Skip to content


II)D) “Do you want to be put in the same category as Alfred Kinsey, Max Hardcore, or  Catherine Briellat?”: The limits of sexual expression in an algorithmic world.

Production still from Jennifer Lyon Bell’s short “Matinee”

Just this last week, Australia’s Office of Film and Literature Classification has refused to grant Jennifer Lyon Bell’s erotic short Matinee a festival exemption to screen at the upcoming edition of the Melbourne Underground Film Festival. By refusing to grant this exemption the OFLC has effectively banned Matinee from being screened in Australia, and banned DVDs of the film from being sold in nearly all states in the antipodal continent.

Matinee is the story of two actors, male and female, in a theater production that is not quite finding its voice, due in large measure to a failure of the two leads to find chemistry in a crucial love scene. I won’t reveal more of the plot than that, but I will say that the sex in this film is consensual (both within the context of the narrative and the context of the production) and is undertaken with concern and safeguards for the physical and emotional safety of the actors—again, both within the narrative and the production. The result is a sexual encounter that leaves both the characters and the actors playing those characters satisfied that they have chosen to have sex with each other for the right reasons, and under conditions sufficiently cautious against the reality that sex is a consequential act.

The reason given by the OFLC for its decision is that Matinee contains actual depictions of sexuality. But in nearly the same week, the OFLC has chosen to grant a festival exemption to Antichrist, a film that also features actual sexual intercourse, but with a very different (and I would argue, in the cinematic tradition, hyper-normative) contex.

I have had my own run-ins with this sort of double standard for the treatment of sexuality in cinema. On the night the OFLC dispatched police to the 2008 Melbourne Underground Film Festival to stop the screening of Ashley and Kisha, the notoriously sexually explicit Destricted was playing (with the OFLC’s blessing) on the other side of Melbourne, at the Australian Centre for the Moving Image.

One film claimed to be an exploration of the (purported) boundary between art and pornography. The other celebrated a loving relationship between two women.

One film contained (among other things) a depiction of utterly mercenary anal sex between two strangers orchestrated by the film’s director. The other film contained footage of consensual, mutually pleasurable lovemaking between partners in a long-standing relationship.

One film found itself on the acceptable side of the Kinsey (medical)/Hardcore (pornography)/Briellat (art) taxonomy, and one film did not. 

And now Jennifer Lyon Bell’s film Matinee finds itself in similar contrasting relationship with Lars von Teir’s Antichrist. (I do hope Lars, who has long fashioned himself a rebel, is suitably embarrassed to find himself in this instance on the side of The Man, and a tool of the status quo in Australia.)

There is nothing new about this medical/pornography/art taxonomy. My own namesake, Anthony Comstock, ultimately overreached in trying (and sometimes succeeding) in having medical textbooks with anatomical drawings of reproductive organs seized and destroyed. But out of this overreach, the idea that exploring and depicting sexuality in a medical context was, in fact, protected speech was born.

Neither is the idea that “art” is also sufficient justification for what would otherwise not be protected speech new, with Justice Woolsey’s “intent to arouse” standing as a now nearly 80 year old dividing line between “art” and obscenity—observed with full legal force in some countries (UK, Australia) or with quasi-legal force in the the US (“Penetration is illegal in Utah.”) See the previous TITA post: US vs. Ulysses: The origin of  ”intent to arouse” as legal doctrine.

What is new, is that where this taxonomy used to be enforced by human beings, and was subject to revision and modification, the medical/porn/art taxonomy is now increasingly becoming hard-coded into the algorithms that shape our digital world.

What that means is with the flick of a digital switch (errant or intentional) LGBT-oriented books with no sexually explicit content can virtually disappear off Amazon, as happened back in March of this year.

What that means that is that as far as Google is concerned, [clitoris] is not a “safe” search term; that “clitoris” is always a pornographic word, no matter what the context, along with “nude” and “bastard”.

What it means is that anything that’s categorized with words like “adult” or “NSFW” is algorithmically indistinguishable from the works of Max Hardcore (aka Paul Little, currently serving 10 years on obscenity charges.)

This “algorithmic indistinguishability” promotes a culture around sexuality that is at once more pranksterish (How much can we get away with and still be on YouTube?) and at the same time more cautious (Oprah’s favorite “vajayjay” is a Google-friendly word, but clitoris is not.)

And whereas 10 years ago the internet offered the opportunity to skirt around bodies like the OFLC, today, Australia is undertaking a great experiment in nationwide, government enforced “content filtering”—which is simply a euphemism for algorithmic and complaint-driven censorship.

But it’s not just the anti-erotic bias lurking in our culture driving this. Ask any IT professionals what their biggest headaches are, and on any given day it’s likely that porn-spammers and CEO’s who don’t understand technology will be trading the number one and number two spots on their most-hated list. I regularly have important, non-erotic correspondences sucked into my spam folder (the last was from an eminent constitutional scholar on the history of blasphemy laws and symbolic speech in the US.) Without resorting to words like “vajayjay” and other coded language, even scholarly correspendence free from slang is frequently algorithmically indistinguishable from porn-spam.

Next up: Porn spammers: No shame about sex-or anything else.

Share and Enjoy:
  • Print this article!
  • Digg
  • Sphinn
  • Facebook
  • Mixx
  • Google Bookmarks
  • Reddit

Posted in Uncategorized.

II)C)4 The Internet: The barriers to entry fall to zero.

A quick review:

The 1989 California court case People v Freeman (reviewed by SCOTUS Justice O’Conner as Freeman v California) held that in the case of paying people to film them having sex, First Amendment concerns trumped the normal prohibitions against paying people to have sex. After Freeman, producers and performers in California could make sexually explicit videos without fear of being charged with pandering or prostitution.

Through out the late 70s and early 80s, as distribution of sexually explicit film moved from theaters to home video, producers increasingly moved from film as an acquisition medium to BetacamSP, but out of habit and fear of obscenity prosecution largely retained narrative feature-film style creative conceits. But in 1989 John Stagliano release The Adventures of Buttman, a production that would embrace the look and feel of video on its terms and set a creative template (gonzo) for the production of pornography that would rapidly come to dominate the industry.

In the 1990s, rapid advances in digital cameras and desktop computer editing would lower the cost of shooting and finishing a film that consisted mostly of a series of semi-improvisational sex acts by an order of magnitude or more, while at the same time, Bill Clinton’s Justice Department, headed by his Attorney General Janet Reno had massively de-prioritized obscenity prosecutions.

By the late 90s the combination of the above had give rise to what many porn fans regarded as a new golden age. Gone were the wearying pretenses to making a “real movie”, and in their place was a proliferation of thousands of titles covering nearly every conceivable interest (provided your interested was in seeing depictions whose narrative “conceit” consisted of “these are people paid to have sex having sex.”) Barely legal teens, grannies, trannies, and anyone else, engaged in every conceivable sex act, all recorded in perfect digital clarity (provided your definition of clarity was whatever the latest prosumer DV camcorder was capable of rendering.)

(It was this era that gave rise to the unsourcable but quoted in the New York Times and everywhere else, “Porn is a 10,000 title a year, $12 billion year business.” Human being are notoriously bad with large numbers, especially if they have no incentive to take out a calculator and ask “Does this even make sense?”)

Only one thing was missing to completely spoil the party: The complete collapse in the cost of replicating, marketing and distributing content. And that would be provided by the internet.

At first the internet offered the promise of even greater revenues, a way that customers could be reached without asking them to go to the cinderblock adult video emporium at the edge of town, or going into the cordoned off “adult” section of the local video rental store. The internet also offered distribution outlets for material too niche for the 1500 piece DVD model, or regarded as too much an invitation to obscenity prosecution by risk-averse established distributors (BDSM, urine, fisting, etc.)

The problem is these benefits were available to anyone with a BestBuy credit card and a high-speed internet connection, and the social and business realities of how photographic depictions of sexuality are treated by law and commerce almost seems intentionally designed to reward people who lower their creative and ethical standards, while punishing those who try to observe normal standards of behavior for how their work is made and marketed, from everything to health and safety concerns for those who appear on camera, to search engine optimization schemes, to pop-ups and redirects, to spam e-mail, to something as simply putting truthful information on website come-ons.

Simply put, the lower the barriers to entry, the more people who have nothing to lose that will throw their hat in the ring, creating downward pressure on behavior, and lowering the signal to noise ratio to a point that the entire market space is functionally equivalent to spam.

It’s not that there aren’t exceptions. San Francisco’s was early to the game, offering BDSM oriented content via the internet at a time when traditional distribution channels regarded bondage and other non-consensual themed sex-play as a one-way ticket to an obscenity conviction. (There’s that all important social arbitrage again. See the previous post, The MPAA Took My Baby Away!)

But the fact remains that ten years later,, a big internet success story, is one $16 million semi-derelict building, a staff of less than 100, and maybe several hundred freelance models who each do a few days work a year. That is a personal success story for Peter Acworth,’s founder, but it’s not a game changer in the way Amazon changed retailing, or Google changed search, or even the way that (with over 1000 employees) changed buying shoes.

The more typical arc is what has happened to Steve Hirsh’s Vivid video under the onslaught of ever lowering barriers to entry.

During the late 90s through 2005, Hirsch was able to maintain mandatory use of condoms policy as insurance against the vagaries of asking strangers to have sex in the production of his companies films. Hirsch’s policy stood as a credit to the brand in the wake of the 2004 HIV outbreak, where three women contracted HIV after having sex with an infected male performer who passed through the industry’s testing protocols undetected. But by 2006, the policy was quietly abandoned.

For years, Vivid was also well known for its lavish (by adult standards) feature productions. But in 2009 Hirsch grabbed a little ink by announcing his company would focus on producing more, less expensive, shorter sex scenes intended to be viewed online. Under the onslaught of the internet, Vivid, once a brand with a sharp differentiation from most other producers of sexual explicit content — both in terms of creative approach and talent health consideration — is now functionally equivalent to any other gonzo studio.

Up next: II)D) “Do you want to be put in the same category as Alfred Kinsey, Max Hardcore, or Catherine Briellat?”: The limits of sexual expression in an algorithmic world.

Share and Enjoy:
  • Print this article!
  • Digg
  • Sphinn
  • Facebook
  • Mixx
  • Google Bookmarks
  • Reddit

Posted in Uncategorized.

II)C)3: Buttman, Janet Reno, and the Sony VX1000: The rise of “Gonzo.”

Betamax failed as a consumer format, but it was destined to be reborn as BetacamSP and come to dominate the professional video acquisition and post-production market. “BetacamSP” emblazoned on the side of a full-sized video camera was an easy to read ear-mark of a working professional. The cameras were expensive to buy, and expensive to rent, putting them well out of reach of even the most aspirational hobbiest. BetacamSP was the tool of choice for the post-theatrical era of  adult video, including John “Buttman” Stagliano’s seminal work, The Adventures of Buttman.

Stagliano wasn’t the first to experiment with highly reductionist, shot-on-video, sexually explicit productions. As soon as their were consumer camcorders there were people making and marketing what were more or less home video versions of the super-ultra-low-budget loops and smokers that had been available since the invention of cinema. But these productions remained very much at the margins of the adult video business; catering to niche interest, and under greater threat of obscenity prosecution because the low production quality and lack of cinematic pretense made them harder to defend under the Miller Test. Mainstream adult videos were mostly scripted featured, stitched together around five or six sex scenes, or a series of scripted vignettes.

What John Stagliano and Andrew Blake both realized was that “pretending” to make a movie was getting in the way. But where as Blake’s solution would result in something akin to a Penthouse magazine layout come to life (shot on film, aspirational fantasies involving mansions and sports cars and sleek women wearing sunglasses) Stagliano would take his reductionism in an entirely different direction. 

John Stagliano was already an established performer and director, in full procession of the production resource and directing chops to make a porn feature. But in his 1989 The Adventures of Buttman, he cast off the encumbrances of the feature approach, and fully embrace the aesthetics of video, on its own terms.

In Buttman, cameraman Stagliano follows  performers through a series of sexual hi-jinx. The action is loosely scripted, the dialog is improvised, and in an odd way, the video is as much about the chemistry between cameraman Stagliano and performers as  it is about the sex. Even as the sex acts unfold, the performers  and John trade quips (often at John’s expense), and this interaction imbues the sex scenes, and the whole movie with a degree character and narrative drive that is (in my opinion) far more engaging (and erotic) than the half-baked features that were the mainstay of the business.

But from a production standpoint the take-away from The Adventures of Buttman was that all you needed to make a successful porno film was a (professional) camera, a well-hung, sexual aggressive male performer, able to become erect and ejaculate on demand, and a half-dozen women willing to have sex on camera for money. Fancy locations? Who watches porn for the locations? Script and dialog? We’ll make it up as we go along, and it will sound better than any sort of “writing and acting”. And of course we won’t be shooting on film. 1) It would be way way too expensive; 2) it would interrupt the natural chemistry; 3) It wouldn’t look right. Even if it’s not as beautiful, the ENG look of Betacam gives the whole production a kind of immediacy that enhances the verity. The look of video says, “This is really happening. This video camera just happens to be here to capture it.”

The only things keeping any idiot with a video camera from jumping in is that in 1989 even the cheapest Betacam package rents for about $500/day, and even a cut-only editing suite rents for about $50/hour, plus another $40/hour for someone who knows what buttons to push, and the ever present threat of obscenity prosecution, which had been given new priority in the conservative backlash of the 1980s.

But the video electronic industry was about to make a decision that will destroy Betacam as a profession format and fuel the Great Gonzo Gold Rush of the late Nineties and early Oughts.

The Sony VX-1000 and all of it’s DV codec using, FireWire equipped siblings were never intended to evolve into a professional format. To develop a digital format that could manipulated on home computers, the DV standard reduced the color space from Betacam’s 4:2:2 to 4:1:1 and then crammed that already highly reduced image through 5:1 compression. It was never imagined that the blocky, jaggy, color warped image that resulted would ever be used for professional work. But DV was absent one bug that even high-end Betacam equipment was plagued by: drop-outs  – little defects in the tape that would result in flecks and missed lines in the recording, the dust and hair of the video world. I remember “drop-out compensation” being a much touted feature in the online suites I used in the early Nineties. It would turn out that this lack of drop-out and the ease with which DV footage could be manipulated on a home computer would count for a lot more than the lost color information and compression.

But most important was the price. The Sony VX1000 debuted with an MSRP of $3995, which translated to a street price of about $3,500; or about an order of magnitude less than Betacam, the former standard standard for professional adult video production. And footage from the VX1000 and it’s digital descendants (Sony PD150, Panasonic DVX100, etc.) could be edited on a home computer — cuts, dissolves, titles — all the basic ingredients of a finished product were now available at a fraction of the previous cost.

Prior to Reno, Buttman and the VX1000, producing videos of quality sufficient to make a return required expensive equipment and specialized knowledge. Fear of obscenity prosecution and the need to appeal to (relatively) wide audience encouraged producers to ape narrative film conventions.

After Reno, Buttman and the advent of ultra-low cost digital production and post production, the calculus changed. John Stagliano had created an easily and inexpensively reproduced template; for less than $10,000 a producer could cobble together a suite of tools that could produce clear renderings; and under Bill Clinton, the Justice Department abandoned obscenity prosecutions as a priority.  It was now possible to produce profitable titles in unit volumes of less than 2,000 pieces, and under these conditions the business would veer sharply towards producing “fetish” titles; the industry parlance for catering towards viewers’ hyper specialized interest in body types, racial pairing, age, and sex act, i.e. amply proportioned white women having anal sex with black men, or any other combination of race, body-type, and sex act you can imagine.

From an outside perspective, this explosion in low unit volume specialty titles would create the impression of the “adult industry” as an entertainment colossus. From the 2007 post Why Size Matters, aka Chatting with David Cay Johnston about Innumeracy:

Histrionic reporting on the porn industry, especially the grossly inflated size of the porn industry has given rise to the popular notion that the industry is a behemoth that nearly perfectly serves the erotic entertainment needs of the public. A phrase you’ll hear time and time again in “the bizz” is, “With 10,000 titles a year, there’s something for everyone!”

Looking from the outside, the existence of title like DIRTPIPE MILKSHAKES (volumes 1 and 2) lends credence to this idea. After all, if a $13B/year industry is making dozens, perhaps even hundreds titles a year devoted to such exotic sexual interests as women eating semen out of other women’s anuses, then certainly there must be something out there for people with more pedestrian tastes – things like convincing, well-crafted depictions of mutually pleasurable sex.

But while there’s no shortage of anal creampie themed videos, gaping anus themed videos, and other things to unsavory to mention on this blog, finding well-crafted sexually explicit films that convincingly depict mutual pleasure is all but impossible. As I said to Stacy Grenrock Woods in Esquire a couple of years ago, it’s easier to find a well-made fishing show than a well-made sex film.

For a time, this technologically empowered explosion in ultra-reductionist productions was (by some) viewed as a new Golden Era. Gone were the poorly executed conventions of narrative filmmaking (that has only served to get in the way of enjoying the sex acts,) and in their place there was a profusion of titles catering to every conceivable desire (provided your desire was to see people paid to have sex shot on a handicam presented more or less as “people paid to have sex shot on a handicam.”)

At the same time that Moore’s Law was changing the tools for production and post-produciton, Moore’s Law was also fueling even bigger changes in marketing and distribution. Over the next decade, these changes would convince the “adult industry” that any other contextualization sexuality was financially untenable, and in 2009, Vivid’s Steve Hirsch would declare the “adult feature” dead.

Up next: The Internet: The barriers to entry fall to zero.

Share and Enjoy:
  • Print this article!
  • Digg
  • Sphinn
  • Facebook
  • Mixx
  • Google Bookmarks
  • Reddit

Posted in Uncategorized.

II)C)2: California vs. Freeman: The revenge of the magic camera: How illegal actions become constitutionally protected speech.

Every once in a while I have to remind myself that photography is barely 150 years old, and that we, as in all of us, are still pretty freaked out by it. 

For example, a couple of years ago, a pair of teenaged lovers in Florida (she 16, he 17) took some camera phone pictures of themselves making love. Then they sent copies of these pictures to her boyfriend via e-mail. Making and exchanging of photos was discovered by one or the other of these children’s parents, and the end result was that both she and he were convict of making/distributing/possessing child pornography.

The two teenagers involved had the legal right in Florida to have consensual sexual relations with one another, and absent the intervention of their parents and the courts, no one saw the photos in question, save the teenagers who made them. Yet in a 2:1 decision, the appeals court in Florida ruled that the law is the law, and that by photographing themselves doing something that was legal, these teenagers had broken the law, and their conviction was upheld

But the door swings both ways.

As mentioned in previous posts, the 1973 Supreme Court case of Miller vs. California, and the resulting Miller Test did little to clarify when and if a depiction of nudity and/or sexuality was or was not open to criminal prosecution (obscenity) and it did nothing to address whether or not hiring people to have sex for the purpose of making a film was or was not illegal. Producers and performers were open to charges of pandering and prostitution. To this day it’s widely asserted that the reason that New York City was the nexus for the “Golden Age of Porn” was because the Mafia was able to provide the protection from interference by law enforcement needed to making investing such (comparatively speaking) vast sums in the production of an adult movie.

All this would change, when in 1987 California would make the mistake of charging Harold Freeman with pandering in relation to his production of sexually explicit films.

I guess legal theory is relatively. If  I pay Mr. Freeman to bring a woman to my hotel room and have sex with me, she is guilty of prostitution and he is guilty of pandering. 

If  I pay Mr. Freeman to bring a woman and a man to my hotel room and have sex with each other while I masturbate, both the man and the woman are guilty of prostitution and Freeman still is guilty of pandering. 

If you accept that, it’s hardly a stretch to conjecture that if I pay Mr. Freeman to make a film of a man and a woman having sex so that I can watch it and masturbate, he still guilty of pandering. Just as it’s hard for me to imagine how the introduction of a camera into private, legal sex-play between adolescents turns them into child pornographers, it’s hard to imagine how the intermediation of a camera between the sex act –contracted by Freeman, and masturbated to by me – changes an illegal activity into a legal activity.

Except for Miller and the magic camera.

Whatever Miller does or does not provide in terms of clarity about what is and is not obscenity, Miller makes it abundantly clear that the mere depiction of actual sex act does not in and of itself constitute obscenity. And if something is not obscenity then it is constitutionally protected speech.

But California didn’t charge Freeman with making obscene films. California charged Freeman (People v Freeman) with pandering, and won; and with this victory California was on the brink of making itself the porn capital of the world.

The judge in the original trial must not have been very impressed with the case, sentencing Freeman to probation, in director contradiction of California’s minimum three year sentence. Not knowing when to quit, California appealed the sentence and lost.

Whether or not this emboldened Freeman, I don’t know. I do know that following California’s loss of the sentence appeal, Freeman appealed his conviction to the California Supreme Court. Here’s an extract of what the California Supreme Court had to say:

The issues and contentions in this case and their resolution are pervaded by a central fact. The film was not determined to be obscene and for purposes of this review must be deemed to be not obscene. Thus the prosecution of defendant under the pandering statute must be viewed as a somewhat transparent attempt at an “end run” around the First Amendment and the state obscenity laws. Landmark decisions of this court and the United States Supreme Court compel us to reject such an effort…

Since the acts involved here have not been adjudged obscene, they are within the protection of the First Amendment. To subject the producer and director of a non-obscene motion picture depicting sexual conduct to prosecution and punishment for pandering, including a special provision for ineligibility for probation attendant on such a conviction (see fn. 2, ante), would rather obviously place a substantial burden on the exercise of protected First Amendment rights. To include the hiring and paying of actors for acting in such a film within the definition of pandering would therefore unconstitutionally infringe on First Amendment liberties…

Undeniably, one cannot lawfully hire another to commit murder, rape or robbery for the purpose of photographing the act. Murder, rape and robbery and aiding and abetting intercourse with a minor for that matter, are crimes independent of and totally apart from any payment for the right to photograph the conduct.

By contrast, the acts of alleged “prostitution” in this case were not crimes independent of and apart from payment for the right to photograph the performance. The determination that pandering and prostitution occurred here was entirely dependent on the payment for the right to photograph. Indeed, under the People’s theory the payment was used to establish not only the “hiring” but also elements of both the “pandering” (procuring) and the “prostitution” (i.e., lewd acts “for money”). When considered aside from the payment of the acting fees, itself fully lawful otherwise, the sexual acts depicted in the motion picture here were completely lawful. [7] The sexual conduct was between consenting adults and occurred in a place not open to the public. fn. 7 And as we have stated, the film was not determined to be obscene.

The court is between a rock and a hard place. The strong freedom of expression traditions in this country vs the no less engrained tradition of the regulation of sexual behavior by the state, and especially the widely accepted prohibition of the exchange of money for the performance of sex acts.

Only two years earlier the Supreme Court of the United States in the case of Bowers vs. Hardwich had upheld Georgia’s gender neutral anti-sodomy laws when applied to two men, and had punted as to whether or not it would pass constitutional muster when/if applied to a man and a woman; which is to say in 1988 the regulation of sexual conduct, even between consenting adults is very much viewed as the prevue of the state.

And like US vs Ulysses, or Miller v California, the alchemy in People v Freeman is remarkable. The illegal becomes legal and the illegal become legal; all on the basis of who’s reading, who’s watching, who’s paying, who’s photographing, and who is or isn’t getting sexual aroused.

California would take last stab, when in 1988 they appealed to the Supreme Court of the United States. Justice Sandra Day O’Connor reviewed the case, and shot California down:

There is language early in the California Supreme Court’s discussion section observing that “the prosecution of [Freeman] under the pandering statute must be viewed as a somewhat transparent attempt at an ‘end run’ around the First Amendment and the state obscenity laws. Landmark decisions of this court and the United States Supreme Court compel us to reject such an effort.” 46 Cal.3d, at 423, 250 Cal.Rptr., at 599, 758 P. 2d, at 1130. Nevertheless, in light of the subsequent clear holding based exclusively on the state pandering statute, as well as the State Supreme Court’s doubts in its discussion of the First Amendment whether “[ Freeman's] conduct could somehow be found to come within the definition of ‘prostitution’ literally,” id., at 425, 250 Cal.Rptr., at 600, 758 P.2d, at 1131 (emphasis added), I conclude that the state court’s statutory holding is inde- [488 U.S. 1311, 1315] pendent from its discussion of the First Amendment and was not driven by that discussion. Because the decision of the California Supreme Court rests on an adequate and independent state ground, the State of California’s application for a stay of enforcement of the judgment of the California Supreme Court is denied.

And with that, where or not paying people to have sex while photographing them was a settle question in California.

The California Supreme Court ruling does not hold in other states, leading to what First Amendment attorney Marc Randazza describes as a “mood of detente”:

Right now, adult film producers in 49 states occasionally look over their shoulder, worried about a Freeman prosecution. The local smokies can knock on the door and scare them with just such a threat. That uncertainty and fear works wonders. I’m sure that more than one cop’s kids went to college on “tip money” generated by just this kind of fear. If nothing else, it makes adult film producers just a little less brazen than they might otherwise be. That slight chill in the air keeps everyone relatively happy. It gives law enforcement a mental tazer, and it keeps everyone from jumping into the adult film industry, thus reducing competition and maximizing profits for those who dare. Everyone is relatively happy.

While all these legal machinations were going on, Moore’s Law was relentlessly grinding on, doubling processor speed every 18 months. In 1989 I bought a Sony TR5 handicam for about $800. The first thing I did with it was videotape some of my friends kayaking in the Williamette River near Eugene, Oregon. The next thing I did was video tape myself and my girlfriend fooling around in her apartment while her roommate was away for the weekend. In both cases the image quality was a quantum leap from anything I had seen come out of the VHS consumer camcorders.

I also have vague recollection about this time of my previous girlfriend going on about “e-mail”, and there being some sort of scandal in the Springfield, Oregon city counsel around e-mail as well. I had no idea what e-mail was, and I didn’t care.

It was also about this time I got my first clue that sexually explicit cinema didn’t have to be the badly lit, badly acted, shot on video productions I had sampled with both the previous and current girlfriend.

Not too long after our handicam adventure, my girlfriend and I had gotten a hold of Andrew Blake’s Night Trips II, and where other producers had responded to the new economic realities of the home video market by doing away with things like shooting on film and competent editing, Blake had gone the other way. Night Trips II was almost completely stripped of plot and dialog, but it was shot on film, and cut together in with trendy MTV-style editing. Between the two choices, we preferred Blake’s reductionism to incomplete and under produced attempts at feature filmmaking that characterized “adult videos”.

At the same time that Blake was exploring his glossy take on reductionism, another director was also exploring reductionism, only instead of being shot on film in rococo mansions, with sunglass and a sleek eurotrash look, his seminal effort would be shot on video, and feel like a strange ultra-low budget hardcore amalgam of Ross Mc Elwee’s Sherman’s March and the Lethal Weapon franchise.

His name was John Stagliano, and his 1989 insurgent effort The Adventures of Buttman would set the template that had ened up defined the “adult industry” for the next 20 years.

All it would take is for the technology to catch up, and with Moore’s Law grinding away relentlessly, that didn’t take long.

Next up: Buttman, Janet Reno, and The Sony VX1000: The rise of “Gonzo.”

Share and Enjoy:
  • Print this article!
  • Digg
  • Sphinn
  • Facebook
  • Mixx
  • Google Bookmarks
  • Reddit

Posted in Uncategorized.

II)C)1: Why Betamax vs VHS was the wrong question, and is still giving us wrong answers.

[Image removed at Mr. Edelman's Request]
Harvard Economics Professor Benjamin Edelman

Last winter, Harvard economics professor Benjamin Edelman published a paper entitled “Red Light States: Who Buys Online Adult Entertainment?” in the Journal of Economic Perspectives. Prof. Edleman hoped to point out the sexual hypocrisy of the “red states” by showing that credit card records suggest states like Utah are more enthusiastic consumers of online pornography than residents of bluer states.

To me, Professor Edelman’s paper read like the typical sort of “adult-entertainment” piece I’ve come to expect at the New York Times, or Time Magazine, or the AP—a recitation of unsourced “facts,” flights of fancy, and bizarre conclusions. But because Prof. Edelman made the mistake of publishing under the rubric of research rather than journalism, his paper came under far more scrutiny than the average New York Times piece. Edelman’s paper was widely criticized for the sloppiness of his methodology, including by me.

To my mind, the most damning defect in Prof. Edelman’s paper was that he was apparently completely unaware of things like the fact that in Utah, law enforcement routinely intimidates retailers who might otherwise chose to carry sexually explicit DVDs, or that the entire state of Utah is on almost every DO NOT SHIP list that mail-order vendors maintain; and Edelman’s conclusions about the cultural meaning of the credit card records he used in his research (Red Staters love their online porn!) were made in utter ignorance of the fact that for many Utah residents, online access is the only easy access they have to sexually explicit material. 

But it was this passage from the introductory section, Why Study Online Entertainment? that jumped out at me:

For economists, the adult entertainment industry offers several aspects of interest. On the production side, for example, the adult entertainment industry has repeatedly proven to be among the first to adopt new imaging technologies. For example, Johnson (1996) concludes that adult videos spurred early purchases of home video cassette recorders. More recently, as studios evaluated competing high-definition DVD formats HD-DVD and Blu-ray, at least some studios chose Blu-ray upon observing that adult studios favored that format (Mearian, 2006). Looking back, adult entertainment was an early adopter of a wide variety of image-related technologies—including ancient sculpture (Diver, 2005), the book (Moulton, 2000), and the photograph (Loth, 1961). (Emphasis mine, link to citation mine)

Of course now we have the benefit of hindsight. We know that Blu-Ray won out over HD-DVD, even though the licensing restrictions and production costs are much higher than they are (were) for HD-DVD. We also know that back in 2006, the “adult industry was was overwhelmingly choosing HD-DVD precisely because the licensing and set-up costs are prohibitively high for  producing Blu-ray discs for titles that sell (on average) only a couple thousand copies.

So how did this assertion that “studios” (Dreamworks? Warner? Disney?) were holding back, waiting for pornography to decide the format war find it’s way into Edelman’s paper? Well first lets look at the passage that actually quotes a human being in the Mearian article:

Ron Wagner, director of IT operations at E! Entertainment Television Inc. in Los Angeles, said his company has already chosen the Blu-ray Disc format, in large part because of talk in the porn industry favoring it over rival HD-DVD.

Wagner said that while attending last year’s National Association of Broadcasters (NAB) annual conference in Las Vegas, more than one panel discussed “several major players in the porn industry going the Blu-ray route.” He said the rivalry between Blu-ray and HD-DVD was also the buzz around NAB 2006 last month.

“If you look at the VHS vs. Beta standards, you see the much higher-quality standard dying because of [the porn industry’s support of VHS],” he said. “The mass volume of tapes in the porn market at the time went out on VHS.”

That’s right, it’s Ron Wagner, of that Hollywood heavy-hitter,  E! Entertainment Television. He was at NAB and there was a panel and they talked about porn. There’s our lede.

I don’t know what it says about us, this ease with which these sorts of “facts” find their way into our culture – into our flagship newspapers and magazines, into the research papers of Harvard B-school professors. My wife calls it the “Lex Luthor Effect,” our collective need to imagine vast shadow economies, with luxurious underground palaces filled with stolen antiquities and artworks; or to imagine widespread satanic cabals, operating daycare centers to cover their ritual sexual abuse and murder of children; or jizzilionaire porn magnates, tipping the scales this way and that, as suits their diabolical plans.

It’s a funny idea, but it does explain this bit on where they’ve published (with a straight face), “[The porn jizzilianaires] don’t want the notoriety of how much money they’ve made. That’s why you don’t see most of them running around in the Rolls they keep that in the garage and take out on weekends.”

It would also help to explain why we hear over and over again, in mainstream media outlets that porn is bigger than major league sports, bigger than television, bigger than the aerospace industry, one of the biggest industries in America, one of the biggest industries in the world! Of course Steve Jobs and Bill Gates and Michael Eisner are sitting back, waiting for Larry Flynt and Steve Hirsch to decide the Blu-ray vs HD-DVD question!

Naturally, all of these assertions are made with provisos and prevaracations. In 2005, when I asked Time Magazine’s Richard Corliss where he got his $52B/year figure, he said he got it from CBS. In 2007, when I asked the New York Times’ David Cay Johnson where he got his $13B/year figure, he said was just reporting what AVN published, and figures are hard to come by.

But not impossible. From my 2005 post, The Porn Monster:

  •  Deep Throat was produced in 1972 on a budget of about $25,000. Adjusted for inflation that’s about $125,000. You can probably count the number of porn videos that will be produced this year with similar budgets on one hand.
  • 99% of porn is shot on video cameras that cost about $3,500 on cassettes that cost about $3.
  • Nearly all other forms of shot-on-video entertainment use cameras costing $35,000-$100,000. Film cameras cost as much or more, and film costs about $1/second. There’s a reason that mainstream entertainment can afford this expense and porn cannot, and it’s not because they’re putting the difference up their noses.
  • Jenna Jameson is regarded as the most mainstream and successful porn actress ever; the pinnacle of success in her business. How does her financial success and respectability compare with someone at the pinnacle of success in any other area of the entertainment industry? In other words, how many porn stars have mansions in The Hamptons? (Answer? Zero.)

Some more facts:

  • The Screen Actors Guild (SAG) represents 110,000 actors
  • IATSE represents 120,000 people working in the film, television, and theatrical trades.
  • The Directors Guild of America represents 14,000 people.
  • There are over 700 players on the rosters of Major League Baseball: minimum salary, ~$700,000; average salary ~$3,000,000; top salary, over $15,000,000 annually.
  • For the last several seasons of the NBC television show Friends, the cast members were paid $1,000,000/per episode, each.
  • Based on the Adult Industry Medical Foundation’s (AIM) testing data, there are somewhere between 1,200-2,000 performers working in the mainstream straight adult industry (producers and performers who avail themselves of AIM’s HIV testing.) The average time in the industry for these performers is estimated at about six months, with per scene rates running between $300 and $1,500 depending on the acts depicted and the demand for the performer.

I do think the shift from Elk’s lodge smokers to theatrical distribution was hugely important in the evolution of the art and business of the erotic image; The Opening of Misty Beethoven couldn’t have happened without it.

And the shift from theatrical to home video was no less significant. But I think the only significance of the VHS vs. Betamax question is that it gave (and continues to give) the impression that the “adult entertainment industry” is some huge, highly lucrative enterprise; a great behind the scenes puppet master. As I said after my conversation with David Cay Johnston:

Looking from the outside, the existence of titles like DIRTPIPE MILKSHAKES (volumes 1 and 2) lends credence to this idea. After all, if a $13B/year industry is making dozens, perhaps even hundreds titles a year devoted to such exotic sexual interests as women eating semen out of other women’s anuses, then certainly there must be something out there for people with more pedestrian tastes – things like convincing, well-crafted depictions of mutually pleasurable sex.

But while there’s no shortage of anal creampie themed videos, gaping anus themed videos, and other things too unsavory to mention on this blog, finding well-crafted sexually explicit films that convincingly depict mutual pleasure is all but impossible. As I said to Stacy Grenrock Woods in Esquire a couple of years ago, it’s easier to find a well-made fishing show than a well-made sex film.

Porn’s supposed to be this multi-billion dollar a year business, so big and dangerous there’s an entire department at the DOJ devoted to it; and it churns out thousands and thousands of titles each year, seeming to serve every niche fetish—but it can’t seem to serve the widespread and basic desire that many people have to see a well-crafted depiction of two people who really seem to be enjoying having sex with each other.

People know in their gut something’s not right. People know there’s a disconnect. People know that what they want to see isn’t some specialized niche, it’s a basic human desire. Yet it goes unserved.

The restrictions on the distribution of erotic images (as in, you won’t be able to find MATT AND KHYM at Walmart, Blockbuster, etc.) has restricted the business to making money in a very few, and not especially lucrative ways. Porn margins are razor thin, and the result is that “the industry” vastly overserves niche sexual interest markets, where issues of production quality, or even simple honesty in packaging will be overlooked, while it vastly underserves sexual interests with broader appeal, but much higher expectations.

The combination of the digital video revolution and the internet has removed virtually all barriers to entering the market. These days, any idiot with a BestBuy credit card can make and market porn, and that’s just what’s happened. And anyone who’s taken a high school economics class knows what happens when too much supply chases too little demand.

(Side note, since that post our films have been listed at Blockbuster and Amazon, and that’s helped us avoid getting dragged down by the general collapse of the “adult market”, and most especially the implosion of the market for narrative-base sexually explicit films.)

So when I say Betamax vs. VHS is the wrong question, what I mean is that it doesn’t matter. Whichever format might have prevailed and for whatever reason, the future of sexuality and cinema took a decisive turn when it moved from a high risk, high expectation, high volume, high reward production and distribution format (theatrical) to a low risk, low expectation, low volume, low reward distribution format (home video).

Home video would utterly change the creative and business calculus both; replacing the need and potential reward of producing a film that could be enjoyed as a collective experience in communion with fellow audience members, with the much more fragmented task of producing erotic material that would be enjoyed in private. 

And where adult performers from the “golden age” might have only appeared in several dozen titles, a newcomer in today’s “adult industry” might rack up that many appearances in a few months in the business.

But as this need (and opportunity) for a much higher volume of production was beginning to strip away cinematic pretenses and pushing the industry toward unvarnished, self-contextualized depcitions of sex acts (this is a video of two people paid to have sex in order to make a video of two people having sex) it was also setting in motion the last significant confrontation between the camera, explicit sex, and the First Amendment.

Next up: California vs. Freeman: The revenge of the magic camera: How illegal actions become constitutionally protected speech.

Share and Enjoy:
  • Print this article!
  • Digg
  • Sphinn
  • Facebook
  • Mixx
  • Google Bookmarks
  • Reddit

Posted in Uncategorized.

II)C) Moore’s Law, Freeman vs. California (The Revenge of the Magic Camera), and  the Porn Revolution 2.0: How changes in law and technology mean that when everybody is special, no one is special.

Let’s have a quick re-cap of the legal-linguistic heritage:

In 1934 US v. Ulysses gave us “the intent to arouse” as legal doctrine, which continues to echo loudly in the popular and commercial conception of what serious treatment of sex in cinema can and should be.

In 1954 US v. Roth gave us “socially redeeming value/artistic merit”, which even today is applied as a quasi-legal standard in the US, and a standard backed by force of law in other countries.

In 1964 Jacobellis v. Ohio conflates obscenity with pornography, and adds the tremendously unhelpful phrase “I know it when I see it.” to the popular conception of what is a legitimate cinematic exploration of sexuality and what is pornography.

And to cap it off, in 1973 Miller v California sets as the law of the land an inscrutable, capricious, and geographically fractured standard for what is constitutionally protect speech.

So where does that leave us the day after the court announces the Miller decision?

After the 1973 Miller decision, it is legal to screen sexually explicit films, except when and where it isn’t. Like Hollywood producers in the 1920, producers of sexually explicit films in the post-Miller era are faced with a highly idiosyncratic market. In the 1970s the same film that might play in Peoria might be banned in Boston. Cities like San Francisco and New York are wide open, with people lining up in the streets to see films like Deep Throat.  But playing the same film in more socially conservative areas could land you in jail.

Unlike Loving v. Virginia (the 1967 Supreme court case that established constitutional protection for the right to heterosexual marriage, regardless of the race(s) of the persons involved,) or Lawrence v. Texas (the 2005 case that established constitutional protection for non-penile/vaginal intercourse between consenting adults, regardless of their genders) Miller v. California does not represent some great clarifying moment in law and custom. The  Miller case fails to settle the question of  the legality of screening sexually explicit films with any surety, and moreover it’s not even clear whether or not even making film that depicts actual sexual activity is legal. In addition to risk of obscenity charges for the distribution of films, there is also the risk of pandering and prostitution charges being leveled at the producers and cast.

The majority of sexually explicit offerings (before and after Miller) are more akin “actualities” than cinema, made primarily (some might say exclusively)  for the masturbatory pleasure of the audience (see the “Overcoat?” scene in the 1970 film The Owl and the Pussycat,) with other elements  interposed primarily as defense against prosecution.

But even as the X-rating (with all it’s masturbatory connotations) are already being lampooned, the possibilities of “adults only” cinema is still being given serious consideration, by Hollywood and independent “adult” producers both.

In 1973, three years after United Artists petitions to have Midnight Cowboy’s rating lower to an R, (and three years after the X-rating is lampooned in The Owl and the Pussycat,) United Artists is willing to roll the the dice one more time on the X-rating with Bernardo Bertolucci’s Last Tango in Paris, featuring Marlon Brando. ( Last Tango will prove to be the last time a star of this magnitude will appear in an Adults Only feature.)

At the same time, exploitation filmmakers were undertaking more ambitious productions. The box office receipts from playing in mainstream theaters fuels (relatively speaking) bigger budgets and bigger ideas,

And while Miller provides no real guidance on how to avoid the charge of obscenity, there are markets that are relatively low risk, and productions can hide from or pay off local law enforcement to avoid pandering and prostitution charges.  

In fact, this legally constricted post Miller/pre Freeman era will later be looked back on as The Golden Age of Adult Films. If you look at the best efforts from this time, you can see (if you’ll forgive my peering around the edge of the frame) the filmmakers aspirations and ambitions. I would go as far as saying that some of these films compare favorably with today’s celebrated indie/film festival circuit fare.

(Like most film fest efforts, a lot of what makes these films exciting is the promise of what a future, better funded, better crafted effort might yield than the film itself, and for an enthusiast that’s often enough. But like The Blair Witch Project, when viewed in light of how it all turned out, the films from “the Golden Age” aren’t quite so thrilling.  No Kevin Smith would emerge from the 70s ‘porno chic” era.)

Last Tango would be the last time a “mainstream” film would push the limits of explicit sexuality until the NC-17 rating in 1990, but even then those efforts would be obscure arthouse pictures without marque stars (Henry & June, The Cook, the Thief, His Wife, and Her Lover.

So why did it all come tumbling down? In less than a decade Hollywood had gone from Elizebeth Taylor bellowing “Hump the hostess!” to Marlon Brando muttering “Get thuh buttah.” and the landscape of legal censorship had gone from a film like The Lovers being charged with obscenity to enthusiastic reviews of The Devil in Miss Jones appearing in Newsweek and Variety.

 I’ve taken my own stab at explaining  it in the previous post, “How X-rated became synomymous with porn and the death of movie making for grownups” and if I had to sum it up I say it was three things: HIV, Reagan, and the VCR.

As I posted a couple of weeks ago over at The Art & Business of Making Erotic Films, my 12 year-old recollection of New York City in 1978 was that it “was a shit hole.” My recollection is confirmed by my uncle, who had lived in New York since the 50s, and chimed in with:

“New York [in the 70s] was a scary, dangerous, sexually overheated place back then. I remember always looking far ahead on the sidewalk where I was walking, ready to cross over to the other side of the street in a flash if I saw something or someone menacing up ahead.”

To get a sense of you can watch Taxi Driver, Summer of Sam, Gay Sex in the 70s and reruns of The Equalizer.

And the mood wasn’t so different in the rest of the country. There was a sense that the sexual revolution of the 60s had gone too far, and the backlash started to build. 


Seeing the handwriting on the wall, and (ever) risk averse, Hollywood began offering films like Looking for Mr. Goodbar, Dressed to Kill, and Cruising; fully-funded R-rated cautionary tales about sexual excess. With the benefit of hindsight  The Opening of Misty Beethoven in 1976 would end up being regard as the high water mark of the Golden Age of Adult Cinema, and nothing after it had the creative or  financial clout to stand against the forces that rallied together and began the great push back.  X-rated films were driven out of the theaters and away from the box office receipts that had fueled their (short lived) golden age.  

If things had remained this way, I don’t think it’s unreasonable to suggest that sexually explicit films would have reverted to the “Elk’s Lodge basement smokers” of the 50s and early 60s; clandestine screenings of actualities for small groups. But instead, changes in law and technology would arrive  that ultimately would mean no one would ever have to sit next to a stranger (or rent a raincoat!) to see sexual explicit imagery ever again.

In section II)C we’ll look at:

  1. Why Betamax vs VHS was the wrong question, and is still giving us wrong answers.
  2. California vs. Freeman: The revenge of the magic camera: How illegal actions become constitutionally protected speech.
  3. Buttman and The Sony VX1000: The rise of “Gonzo.”
  4. The Internet: The barriers to entry fall to zero.
Share and Enjoy:
  • Print this article!
  • Digg
  • Sphinn
  • Facebook
  • Mixx
  • Google Bookmarks
  • Reddit

Posted in Uncategorized.

II)B)4 Miller vs. California: The “Miller Test” and how the magic camera transforms legal actions into criminal thoughts.


After years of the highest court in the most powerful nation on earth wrestling with the question of obscenity in cinema, and even being reduced to watching films and deciding what was and was not obscene on a case by case basis, in 1973, and by a 5/4 decision, the court was finally able to come up with an clear and impartial standard for determining what was obscenity. A standard that would allow them to delegate the important work of deciding what is art and what is obscenity to lower courts.

Ladies and gentlemen, the Miller Test. The means by which it is determined whether or not a work dealing with sexuality is entitled to protection under the First Amendment, or is obscenity, work for which a person can be jailed. A work is obscene if all three of the following conditions are satisfied:

  • Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
  • Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
  • Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value

A couple of things worth noting about the Miller Test.

First and foremost, whether or not a work is obscene can only be determined by subjecting the producer, distributor and/or exhibitor to a criminal prosecution. If you make art – photos, films, videos, painting, drawings, sculpture, writing – that deals with sexuality, you cannot know before you are charged whether or not your work might be considered obscene, and even after you’ve been charged, whether or not your work constitutes a criminal offense can only be determined by going to trial. 

Whether or not a work might be considered obscene can and does vary from jurisdiction to jurisdiction. The Utah lingerie store owner I met in 2007 doesn’t carry our films because she’s afraid of being charged with violating Utah’s obscenity statutes. Retailers in New York have no such fears.

Now before you get your dander up and start carrying on about the First Amendment (or the Fourteenth,) these sorts of vagaries are not unprecedented in law. In fact the law cannot function without them.

For example, if you shoot someone and claim it was self-defense, you have to go to court and prove it. If you go to your place of work and shoot your boss, and then claim you didn’t know right from wrong because eating twinkies made you insane, you have to go to court and prove it. These are called “affirmative defenses.”

Geographical variances in what is and it not permissible are also not unknown. For example, I grew up in Oregon and bought guns at K-mart, but the Second Amendment absolutist in me has a hard time answering when my Brooklyn born and raised wife asks, “So you think they should sell guns at the K-mart at Penn Station in midtown Manhattan?”

Let’s leave aside (for now) whether or not it’s a good idea for the government t regulate sexually explicit speech; or even if it is where or not or using this approach to regulating sexually explicit work is the best approach.  That argument’s been going on for nearly 40 years, and so far, Miller stands.

Instead, let’s look at the effect the approach dictated by Miller has on how films that deal with sexuality are produced and distributed. 

Mainstream retailers avoid films that depict actual sexual intercourse unless the work is cloaked in the rubric of “health” or “education.”

The vanishingly small number of producers of works of pure entertainment that contain actual sexual intercourse who need access to mainstream markets to see a sufficient return on their investment (ie people making “real movies”) will shape both their approach to  sexual themes and their marketing in a away that refutes the charge that their work is “pornography.” As we saw in 9 Songs, Shortbus, and  Destricted the usual gambit is to deny that the work is made with “the intent to arouse.” [see the previous post II)B)2) Roth vs US: The question of “socially redeeming value.”]

Producers, distributors, and retailers who make and market sexually explicit films with an overtly expressed intent of arousing their viewers take a different tack in dealing with not knowing where, when, or why they might be charged with obscenity.

Since the Miller decisions, there have been sundry and various lists of acts and scenarios understood to be especially likely to draw unwanted attention from authorities, the most famous of these being the Cambria List, produced by lawyer Paul Cambria, a sort of Hays Code for the “adult industry”:

Box-Cover Guidelines/Movie Production Guidelines

  • Before selecting a chrome [still image] please check facial expression. Do not use any shots that depict any unhappiness or pain.

Do not include any of the following:

  • No shots with appearance of pain or degradation
  • No facials (bodyshots are OK if shot is not nasty)
  • No bukakke
  • No spitting or saliva mouth to mouth
  • No food used as sex object
  • No peeing unless in a natural setting, e.g., field, roadside
  • No coffins
  • No blindfolds
  • No wax dripping
  • No two dicks in/near one mouth
  • No shot of stretching pussy
  • No fisting
  • No squirting
  • No bondage-type toys or gear unless very light
  • No girls sharing same dildo (in mouth or pussy)
  • Toys are OK if shot is not nasty
  • No hands from 2 different people fingering same girl
  • No male/male penetration
  • No transsexuals
  • No bi-sex
  • No degrading dialogue, e.g., “Suck this cock, bitch” while slapping her face with a penis
  • No menstruation topics
  • No incest topics
  • No forced sex, rape themes, etc.
  • No black men-white women themes

Similarities between the Cambria List and the Hays Code start and end with the fact that both are lists of content thought be be likely to draw legal sanction, and neither have force of law. The “adult industry” has never had anything approaching the group cohesion of the Hollywood majors (not a strong statement). There has never been an “adult industry seal” that could be withheld from productions that deviated from the Cambria List or any other guidelines for content or production practices. Much of what is on the Cambria List is now commonplace, but depictions of some acts (such as fisting) or fictional scenarios (rape, incest) continue to be regarded as an invitation to prosecution. Videos with depictions of such acts will generally be avoided by “mainstream” adult distributors, but a have become readily available on the internet.

There are also geographical challenges (ie: “penetration is illegal in Utah.”) 

Bricks and mortar outlets (like our lingerie shop owner or Blockbuster) deal with local law enforcement directly, and tailer their inventories accordingly. What national retailers will and will not stock is skewed by the most conservative jurisdictions in which they do business.

Most mail order catalog retailers maintain databases of problematic zipcodes and do not ship to these zipcodes. It is not uncommon for these retailers to refuse to ship to entire states, such as Utah or Alabama. Thanks to the (ultimately failed) prosecution in 1990 of the Cincinnati Contemporary Arts Center and its director, Dennis Barrie,  on obscenity charges stemming from an exhibition of photographs by Robert Mapplethorpe, Cincinnati zipcodes are usually on this database, while the rest of the state of Ohio usually is not. Like the no-fly list, once a zipcode gets onto a database, it’s probably not going to come off.

In other words, after Miller vs California, the legal landscape for films that deal with sexuality looks a lot like the legal landscape faced by Hollywood in the 1920s. In the 1920s a Hollywood producer had no way of knowing for sure where and for what reason his film might be subjected to legal sanction. In the 1920s, whether the product of an outraged community group, a religious demagogue, or an ambitious local prosecutor, a Hollywood producer could find himself hauled into court, or at least, unable to sell a product in which he had a significant financial investment.

It’s no different for me today. The same prosecutor who leaves his card with that lingerie shop owner in Utah could go to our website, order a DVD, and then charge me with violating Utah’s obscenity statutes. That same prosecutor could (theoretically) go to Amazon, order a copy of 9 Songs or Shortbus, and then charge Jeff Bezos with distributing obscene materials. In this environment, how producers, distributors, and retailers balance the risks and rewards of making and distributing sexually explicit films is informed by their financial and creative resources, their tolerance for risk, their social capital, and what if, any personal agenda they may have.

Miller didn’t quite get the US Supreme Court of the business of making direct rulings on whether or not a particular film is constitutionally protected speech. In 1974 the court ruled on Jenkin vs. Georgia, a case involving the screening of Mike Nichols’ film Carnal Knowledge in Albany, Georgia in 1972 and the resulting conviction of Jenkins on under Georgia’s obscenity laws. The Supreme Court ruled that 1) Although Jenkins was convicted in 1972 (a year prior to Miller) he was entitled to protection under Miller. 2) That under Miller Carnal Knowledge was not obscenity, and there for was constitutionally protected speech.

Again, as in Miller, Justice Brennan, joined by Stewart and Marshall expressed their doubts about Miller, both as a constitutional or practical law:

In order to make the review mandated by Miller, the Court was required to screen the film Carnal Knowledge and make an independent determination of obscenity vel non. Following that review, the Court holds that Carnal Knowledge could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene.” Ante, at 161.
Thus, it is clear that as long as the Miller test remains in effect “one cannot say with certainty that material is obscene until at least five members of this Court, applying [418 U.S. 153, 165] inevitably obscure standards, have pronounced it so.” Paris Adult Theatre I v. Slaton, 413 U.S., at 92 (BRENNAN, J., dissenting). Because of the attendant uncertainty of such a process and its inevitable institutional stress upon the judiciary, I continue to adhere to my view that, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly `obscene’ contents.”

Jenkins vs. Georgia would be the last time the US Supreme Court would issue a direct ruling on whether or not a particular film was or was not obscene. Subsequent Supreme Court “obscenity” cases would focus on minors, drive in movies, and other issues more related to consent than the question of whether or not some ideas about sex cannot legally be expressed, even in private to a willing adult audience.

The closest the court would come to revisiting issues of sexual morality or taste with regard to film was in the 1985 case Brockett v. Spokane Arcades, Inc, wherein the US Supreme Court would reverse the Washington State Supreme court’s decision striking down of the “prurience standard” as being overly broad because, as defined in Roth, prurience included “lust” which the Washington Supreme court defined as a “normal” sexual response. My reading is that the case rested more severablity (whether or not an overly broad law must be thrown out in it’s entirety, or just have pieces thrown out) than on the court’s eagerness to create a sharp distinction between normal, wholesome lust and it’s more debauched cousin, prurience. But again, I’m not a lawyer. I’m just a filmmaker trying to make films without ending up in jail.

I subtitled this section “how the magic camera transforms legal actions into criminal thoughts” because under the Miller Test, there exists the possiblity that my wife and I could be charged with obscenity. Given the relatively “tame” sex acts depicted in our films, an the context, that seems unlikely.

But as a matter of principle we do not maintain a do not ship list, and I am ever mindful of the short film we made some 15 years ago, when we were working with couples privately to do “studies” to refine our approach to depicting sex.

The second couple with whom we ever did a study enjoyed (much to our surprise) some relatively exotic sex acts as  a part their bedroom play, including vigorous fisting, female ejaculation (squirting) and anal sex. This couple was long married and none of what they did with each other was illegal in the state of New York. The film we made was and remains private, and has only ever been shown to invitation-only audiences in New York and California. 

But if I were to show this film, even in only by private invitation, in a jurisdiction with a difference standard for obscenity, this privately and consensually produced, film, of consensual, legal activity could somehow (magically) transform into a criminal thought. As a photographer this simply boggles my mind.

I understand that our country is diverse and that the laws that work in one place (guns in K-mart in Oregon) may not work in another (guns in K-mart in Penn Station.)

Yet somehow this feels different. It’s very hard for me to accept that consensual activities between adults, activities that are in and of themselves legally protected private behavior can somehow be transformed into illegal thoughts by recording these activities photographically.

Yet this is the law of the land as laid down by the Supreme Court of the United States in 1973. After mediating on and revising the definition of obscenity on several occasions in the two decades leading up to and including Miller, the Supreme Court has not seen fit to revisit the question in the nearly 40 years since.

And lastly, although Miller was largely conceived of as a means to determine whether or not a depiction drawn from real life (ie a photographic rendering) is or is not obscene, there is nothing inherent in the court’s ruling that prevents this test from being applied to purely imaginary sexual depictions. Since my wife and I produced the above described short film, there have been prosecutions and jail sentences for the distribution of drawings in the form of comic books, and even for the distribution of purely textual writing. A camera is no longer requisite equipment to become a thought criminal; a simple pen and ink now will suffice.

The regulation of sex and cinema has one more strange twist. Not only does the camera have the power to transform legal behavior into criminal thought, it can also transform criminal behavior into constitutionally protected speech. Feeling a little whip-sawed? Me too!

Next up: Moore’s Law, Freeman vs. California, and  the Porn Revolution 2.0: How changes law in technology mean that when everybody is special, no one is special.

Share and Enjoy:
  • Print this article!
  • Digg
  • Sphinn
  • Facebook
  • Mixx
  • Google Bookmarks
  • Reddit

Posted in Uncategorized.

II)B)3 Jacobellis vs Ohio: “I know it when I see it.”

The 1964 Supreme Court case Jacobellis vs. Ohio centered on the obscenity conviction of Ohio theater owner Nico Jacobellis for screening the 1958 French film The Lovers (Les Amants). Again at the risk of sounding condescending, I’m not sure a modern audience can fully appreciate that there was a time in this country when a person could be put on trial for showing a film like The Lovers (or for publishing a book like Ulysses for that matter.)

But as unbelievable as it sounds, it’s true. In 1964 in a lot of places in the US marriage between blacks and white was illegal; in 1964 in a lot of places in the US it was illegal even for husbands and wives to engage in oral sex; and in 1964 screening a film like The Lovers could land you in jail. 

Jacobellis appealed to the Supreme Court of Ohio and lost.

Ultimately Jacobellis ended up the Supreme Court of the United States. Here are the final two paragraphs of the court’s decision, written by Justice William J. Brennan:

We recognize the legitimate and indeed exigent interest of States and localities throughout the Nation in preventing the dissemination of material deemed harmful to children. But that interest does not justify a total suppression of such material, the effect of which would be to “reduce the adult population . . . to reading only what is fit for children.” Butler v. Michigan, 352 U.S. 380, 383. State and local authorities might well consider whether their objectives in this area would be better served by laws aimed specifically at preventing distribution of objectionable material to children, rather than at totally prohibiting its dissemination. Since the present conviction is based upon exhibition of the film to the public at large and not upon its exhibition to children, the judgment must be reviewed under the strict standard applicable in determining the scope of the expression that is protected by the Constitution.

We have applied that standard to the motion picture in question. “The Lovers” involves a woman bored with her life and marriage who abandons her husband and family for a young archaeologist with whom she has [378 U.S. 184, 196] suddenly fallen in love. There is an explicit love scene in the last reel of the film, and the State’s objections are based almost entirely upon that scene. The film was favorably reviewed in a number of national publications, although disparaged in others, and was rated by at least two critics of national stature among the best films of the year in which it was produced. It was shown in approximately 100 of the larger cities in the United States, including Columbus and Toledo, Ohio. We have viewed the film, in the light of the record made in the trial court, and we conclude that it is not obscene within the standards enunciated in Roth v. United States and Alberts v. California, which we reaffirm here.


Jacobellis’ acquittal, and the film The Lovers, and Brennan’s decision are mostly forgotten. So it seems is the context and meaning of Justice Potter Stewart’s concurrence with Brennan’s ruling: 

It is possible to read the Court’s opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts,1 that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography.2 I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. (Emphasis mine.)

“I know it when I see it” is perhaps the most famous Supreme Court quote of all time; and it is certainly the most miscontextualized. The phrase is ripped from a passage where Justice Stewart expresses his doubts that a legal standard for obscenity might ever be found, he is saying that whatever definition of obscenity one might use and however poor that definition might be, the film The Lovers does not fall within any conceivable definition of obscenity.

For me the great irony of the colloquial use of “I know it when I see it” is that it rests on the idea that obscenity/pornography can be readily identified by strictly (as Walter Murch might put it) “in the frame information.” Yet the various legal and quasi-legal definitions rest entirely on “out of the frame information,” i.e. the ability to divine the intent of the artist, and/or the effect on the viewer. From a practical stand point, what it means for an artist who explores sexuality is that one’s work will be found to be obscene/pornographic at the convenience of the person laying the charge, and that whether or not the charge sticks is pure realpolitik.

It means that the same night that Destricted plays at the government funded Australian Center for the Moving Image (complete with a panel discussion on the difference between art and pornography), the same government will dispatch  armed police to prevent the world premiere of Ashley and Kisha: Finding the Right Fit at the (privately funded) Melbourne Underground Film Festival. 

It means that when a District Attorney in Utah decides that “penetration is illegal” the only thing he has to do to make his interpretation of obscenity stick is to drop off his business card in a lingerie shop owner’s mailbox every few weeks (I met this women at an apparel trade show in 2007 where she decided she couldn’t risk offering our films to the women who frequent her shop.)

It means that when I met a Harvard-educated professor teaching at a university in Oklahoma at the 50th annual meeting of of the Society for the Scientific Study of Sexuality  and he picked up on of my DVDs and asked me if my films showed penetration, and I answered “Of course,” he set the DVD back down and told me “Oh, then I can’t use them. Penetration is illegal in Oklahoma.”

It means that after 15 years of making my films first and foremost for the entertainment of my audience, I feel compelled to pause, and turn my attention towards making explanations for the benefit of critics, theorists, and lawyers.

In any event, Justice Stewart’s words were to prove prophetic. For the next several years, the Supreme Court of the United States would be unable to circumscribe a legally workable definition of obscenity, and so pressing was this question of obscenity in cinema, that the highest court in the the most powerful county in the world was reduced to functioning as a film review board, screening potentially obscene movies on a weekly basis and passing individual judgements on each one. 

This would continue until 1973 when, presumably growing weary of their role as movie critics, via a 5/4 decision the Supreme Court would find its way to a definition of obscenity that has stood for more than 30 years. Justice Stewart would sign on to the dissent in this case. Somewhere between 1964 and 1973 Stewart reached the conclusion that the idea of obscenity as an unprotected class of speech was an untenable position. 

Next up: Miller vs. California: The “Miller Test” and how the magic camera transforms legal actions into criminal thoughts.

Share and Enjoy:
  • Print this article!
  • Digg
  • Sphinn
  • Facebook
  • Mixx
  • Google Bookmarks
  • Reddit

Posted in Uncategorized.

II)B)2) Roth vs US: The question of “socially redeeming value.”

Two museum goers contemplate photos by artist Jeff Koons at the Tate Modern

Roth vs. US is the 1957 Supreme Court case that dealt with the prosecution of Samuel Roth, who was convicted of sending obscene material through the mail, and to the best of my knowledge (legal scholars please chime in!) is the court’s first attempt to define this curious subject of speech that stands alone in not having protection under the First Amendment. Excepted from the court’s decission:

 3. Obscenity is not within the area of constitutionally protected freedom of speech or press – either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States. Pp. 481-485.

(a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. Pp. 482-483.
(b) The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. P. 484.
(c) All ideas having even the slightest redeeming social importance – unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion – have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests; but implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. Pp. 484-485. [354 U.S. 476, 477]
4. Since obscenity is not protected, constitutional guaranties were not violated in these cases merely because, under the trial judges’ instructions to the juries, convictions could be had without proof either that the obscene material would perceptibly create a clear and present danger of antisocial conduct, or probably would induce its recipients to such conduct. Beauharnais v. Illinois, 343 U.S. 250 . Pp. 485-490.
(a) Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest – i. e., material having a tendency to excite lustful thoughts. P. 487.
(b) It is vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. Pp. 487-488.
(c) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. Pp. 488-489.
(d) In these cases, both trial courts sufficiently followed the proper standard and used the proper definition of obscenity.

Again the distinction hinges on whether or not the material in question “excites lustful thoughts”, but Roth opens the to the possibility that sexual explicit books, art, movies might not be obscene if they don’t appeal to prurient interest.

But the passage I especially want to call from the chuck above out it section 3)c:

All ideas having even the slightest redeeming social importance – unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion – have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests; but implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.

The way I read it is “exciting lustful thoughts” equals obscenity, but obscenity never has redeeming social importance, ego “exciting lustful thoughts” never has redeeming social importance.

And although Roth is no longer the law of the land (Miller v California superseded Roth in 1972) the decision’s linguistic legacy still permeates our attitudes about sex and cinema. Whether at a cocktail party or on an academic panel, discussion of the question of what is Art and what is Pornography is never complete until someone utters the phrase “socially redeeming value” or its dark handmaiden “artistic merit.”

In the next post we’ll have a look at Jacobellis vs Ohio, which gave us the granddaddy of all misunderstood, misconstrued and misused Supreme Court quotes of all time: “I know it when I see it.”

Share and Enjoy:
  • Print this article!
  • Digg
  • Sphinn
  • Facebook
  • Mixx
  • Google Bookmarks
  • Reddit

Posted in Uncategorized.

II)B)1) US vs. Ulysses: The origin of  ”intent to arouse” as legal doctrine.

 In the chapter, “Seeing Around the Edge of the Frame” from his book IN THE BLINK OF A EYE film editor Walter Murch writes the following:

The film editor is one of the few people working on the production of a film who does not know the exact conditions under which it was shot (or has the ability not to know) and who at the same time has a tremendous influence on the film.

If you have been on and around the set most of the time…you can get caught up in the bloody practicalities of the gestation and delivery. And when you see the dailies, you can’t help, in your mind’s eye, seeing around the edges of the frame–you can imagine everything that was there, physically and emotionally, just beyond what was actually photographed.

“We worked like hell to get that shot, it has to be in the film.” You (the director in this case) are convinced that what you got was what you wanted but there’s a possibilities that you may be forcing yourself to see things that way because it cost so much–in money, time, angst–to get it.

By the same token, there are occasions when you shoot something that you dislike, when everyone is in a bad mood, and you say under protest, “all right, I’ll do this, we’ll get this close-up and then it’s a wrap.” Later on, when you look at the take, all you can remember was the hateful moment it was shot, and so you may be blind to the potentials it might have in a different context.

The editor, on the other hand, should try to see only what’s on the screen, as the audience will. Only in this way can the images be freed from the context of their creation…

I guess I’m urging the preservation of a certain kind of virginity. Don’t unnecessarily allow yourself to be impregnated by the conditions of shooting…the audience knows nothing about any of this–and you are the ombudsman for the audience.

I’m a big fan of Murch’s ideas about art. Although I enjoyed and value my university art department education very much, one of my frustrations was that we spent an awful lot of time talking about “out of the frame information,” and it sometimes seemed to me as if the fine arts world was more concerned with everything outside of the frame than with the artwork itself, and perhaps it was because of this frustration that after graduation I gravitated toward commercial work.

In commercial work there are no artist’s statements, no quizzical listings of materials, no academic pedigrees; everything has to be inside the frame. Art directors don’t care why you made the photograph, or what your motives and intentions were, they only care about what the photo looks like. This perfect “inside the frame world” was a comfortable place for me.

But to start making and marketing my own films, I had to leave this wonderfully Murchian world and begin to think about how I would manage and shape the “out of the frame information” that surrounded my films.  

It’s a simple fact that an audience rarely comes to a film with their “virginity” intact. “Based on a true story,” “Filmed on location,” “Did all of his own stunts,” “Real People, Real Life, Real Sex,” all of these are framing devices producers use to market our films, and to guide audiences toward seeing our films the way we want them to be seen. So is “By women, for women,” or “feminist”. So is “documentary.” As producers we purposely let people “see outside the frame” to try to influence the way they respond to our work.

But when working with sexuality, a producer faces an added burden. Not only must you manage and shape the out of the frame information that helps sell your film to your audience, you must also shape the out of the frame information in a way that satisfies the state that the ideas you are expressing are not a criminal offense. You must create a narrative for your intentions in order to place the outcome of those intentions inside the boundaries of what the law permits.

For me, an artist whose highest aspiration is to make work that can be enjoyed as it stands, the obligation to explain myself sticks in my craw.

When I get questions at director’s Q&A’s like, “What did you want us to get out of your movie?” I find myself at a loss for words.  (Answer: If you have to ask, I feel like a failure.) But on top of that, I’ve got to have the right intentions when I make my films, otherwise my films aren’t art. If I don’t make my films with the right intentions, then me and my work aren’t entitled to the same basic protections and courtesies afforded anyone else tackling any other subject matter.

And the one intention I must not have under any circumstances is the intention to arouse my audience. All other human emotions I might hope to provoke are fair game, but the intent to arouse is, at best, the realm of the pornographer, and at worst, a criminal undertaking. As an artist hoping to explore sex as a fundamental and joyful part of  the human experience with honesty and compassion, this puts me in an untenable position.

So where does this idea come from? Where  is it written that the intent to arouse is the dividing line between art – expression that enjoys the full protection the First Amendment and a place in decent society, and obscenity – ideas about sex so beyond the pale that the mere expression of these ideas constitutes a crime? 

Again, I’m not a legal scholar, but I am a filmmaker for whom this question is something more than an amusing academic diversion. This question drives the the heart of whether or not I can make my films, and so I’ve put more than a little effort into finding an answer, and that effort leads me to the 1934 court case US vs. One Book Called Ulysses.

James Joyce Ulysses was first published in 1922, and US vs. One Book Called Ulysses was a test case orchestrated by Random House to challenge prohibitions on the publication of Joyce’s novel on the grounds that it was obscene; passages of the novel contained “four letter words” and described character’s interior thoughts about sex with a candor that seemed to run afoul of the black letter of the law.

At the time Joyce was already a highly regarded author, and Justice John Woolsey was faced with the prospect of declaring a masterwork of the English language as unfit for publication in the United States. Caught between a rock and a hard place, Woolsey found his way out by divining the effect of Ulysses on its readers:

“[W]hilst in many places the effect of Ulysses on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac.”

In other words, Ulysses was not arousing, and therefore it was not obscene. It is reported that within 10 minutes of hearing Justice Woolsey’s Random House began typesetting the US edition.

The government appealed Woolsey’s decision, and lost. But again the court’s decision rested on whether or not Ulysses was arousing to its readers. Justice Augustus Hand writes the court’s opinion:

“Art certainly cannot advance under compulsion to traditional forms, and nothing in such a field is more stifling to progress than limitation of the right to experiment with a new technique. The foolish judgments of Lord Eldon about one hundred years ago, proscribing the works of Byron and Southey, and the finding by the jury under a charge by Lord Denman that the publication of Shelley’s “Queen Mab” was an indictable offense are a warning to all who have to determine the limits of the field within which authors may exercise themselves. We think that Ulysses is a book of originality and sincerity of treatment and that it has not the effect of promoting lust. Accordingly it does not fall within the statute, even though it justly may offend many.”

70 years later, the language of the Ulysses decision still permeates our attitudes about what constitutes serious treatment of sexuality in cinema, and sends producers and censors both into paroxysm of explanation and denial.

Michael Winterbottom on his film 9 Songs:

[I]t isn’t pornography, the truth is, you know, this was an attempt to show two people in a relationship, to show two people making love. It was not an attempt to excite the audience, or arouse the audience. You know, if you watch a porn movie, you watch a bunch of porn movies, and then watch ‘9 Songs‘ – however you define pornography, ‘9 Songs‘ just doesn’t look like the porn movies, doesn’t sound like them. It just doesn’t have the same effect as them. It’s just a completely different thing. That’s not to say it’s better than pornography, or worse, it’s just different. 

John Cameron Mitchell on his film Shortbus:

“[A]ll of the orgasms and all of the semen is real [but] no one got a hard-on watching this film… We have to keep reminding people it’s not pornographic – it’s not a film that’s meant to arouse. We tried to de-eroticize the sex to see what kind of emotions and ideas are left over when the haze of eroticism is waved away…by the end if you’re thinking only about the sex, then you have a problem.”

The BBFC and the Tate Museum on the film Destricted:

“After considerable agonising, the British Board of Film Classification granted an 18 rating for Destricted this week, to be released uncut on DVD. But it said that it must carry a warning that it “contains strong, real sex”.

“A source at the board described the film as “awful”. Unusually, it was not approved until it had been seen by the board’s president, Sir Quentin Thomas.

“The board had considered granting a Restricted 18 DVD classification, reserved for work intended to be arousing. That would have meant that a Destricted DVD could be sold only in sex shops and would have ruled out the possibility of its being put on sale in the shop at Tate Modern, where the film is to be given five screenings in September.

“Sir Quentin said that Destricted was so explicit that it would normally attract an R18 rating but he judged that it was a work of art not intended to arouse.

“He said: “In purpose and effect, this work is plainly a serious consideration of sex and pornography as aspects of the human experience.

“We think that there are no grounds for depriving adults of the ability to decide themselves whether they want to see it.”

“Tate Modern said the film was art not pornography.”

For myself, I feel hopelessly boxed in. I make films about couples who are in love with each other, enjoying that love in its most carnal and intimate expression. While I don’t believe that arousal is a necessary condition for enjoying my films (I’m pleased that at least sometimes, my films are able to cross boundaries of sexual proclivity and taste,) I’m not the least bit ashamed that for many people the erotic aspect of my films, being aroused by watching them, is an important and enjoyable part of their experience.

But my unwillingness to deny this aspect of my films comes at a price. In countries like the UK or Australia, my films have been denied the chance to screen in front of audiences of fully informed adults. Here in the US, retailers that carry Shortbus or 9 Songs refuse to carry my films because they don’t carry “pornography” or worse –because they fear prosecution. I have even had a university professor tell me that even though he would like to use my films in his classroom, he doesn’t for fear of prosecution.

This  conflations of “obscenity” (expression of ideas about sexuality that do not enjoy First Amendment protections) and “pornography” (a category with no legal meaning in the US) presents one of the greatest challenges to the serious exploration of sexuality in cinema.

To be regarded as a “serious effort” a director must forgo the depiction of sexual joy with any sort of candor. Under the tyrany of the “intent to arouse doctrine” trying to depict joyful adult sexual relations like like try depict war without having the option to show bullet wounds or broken bodies. It’s not impossible, but it is stifling, and leaves important truths about this fundamental human experience unseen and uncelebrated.

And more than that, the director must also proclaim that his depictions of sexuality, no matter how joyless,  are made without the intention to,  or even have the capacity to provoke an erotic response in his audience.  I can think of no other subject matter where a director would be so presumptuous as to dictate how the audience can and should respond to a film

In the next post we’ll look at Roth vs US, and again we’ll be looking at it, not for it’s legal legacy, but for language from the decision that continues to shape people’s attitudes towards the collision of sex and the moving image.

Tomorrow: Roth vs US: The question of “socially redeeming value.”

Share and Enjoy:
  • Print this article!
  • Digg
  • Sphinn
  • Facebook
  • Mixx
  • Google Bookmarks
  • Reddit

Posted in Uncategorized.