most offensive and controversial speech from government suppression. The best way to counter obnoxious speech is with more speech. Persuasion, not coercion, is the solution."



ACLU Action Checklist
The actions listed below are meaningful ways of raising public awareness and shifting policy.  They can be undertaken by individuals or groups of interested people. 
http://action.aclu.org/site/PageServer?pagename=AP_action_checklist 

ACLU Letter to the House of Representatives Urging a "Yes" Vote on H.R. 1606, the "Online Freedom of Speech Act"
(11/2/2005) Re: VOTE "YES" ON H.R. 1606, THE "ONLINE FREEDOM OF SPEECH ACT
http://www.aclu.org/freespeech/cfr/21193leg20051102.html 

Letter to House of Representatives Urging Opposition to H.R. 310, the Broadcast Decency Enforcement Act of 2005
http://www.aclu.org/freespeech/gen/11247leg20050215.html 





Free Speech Coalition
Organized in 1991, Free Speech Coalition is the trade association of the adult entertainment industry. As a 501 (c)(6) not-for-profit corporation, FSC is funded by membership dues as well as by fundraising efforts.
http://www.freespeechcoalition.com/ 



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Sensuous Sadie is the author of It's Not About the Whip: Love, Sex, and Spirituality in the BDSM Scene. Read an excerpt at http://www.trafford.com/robots/03-0551.html. She is the founder and leader (1999 - 2001) of Rose & Thorn, Vermont's first BDSM group. Comments, compliments and complaints, as well as requests for reprinting can be addressed to her at SensuousSadie@aol.com or visit her website at www.sensuoussadie.com. Sadie believes the universe is abundant, and that sharing information freely is part of this abundance, so she allows reprints of her writing in most venues.

Copyright 2005 Sadie Sez Publications