Expert: Dan Pepper - 1/5/2009

Question
I have several questions, I would like to start a website, in which I can sell adult movies etc.
Is it legal in the state of texas?

do I need a license?

is there distributors that mail directly to client, so I do not have a inventory?

Where can i find more info in how to start such business with out paying?

Thanks


Answer
Please note that I cannot provide legal advice in this forum.

As is typically the case with respect to adult material, what is and is not prohibited is largely determined on a case-by-case basis with no hard and fast rules.  Graphic, explicit hard-core pornography is not protected by the First Amendment of the United States Constitution so states are free to regulate it as they see fit.  Texas Penal Code, §43.21(a)(1) defines obscenity as material that: (1) the average person, applying contemporary community standards, would find that taken as a whole, appeals to the prurient interest in sex; (2) depicts or describes patently offensive representations or descriptions of sexual acts, normal or perverted, actual or simulated; and, (3) taken as a whole, lacks serious literary, artistic, political, and scientific value.  “Patently offensive” means so offensive on its face as to affront community standards of decency.

Texas Penal Code, §43.22 prohibits a person from knowingly or intentionally displaying or distributing obscene material and being reckless about whether a person is present who will be offended or alarmed by the display or distribution.  Likewise, Texas Penal Code, §43.23 prohibits a person from promoting, or possessing with intent to promote, or wholesale promoting or possessing with intent to wholesale promote, any obscene material, knowing its content and character.  A person who promotes such material in the course of his business is presumed to do so with knowledge of its content and character.  In this statute, the definitions of “promote” and “wholesale promote” encompass essentially every possible way of disseminating such material including selling, advertising and distributing.  That section further makes its illegal for a person to produce, present or direct an obscene performance or participate in a portion of the performance that is obscene or that contributes to its obscenity.

There is some case law in TX regarding what has been found to be obscene, and what hasn't.  Without more information about your material, I cannot be more specific than that.

There are also state and federal laws regarding sending unsolicited commercial email to promote your website which you'll need to strictly comply with.

You would be well advised to form a business entity for this activity, and I am familiar with certain operations that will allow you to drop ship inventory to customers.

I am not familiar with a good and free source to find all of the information you need - quite frankly, anyone getting into this business would be foolish to do so without getting competent legal advice.