Dear Carol,

I am a porno fan, and sometimes my tastes stretch toward the unusual or kinky. I have noticed that there are certain things I can rarely find in sex films (though I've come across it on websites pretty often), and when I was talking about it to some of my other porn hound friends recently, someone said a lot of this stuff is illegal in the USA. Illegal, in the land of the First Amendment? This surprises me, though maybe not so much with the administration we have right now. Can you shed any light on this? I am thinking of things like SM (I can find SM movies, but not ones that are XXX, with sex as well as bondage or whatever other nasty things the people are doing). My friend said that, pee, fisting, and a bunch of other fun things can't be watched.

--Disappointed

Dear Disappointed,

What good timing! We're coming up on Banned Books Week, a sobering annual reminder that even in the Land of the First Amendment we sometimes encounter trouble in paradise. And if books have problems, you can bet your remote control that videos and films are often challenged. A picture is worth a thousand words, but a moving picture... well, let's just say a moving picture will always make a censor salivate, even if *you* are drooling over it for entirely different reasons.

However, your friend is not entirely correct about kinky tapes being illegal. They're mostly not. What happens when censorious folks get hold of dirty movies is another matter. That's when things get complicated.

There is nothing illegal per se about sex in bondage or other BDSM depictions. There's no porn that's illegal on the face of it except child porn, that is, nothing else that is prohibited by federal law. However: several types of porn are more likely than others to be found obscene after the fact, and porn that mixes BDSM/bondage with genital sex is one of those types. (Other things that have been problems historically include animal porn, golden showers, fisting, interracial, "violent" porn... Also porn companies have been worried about movies that show identifiable products, like Coke or Kleenex, but that's not about obscenity.)

When I say animal porn I am not, of course, referring to the more salacious shows on Animal Planet, but rather interspecies porn; and yes, I did put interracial sex on that list, because a bunch of it has been taken to court. Sometimes an offended consumer (usually in a very conservative part of the country) will call the police to pitch a fit about a movie they saw in a mom-and-pop video store. More often, the police go to the store on purpose (a real cushy beat, compared to the streets), sometimes on their own steam and sometimes in collaboration with a government agency. Generally, the agency that remands such material for prosecution is the Justice Department. A dirty movie in a conservative town will be accused of obscenity (which is on the law books, but isn't defined adequately to let porn-makers avoid it even if they want to). The movie (and the people who made it and the place that sold or rented it) will go to court, where a hopefully-representative sample of folks from that town will get a cushy juror gig: watching smut. Hey, it's better than having to listen to phone calls between Scott Peterson and Amber Frey, isn't it? This could be happening in San Francisco, but that would make the jurors way too happy. Porn prosecutions generally happen in the South and/or in small towns.

An interracial tape could in fact be deemed obscene if the jury were racist, and this has happened. It's not as common now, thankfully.

While none of the afore-mentioned kinks are illegal up front, films like this still might be ruled against in court, and so lawyers for the adult industry have been cautious in their willingness to allow such activities or themes. Porn companies with a lot to lose have, for the last 10 or 15 years, just bought into this list and avoided all of it, or all but the interracial, anyway. Then littler or upstart companies came along to add some of it back in. This makes the bigger companies more willing to stick their necks back out a little.

Very little porn was prosecuted during the 90s, compared to the 80s. Not until Mr. Ashcroft got his job did porn people begin to feel really concerned, and Ashcroft has indeed gone after some porn, but he's more into taking down the "violent" or rough/gonzo stuff. Then a couple of years ago something surprising happened: "The Fist, the Whole Fist, and Nothing but the Fist" got busted in LA, and charges were dropped because the defense was going to be so strong. Porn (and other material) can only be judged obscene (and hence illegal) if it violates community standards and does not have "redeeming social importance" (they usually include artistic, educational, and political elements when they discuss this point). This is a movie that might still be successfully busted in some parts of the country. But "The Fist" was going to be defended on the grounds of its educational importance to people who want to do fisting. There are plenty of such people who could use a movie to give them helpful info (which was news to the prosecutors, and they caved in).

Even gonzo sex might prove defensible in court today. The first such movies were low-budget, but some of them now depict rough play in a well-made and otherwise plot-driven context. One likely defense argument for this kind of stuff would be that the movie's high production values qualify it for an artistic exemption. But really what's happening is that the industry is choosing some things to get bolder about. Gonzo porn has proved so popular that it's not just tiny companies making it any more. BDSM has a large community not only interested in buying it, but also potentially willing to speak up for its value in court. The social context has changed somewhat, and pornmakers (and distributors and retailers) have gotten less cautious as a result.

Still, it can be harder to find this kind of porn than other kinds... at least in stores. Retailers are often unwilling to stick their necks out for material that might get them busted, even if porn producers and distributors will take the risk. (Such a bust doesn't need to wind up in a conviction to mess up the life of a small retailer.) To seek kinkier fare, many porn consumers have turned to the Internet, where pretty much everything is available if you have all day to follow the links. An even better option, if you still have any room left on your credit card, might be a nice trip to Europe. Video stores in Amsterdam and Frankfurt have all kinds of porn that you have to really hunt for in the US. So you see, the First Amendment might not be the key element of this discussion, because they don't have a First Amendment; but neither do they have as many censorious folks, especially working for the government.

Will this new-found devil-may-care attitude last on the parts of porn producers? Well, that's partly up to you and your friends. What are you doing on November 2nd?