Two Girls, One Cup – Practical Obscenity Law

In honor of Valentine’s Day, in the “aint love grand” posting category, I am going to discuss obscenity risks in the specific context of the film, Two Girls, One Cup. (link). If you have not seen the video, never fear. You don’t need to in order to understand this post.

My adult entertainment clients are, understandably, often inquisitive about their potential exposure to an obscenity prosecution. When they ask me “do I need to worry about an obscenity prosecution?” The “lawyer’s answer” is as follows:

According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

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 and/or artistic, political, or scientific value.

You can only be convicted of violating the obscenity laws if your material meets all of those criteria.

Naturally, the next question is “well, what does all that mean? Is (insert name of film here) going to get me prosecuted or not?”

The answer is often “it depends.”

My firm has developed an in-depth (and constantly evolving) obscenity risk analysis matrix, and one of the services we provide to our clients is comparing that matrix to proposed geographic distribution areas, and evaluating our clients’ content — thus giving our clients an honest evaluation of how much risk is involved. Whether to distribute the work in those areas then becomes a business risk tolerance decision. I have never said “don’t distribute this.” I don’t serve as a censor. On the other hand, I will occasionally say to a client “this presents a very high risk. Be ready to defend yourself.”

Nevertheless, I often still get questions seeking a simple answer: “well, is this particular film obscene or not?”

Unfortunately, obscenity law makes little sense and does not generally lend itself to simple answers. 18 U.S.C. § 1462 even prohibits distributing information about abortion.

All speech is presumed to be First Amendment protected, but obscenity still falls outside that protection. However, the speech is First Amendment protected until a court says otherwise — no matter how “bad” the material is. In a Constitutional Catch-22, a work can not be considered to be obscene until a judge and jury have analyzed it under Miller. Of course, once that happens, the determination is made, and the defendant is either guilty or not guilty.

To make things even worse, you have to apply “community standards.” What is obscene in one town can be completely acceptable in the next. What is run of the mill in Miami will shock a jury in Bibleburg, Tennessee. When it comes to the internet, this entire concept throws every card into the air. See Community Standards on the Internet, Where is the “Community?”

In other words, you never really know whether something is legally obscene (or not) until the court makes its decision — and by then it is too late. You’ve already been convicted.

Given this kind of vagueness and latitude, in this day and age when Regent Law graduates have been given unprecedented levels of authority in the federal government, everyone should be at least a little scared.

I do not believe that obscenity can truly and honestly be Constitutionally prohibited. Nevertheless, for as long as we have zealots serving as prosecutors, and they seek to pander to the worst people in society, there will be obscenity prosecutions. I hate to ever tell anyone that they should not publish presumptively protected speech, but at the same time, I find it sad that there are people in prison for nothing more than producing a “dirty movie.” Although my first love is the First Amendment, I have a duty to keep my clients out of jail.

So, want to see a “simple answer” to an obscenity risk analysis?

Let’s look at the example of Danilo Simoes Croce, the Brazilian fetish porn producer who pled guilty to obscenity charges and accepted a six-month prison sentence and a $98,000 fine for distributing “Two Girls, One Cup.”

I have not seen Two Girls, One Cup. I don’t need to in order to intelligently forecast how a trial would have ended.

Take a look at these reactions to it. If you are producing a film that elicits this kind of reaction from these guys, it is safe to assume that a judge and juror will have no difficulty convicting you under the Miller test. (they are funny – enjoy).

[youtube=http://www.youtube.com/watch?v=QfvVN5DLT-c]

[youtube=http://www.youtube.com/watch?v=pDmpHe4TZfw]

Let me be clear: I believe that even Two Girls, One Cup should be constitutionally protected. Nevertheless, the reality is that the social conservatives have funded an obscenity task force that exists for one purpose — to watch dirty movies and put people in prison for making and selling them. Somewhere, right now, there is a Ned Flanders type with deep feelings of repressed homosexuality watching a film with some church-chat looking woman who spent three years in law school with her face buried in Andrea Dworkin law review articles, and the two of them are deciding that the person who made a certain movie needs to be in prison.

In the United States of America… Your tax dollars are spent on efforts to put adults in prison who filmed other consenting adults and sold the movie to other consenting adults.

So much for the land of the free, eh?

If you produce or sell adult material, of any kind, you could wind up on their list. And just like the East German Stasi, they’ll drag you away and let you “confess” to your crime in exchange for reduced punishment. Your crime? Speech that challenges the morality that they have decided we should all live by.

Since we are not in East Germany, and the Bush revolution is not yet complete, you will have the luxury to try to defend yourself. Although I love to fight these bastards. My view is that the best defense is not being prosecuted at all.

If your movie creates the kind of reactions above, you are going to face an uphill battle if you get prosecuted for obscenity. I’m not saying “don’t do it,” but I am saying that you should have a few hundred thousand dollars set aside in your lawyer’s trust account so that he can defend you when, and if, they come looking for you.

If you are a potential juror, look at this a different way.

Two Girls, One Cup is a monstrosity. I agree. Hideous. Disgusting. Shocking. Vomit inducing. Therefore, I have exercised my right to not watch it.

On the other hand, shouldn’t I have the right to make that decision for myself? Nobody forced the girls to be in the video. Nobody forced the guy to make the video. Nobody forced anyone to fork over their hard earned cash to buy the video. That’s what freedom is. You make your own choices — for ill or for good. The government has no right to take a hand in that decision. And the only person who belongs in jail in this equation is the moralist who thinks that he should have the right to reach into my life and punish me for exercising my rights.

Think about the other side of this equation. Someone (actually, many people) must be turned on by this stuff, otherwise there would be no market for it. Before you condemn those people, lift up the hood to the engine of your own arousal. Come on, everyone has some weird fetish. Who the hell are you to judge? Even if all you like is missionary with the lights off, someone thinks that you are sick. (actually, I think that anyone who only likes missionary with the lights off is a greater threat to society than someone into coprophagia).

On this Valentine’s day, if you’ve already located your soul mate, think about how lucky you are — and how difficult that was. If you haven’t, then think about how difficult it has been for you to take all your little quirks and make them click with the infinite quirks in another person.

Now imagine if you were into some seriously sick stuff. Think about how much more difficult and frustrating that process would be.

So imagine the coprophagist… that must be a damn lonely existence. Just from a matter of practicality, do you want coprophagists to have an outlet for that desire while they seek the girl of their dreams? Or do you want someone who is turned on by feces to have brewing and bubbling frustration in their soul? I feel safer if they have their poo videos.

For whatever reason you choose, make the decision for yourself, as I have, about whether you want to subject yourself to Two Girls, One Cup. But, for whichever rationale you choose: Whether you want society to be safer, or you simply believe in freedom, don’t ever make that decision for someone else.

Happy Valentine’s day.