Cyberporn vs. censorship

Jonathan Curiel

The booming world of on-line gay erotica is being buffeted by regulations that may never go into effect

So far what Nathan Johansen does on the Internet is perfectly legal–as far as he can tell. But Johansen, who operates a gay erotic Web site called the Gay Cafe, isn’t taking any chances, Like others in the thriving business of on-line gay pornography, he knows his site is among those that proponents of the Communications Decency Act would love to shut down.

The CDA is a wide-ranging piece of legislation that would also, opponents say, threaten access to safer-sex information and other gay-sensitive material on-line. “But pornography is what they’re trying to get at,” says Johansen. “The funny thing about that is, with any kind of new communications medium, the first thing to show up is adult entertainment. That’s what everyone has an interest in, and that’s what makes money. It’s also the first thing that everyone attacks.”

Implementation of the CDA has so far been obstructed by a legal challenge, and the case is now being reviewed by the Supreme Court. Experts believe the court will uphold an earlier judicial ruling that found the CDA unconstitutional, but if the decision goes the other way, the Justice Department could prosecute violations of the CDA that occurred any time after President Clinton signed the bill into law early last year. If found guilty, Web site operators such as Johansen could be subject to prison terms of up to two years and fines of up to $250,000.

Meanwhile, the CDA has already made an impact on the gay cyberporn industry. Before the bill was introduced, the Web site Badpuppy was accessed about 300,000 times a day, says operator Bill Pinyon. After the bill was signed by Clinton, the number of people visiting the site dropped by 75% and business remained at a low ebb for three months. Pinyon thinks customers were scared off or assumed Badpuppy wouldn’t be able to offer any more explicit photos.

Eventually business bounced back, and Pinyon projects that Badpuppy will earn $3 million this year against $1.5 million in operating costs. Indeed, Badpuppy proves how lucrative gay erotic Web sites can be. Begun as a hobby from Pinyon’s home, the site now employs 22 people in a two-story office building. “We are keeping a minimum of 400 people on-line, 24 hours a day,” Pinyon says. “And we’re peaking at about 750 people on-line,” the maximum the site’s capacity allows.

Ironically, the CDA could be encouraging people to get into the cyberporn business. A key point in the law is that “indecent” material should be restricted to adults only. The legal burden is on the operators of Web sites to restrict access by “requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.” In complying with the law, some sites have created “authentication walls” that require only a driver’s license. But most have quickly made the leap to credit cards–and profitability.

That’s what happened to Kevin Bennett, who ran a Web site from his home in Glens Falls, N.Y., that was free to all visitors before Congress passed the CDA. The site, which explained why Bennett came out as a gay man at age 21, featured photos Of naked men. Because of the CDA’s age-authentication requirement, Bennett started charging a fee. At first he asked for $2. But so many people wanted access to his site, called Mount Equinox, that his Internet server couldn’t handle the demand. So he switched to a higher-cost server and now charges $19 for six months’ access. Bennett quit his job as a retail manager of a toy-store chain to work full-time on Mount Equinox.

“The government forced me into charging money,” Bennett says. “Now I can’t not charge money, because I have to pay for all the traffic [at my site]. There’s no way I could do this for free.”

Bennett, Johansen, and Pinyon are all examples of Web site operators who have decided it is wise to maintain compliance with the CDA even though it is not in effect. Others like them go even further. Some identify themselves with on-site signs that read, ADULT SITES AGAINST CHILD PORNOGRAPHY or voluntarily submit to ratings by the Recreational Software Advisory Council, an independent nonprofit organization based in Washington, D.C., that is trying to introduce a ratings system to cover the entire Internet.

Other sites post signs that encourage parents to use filtering software, such as Net Nanny and Cyber Patrol, which restricts their children’s access to adult-oriented material. Most operators support the use of such software as an alternative to government regulation. The CDA alludes to these types of filters but doesn’t recognize any legal responsibility on the part of parents, a point Pinyon takes issue with. “Parents control what children see on television–they should be able to control what they see on the Internet,” he says. “I believe Web masters like myself should take responsibility on our end to make sure children can’t get to this stuff. But I think the parents should also take responsibility.”

Even for operators who want to comply with the CDA, however, the boundaries are not always clear. At the Gay Cafe site, visitors must confirm that they are 18 or older and pay to access photos. Yet another part of the site, the Nifty Erotic Stories Archive, is free and requires no age authentication. Johansen defends his decision to include the stories on the site even though some have generated irate comments from members.

“There are stories I don’t even like knowing are there, that deal with bestiality, with urination–things like that,” Johansen says. “I don’t particularly care for that material. But then again I’m not the person to censor or judge what other people fantasize about.” Johansen adds that the stories don’t violate CDA standards because they are a form of literature: “If that gets threatened, then our country has been flushed down the toilet.” Yet even Johansen’s lawyer, Arthur Schwartz, a First Amendment attorney in Denver, worries that the stories might be too much. “That’s certainly something that’s getting close to the edge,” he says.

Even without the CDA, Web site operators would still be subject to restrictions, including the same obscenity laws that already apply to other media, such as film and magazines. Operators of adult Web sites must still use models who are 18 or older, get their written permission to use their pictures, and abstain from showing “obscene” pictures, such as photos of people having sex with animals.

What First Amendment activists and lawyers object to about the CDA is its emphasis on “decency,” a far looser concept than “obscenity.” “`Decency’ has never been the standard regarding protected speech in our country,” says Schwartz. “Protected speech is measured against a standard of obscenity. The two are far apart from one another, and laws up until now that have sought to regulate `decency’ have fallen by the wayside. This one will as well.”

COPYRIGHT 1997 Liberation Publications, Inc.

COPYRIGHT 2004 Gale Group

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