Christof’s Doc, the Porn Community, and Obscenity…

Since today is the 20th anniversary of the fall of the Berlin Wall, I was going to blog today about the sometimes baffling era that we’ve entered since the end of the Cold War—and how trying to figure it out is one of Vanguard’s missions.

But since this is my last blog before Christof’s doc Porn 2.0 premieres on Wednesday, I’m going to write instead about the ramifications of the Big Bang in American jurisprudence that led to the creation of the modern porn industry, mainly in the San Fernando Valley, just over the ridge from Hollywood, where we in Vanguard have our offices.

First, you have to understand that while many varieties of porn are legal, obscenity is still not considered protected speech under the First Amendment. If it’s obscene, it can, and often still is, banned.

The trick is how you define obscenity. Throughout much of the 20th Century, the standard that judges used was “I know it when I see it.” Under this standard, where a few judges could impose their personal standards on the behalf of all citizens in our republic, a lot of stuff was banned.

But then, starting in 1973, with a US Supreme Court decision called Miller versus California, the standard for what’s obscene shifted from “I know it when I see it” to “contemporary community standards.” That is, if a particular community tolerated something, it was okay. That’s why the first places modern porn was available in the early ‘70s was in seedy theaters in collapsed commercial districts. The idea being that since the community in these blighted districts contained a number drug users and sellers, prostitutes, homeless people, etc., the addition of a theater showing pornos wasn’t going to see like that much of a burden—maybe the theater even paid some taxes.

But then technology expanded the community. With video tape and home videotape players, it became possible for porn consumers to go into an adult store, leave with porn on tape, and watch it at home. Suddenly the community where porn was consumed had broadened. With DVDs, and the Internet, the community broadened further---now it’s a cyber community. Just as the Internet made it possible for extremists—who might otherwise be marginalized in the communities where they reside—to find each others and make communities, so too with porn. So now, attorneys who defend porn producers in an obscenity cases are considering the option of trying to subpoena marketing data from Internet search companies—if it turns out that lots of Americans are on-line searching for the particular activity that is accused of being obscene, then, under the community standards provision, maybe it’s not. Partly, it depends on how big a community has to be.

But, as you watch Christof’s doc this Wednesday, you’ll see that prosecutors are not what’s threatening the porn business today. But I won’t give the plot away: Watch on Wednesday.


This Week On Vanguard: Porn 2.0 (Video)

Porn 2.0 airs this Wednesday on Current TV at 10pm ET/10pm PT.

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