A Conversation Under Silent Skies : A Dialogue Between Internet Attorneys Frederick S. Lane III and J. D. Obenberger about the Adult Internet in the Post-9-11 Terrorist Bombing World.
© MMI - MMII J. D. Obenberger and Frederick S. Lane III. All Rights Reserved.
First Published by Klixxx Magazine in Issue 10, November, 2001, Issue 11, December 2001, Issue 12, January 2002, and Issue 13, February 2002.
Parts One, Two, Three, and Four.
|On September 18, 2001, one week after the terrorist bombings in New York, Fred Lane and Joe Obenberger began a series of telephone dialogues about the state of the adult Internet at the request of Klixxx Magazine. They were asked to assess the effects of the crisis, current trends in the development of the law affecting adult sites, and how society has been changed by our industry. Their conversations traversed the whole range of issues that now directly confront webmasters, content producers and designers from the law of obscenity to the attempts of local zoning officials to control content production as seen in the Voyeurdorm case, with stops at all destinations between. The Conversation continued on September 25.|
Obenberger: Let's start with a topical subject in light of what's been going on in the last week. Fred, do you think that the terrorist bombs in the end will have an effect on the next presidential elections and on the composition of the federal judiciary, the selection of the judges whose decisions define the limits of First Amendment protected expressive freedoms?
Lane: Well, that's an interesting angle to come at it from. I'm not sure how much impact this will have on the upcoming presidential election; given simply the amount of time we have to traverse before the election takes place. We're talking three years or so. In political terms, that's a huge amount of time. A lot will depend on what the government ends up doing in response to terrorism actions. If the election rolls around and there's still a feeling that we have not successfully retaliated for the bombings, I think that's going to be tremendously damaging to Bush.
Obenberger: It seemed to me that from the date Bush got inaugurated, the economy went straight into the cellar. And the economy was the biggest issue he was confronting.
Obenberger: It seemed to me that it was clear that whatever-however he got into office, he certainly didn't have much of a mandate to govern, and it seemed to me that that was sort of restraining him from probably the more zealous execution of the Internet policies that his supporters wanted him to implement.
Lane: I'll give you a slightly different perspective on that. I think he actually acted like he had much more of a mandate than he did. And I think that what derailed that was Jim Jeffords switching to being an Independent. I think that is the most significant impediment to Bush's efforts to sort of revamp things both socially and economically. And I think that that, more than the bombings in Washington and New York, is what's going to restrain the shifts in the federal judiciary. I think we're still going to get more conservative judges than we would have gotten under Al Gore, but I think the pace of their appointment and the depth of their conservatism will both be slowed by the fact that you've got Pat Leahy running the judiciary committee rather than Orrin Hatch. I think that's going to make a huge difference. My sense of it already, just as an initial sort of seventy-two-hour read, is while people are rallying behind the president, because that's what we do when this kind of thing happens, there's still concern about whether or not Bush and his team are up to handling this.
Obenberger: Do you think that the priorities of the Justice Department, being, being focused certainly in the direction of this crisis for the time being, is likely to have or does have an effect to divert the enemies of adult entertainment away from adult entertainment during this period of crisis?
Lane: I-I can't imagine how it would not do that. From what I've heard, the Justice Department is literally taking thousands of agents and putting them onto this particular issue. And what that basically does, I think, is really divert the Department's attention away from less serious issues. It changes the priorities within the Department. Even under Ashcroft it was still true that the primary focus of the Justice Department was on child pornography, and we saw that with the Operation Avalanche stuff that happened last month. And they were having a hard time sort of getting below the child pornography issues, if you will, to other types of obscenity
Obenberger: Right. . .
Lane: and I think this is going to make it next to impossible for them to do that. I mean, terrorism is a much more fundamental problem for us as a nation. My concern down the road is that what may happen is that public concern over safety will lead to support for-and there's been some evidence in the polls for this-for support for restrictions on civil liberties in exchange for greater degrees of safety. The pornography industry does not deal specifically with safety-type issues. I mean, we don't undergo security checks or anything like that. But my concern is that a general erosion of civil liberties in this country will have a spill-over effect into a willingness to allow some greater erosion of First Amendment issues.
Obenberger: I made the decision to go to the Loop, to go into my office on September 11th and I was driving I got a call from a webmaster on the west coast and she's saying, Well, you know, Joe, don't you understand your office is on the thirty-seventh floor, you're one block from the Daley Center, two blocks from federal court, and she asked me just what was it about the crisis I didn't understand. She thought it was pretty nuts to go into the office. And what I said, you know, was simply this, that in a short period of time battle lines are going to be drawn about the erosion of personal liberty, the right to privacy, expressive rights, all those sorts of things. God only knows what's going to happen in the short-term. Martial law, police over-reacting, whatever. And it seems to that if you're a free speech lawyer, the place you've got to be at a time like this is to man your battle station or else you're not much of a civil liberties lawyer. So I came down.
What really was encouraging to me is, as I was pulling into the Loop, there was the Chicago police chief Terry Hillard, who was on WBBM, the CBS affiliate in Chicago. And he was very emotional, almost to the point where it sounded like he was in tears, but his message was: We can't let the terrorists win. And if our police over-react, and if we see the destruction of the constitutional civil liberties that our country stands for, then those guys have won. And so, you know, my people can't over-react and my people have to keep themselves under control, because if they don't the terrorists win. And that was, to me, just so incredibly encouraging to see a big-city, urban police officer chief say that with such sincerity.
Lane: I believe that. I'm glad to hear that as well. I think that, you know, that the tremendous irony of all of this that if we allow those kinds of things to happen, then we're not really being defeated by an outside force; we're defeating ourselves. That would be the tragedy, I think.
Obenberger: Fred, you remember Ashcroft's visit to the House Judiciary committee on June Sixth, 2001. And the comments he made in the transcripts, his answers to the questions about obscenity. I thought what he said was sort of a clue or a signal or an indication that child pornography will obviously continue to be the paramount priority of justice. But secondly, by the comment-the extended comments he made about getting computer equipment and any necessary support for local law enforcement - was at least a clue that during Ashcroft's tenure over justice, the federal government might simply lurk be in the background as an adjunct to the local officials who would actually do the prosecutions, to avoid any possible negative spins against the Bush administration and yet achieve the aim for the purposes of their supporters, who really are against pornography in general.
Lane: There may be some truth to that. The problem that the Justice Department faces, just as every other local law enforcement agency faces, is the question of resources. And I think it's demonstrably true that the amount of child pornography out there is so profound that it is very, very difficult for any department to have sufficient resources to deal with that problem effectively. And no one disagrees that that's the more serious problem. The question is whether any law enforcement agency can effectively investigate and prosecute against child pornography and still have resources left over for the kinds of general morality-driven prosecutions that the conservative right is looking for. And I think that that's particularly true-and Ashcroft, I think, himself would have to concede this if you ever pinned him down-given the fact that this is much, much more difficult, and it gets more difficult every single day to obtain generic obscenity prosecutions. It's increasingly hard to find communities that are willing to take a look at even-gosh, I mean, S&M stuff, even though that stuff's on the books, or you know, typical intercourse-type pictures-and find those obscene.
Obenberger: Do you-do you, Fred, know of any cases in which male/female, you know, regular vaginal intercourse-style sex has been prosecuted for obscenity, you know, in video tapes or otherwise in the last decade? Because-I'm sure it probably has happened, but I'm not aware of much of it.
Lane: I'd go back even more than that. I'd bet twenty years. I bet you'd have a hard time in the last twenty years finding a case where that type of material had been prosecuted.
Obenberger: I know that Clyde DeWitt said, and I think it was also during a legal seminar at Internext, that had had defended within the last five or six years an obscenity case with content that didn't even have images, prosecuting text obscenity, which kind of surprised me.
Lane: And it is important to point out to readers that - and at Klixx -- that there was that guy out in Ohio who was convicted-or actually, more properly, was indicted and plead guilty to an obscenity charge arising out of a parole violation involving his personal diary.
Obenberger: It is interesting to me that there was a split in the anti-erotica folks concerning that case. I think the gentleman who's the head of Morality in the Media
Lane: Bob Peters, yeah . . .
Obenberger: condemned that prosecution of a personal diary, whereas one of his counterparts in another censorial group thought that this prosecution was great and shows the appropriate limits of free speech.
Lane: Right, although I think even that individual, if I recall, is a woman from another organization, conceded that it was somewhat problematic legally. I mean, I think she liked the general concept, but I think she recognized that under the United States Supreme Court decision, it would be extraordinarily hard for that to be upheld.
Obenberger: Doesn't the current crisis present an opportunity for webmasters to reassess their policies, to re-evaluate and review their content, and to use this time in a constructive way so that the next time that there's attention that is brought to bear on the adult Internet, it's in a different condition than you perceive it to be now?
Lane: I think that that is, in a sense, always true. You know, it would, in a way, make me feel bad that we would need a tragedy like this in order to motivate the industry to be more professional, to clean up its act from a professional point of view, to take, for instance, whatever steps it can as an industry to help eliminate child pornography. I think that an opportunity may exist-the pornography's not going to be at the height of everybody's concern for the next little while. I mean, there are far more serious and life-threatening issues that we need to be aware of. But I think that that's an on-going obligation of the industry, regardless of whether or not we're trying to hunt down terrorists, or regardless of whether or not the Justice Department is off doing something else. Basically what I was saying is that I think that the government will never be able to devote the kinds of resources to obscenity prosecutions that the conservative right would wish to devote. We've got the First Amendment out there, which offers tremendous protection to us as a people and also to the adult industry. And at the same time, we also simply don't have that level of resources. We're struggling as it is to deal with child pornography. While I think most people that it's a serious problem, it's important to remember that it still is a tremendously small fraction of the overall adult traffic on the web. I don't think that we're likely to face a situation down the road where the industry is going to come under tremendous conservative attack. I just don't see that happening. But I think regardless of that, adult webmasters should be aware of the potential for prosecutorial outrage, and they should take whatever steps they can to make sure that their businesses are operating properly and within the boundaries of the law.
Obenberger: Addressing the Child On-Line Protection Act, and what's called now Ashcroft vs. ACLU, would you agree with me that the most likely reason the United States Supreme Court granted certiorari is because of the way the Miller test was questioned by the Court of Appeals with respect to the Internet in the context of harmful-to-minors context?
Lane: I think the Court's been looking for a good opportunity to really examine the harmful-to-minors standard at the federal level. And since obviously the COPA case uses that language specifically, that gives the Court a chance to take a look and see whether or not it's constitutional. And it's also an interesting issue.
Obenberger: The vitality of the Miller community standard element itself, as applied to the Internet, is ultimately an issue in this case now before the Supreme Court. The question is whether it's fair to require a webmaster to adhere to the standards of a community that he doesn't know, that he has never visited, when he has no actual knowledge that his content is going into that particular community.
Lane: Well, the Miller case is a thirty-year-old standard. And I think that one of the things that the Court may have been doing is to examine its present usefulness. And, you know, if I were the Court, I would really be questioning whether or not Miller could be replaced with a standard that would better reflect how we actually function. Not only on the Internet, but in the other areas of the adult industry, and in communication in general, we have a very effective national means of distribution. As for what form a national standard would take, you know, whose moral picture or moral standards do we adopt? We can do sort of a generic Christian morality, but I think that's a slippery slope. So, I'm not sure-I don't see that as an intellectual basis for the court going in that direction, and I think it's a much cleaner and much more logical approach to go the opposite way. In fact, for the Internet, we should let each individual household make a determination based on its values of what's acceptable for it to view. And obviously, with the Internet that's extremely easy to do. Things are not being force-fed to you as they are with broadcast radio and broadcast television, although even there I still do believe you have the ability to turn it off.
Obenberger: Let me play with that idea just a minute. If somebody obtains a video tape through mail-order as happened in that prosecution, the Thomas case in Memphis in the early nineties . . .
Obenberger: What connection to the material-what connection would that material have to any substantial interest to whatever U.S. District of Tennessee that was-what connection would they have with the material so as to justify regulating material that was received in interstate commerce through a mail-order?
Lane: I think that that prosecution was wrong, so my answer to you would be I don't think they had any connection. But traditionally, the federal government has reserved the ability to regulate what travels through the mail. And I think that the only justification there is the sense that the government is entitled for whatever reason to try to keep the mail clean.
Obenberger: The argument you're expressing, as I understand it, is that the community would not have a right to regulate the content of pornography, to proscribe it, unless it had a substantial interest and effect that the court actually found that the material had a local effect, analogous to the secondary effects arguments that are made in the regulation of gentleman's clubs.
Lane: Right, and I don't-and I want to be absolutely clear that I'm not talking about, you know, quasi-mythical secondary impacts like we've seen with the Voyeur Dorm case.
Lane: That, I think, is another travesty as well, because there was absolutely no way that you could claim that there were any secondary impacts with respect to Voyeur Dorm [note: a position the 11th Circuit recently agreed with in overturning the District Court decision]. I think you summarized my argument well. But, if the community can demonstrate that there are secondary impacts--and I'm willing to cut them a little bit of slack in terms of accidental exposure to kids in terms of, you know, displays and stuff like that, I don't see any problem with the community saying, as a community, that's not the environment in which we want our children to grow up; that's not the kinds of things that we want them to be exposed to. I mean, the democratic process can handle that. I don't see a huge problem with that. But I think when we're talking about materials that arrive into an individual's home, whether it's via the mails or whether it's via the computer, I don't think that any government has the right to say what those materials should contain.
Obenberger: You mentioned the Voyeurdorm case, and there Judge Susan Bucklew in the Central District of Florida, saying that adult Internet content can not be produced in a particular residential home in a residentially zoned area because it violated an adult-use zoning restriction imposed by Tampa, imposed not because there's proof of any adverse secondary effects, not because there's even proof of the imminence of the adverse secondary effects, but because this is the way the democratic system works, and in her judgment, it's within the exclusive province of the municipal corporate authorities to reach a determination as to what the risk is. She said as long as they rely on the studies that are customarily satisfactory for secondary-effect analysis, it's within their discretion and not that of the courts to make the judgment on what the likelihood of adverse secondary effects is. Now, I agree with you that there's virtually zero potential in the real world of any adverse secondary effects for the typical e-commerce adult business located in an apartment or a home, and it's probably true that the vast majority of these businesses are located in these people's home in residential neighborhoods without the neighbors even knowing what's going on.
Lane: Oh, absolutely. I often visit Colin and Angie Rowntree, the owners of Wasteland. You'd never know that they were running one of the largest adult websites in the country from their basement. I mean, it's completely oblivious to anyone who visits, and for that matter, to visitors within the house unless they want them to know. When you drive by, they're a hundred feet back from the road; they're in the woods. You know, you couldn't find a secondary impact if you sat out there for two months.
Obenberger: Would you agree with me that perhaps this is an appropriate area for a bright line rule of law to be applied before a secondary-effects analysis can even come into play regarding an Internet business, that there should be either publicly-visible signage or evidence of foot traffic before the community has a substantial enough interest in the activity to regulate it and restrictively zone it, as they do with real-life, on-the-ground adult businesses?
Lane: Yeah, I might not even be able-I might even be willing to concede the foot traffic, to be honest with you. I would definitely agree that if there are visible goods and services or there's visible signage of an adult nature, that that is sufficient to at least initiate the secondary-impact analysis. And, you know, I'll be honest with you, I would go one step further and say, fine, that gives you a prima facia ability to raise the secondary-impact analysis, but you still need to demonstrate it. That is to say, the mere fact that there's adult signage, to my mind, particularly with the way in which the Internet is changing the over-all community standard of this nation, is not now sufficient to say that there's secondary impact. You know, I think that most communities would be in a position to say, okay, we don't want, you know, a poster of some 48DD blonde hanging out, you know, over by a main street. But I think the courts have gotten fairly sloppy about the secondary-impact analysis, and I think that they've been letting a lot of stuff slide simply because it's adult material. And I don't think that's appropriate.
Obenberger: Were I in the role of a pro-censorship lawyer, and I'm glad that I'm not, what I'd be arguing is that there is no such thing as the expression of pornography that doesn't have some social-some effect on the viewers and therefore, some effect potentially on society. Now, do you suspect that's one of the better arguments to justify censorship, or one that it wouldn't be palatable in the case of adult pornography, in the U.S. Supreme Court?
Lane: I don't think it would be palatable at all, because basically it would wipe out Hollywood. I think these guys would have to concede the logic that if that were true, we'd be a nation of bomb-toting, you know, combat-style terrorists ourselves, given the content that's available on TV and in the movies. That's-that's, I think, what I was talking about a little bit earlier, Joe, is that people do make the argument--I mean, Andrea Dworkin and Catherine McKinnon have been making it for a better part of twenty years now-that exposure to this stuff erodes society at some level, that it promotes sexual violence against women, and so on, and so forth. And I think it just simply has not been demonstrated that that's the case.
[Note: On fairly narrow grounds of statutory construction and interpretation, the United States 11th Circuit Court of Appeals reversed the District Court decision in Voyeurdorm on September 21, 2001, holding that the Tampa adult use zoning ordinance did not include Voyeurdorm's activities within its definition of a place of entertainment. That Opinion is found on this site here.]
Obenberger: Do you think it's realistic to expect the United States Supreme Court, as its presently constituted, in deciding Ashcroft v. ACLU, to articulate a principle of law that states that the power of a state government or local government to prescribe erotic speech depends on whether or not it has a tangible and palpable impact from the expression of the speech? Do you think, in other words, that it is possible that they're going to toss Miller's community standards out the window in the case of Internet expression, because there is no significant nexus to the destination community in the information and images that are conveyed through the Internet?
Lane: Well, I would have been a little bit less optimistic had they not decided the CDA case nine to zip. I was fairly startled that the vote was that one-sided. I think there's a remote possibility that they will, and one of the reasons for that might be even though Justices Rehnquist, Scalia, and Thomas are all fairly moralistic, they're also relatively conservative when it comes to the power of the government. I mean, relatively conservative is perhaps an under-statement. I think that there's at least a reasonable chance that they would take a look at the role of government versus the citizens in this kind of scenario, and reach a conclusion that the government does not have a justifiable interest in regulating obscenity unless there is some kind of impact on the community.
Obenberger: So, are you going so far as to say that the advent of the adult Internet is the beginning of the driving of the nails into the coffin of the law of obscenity since 1973?
Lane: I-I would be willing to go that far. I think that, you know, they'll-the corpse is not cold yet; the obscenity corpse is still twitching a fair amount. And, you know, as-as the industry and as society in general, perhaps, tries to drive those nails into the coffin lid, there's going to be some banging and, you know, a few of the nails are going to pop back out and some people may get hit in the head with it. I think that is the progression that makes the most sense to me, Joe. When you factor in everything about this country-and obviously, the dice are tumbling a little bit given what happened in New York on September, I think we are still a pluralistic society. I think that we are still a society that deeply values the First Amendment. As much as Ashcroft may be running around trying to, basically, put wire taps all over the United States, there's still enough people in this country who feel that the preservation of the speech freedoms that we have is our best victory, and that's what we need to fight for.
Obenberger: Getting back to-and I'm not even going to touch that metaphor of banging (Lane and Obenberger laugh) though sorely tempted to do so.
Lane: Feel free.
Obenberger: One of the points in your book, "Obscene Profits", that really struck me, was the idea you advanced there that one of the most significant things about the Internet as a means of expression of erotica is that it eliminates the necessity that men-men with money, men with capital were necessary - to intermediate between women and the marketplace. And you also talk at pretty great length about the seemingly insoluble question of whether any of the cam girls really do run their own sites, and whether they or real or whether they are fantasies being created as intermediation by men who are running their websites. What do you see the future likely to hold concerning the involvement of women as owners, operators, managers of pornographic or erotic expressive means in general, the Internet and the others, such as the manufacturer of video tapes and magazines?
Lane: Well, I think that that-that's the other piece of this book proposal that's kicking around in the back of my head, Joe. Because I think you're right, that was something that I came up with. And as far as I know, it was an original thought for me. I-I'm not saying I was the first person to ever suggest that that was the case, but the ability of women to be in charge of their own image and to control the profits from the distribution and enjoyment of their image or their sexual performance to my mind is one of the tremendous liberating factors of the Internet. You're absolutely right to link that with the fact that the traditional dynamic between men and women has not completely vanished from the Internet. I mean, one of the people I spoke to said in his own estimation that as many as ninety-five percent of the so-called amateur sites at that point, which was like '96 or '97, were actually run by men who would go out and hire women for, you know, like two hundred bucks, shoot a thousand, fifteen hundred images, and then, you know, set up the whole site with bios and et cetera. I think that, to answer your broader question, which is what I'd really like to end up exploring down the road is that the Internet makes greater control by women possible because it reduces the capital requirements for all entrepreneurs, and I think that one of the things that is generally true is that it is not as easy for women to get access to the kinds of capital that have traditionally been needed to start adult businesses. And when you combine that with the fact that the traditional pornography industry hierarchy is very male-dominated, it has, I think, been extremely difficult for women to successfully run adult businesses prior to the Internet. Obviously there are exception to that, like Gloria Leonard, who was in charge of High Society and actually set up one of the first phone sex operations, and then Christie Hefner, of course, who's been running her father's business. But I think Christie is certainly a unique case. The great thing about the Internet is that businesses can be successful on a vastly smaller scale, as Danni Ashe has been. I think that it makes it much, much easier and much more feasible for women to become entrepreneurs because the capital demands are so much lower. And more importantly, the Internet has up-ended a lot of the traditional hierarchy. That is to say, you don't have to, soft of, get in touch with the mob, for instance, to worry about distribution of dirty movies or dirty magazines. You don't have to compromise and make deals with various people if you don't want to. You can just go out, you can write a bunch of HTML code, and boom, you're in business. And I think that's very liberating.
Obenberger: You mentioned you had technological issues you wanted to bring up, and let's talk about them.
Lane: I think that there were just a few things that are worth mentioning in terms of where the industry might be going. I think, obviously, the first one at the top of the list is broadband. It seems to me that--much in the same way that the introduction of the modem contributed heavily to the spread of pornography and the development of on-line adult sites -- broadband is going to do the same thing in the sense that it's going to let us sufficiently transmit video, not only from major producers such as Vivid and Metro and some of these other companies to the consumer, but also from consumer to consumer. So, I think that you'll probably see a steady and continual growth in the amount of amateur-produced pornography, which, I think, is some ways is going to contribute to the over-all fragmentation of the business.
Obenberger: You know, one thing that seems to me is that, with respect to copyright issues, that the general mood and spirit in the adult world, at least at the bottom feeder end of the food chain, is that it's swimming in a sea of piracy, and that some people really do snatch and grab pictures without a whole lot of sensitivity at all to copyright issues.
Obenberger: And most of the copyright holders don't do anything about it. They don't register the images, a registration that would entitle them to attorney's fees against infringers, and a lot of them simply have the attitude that they better spend their efforts, energies, and money by moving on to the next project and they sort of ignore the copyright violations. With the advent of the video capture cards, with the advent of broadband, making it easier for more people to transfer video files, I wonder if, at that point, copyright issues might get more significant because people who have more money to lose may get involved in protecting their copyrights. If Vivid or the other major players, Wicked, Anabolic, Devils Films, the others, see their profits from selling tapes disappearing because everybody can get a $59.95 video for free over the Internet, they're going to have to come up fighting for their lives or go broke.
Lane: Oh, I think that's right, Joe, and I think you can sort of get a sense of that with the ferocity with which the major Hollywood studios have been fighting China over copyright piracy. I mean, for any American corporation to wade into the murky waters of international law and the Berne Treaty and all the rest of that is an indication of how seriously they take the problem. And when you're looking at a market of, what, 1.2 billion potential consumers in China, piracy is a real issue.
Obenberger: The thing about it that interests you is how it may affect social patterns with people who are amateurs
Obenberger: and in putting their content online. That leads, actually, to another question about how on-line erotica has, is, and in the future may affect sexual morals and social values in the United States.
Lane: I think that is an excellent question, and I think the simple answer is that we're already seeing an acceleration of the liberalization of sexual mores. And the best example that I can give you of that is the decision by Penthouse and Hustler, in December of 1999 I think it was, to start publishing photos for sale across the United States of explicit sexual penetration. That was a conscious decision made by the art departments of those two magazines because they felt that the sexual mores in the country, or in a sufficient portion of the country, had changed enough to make it legally safe for them to do that.
Obenberger: Now, this is really interesting to me, Fred, because what occurs to me as a trial lawyer down in the trenches actually doing an Internet content obscenity case is that all of the local community standards of tolerance everywhere are actually and really being affected by the content that is available online: But I think that it's going to be tough to get a trial judge to admit online material in evidence to show the easy availablility of comparable material online as proof of those community standards. A recent case tried in Illinois demonstrated enough problems showing comparables and getting a judge to admit content materials from physical bookstores to demonstrate community standards and that's obviously a physical thing in the midst of the community whose standards are at issue.
Lane: I understand where you're coming from. I think that my response to you would be that what we're really talking about, in some ways, is the difference between a legal argument, if you will, and the practical impact of-of trying a case to a jury. And I think that what you're saying makes sense, that it's difficult to go up to a judge and say, you know, basically I want you sort of look at what's available on the Internet or what have you and then take that into consideration in determining what is acceptable within the community. That makes sense to me. But at the same time, I think what Penthouse and Hustler were relying upon, and which I think has been borne out in the last two years, basically, the net practical effect, if you will, is that the Internet is changing the attitudes the people within the community, in the sense that people are now aware that various materials are available to other members of the community, even if they don't want to see them themselves. And in many cases, people are looking at more explicit materials than they ever have looked at before because they can do so without risk of social embarrassment.
Obenberger: The commercial end of the Internet aside for a second-do you believe that chat rooms and Internet relay chat and all of that sort of thing are changing the way people link up romantically and sexually?
Lane: I think the thing I take away from IRC and chat rooms and so forth is the sense that the Internet is not this cold, masturbatory universe that people portray it to be. I mean, my sense, coming out of the research that I did for "Obscene Profits" and the conversations I've had subsequent to that, is that the Internet actually has proved remarkable in bringing together people with similar interests, people who otherwise never would have met. And in many cases, would have felt much more isolated than they do with the Internet.
Obenberger: I sense quite strongly that all those things are true. I've met many people and talked to many people in the last two or three years who met their significant others on-line in one way or another. And at least here in Chicago, I'm hearing more and more and more stories about these on-line relationships that, sometimes for everybody's happiness and sometimes tragically, turn out to have started on the Internet, and often in AOL chat rooms. In a perhaps related direction, I've read some remarkable figures and statistics of the demographics of Internet pornography viewing by young people just now coming of age. It shows young women watching as much porn as often as young men in the same age groups. And it makes me wonder whether in the era we're now entering there are some profound social changes around the corner, because females, in their sexually formative years, are for the first time in the history of Western civilization, regularly and voluntarily looking at pornographic images. Taken all together, what I'm wondering is whether female sexuality as a phenomenon will change and that sexual-the nature of what sex is between men and women may be different down the road as a result of the Internet.
Lane: Well, I mean certainly it's hard to imagine the basic physics changing all that much, but I certainly think that the sort of ritual dances that we do will change as a result of this. And I think that in some ways you're foreshadowing a book proposal that I'm working on, which is to look specifically at the issue of-or the relationship-between women and pornography, basically from the start of the feminist revolution in the early 1960s to the present day. And you obviously have to toss in a whole host of factors -- like the development of birth control, expanded demands for two-career families, and so on and so forth - that are playing a role in all of this. But I agree with you completely that the Internet is fundamentally changing the percentage of women who are, shall we say, regular consumers of pornography. And I think that that will have some changes in how men and women interact, and, you know, at the very least, it may, you know, perhaps spark more use of fantasy. I mean, it may alter the sort of sexual dynamics. From the little that I've been able to observe from the college mating scene up here, that's already happened in some way. I mean, this is not the day and age where girls kind of sit around by the phone waiting for guys to call. So, I think that there are some pretty remarkable changes that have taken place already. I think, as much as anything else, we're just seeing a change in the social taboo of pornography. And I think the biggest change, Joe, may end up being not in necessarily the sexual rituals between men and women, or even in the sexuality of women per se, because I think a lot of those changes have already taken place. I think what may end up happening is that erotica and pornography as we sort of generally conceive of it to be, that is to say, the sort of traditional or sexually-oriented images of intercourse and sexual play may become mainstream. And frankly from a sociological point of view, that, I think, is my prediction for the next ten to twenty years. And I think when we go to write the history of that change, you know, when it becomes relatively commonplace or at least unremarkable for these images to be out in the public domain, we're going to look back on 1994 and 1995 as the time when that started.
Obenberger: The lesson of history seems to
be that, at the beginning of a social change caused by technology, it's almost
impossible for those present as the transformation begins to know where it is
all going to head. I have to say that, you know, my belief is that the Internet
is the most significant invention of our lives, and I suspect that it will change
society in a far greater, exponentially greater way than the printing press
or the telephone or the radio or television affected society. And those changes
were massive. It changes the way we see ourselves in relation to everyone around
us, it attenuates international boundaries and shrinks the world into a place
where geography just doesn't mean much. It really does have the potential to
transform humanity's self image and the way people interact and communicate
with each other on every level. I see it as a factor accellerating the swing
of the historicial pendulum away from concentration of power and social control
at high levels towards decentralization. It seems to me that the Internet is
transforming society far more rapidly in the social, sexual, and personal sphere
than in the commercial and general economic sphere, that the most profound changes
will be seen first in these areas, and only time will tell how different the
future will become from the past we know and have lived, as a result of the
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is email@example.com. His website URL on the world wide web is http://www.xxxlaw.net.
Fred Lane is an attorney, consultant, author, speaker and defender of Liberty. His personal website is http://www.fsl3.com and his legal site, http://www.sexbizlaw.com, is a masterful collection of legal materials of great practical use to all scholars and businesspeople involved in adult entertainment. He is the author of "Obscene Profits", reviewed on this site in February, 2001.
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