HOLLYWOOD, FL – Of our constitutional rights, perhaps none is more cherished, or more debated, than our right to Free Speech and freedom of expression. While we are fortunate in this country to have a relatively open and unrestrictive environment in which to communicate and exercise our creativity, there are limits to our freedoms, and not all forms of speech enjoy the protection of the law. “Obscenity,” one such unprotected form of speech, was the subject of a lively panel discussion last weekend at Internext in Hollywood, Florida.Panelist Lawrence Walters (of the prominent law firm of Weston, Garrou, DeWitt and Walters) emphasized the importance of being familiar with the definition of “obscenity,” vague and ill-defined as it may be.
Under the law, a work is considered obscene if the average person, applying contemporary community standards, and viewing the material as a whole, would find:
(1) that the work appeals predominantly to “prurient” interest;
(2) that it depicts or describes sexual conduct in a patently offensive way; and
(3) that it lacks serious literary, artistic, political or scientific value.
YNOT’s own editor-in-chief Connor Young pointed out the frustrating ambiguities of the law, noting that no attorney can tell you definitively whether the content you distribute would be considered “obscene” or not.
“If you lived in a community that didn’t have posted speed limits, and you could be pulled over at any time and told ‘You should have known you were driving too fast for this community,’ would you accept that as an enforcement mechanism,” Young asked rhetorically. “Of course not.”
Mackenze “Z” McAleer of ConsumptionJunction.com (CJ) focused on the philosophical underpinnings of the obscenity debate. CJ is comprised of user-submitted content, much of which is very controversial, and potentially “obscene.” Z pointed out that he himself does not approve of all the content posted to CJ, but that the very value of the site is that it allows viewers to decide for themselves what is of value to see, and what they are interested in. “The whole issue centers on the right to see what you want to see, and not see what you don’t,” he said.
Executive director of the Free Speech Coalition Michelle Freridge emphasized that shifting attitudes and changes in societal norms over time underscore the danger of legally restricting speech.
“Not too long ago, a view of a woman’s ankles and legs was considered obscene,” Freridge said. “It’s all about cultural control.”
Young expanded on Freridge’s point, and pointed out the unnecessary nature of obscenity legislation, especially where adult content is concerned. “As long as what’s being depicted is legal and consensual sexual acts, between adults, to be viewed by consenting adults, where is the harm?”
Young added that since we already have crimes against child pornography, sexual assault and other violent crimes, there is no need to regulate obscenity. “If someone commits a crime in the production of content, then by all means, prosecute them for that crime.”
Walters counseled that while the prospect of being prosecuted for obscenity is a frightening one, he noted that obscenity prosecutions are increasingly rare, and that the government has had little success prosecuting obscenity cases in recent years. Walters also pointed out that there are things webmasters can do to “incorporate serious value” into their sites, to make themselves less attractive targets for prosecution.
“Sex therapy literature, medical information regarding STD’s or erectile dysfunction, alternate lifestyle info, editorial comment on the sex industry, even technical information on digital photography,” would all be good examples of content that would add such value to sites.
