Are Webcam Broadcasts Considered Obscenity?

[judgediatl]

How do you think that applies to you?

Which part are you referring to? If I'm in Ohio I imagine it all applies to me. Not sure I understand the question.

 

[justalayman]

If I'm in Ohio I imagine it all applies to me.

well, it could if you fall under any of the catagories spoken to within the statute.

What I'm trying to figure out is how that statute actually applies to you. It does not address the definition of porn not does it actually make porn, the transmission of porn, or the distribution of porn illegal. It is what it is: presumptions. It is a list of various sitauations and how the law views those situations. For example, the first section:

(A) An owner or manager, or agent or employee of an owner or manager, of a bookstore, newsstand, theater, or other commercial establishment engaged in selling materials or exhibiting performances, who, in the course of business:

(1) Possesses five or more identical or substantially similar obscene articles, having knowledge of their character, is presumed to possess them in violation of division (A)(5) of section 2907.32 of the Revised Code;

(2) Does any of the acts prohibited by section 2907.31 or 2907.32 of the Revised Code, is presumed to have knowledge of the character of the material or performance involved, if the owner, manager, or agent or employee of the owner or manager has actual notice of the nature of such material or performance, whether or not the owner, manager, or agent or employee of the owner or manager has precise knowledge of its contents.

It addresses people that work in commercial establishments engaged in selling materials or exhibiting performances. It then goes on to state that IF they have items in violation of other statutes (A 5 of 2907.31 or .32) in a qty exceeding 5 or more copies, then it is illegal under this statute.

So, do you own, manage, act as an agent of or employee of an owner or manager of a bookstore, newsstand, theater, or other commercial establishment engaged in selling materials or exhibiting performances?

That's what I mean with:

what section do you believe applies to you. Which section(s) apply to you?

 

[judgediatl]

what section do you believe applies to you. Which section(s) apply to you?

I see. In that case, I will break down the exact specifics in as much details as possible:

1. I currently posses pornography (more than five similar articles) on either my hard drive or on a dvd.
2. Various sexual content will be transmuted via my webcam to others located on public sites such as Chatroullete and Omegle (both simple nudity or pornographic images and video).
3. This will only be done under the guise that the person has first been made aware of what the content is, has varied they would like to engage in this activity and explicitly state they are an adult over the age of 18.
4. This will be done in the State of Ohio

Those are the facts.

 

[Zigner]

I see. In that case, I will break down the exact specifics in as much details as possible:

1. I currently posses pornography (more than five similar articles) on either my hard drive or on a dvd.
2. Various sexual content will be transmuted via my webcam to others located on public sites such as Chatroullete and Omegle (both simple nudity or pornographic images and video).
3. This will only be done under the guise that the person has first been made aware of what the content is, has varied they would like to engage in this activity and explicitly state they are an adult over the age of 18.
4. This will be done in the State of Ohio

Those are the facts.

If they say it on the internet, it must be true.

 

[quincy]

judgediatl, the "Miller" case you mentioned (Miller v California, 413 US 15, 93 St Ct 2607, 1973) is probably the most important of five major obscenity cases decided by the Supreme Court, in that it gave primary responsibility to the states in defining what is and is not obscenity, within the limits set by the Constitution.

From Miller and Chief Justice Burger:

"[We] now confine the permissible scope of such regulation to works which depict or describe sexual conduct. The conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

"The basic guidelines for the trier of fact must be: (a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. . . .There can be no uniform national standard for judging obscenity or what appeals to 'prurient interest' or what is 'patently' offensive.'

"Our nation is simply too big and diverse for this court to reasonably expect that such standards could be articulated for all 50 states in a single formulation."

With this, Burger said that there is no requirement in the First Amendment that people in one state must put up with the same public depiction of conduct tolerated in another state.

The reason I quote all this is to let you know that the definition of what is obscene and what is not will vary from state to state (in davew128's state, for example, a naked Rosie may be judged obscene ). Therefore, if your webcam video made in Ohio winds up being viewed by a resident of Maine (whether your intent was to show only in Ohio or not), you may find yourself facing Maine's obscenity laws and not just Ohio's.

You can potentially be held liable for any content sent to a minor, or involving a minor, that is deemed either obscene or pornographic. You may (or may not) escape liability if the proof of age documents you hold turn out to be faked. It will depend on all facts. But you will NEED this documentation if your video raises red flags as to its content and you are asked to provide proof that those depicted in your video, or those who receive your video, are of legal age.

As for control, if you display a naked video of yourself on an online site that caters to adults only and a minor accesses the video by accident or through deceit, that is not (generally) within your control. You can often not prevent a (clever?) child from viewing adult content. But, again, all facts need to be considered before any definitive answers can be provided.

Because what you plan to do potentially involves many different laws and interpretations of these laws by potentially many different states, I suggest you see an attorney in Ohio who can go over all of the facts of your video production with you, with the attorney perhaps viewing a "sample" of what you plan to distribute. If there is an actual video available for review, however, it might be real nice to inform the attorney about its content prior to making an appointment for a consultation or review.

 

[judgediatl]

The reason I quote all this is to let you know that the definition of what is obscene and what is not will vary from state to state (in davew128's state, for example, a naked Rosie may be judged obscene ). Therefore, if your webcam video made in Ohio winds up being viewed by a resident of Maine (whether your intent was to show only in Ohio or not), you may find yourself facing Maine's obscenity laws and not just Ohio's.

This is an interesting point. However, how can I be responsible for what someone in Main chooses to pull into their home from a another location? Is this any different that starting a website that says "I'm showing content that is legal here but not where you are, so don't view it" yet they do it anyway? Doesn't the control now fall to them? Could I also protect myself by going one step further and with age also verifying that this content is not illegal in their area?

You can potentially be held liable for any content sent to a minor, or involving a minor, that is deemed either obscene or pornographic. You may (or may not) escape liability if the proof of age documents you hold turn out to be faked. It will depend on all facts. But you will NEED this documentation if your video raises red flags as to its content and you are asked to provide proof that those depicted in your video, or those who receive your video, are of legal age.

Again, I always looked at this from an intent stand point. If I own a liquor store and I sell alcohol to a minor who's handed me a coning fake ID and I fall for it, I don't feel any reasonable minded person would consider me at fault if something were to happen to that teen while drunk.

Because what you plan to do potentially involves many different laws and interpretations of these laws by potentially many different states, I suggest you see an attorney in Ohio who can go over all of the facts of your video production with you, with the attorney perhaps viewing a "sample" of what you plan to distribute. If there is an actual video available for review, however, it might be real nice to inform the attorney about its content prior to making an appointment for a consultation or review.

LoL, so you mean on the first appointment when I walked into the lawyers office I probably shouldn't go "allow me to refer to exhibit a" and then hit play on the "Terri Taylor Gangbang Vol 14" DVD?

 

[swalsh411]

It's really very simple. Obscenity, as defined by the law, is illegal. Legal pornography is not illegal. Therefore legal pornography is not obscenity.

Can you explain this a bit? If pornography is sexual content and obscenity is described as depictions of sexual acts, how are they not interchangeable?

The definitions, in a legal sense, of porn and obscenity are not the same.

Obscenity is not just what one person may consider to be obscene according to their own tastes and values. I'm sure there are a lot of people who would describe some genres of porn as obscene. That doesn't make it obscene in the eyes of the law though. Go look up the definition. It is substantially more specific than "depictions of sexual acts".

This is a good example of making sure you are using the correct definition for the context. There is a casual layman’s definition of obscenity and then there is the legal definition.

 

[judgediatl]

I want to give a big thanks to everyone that gave their views and opinions on this matter in helping me get the answers I needed. We covered a lot of ground and posed some interesting points.

To close, I'd like to summarize what I feel to be the conclusions that have been made here. If someone can review this and tell me whether or not now have a good understanding of these positions moving forward, it would be much appreciated!

NOTE:

As I am unable to obtain legal council and the opinions given on this forum are, of course, free and therefore not considered binding, I had to find the next closest thing. Therefore, I found an article online by another user asking basically this exact question. The Attorney who answered is listed as a criminal expert with a doctoral degree in law. I will move forward with the assumption that this advice is the closest thing that applies to my situation, and take it at face value as I'm unable to obtain actual legal council. I also understand its not legally binding, but I feel is a good compass for a similar situation in Ohio and therefore I use it as a basis for my conclusions below.

1) Even though "obscenity" is illegal in Ohio and can be punishable with a Felony, Pornography does not necessarily fall into that category. This explains why XXX-Rated pornography is available for sale and distribution at local stores near me.

2) Based on Section D of the revised code in Ohio, webcam broadcasts of pornography that are transmitted online between two consenting adults may not be considered pandering obscenity based on the definition due to the fact that it's only received online and is not under the recipients control.

3) The biggest X-Factor (no pun intended) is when involving the second person. Based on their location and age, you could potentially get into a problem area. The remedy to this, or at least the closest possible thing, is clear intent. If I make it clear what the content is, who it's intended for and verify the person meets the criteria and also confirms they are aware of the rules in their area for said content, I put most the burden on them for accepting responsibly for what is viewed from that point forward. Of course this will always be a small gray area as people can just be dishonest, but if I have clear intent I believe this takes it out of my hands for the most part.

Are there any areas above that I'm completely off on or are my conclusions, for the most part, at this point at least in the ballpark?

 

[BigMouthWino]

This is an interesting point. However, how can I be responsible for what someone in Main chooses to pull into their home from a another location? Is this any different that starting a website that says "I'm showing content that is legal here but not where you are, so don't view it" yet they do it anyway? Doesn't the control now fall to them? Could I also protect myself by going one step further and with age also verifying that this content is not illegal in their area?

Nobody seems to have addressed these questions for you so I will:

You become responsible under the laws of whatever jurisdiction you transmit your material into. Until the Supreme Court struck down the law eight years ago sodomy was illegal in Texas. So if you were a website that published gay pornography you would be required to restrict access to your site so that those accessing from IP addresses in the State of Texas could not access your material. If you failed to do so you could very well be charged and extradited to Texas for prosecution under their laws.

It is very difficult to transfer culpability to your customer. For one thing, governments tend to prosecute purveyors not customers (i.e. drug dealers, human traffickers, etc.). An example you can look to is the shipment of wine and other alcoholic beverages across state lines. Many websites sprang up at the dawn of the internet to ship your favorite libations right to your door. In very restrictive states such as Maryland they would say "title passes to the buyer in California, we will engage a common carrier acting on your behalf to have the wine shipped, but the customer is responsible for verifying the legality of having alcoholic beverages shipped to themselves in their home state." Well, this didn't work out (unfortunately). Search google for multiple examples. Bottom line transferring the culpability is a non-starter for you.

It seems as though you are considering getting into a highly regulated, subjective and risky business venture. If you do not have the funds to consult with an attorney it is probably not a business you can afford to be in. The compliance costs will be quite high. If you think camera + internet connection + few hundred bucks = sex with girls and a living; your math is incorrect.

 

[judgediatl]

I challenge this point. Here is where I believe the differences lie, based on my research and consulting those with more legal expertise than I, and why my conclusions are sound. Using your alcohol analogy, lets say a person lives in a dry county that does not sell alcohol or permit its consumption or possession for example. My understanding, is that if I were to ship the alcohol to them, thus sending the material willfully into a restricted area, then I would be coup-able. However, if that same person leaves their county and comes to me, taking the materials back to their region intentionally, they are coup-able as it was their initiative that brought the content to them. The content I would provide is no different that the alcohol that the store is legally making available to any customer, no matter where they are from or weather or not they plan to use it in an unlawful manner after the fact. If this were true, every person who ever sold alcohol to someone who took it into a dry county could be extradited, prosecuted and not only loose their business but face incarceration. This does not accurately represent my understanding of how the law works and any information to the contrary that does not have firm legal precedent to back it up with, we will have to just agree to disagree on. I feel my conclusions are just as valid based on my research. However, I do appreciate all the help and support in resolving this issue.

 

[judgediatl]

UPDATE:

Before I forget, I just wanted to take a moment to thank everyone who provide very valuable and useful information regarding this topic. This forum is a wonderful resource in helping to guide discussion to help provide perspective and clarity on not only this issue but others that may arise. This is definitely a resource I will consult in the future. Thanks again for everyones input!

 

[LdiJ]

Thanks for the info.

Can you explain this a bit? If pornography is sexual content and obscenity is described as depictions of sexual acts, how are they not interchangeable?

My point is that I'm not clear how that state of Ohio can charge you with Obscenity as a felony if pornography is sold in the state. Again I point to the many Hustler stores operating in some cities that sell pornography.

Also, another follow up on the webcam. Im going to great pains to ensure that the people who would see these webcam broadcasts are over 18 (one of which is specifically requiring them to confirm they are infact an adult over 18).

However, what if they lie and I broadcast to a minor anyway? Can I still be held accountable (providing I retain the documentation)?

I think that the bigger question is just how private are these communications?...and how certain someone could be that they are not communicating with a minor?

What two consenting adults do, that has no impact on anyone except themselves, is very different than when the information is potentially available to the general public or when one of the participants is a minor. Totally private communications between two definitely consenting adults is pretty safe. Anything else would probably be a foolish thing to do.

 

[BigMouthWino]

I challenge this point. Here is where I believe the differences lie, based on my research and consulting those with more legal expertise than I, and why my conclusions are sound. Using your alcohol analogy, lets say a person lives in a dry county that does not sell alcohol or permit its consumption or possession for example. My understanding, is that if I were to ship the alcohol to them, thus sending the material willfully into a restricted area, then I would be coup-able. However, if that same person leaves their county and comes to me, taking the materials back to their region intentionally, they are coup-able as it was their initiative that brought the content to them. The content I would provide is no different that the alcohol that the store is legally making available to any customer, no matter where they are from or weather or not they plan to use it in an unlawful manner after the fact. If this were true, every person who ever sold alcohol to someone who took it into a dry county could be extradited, prosecuted and not only loose their business but face incarceration. This does not accurately represent my understanding of how the law works and any information to the contrary that does not have firm legal precedent to back it up with, we will have to just agree to disagree on. I feel my conclusions are just as valid based on my research. However, I do appreciate all the help and support in resolving this issue.

Here is the problem:

In your analogy you sell alcohol to a customer where it is legal to do so and the CUSTOMER then decides, completely and independently of you to violate the law by bringing it into a dry county. If you arranged to have it delivered to the customer you could be charged with bootlegging.

This applies to your website in the same way. You are TRANSMITTING your material to your end user. Because IP addresses are geographically traceable you have a reasonable means of ascertaining where the customers you TRANSMIT to are located. Now if you took every reasonable step to block all customers in a locale where your material would violate the established obscenity law and the customer used a proxy server or some other means to circumvent that, then yes, it would be on the customer. If you give potential customers instructions or guidance on how to circumvent your location based blocking then it's back on you.