Alex Henderson

Can ‘extreme porn’, British style, catch on in the States?

Alex Henderson considers whether a draconian UK law could have an impact across the
Atlantic

By Alex Henderson 

In January 2009, a draconian new law will become enforceable in England and Wales: the so-called
“extreme porn” law, which allows prison sentences of up to three years for possession of what UK
politicians have loosely described as “extreme pornography”. Parliament passed the law in May
2008 despite several years of vehement protests by civil libertarians and BDSM rights groups.

Obscenity law in major Western democracies has, in modern times, generally dealt with
creation and distribution rather than mere possession; in other words, prosecutors in the United
Kingdom and North America have been targeting porn companies and porn stars rather than porn
fans. But the “extreme porn” law is a major departure from that approach in that it criminalises
simple possession of porn that depicts bestiality, necrophilia or “serious violence in a sexual
context”. It is the law’s vague references to the latter category that is worrying members of Britain’s
BDSM community. There may also be cause for concern across the Atlantic, as some members of
Parliament have said they hope the new law will inspire similar legislation in other countries,
including the United States – and for US-based BDSM enthusiasts and adult entertainment
providers, the burning question is: what impact, if any, will the law have in North America? Could
the US eventually end up following the UK lead and pass a possession-oriented “extreme porn” law
of its own?

American free speech attorney John Wirenius, who serves as legal counsel for the BDSM
rights organisation the National Coalition for Sexual Freedom (NCSF), explains that as things
presently stand, a possession-oriented “extreme porn” law modeled after the new British law would not be legal in the US because it would be a blatant violation of the US Supreme Court’s historic 1969 ruling in the case Stanley v. Georgia. Almost 40 years ago, a Georgia man named Robert Eli Stanley was convicted of possessing obscene material (a crime under Georgia state law at the time) after police found reels of porn in his home; Stanley’s conviction was appealed and went to the US
Supreme Court, which unanimously declared the Georgia law unconstitutional and ruled that
Americans could not be prosecuted for mere possession of adult erotica even if it was obscene.

But Wirenius notes that once past the element of possession, the US and Great Britain are quite similar where prosecuting BDSM erotica for obscenity is concerned. The UK and the US, Wirenius says, both have a history of prosecuting BDSM erotica more vigorously than they
prosecute vanilla porn. Wirenius explains: “Stanley keeps pure possession quite safe in the United
States, but I think the underlying concept of the British extreme porn law – which is that certain
kinds of viewpoints and topics are more easily subjected to the censor than others – has leaked into
American law. In 2005, the US Justice Department released several press releases saying material that deals with themes outside the mainstream – such as BDSM – are more easily deemed offensive and therefore, more easily prosecutable. In the federal sentencing guidelines, BDSM is singled out. So even though the United States hasn’t gone the whole hog of attacking possession – unlike the British extreme porn law – we have had for some years a similar regulation that says it is a worse
crime to traffic in obscenity that is sadomasochistic in nature than in obscenity that is ordinary. If
you leave aside the question of possession and the constitutional guarantee of Stanley, the similarity
between the United States and the UK is actually fairly significant when it comes to singling out
depictions of BDSM for enhanced sentencing”.

In order for Congress to pass an “extreme porn” law modeled after the British law, the US
Supreme Court would have to overturn Stanley v. Georgia. Allan B. Gelbard, a Los Angeles-based
free speech attorney who has had many clients in the adult entertainment industry, believes the
Stanley decision is safe: “Stanley is a core principle that every American should believe down to their gut, which is that I have a right to read what I want within the privacy of my own home. Period. I believe that Stanley is one of the most secure cases there is, and I think obscenity
prosecution will go away long before the core holding in Stanley will go away.”

Nonetheless, Gelbard is concerned about the direction the US Supreme Court may take in the future – and he says that if extreme social conservatives did manage to become a majority on the Supreme Court and overturned Stanley v. Georgia’s right-to-privacy-in-the-home principle, the
American public would rebel. “If you start telling Americans that they don’t have the right to read
what they want within the privacy of their own homes, there is going to be a civil war in this country,” Gelbard asserts. “People have just about had it. The Religious Right wants to win a culture war, but they don’t realise that what they would end up with is a civil war.”

Both The Baroness, a well known fetish fashion designer based in New York City, and NCSF founder/president Susan Wright (also based in NYC) told Skin Two that so far, Britain’s“extreme porn” law hasn’t been a major topic of discussion in the US BDSM community. But both of them find the British law highly disturbing, and Wright asserts that Americans need to be aware of the fact that their country’s closest ally has passed such a draconian law and must make sure it is never emulated in the United States.

“I’m very surprised the UK’s extreme porn law is not being discussed more here in the US,”
Wright explains. “I think Americans are relying on the staying power of the US Supreme Court’s
1969 ruling in Stanley v. Georgia, which decriminalised possession of adult pornography. Let’s
hope they’re right.”

Philadelphia-based Alex Henderson is a veteran freelance journalist whose work has appeared in Billboard, Spin, The L.A. Weekly and many other well-known publications over the years. Alex (www.alexvhenderson.com) has contributed numerous articles to the Los Angeles-based adult entertainment trade publication XBIZ, covering legal, political, social
and free speech issues extensively in addition to writing about business, finance and technology.