I. Introduction
“You can’t mix bondage with penetration.” “No fisting or oversized toys.” “Urination in a natural setting is ok, but no watersports.” Urban legends like these have circulated in the adult industry for decades, supposedly informing content creators what is allowed and what is prohibited. But where do these prohibitions come from? Are they accurate? This article will try to separate fact from fiction and provide insight into the development of adult content prohibitions.
II. Overview of Content Prohibitions
The starting premise is that all sexually explicit content depicting willing adults is protected by the First Amendment. No specific category or type of content is off limits. Adult content only becomes illegal when it veers into the realm of obscenity. But for a work to be deemed legally obscene, it must meet the obscure Miller Test developed in 1973 by the U.S. Supreme Court. The test uses the following considerations to determine whether a work is obscene:
- whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
- whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
- whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Numerous elements of this test are unworkable in modern times. According to surveys conducted in previous obscenity cases, most people do not know the definition of the word “prurient” and cannot use it correctly in sentence. Yet this consideration can determine whether someone is imprisoned for making a movie. The entire concept of “community standards” is meaningless in the Digital Age, when we have more in common with our social media groups spanning the globe than we do with our neighbors who happen to live in the same county. It is unlikely that a jury could accurately divine how a given geographic community feels about certain types of adult media. While it’s easy to understand what the “whole work” is when evaluating a magazine or film, what about a tube site or a social media site? How much content is considered as part of the whole?
III. Obscenity Concerns
Despite these vagaries, the Miller obscenity test has been upheld over and over, in the face of numerous constitutional challenges. Since Miller was decided, adult content producers have attempted to determine what types of content are potentially obscene by looking at what material the government typically prosecutes. This approach ultimately resulted in the development of the well-known Cambria List of risky adult content. While the list originally focused on what content to avoid putting on box covers, and some categories were added to the list without the author’s permission, it provided the adult industry with a snapshot in time – identifying the types of material that were more often selected for obscenity prosecution by the government in 2001.
Some of the categories included on the Cambria List are controversial, such as “black men / white women themes”. Others have become quaint with the passage of time such as “facials” or “transsexuals.” However, content involving other topics have resulted in obscenity convictions resulting in serious punishment for the producers or distributors.
Since the Obama administration took office, federal obscenity prosecutions have all but disappeared. The federal Obscenity Unit was disbanded, and the DOJ began focusing its efforts on CSAM material. The few state-level obscenity charges that were filed since that time involved filming in public areas. These charges were typically brought since law enforcement could not identify any other crime that was potentially committed.
IV. Private Service Provider Prohibitions
But the types of edgy content that are more commonly the subject of obscenity charges has influenced third party service providers such as banks, payment processors, and credit card associations in developing their own lists. Gone are the days when producers could create and disseminate their own media by recording content onto videotapes or DVD’s, with no intermediary oversight. Banks and processors had no visibility into what content was purchased by consumers, and federal law protects the privacy of such purchasing and rental habits. Now, worried about “reputational damage” from “offensive adult pornography”, financial service providers picked up where the government left off, and presently act as the industry’s de facto censorship arm.
However, the content prohibition rules are not always clear, and can differ from provider to provider. Underage and non-consensual content is universally banned – particularly in light of the Updated MasterCard Guidelines effective on October 15, 2021. These strict prohibitions have resulted in heightened compliance obligations being placed on content creators in the form of IDs and consent documents that are now required for all individuals depicted in creator content. But age and consent requirements differ from content subject prohibitions. Some content types often prosecuted as obscene remain prohibited regardless of the circumstances, such as scat, necrophilia, and bestiality. But others are more nuanced such as BDSM, which is tolerated to varying degrees.
V. A Matter of Interpretation
Any attempt to define “offensive adult pornography” encounters the old adage; “one man’s trash is another man’s treasure.” Obscenity determinations require complex considerations including the literary, artistic, scientific, or political value of the work. Such nuances do not lend themselves to mechanical application by risk managers or content moderation algorithms. As a result, disparities exist in how the prohibitions are interpreted and enforced. Societal evolution also impacts how content prohibitions are applied. Take, for example, the previous restrictions on female ejaculation which was forced to give way in the face of potential gender discrimination concerns. Any prohibition based on the race or gender identity of the participants would likely be rejected in the current political environment.
VI. Recommendations
So where does that leave content creators and producers when attempting to navigate the choppy waters of adult content prohibitions? Those creators who do not depend on the services of third parties like hosts, banks, and processors, enjoy broad discretion in production of content, limited only by their creativity and risk tolerance. Obscenity laws remain on the books but are rarely enforced. However, most of the industry remains subject to the whims of various financial and technology service providers who continue to impose limits on adult content subject matter. Platform operators may dictate their own restrictions in order to protect their brand and reputation, even if not required by upstream service providers. And, as noted above, the restrictions tend to change with the times.
To avoid running afoul of amorphous content restrictions, creators are advised to scout the waters of a given publication outlet by viewing what content is routinely tolerated. If exploration of an unusual fetish or other edgy activity is of interest, contacting the outlet’s content moderation team is encouraged. Asking for permission instead of forgiveness is the better approach to avoid potential suspension or termination of an account for violating content prohibitions.
Walters Law Group represents clients involved in all aspects of adult entertainment law. Nothing in this article is intended as legal advice. We can be reached at www.firstamendment.com or on social media @walterslawgroup.