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Pornography in the United States

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Pornography in the United States as a legal term by itself at the federal level, except the generic terms "hardcore pornography"[1] and "child pornography",[a] does not exist since the 1973 Miller v. California case,[2][3] when the U.S. Supreme Court added a legal significance to the term "obscenity", which encompasses the hardcore[4] and is defined by the Miller test.[5][6] The case, despite of demonstrating that the hardcore pornography enjoys no First Constitutional Amendment protection, recognized that individual communities had different values and opinions on pornography and since then the states can pass their own laws on it. The Court held 5-4 that the state may outlaw the showing of hardcore pornographic films, even if the "adult theatre" is clearly labeled and warns.[b] Relying on 1930 Tariff Act and under the terms "obscene" and "immoral", the U.S. Customs and Border Protection prohibits the importation of any pornographic material.[7]

2003 Heinle's Newbury House Dictionary of American English defined pornography as "obscene writings, pictures, or films intended to arouse sexual desire". In the 1985 American Booksellers Association v. Hudnut case, a federal appeals court struck down an Indianapolis ordinance that employed the definition "sexually explicit subordination of women", worded by feminists. Currently California and New York are the only states with case laws (1988 People v. Freeman and 2005 People v. Paulino respectively) that tend to support pornographic movies not being subject to the mostly illegal prostitution related charges, such as pandering against the producer.

Modern American pornographic industry has an annual income of several billion USD. Although the states have a different age of consent, in accordance with the Federal Labeling and Record-Keeping Law all models involved should currently have 18 years of age and this kind of material is often labeled as "adult". The appropriate disclaimers are common. The internet maintains a significant part of American adult entertainment, also because the 1997 Reno v. American Civil Liberties Union case specified that the term "indecent" also has no specific legal meaning in the context of the internet. Another major branch are adult movies. Mainstream American pornographic journals include Playboy, Penthouse and Hustler, but there is also a wide range of fetish magazines. The fourth and the last major branch is a Pay-Per-View broadcasting. The so-called portable porn market is in its initial stage in the US.[8] Cellphone companies are reluctant to become partners with the adult entertainment for fear of being stigmatised and by community standards.[9]

Formal issues

Seal of the United States Supreme Court.
Further information: Censorship in the United States
See also: Legal status of Internet pornography and Anti-pornography movement

I shall not today attempt further to define the kinds of material I understand to be embraced... [b]ut I know it when I see it... Justice Potter Stewart, Jacobellis v. Ohio, 1964

The term "pornography" first comes from a certain 1857 medical dictionary, which defined it as "a description of prostitutes or of prostitution, as a matter of public hygiene",[10] therefore pornography by itself was not a widely used term in nineteenth-century America[11] and the term did not appear in any version of American Dictionary of the English Language in its early editions. The dictionary introduced the entry in 1864, defining it primarily as a "treatment of, or a treatise on, the subject of prostitutes or prostitution".

The upcoming censorship of pornographic materials in the United States, among the First and partially Ninth Amendments to Constitution, became based on the so-called harm principle, as well as in Canada and the United Kingdom.[12] The absolutist interpretation of the First Amendment as applied to pornography has never been sustained by the Supreme Court.[13] During the Warren Court justices Potter Stewart, Byron White and Arthur Goldberg shared the opinion that only hardcore was not protected by the First and Fourteenth Amendments.[14] The 1968 Report of the Commission on Obscenity and Pornography by 12 of its 17 members recommended that not only federal, but also state and local legislation prohibiting the sale, exhibition or distribution of "sexual materials" to consenting adults should be repealed but later it was determined that a distinction between the pornographic and the sexually explicit content is completely artificial.[15] After the Jacobellis v. Ohio case, recognizing ambiguities, it was chosen to use the term "sexually explicit content" as one of the pornography's euphemisms.[16] In this period the Court considered pornography to have two major dimensions. The first can be defined as dealing with sexual representations that are offensive to public morality or taste, which concerned the Court notably in the 1966 Ginzburg v. United States case. The second centers on the effect of pornography on specific individuals or classes, which is the focus of most public discussions and prior Court pornography decisions. This dimension was mentioned only twice in the array of decisions made in 1966. The 1976 American Heritage Dictionary of the English Language defined that pornography consists of "written, graphic, or other forms of communication intended to excite lascivious feelings". The 1982 New York v. Ferber case faced the phenomenon of child pornography which was actually defined and condemned ("Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions"). Current 18-age-related disclaimers are based on what "depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs".[17]

Income

The 1979 Revision of the Federal Criminal Code stated that "in Los Angeles alone, the porno business does $100 million a year in gross retain volume" while "the average porno magazine sells for between $6 and $10 each". According to the 1986 Attorney General's Commission on Pornography, American adult entertainment industry has grown considerably over the past thirty years by continually changing and expanding to appeal to new markets, though the production is considered to be a a low-profile and clandestine.[18] The total income of modern country's adult entertainment is often rated at $10-13 billion,[19] of which 4-6 billion are legal. The figure is often credited to a study by Forrester Research and was lowered in 1998.[20] Other sources, quoted by Forbes (Adams Media Research, Veronis Suhler Communications Industry Report, IVD), even taking into consideration all possible means (video networks and pay-per-view movies on cable and satellite, web sites, in-room hotel movies, phone sex, sex toys and magazines) mention the $2.6-3.9 billion figure (without the cellphone component). There were however similar contradictory statements, for example that Danni's Hard Drive and Cybererotica.com generated $2 billion in revenue in 2003, which is allegedly about 10% of the overall domestic porn market.[21] The adult movies income (from sale and rent) was once estimated by "AVN Publications" at $4.3 billion but the figure obtaining is unclear. According to the 2001 Forbes data the annual income distribution is like this.

Adult Video $500 million to $1.8 billion
Internet $1 billion
Magazines $1 billion
Pay-Per-View $128 million
Cellphones $30 million[22]

The Online Journalism Review, published by the Annenberg School of Communication at the University of Southern California, weighed in with an analysis that favored Forbes' number. The financial extent of adult films, distributed in hotels, is hard to estimate — hotels keep statistics to themselves or don't keep them at all.[23] A CBS News investigation in November, 2003 claimed that 50% of guests at the Hilton, Marriott, Hyatt, Sheraton and Holiday Inn hotel chains purchased adult movies, contributing to 70% of in-room profits. The income of cellphone porn is low, being compared with other countries. The absence of V-chip-style parental controls largely has kept American consumers from using cellphones to access explicit content. Porn star Ron Jeremy licensed his name to "RJ Mobile", which offers adult content in Britain and Holland.

Internet

File:Sex.com logo.PNG
Sex.com logo

According to Committee to Study Tools and Strategies for Protecting Kids from Pornography and Their Applicability to Other Inappropriate Internet Content, subscription sites with adult content exceed 100,000 in the United States, with each site having multiple web pages underneath it. On average, a paid subscription generates $20 to $40 per month in revenue, however an in-depth analysis is complicated. If a visitor site connects to a pay site and signs up for content, it receives a conversion fee from the larger site. A successful large operation like Cybererotica is an umbrella company serving many markets with pay sites. Around this core and its affiliates is a system of ad-supported service sites, such as California-based YNOT.com, a portal for porn webmasters.[24]

Boston-based Sex.com is one of the major adult domain names with a worth at $100 million.[25] Seattle-based Flying Crocodile, Inc. has a stable of more than 280,000 adult sites.[26] Another famous leader is XPics Publishing, which launched more than 600 adult sites, like Xpics.net and Xpics.cc. Lesbian sites are considered not to fit securely into anti-pornography or "pro-sex" feminist ideas.[27] Among several marginal sites are SexBizLaw.com, a legal resource for the adult-entertainment industry, Seattle internet traffic monitor SexTracker.com and PornValleyNews.com. There is also a vast amount of e-zines, including all mainstream. Playboy was quick to jump on the Web and made its content differed from the print version. Fleshbot online magazine features sex-related digital technologies and their distribution.

Controversies

As any other pornographic branch in the world, American web segment faces different trials and debates, notably on the .xxx domain. In 2000 the owners and operators of Playgirl.com and scores of other adult sites have been charged by the US Federal Trade Commission with illegally billing thousands of consumers for services that were advertised as free, and for billing other consumers who never visited the web sites at all.[28] Nevadan Voice Media Incorporated, which runs several adult sites such as Cybererotica, Clubpix.com, XXXpassword.com, ff5.com and the particularly well-named Boobtropolis.com, later was also charged by the Commission. Namely Cybererotica by itself suffers from unauthorized, non-paying surfers who use the stolen passwords. This kind of attack could easily use an entire month’s worth of bandwidth in a day, with the site operator paying hundreds or thousands of dollars worth of additional bandwidth fees, all for traffic that returns no money at all.[29] Another common occurrence is a web address. Notably the Whitehouse.com domain, which now hosts a people finder, for some period featured the explicit content (while the proper domain is Whitehouse.gov).[30] The obsolete TSTV.com was registered with Network Solutions, Inc. on September 22, 1998 but when accessed it currently goes to a porn page (initially Slut.com). For a brief period of time in October, 2000, when a user typed in www.tstv.com into the locator line, he or she was taken immediately to a site entitled "The Ultimate Adult Site Locator".[31] These cases usually occur due to buying an expired domains and according to Secure Computing Corporation already happened to sites belonging particularly to Nebraska Department of Education, the Ohio State Senate and the Ballet Theatre of Annapolis, Maryland. Another typical spoofing attack occurred when Sno-Isle Regional Library in Snohomish County, Washington set up a site for bibliophiles to reserve books. If the hyphen was not typed in the adress, the user was taken to the adult site.[32]

At the Cybernet Expo, held in June, 2006 in San Diego, more than 120 porn webmasters listened closely as several panels explored the difficulties facing the industry.

Movies

File:PiratesXXX.jpg
The DVD-HD-DVD cover of 2005 Pirates, currently one of the most expensive adult movies (about $1 million according to its producers), along with the non-American Private Gladiator, estimated at $1.5 million.[33]

Much of the pornography produced in the United States is in the form of movies and the branch acutely competes with the internet. The market is very diverse and range from the mainstream heterosexual content to the rarefied S/M, BDSM, interracial sex, ethnic, etc. through enduringly popular gay porn.

Early American stag films included Wonders of the Unseen World (1927), An Author's True Story (1933), Goodyear (1950s), Smart Alec (1951) and Playmates (1956-58). The breakthrough films such as 1963 Blow Job, 1972 Deep Throat and 1978 Debbie Does Dallas, that launched the so-called porno chic, put the adult movies production onto the commercialization. In this period America's most notorious pornographer was Reuben Sturman. According to the US Department of Justice, throughout the 1970s Sturman controlled most of the pornography circulating in the country.

The country now houses over 40 adult movies studios featuring heterosexual scenes[34], more than any other country. The branch, according to founder and president of Adult Video News Paul Fishbein involves the manufacturers of adult products, distributors, suppliers, retail store owners, wholesalers, distributors, cable TV buyers and foreign buyers. The production is concentrated in San Fernando Valley (mainly in Chatsworth and Reseda) and Las Vegas, where more than 200 adult entertainment companies gather to network, schmooze and show off their latest wares.[35] The world's largest adult movies studio, Vivid Entertainment generates an estimated $100 million a year in revenue, cranking out 60 films annually[36] and selling them in video stores, hotel rooms, on cable systems and on the Internet. Vivid's two largest regional competitors are Wicked Pictures and Digital Playground. Colorado-based New Frontier Media, a leading distributor of adult movies (at NASDAQ since November, 2000) is one of the two adult video companies traded publicly, the another one being Spanish Private Media Group.

The industry's decision to embrace VHS in the early 1980s, for example, helped to do away with Sony Betamax, despite the latter format's superior quality. Video rentals soared from just under 80 million in 1985 to half-billion by 1993.[37] Suffering at the hands of video warez tended not be publicly stressed by country's film industry.[38] In 1999 there were 711 million rentals of hardcore films.[39] 11,300 hardcore films were released in 2002. In the recent years, according to Fishbein, there are well over 800 million rentals of adult videotapes and DVDs in video stores across the country.

Now there is a debate on two future formats: the Blu-ray Disc and HD-DVD. Digital Playground said it is choosing the Blu-ray Disc for all of its "interactive" films because of its greater capacity.[40] The female demographic is considered to be the biggest catalyst for pornographic cultural crossover.[41] According to Adella O'Neal, a Digital Playground publicist, in 2000 roughly 9% of the company's consumers were women while four years later that figure has bloomed to 53%.

HIV encounter

With the onset of AIDS in the 1980s, HIV transmission between performers resulted in a number of deaths, including that of the famous erotic actor John Holmes. After this, the pornography industry, despite of not promoting the safe sex, instituted a system of HIV testing designed to prevent the spread of the virus within the industry. However in April 2004, the Los Angeles County Department of Health Services received several reports of work-related exposure to HIV in the heterosexual segment of the adult film industry in California. The source was apparently in Brazil.[42]

Publications

American adult magazines have been largely put into mainstream by the pioneer Playboy. However during the so-called Pubic Wars in 1960s and 1970s Penthouse established itself as a more explicit magazine. By the mid-'90s magazines like Playboy had become noncompetitive and even hardcore publications like Penthouse and Hustler struggled. According to Laura Kipnis, a cultural theorist and critic, "the Hustler body is an unromanticized body - no vaselined lens or soft focus: this is neither the airbrushed top-heavy fantasy body of Playboy, nor the ersatz opulence, the lingeried and sensitive crotch shots of Penthouse, transforming female genitals into objets d'art. It's a body, not a surface or a suntan: insistently material, defiantly vulgar, corporeal".[43]

Many adult magazines in the United States are now highlighted by special features and are usually sold wrapped to avoid their look-see by the under-age persons. A primarily softcore Barely Legal focuses on models between 18 and 23 years. Hustler's Leg World is focused on the female legs and feet. Heavy Metal is one of the world's foremost adult illustrated fantasy magazines. Perfect 10 publishes the images of women, untouched by plastic surgery or airbrushing.

Pornographic bookstores have been subject to zoning laws in the US.[44]

Broadcasting

See also: Nudity in American television

American cable and satellite television networks host about six main adult-related channels. Most of them (Playboy TV, Penthouse TV and Hustler TV (there is also a "Hustler Video", a line of raunchy films created by Larry Flynt)) are maintained by three mainstream porn magazines. In 1999 Playboy Enterprises sold to Vivid Entertainment a small channel which was renamed to Hot Network. Since that Vivid lauched two more channels - the Hot Zone and Vivid TV. The viewers paid close to $400 million a year to tune in to Vivid's hardcore content and the company soon overtook Playboy as operator of the world's largest adult-TV network. However after passing the 2000 United States v. Playboy Entertainment Group case Playboy bought all three networks from Vivid in 2001 and folded them into "Playboy's Spice" brand. Operators then shunned "Playboy's Spice Platinum", a new group of channels with graphic hardcore fare.[45]

Some subsidiaries of major corporations are the largest pornography sellers, like General Motors' Direct TV. Comcast, the nation's largest cable company, once pulled in $50 million from adult programming. Revenues of companies such as Playboy and Hustler were small by comparison.[46]

Video games

File:BloodRayne2.jpg
A cover for BloodRayne 2, bearing the M ("mature") rate by Entertainment Software Rating Board, also due to "sexual themes". Rayne was the only heroine featured undressed atop by Playboy (October, 2004 issue).

Microsoft have long declined to license development software to game makers whose titles include sexual content. Wal-Mart, America's largest distributor of video games, maintains the policy of selling no games with an AO rating.[47] However in recent years the pornographic content in video games has been promoted particularly by Playboy. Playboy: The Mansion became the first game built around the "Playboy" license.[48]

A downloadable mod -- "Hot Coffee" -- developed by Dutch hacker Patrick Wildenborg in 2004, according to Jason Della Rocca, executive director of the International Game Developers Association, accelerated the need to discuss the challenges faced in creating games with pornographic content. The two-day San Francisco gathering was held in June, 2006 to delve into the design, development and technology of sex in video games, also in the United States.[49]

Japanese influence

Further information: Pornography in Japan

The adult sections of American comic book stores carry a large number of translations of Japanese hardcore comics, as well as an increasing number of home imitations.[50] However works, similar to lolicon, are prohibited in the United States due to their underage characters.

One of the anime porn movies, which started the American adult video market, was Urotsukidoji. The adult anime market exists primarily through direct sales: mail-order to customers, and wholesale to specialty shops which cater to anime and to comic-book fans.[51]

See also

Notes

a. ^ The term "dial-a-porn" was used at the federal level e.g. by the 1996 Telecommunications Act.[52]

b. ^ In the 1969 Stanley v. Georgia case the Supreme Court ruled that private possession of pornography (except child pornography as determined later[53]) in the home was not a crime, nor was it subject to government regulation. In the 1973 Paris Adult Theatre v. Slaton Chief Justice Warren Burger wrote: "We categorically disapprove the theory... that obscene, pornographic films acquire constitutional immunity... simply because they are exhibited for consenting adults only".[54] Technically why people have a constitutional right to watch hardcore pornography privately has never been explained.[55]

References

  1. ^ ACLU v. Reno Decision District Judge Dalzell's decision
  2. ^ LLRX.com
  3. ^ Ray C. Rist. The Pornography Controversy: Changing Moral Standards in American Life. 1973, ISBN 0-8785-5587-0
  4. ^ Edwin Meese. The Heritage Guide to the Constitution. 2005, ISBN 1-5969-8001-X
  5. ^ Legal definition of obscenity/pornography
  6. ^ Legal Issues
  7. ^ Edward G. Hinkelman, Myron Manley, James L. Nolan, Karla C. Shippey, Wendy Bidwell, Alexandra Woznick. Importers Manual USA, 2005. ISBN 1-8850-7393-3
  8. ^ WashingtonPost.com Mini-Porn Could Be Mega-Business
  9. ^ Porn industry goes high tech (15 Feb 2006)
  10. ^ Walter Kendrick. The Secret Museum: Pornography in Modern Culture. 1997. ISBN 0-5202-0729-7
  11. ^ Pornography’s Past: Sexual Publishing
  12. ^ General arguments for and against the censorship of pornography
  13. ^ William A. Donohue. The Politics of the American Civil Liberties Union, 1985. ISBN 0-8785-5983-3
  14. ^ Michal R. Belknap. The Supreme Court Under Earl Warren, 1953-1969. 2005, ISBN 1-5700-3563-6
  15. ^ United States. Congress. House. Committee on the Judiciary. Subcommittee on Crime. Child Protection and Obscenity Enforcement Act of 1988. 1989
  16. ^ Youth, Pornography and the Internet, National Academy Press, 2002. ISBN 0-3090-8274-9
  17. ^ 47 U.S.C.A. §223(d)
  18. ^ Louis Fisher. American Constitutional Law. 1995, ISBN 0-0702-1223-6
  19. ^ CBS, Washington ProFile
  20. ^ Forbes.com How Big Is Porn?
  21. ^ USATODAY.com Online porn often leads high-tech way
  22. ^ USATODAY.com Cellphone technology rings in pornography in USA
  23. ^ USATODAY.com Groups protest porn on hotel TVs
  24. ^ Edward Cone, The Naked Truth
  25. ^ Chantelle MacDonald Newhook. Cybersquatters Beware: Insiders' Tips on Winning Domain Name Disputes, 2003. ISBN 0-0709-0579-7
  26. ^ Boulder Weekly. The nude economy
  27. ^ Web.Studies, ed. by David Gauntlett and Ross Horsley. 2004, ISBN 0-3408-1472-1
  28. ^ Outlaw.com US authorities take action against porn sites for illegal billing
  29. ^ Lewis Perdue. EroticaBiz: How Sex Shaped the Internet. 2002. ISBN 0-595-25612-0
  30. ^ Hossein Bidgoli. The Internet Encyclopedia, 2004. ISBN 0-4712-2201-1
  31. ^ WIPO Domain Name Decision: D2000-1612
  32. ^ Kathleen Fearn-Banks. Crisis Communications: A Casebook Approach, 2001. ISBN 0-8058-3604-7
  33. ^ The eyeopener online
  34. ^ List_of_pornographic_film_studios
  35. ^ CBSNews.com Porn In The U.S.A.
  36. ^ Forbes.com The Porn King
  37. ^ Money.CNN.com Prime-Time Porn Borrowing tactics from the old Hollywood studios...
  38. ^ Peter Drahos, John Braithwaite. Information Feudalism: Who Owns the Knowledge Economy? 2002. ISBN 1-8538-3917-5
  39. ^ The New York Times, October 2000
  40. ^ Porn industry may be decider in Blu-ray, HD-DVD battle
  41. ^ San Francisco Chronicle, July 25, 2004 Porn Plague: Has porn's proliferation desensitized us to its power? by Andi Zeisler
  42. ^ HIVdent.org HIV Transmission in the Adult Film Industry - Los Angeles, California, 2004
  43. ^ Cited per Photography: A Critical Introduction, ed. by Liz Wells. Routledge, 2000, p. 230. ISBN 0-4151-9058-4
  44. ^ Susan Easton. The Problem of Pornography: Regulation and the Right to Free Speech. 1994, ISBN 0-4150-9182-9
  45. ^ Playboy's New Porn Channels Are Too Spicy For Some
  46. ^ Wall Street Meets Pornography
  47. ^ Money.CNN.com Video games get raunchy
  48. ^ Money.CNN.com Video game gals take it off for Playboy
  49. ^ Sexinvideogames.com
  50. ^ Porn Studies, ed. by Linda Williams, 2004. ISBN 0-8223-3312-0
  51. ^ Fred Patten. The Anime "Porn" Market
  52. ^ Robert E. Emeritz. Telecommunications Act of 1996, section 228 (h). ISBN 0-9372-7507-7
  53. ^ Proliferation of Child Pornography on the Internet. 1997, ISBN 0-1605-5747-X
  54. ^ Stephen L. Newman. Constitutional Politics in Canada and the United States. 2004, ISBN 0-7914-5937-3
  55. ^ Jethro Koller Lieberman, A Practical Companion to the Constitution, 1999, ISBN 0-5202-1280-0

Further reading

  • Anthony Petkovich. The X Factory: Inside the American Hardcore Film Industry. 2002. ISBN 1-9004-8624-5
  • Gordon Hawkins, Franklin E. Zimring. Pornography in a Free Society. Social Science, 1991. ISBN 0-5213-6317-9
  • Frank Michelman. Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation. Tennessee Law Review, vol. 56, no. 291 (1989)
  • Linda Williams. Hard Core. 1989. ISBN 0-5200-6652-9
  • Bob Woodward. The Brethren: Inside the Supreme Court. 1979. ISBN 0-7432-7402-4
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