Adult Film/Old films


Question
QUESTION: I was just curious. Are there laws forbidding the sale of beastiality films before any particular date, or is it entirely illegal?

ANSWER: So far as I know, there are no statutes, federal or state. particularly identifying bestiality content by name as criminal. The prosecution of all sexually explicit content falls under more general obscenity statutes, which does not specifically identify any kind of content. The obscenity of a work depends on a three-part test announced by the United States Supreme Court in Miller v. California. That same three-part test is used by courts to identify what is criminally obscene. There is no such thing as "categorical obscenity". Any explicit work, no matter how prurient, when taken as a whole in light of contemporary community standards, no matter how patently it offends contemporary norms of graphic expression, would not be criminally obscene were it possess serious scientific, artistic, or literary value.

All that being said, there is a much higher likelihood for the prosecution of bestiality materials, and I suspect a higher probability of conviction in content containing it. It is definitely in the deep end of the pool, and dangerous.

---------- FOLLOW-UP ----------

QUESTION: I only ask because supposedly Linda Lovelace engaged in beastiality before she became the biggest pornstar of the time. Was wondering if buying anything along those lines from way back then would be too old to have restrictions?

Answer
Your first question asked about selling bestiality content. That's where I put my focus.

It's important to repeat: the federal statutes do not criminalize bestiality content by name. If they did, there would be a constitutional problem, because no pornography can be banned as obscene and punished by the criminal law unless, whatever it depicts, there is no serious value to it. No matter how prurient the appeal, no matter how graphic, if it has serious value as mentioned in my last email, it is not legally obscene. (Child porn, state secrets, etc. are a different matter. We're talking about obscenity.) That's been the law since at least 1957 when the Supreme Court decided Roth v. United States.

Your second question is about buying. There are federal laws concerning "receiving" obscene materials and they closely track the other federal statutes concerning sale, distribution, etc. 18 USC Section 1462 (c). This is a seldom-visited area. If private individuals were commonly charged with receiving obscene materials, it would propel all of the obscenity laws into a massive and important public debate. Probably to avoid that debate, the government uses the criminal receiving obscenity statute, as far as I can tell, exclusively to deal with those who buy things that are not quite child pornography, but in that department of the store, such as cartoons and anime which are technically not child pornography because no real child's body or face were used to create it, though there is a distinct pedo appeal to the work. I've written about this online. Go to  http://www.xxxlaw.com/cases/index.html and scroll down to Paris Adult Theatre v. Slayton and to United States v. Whorely. I recommend you read my brief discussion of each and follow the links provided to the full text of the case decisions. I recommend that you also read Stanley v. Georgia, my comments on the same page, and the court decision linked. In Stanley, the Supreme Court held that mere possession of obscene materials in the home cannot be a crime, because of the value the constitution attaches to privacy within the home. Two caveats: 1. Stanley does not apply to pedo material, which is not usually punished under the obscenity statute, but by a separate child pornography statute, in other words, there is no protection to child porn in the home, and its possession there is a crime, even if the possession of obscene materials is not, and 2) in order to get into your home, the material most often is delivered or sent there, and that delivery can be punished as receiving the materials if the home possession cannot be.

To buy - that is to "receive" -- obscene materials can be punished under Section 1462, an obscenity statute, though it is unlikely to happen with materials that do not have pedo appeal. I did not say "impossible", merely unlikely.

The age of the materials is not a legal issue if you are charged with receiving obscene materials now. The issue is whether it is legally obscene now, when you receive it, and a significant part of that analysis is made under our present-day contemporary community values, not old contemporary values at the time it was created. Obscene materials do not acquire grandfathering, though much of what was obscene under the values of 1962 may no longer be obscene under the community values of 2016. I can only speculate as to whether our contemporary community values accept and tolerate bestiality content as found in a particular video that you refer to. I am not convinced that values concerning depictions of animals having sex with humans have changed from the time of their creation in the Seventies to the present, and it's possible that in the 70's, society may have actually had a more tolerant approach to unusual and strange content such as you mention.  

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J. D. Obenberger

Expertise

Numerous trials, including jury trials, criminal and civil since 1979. Obscenity. Section 2257. Copyright. Trademark. Communications Decency Act Section 230. Right of Privacy/Right of Publicity. Defamation/Libel/Slander. Warning Pages. Adult Internet Sites. Strip Clubs/Gentlemen's clubs. Massage Parlors. Prostitution. I am the author and operator of http://www.xxxlaw.com, the most comprehensive online legal resource concerning the law of adult entertainment online.

Experience

I've been an attorney for 34 years, nearly 20 years as an attorney concentrating in adult entertainment law. Have spoken at 72 adult webmaster show legal seminars and forums in six nations, seven American states, and three provinces of Canada, have appeared on the O'Reilly factor concerning obscenity, have been published by Thompson-Gale. Full qualifications at xxxlaw.com. My firm, J.D. Obenberger and Associates has provided representation in both criminal and civil matters for adult content producers, the operators of adult online businesses, as well as brick and mortar adult operations for nearly twenty years. We provide legal strategy, forms, protocols, and guidance for every kind of adult operation. Our clients find us available 24/7/365 in every emergency. My background includes numerous jury trials including the defense of major drug case in federal court on the Mexican border at Brownsville, forgery, sexual assaults, gun offenses, aggravated kidnapping, and such civil matters as pharmaceutical malpractice, premises and construction liability, and personal injury. I have prosecuted cases in the name of the United States while serving as a Captain in the United States Army Judge Advocate General's Corps. I have represented and advised clients in every part of the United States and from Hong Kong to Budapest. I am a regular columnist for XBIZ World and have published numerous articles in AVN and AVN Online and for YNOT.

Organizations
First Amendment Lawyers' Association, Free Speech Coalition, National Rifle Association, American Legion.

Publications
AVN, XBIZ, YNOT, Online Pornography, published by Thompson-Gale.

Education/Credentials
Doctor of Law, 1979, University of Wisconsin Law School. Dean's List. Graduate, National Institute of Trial Advocacy. Guest Lecturer, John Marshall Law School. I have presented Continuing Legal Education for practicing attorneys. Undergrad BA, the University of Wisconsin, double major in Political Science and History. Graduate, 90th Basic Judge Advocate General's Course on the campus of the University of Virginia.

Awards and Honors
Army Commendation Medal awarded as a Captain, US Army Judge Advocate General's Corps, as the most requested criminal defense lawyer in the US Army, Europe.

Past/Present Clients
No legal issue too great or too hot to handle, no client too small to deserve zealous and effective representation.

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