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Tortured Logic

The Bush White House Fights for the Right to Continue Torturing Prisoners in U.S. Custody While the Bush Justice Department Prosecutes Pornographers Who Depict Torture. Welcome to the New War on Porn.

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Sean Tejaratchi

Here is how Max Hardcore makes his living: He rams his cock into women's mouths until they vomit, and then he sells videos of the encounters. He sells other videos, too, videos that feature his signature contribution to the world of hardcore pornography: a flexible rubber tube that allows women to suck from their own asses the semen or urine he has just deposited there, often very roughly. Are you turned on yet? Hardcore has been accused (but not convicted) of raping a British porn star named Felicity. He also has been accused of misogyny, a charge that seems apt given that many of his videos feature him shouting degrading insults at the women (often dressed as schoolgirls, complete with pigtails and hairless vaginas) who appear in his films. He describes himself as "an American original" and a leader in the field of "sexual mistreatment," and in addition to his novel use of rubber tubing, he claims both to have pioneered the practice of "anal gaping" and to be at the vanguard of "the misuse of medical speculums."

Will the culture suffer in the slightest if this man is prosecuted for obscenity? We may soon find out.

On October 5, agents of the FBI raided Hardcore's Los Angeles studio as part of a federal obscenity investigation, seizing the servers for his website and showing particular interest in five Hardcore videos: Pure Max #16, Max Hardcore Fists of Fury #3, Max Hardcore Extreme Schoolgirls #6, Max Hardcore Golden Guzzlers #5, and Max Hardcore Golden Guzzlers #6.

To many whose livelihoods are directly or indirectly tied to America's $20 billion a year porn video industry, the timing of the raid made it seem like an opening shot in a wider war on smut. A few months previous, Attorney General Alberto Gonzales had announced the formation of a new squad of Justice Department officials dedicated to "the aggressive and effective prosecution of those who create, sell, and distribute obscenity." The move provoked laughs among some within the FBI, with one anonymous agent sarcastically telling the Washington Post: "I guess this means we've won the war on terror." But Gonzales, at the time being mentioned as a possible Supreme Court pick, and perhaps needing to shore up his conservative bona fides in case he was tapped by President Bush to head for the high court, appeared serious. A memo to FBI agents, obtained by the Washington Post, counseled that the best odds for convictions on obscenity charges would involve pornography that "includes bestiality, urination, defecation, as well as sadistic and masochistic behavior." The memo appeared to cover such a wide swath of territory that it sent shivers through the large community of pornographers who, while they may find Max Hardcore's work to be coarse and disgusting, make their own livings producing pornography that includes tamer depictions of rough sex and bondage. As a result, a number of bondage and S&M websites have now gone dark or begun self-censoring in order to avoid potential prosecution.

"Everybody's living in fear," said one Seattle area S&M website operator, who asked not to be named out of concern that it might draw the attention of federal investigators.

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Ironically, the behaviors described as prosecutable and obscene in the FBI memo overlap quite directly with behaviors that FBI agents and others have witnessed at U.S. facilities holding prisoners in the War on Terror. At these facilities, actual torture—not adults hurting each other for sexual pleasure, but adults torturing other adults in order to coerce confessions—has reportedly occurred. Pictures have surfaced showing U.S. soldiers engaging in a level of brutality that makes the brutality dished out by Max Hardcore seem gentle in comparison. And at the U.S. prison camp at Guantánamo Bay, Cuba, an FBI agent has reported seeing prisoners "chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves, and had been left there for 18 to 24 hours or more." One had pulled his own hair out so that it lay in a pile on the floor next to him. Even more ironically, it was Gonzales who, in 2002, as White House Counsel, signed off on a memo widening the possibilities for violent behavior by U.S. interrogators, a memo that led directly to Americans viewing, in pictures from Abu Ghraib and reports from Guantánamo Bay, the sadism, urination, and defecation that Gonzales appears to abhor so greatly in another context.

And still more ironically, this month top Bush administration officials have been fiercely lobbying against a move by Senator John McCain to outlaw any further torture of prisoners held by the United States, with Vice President Dick Cheney emerging as the most prominent and passionate administration defender of torture. Meanwhile, American conservatives have responded positively to Gonzales's move to curtail the sadistic porn available to Americans, with the Family Research Council announcing "a growing sense of confidence in our new attorney general" as a result of the new obscenity squad.

The Justice Department says it has not kept track of obscenity investigations by the squad since it was formed, but the National Coalition for Sexual Freedom says the FBI has wasted little time in acting on its new directive. Three websites, including Max Hardcore's, have been targeted since the anti-obscenity squad came into existence, according to the NCSF. That brings the total number of obscenity cases brought under the Bush administration to 60, the organization says. During the Clinton years, there were only four.

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It's difficult to find people, even within the porn industry, who are willing to rally behind the three websites that have been targeted since the obscenity squad was formed. Max Hardcore's site still peddles his trademark "sexual mistreatment." NowThatsFuckedUp.com, another targeted site, offered free porn to U.S. soldiers in exchange for photos of dead Iraqis—until its operator was arrested by local authorities and charged with over 300 counts of obscenity. (Though local authorities are responsible for that investigation, the NCSF believes it was inspired by the new federal emphasis on obscenity prosecutions.) And Red-Rose-Stories.com, the third targeted site, allegedly trafficked in written accounts of pedophilia (or "intergenerational stories," as Susan Wright, spokeswoman for the NCSF, prefers to put it) until the FBI took the site's computers and threatened its operator with obscenity charges.

Of more concern to people in the industry than the continued viability of those three sites is the chilling effect that may be produced by prosecuting people on the sadistic fringe, and the slippery slope that could result if the Justice Department is able to make an obscenity charge against Max Hardcore stick.

Wright admits Hardcore's site is extreme, but she adds: "That's why they're going after it. They get a successful prosecution, and they can go onto someone else."

The Justice Department doesn't exactly dispute this notion.

"The formation of the obscenity taskforce serves as a very visible sign that the department is making a renewed effort to enforce these laws," said Paul Bresson, a department spokesman.

So who might be next? Many in the mainstream bondage, domination, and sadomasochism community say they're not willing to wait to find out.

"I know lots of people who have simply gone out of business because they are so afraid of the law," said Lydia McLane, a professional dominatrix based in Seattle, who is now reviewing some of the images on her website for fear they could be thought to constitute obscenity. "There's no definition of obscene. They're not going to be able to define it properly, so there's going to have to be test cases, and a lot of people are simply unwilling to be test cases."

Indeed, insex.com, a bondage and S&M website operated by Intersec Interactive Inc., has announced it is looking for a foreign buyer because "continuing to produce insex.com from the U.S. would be too great a potential liability."

It's a way around U.S. law that a number of operators of similar U.S. websites have said they are considering. A statement on Intersec's website explained: "While Intersec is certain that a potential prosecution would have no chance of success... the staff is unwilling to fight a lengthy and expensive court battle only to emerge victorious but bankrupt."

Other sites that don't have the name recognition or financial wherewithal to justify relocation, such as grandpadesade.com, which operated four low-budget S&M websites, have announced they will simply give up rather than try to go forward in the current climate.

"We did not receive any money," the grandpadesade.com site now states. "In fact I have never made a single cent from the lifestyle. We did not have anything about kids, dead bodies, beasts or other such things. There was nudity and there were codes to prevent kids from viewing the material and we signed up for the major child protection programs and porn blocking programs... These sites were about education, answering questions, and just fun. Now they are gone and you ask why? Well, it seems anything to do with S&M is thought of as porno by the Bush dictatorship... Until the U.S. comes back to its senses, and stops these holier than thou folks, we will stay dark."

Subnation, another site that describes itself as primarily educational, posted a similar decision. "I am afraid that the current climate of intolerance and persecution by the FBI has forced me to reconsider whether or not to continue," the site operator wrote. "While I am not worried about my own situation, I must be mindful of what effect any possible prosecution could have on other family members. For that reason I have decided to discontinue this site."

Still other sites are, like McLane's, trying to stay in safe territory by modifying or removing certain images. The popular site suicidegirls.com recently announced it was removing images "with fake blood and any images we felt could be wrongfully construed as sadist or masochist," out of a desire to "ensure that we are not targeted by the U.S. government's new war on porn."

If part of the Justice Department's goal in creating the obscenity taskforce was to send a "very visible" warning to the wider S&M community, it seems it has already succeeded.

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Proving obscenity in this country is not an easy business. The United States Supreme Court has long tried to define where free speech ends and obscene speech begins, a history that former Chief Justice Warren Burger described as "somewhat tortured" in the majority opinion in the most recent obscenity case to make it to the high court, Miller v. California. In that case, decided in 1973, the Supreme Court overturned the obscenity conviction of a California man, Marvin Miller, who had been mass-mailing adult brochures throughout the state, including to a restaurant in Newport Beach, California, where the restaurant manager and his mother one day opened their mail and discovered brochures from Miller advertising books titled, among other things, Sex Orgies Illustrated and An Illustrated History of Pornography. The restaurant owner and his mother had not requested the brochures, were not happy to receive them, and made this known to local police. And that, ultimately, led to Miller's prosecution and conviction for distributing obscenity.

In overturning Miller's conviction, Justice Burger and a majority of the 1973 court created a multipart test for obscenity that still stands today. "Obscene material is not protected by the First Amendment," it begins, upholding previous Supreme Court rulings. But, outlining the new test, it goes on to say that obscene work may only "be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex," is "patently offensive," and "does not have serious literary, artistic, political, or scientific value." The standard for determining whether something is "prurient" was set as being what "the average person, applying contemporary community standards" would think.

The decision, critics have argued, creates uneven enforcement of obscenity laws from community to community, and provides an incentive for federal prosecutors to bring cases in conservative communities that could not be brought elsewhere. More importantly, argues the NCSF, the test has been rendered obsolete by the advent of the internet. To which community's standards is a website like Max Hardcore's now held? The community standards of L.A., where it is based? Or those of Wichita, where it can just as easily be viewed? A lawsuit over whether the Miller test, in the online age, unfairly makes everyone in America responsible to the nation's most conservative community standards, wherever those conservative standards may currently reside, is now on appeal—and, some believe, headed for the Supreme Court.

Until then, the question remains: Is what Max Hardcore does obscene? And if so, what does it mean for the wide spectrum of sexual behaviors that lie somewhere between sucking someone else's piss out of your own ass through a rubber tube and, say, the missionary position?

* * *

"Everybody's worried because they don't know where it's going, and that's obviously what their objective was," said the Seattle area S&M pornographer who asked not to be identified. He predicted that all pornographers would suffer from an expanded Justice Department crackdown, "except the big guys, who can afford to fight it."

The "big guys," this pornographer and others pointed out, these days include Rupert Murdoch's News Corporation and the General Motors Investment Management Corporation, which together own a large part of DIRECTV, a company that beams pornography to hotel and home televisions via satellite. Hotel chains, such as Sheraton, Hilton, Marriott, and Hyatt, and Time Warner Incorporated also make considerable money from selling pornography, the Washington Post has noted. None of them appear to be on the Justice Department's hit list, yet.

"They're just going for the easy targets," complained the local S&M pornographer. "Nobody's going to touch Marriott Hotel chain, General Motors, and all that bunch."

Russell Harmon, who with the help of his wife, his girlfriend, and his wife's girlfriend runs the local bondage site twobigmeanies.com, said that as a small operation, Two Big Meanies can't take the risk of not self-censoring. "We did a shoot that involved play with needles that we're just sitting on, that we're not going to use," he said. They're also obscuring genitalia on their website and cutting portions of videos in which people sound like they might not be having fun.

"There's the idea of a sort of government monopoly on violence," Harmon complains, trying to figure out the rationale behind the administration's simultaneous defense of torture and prosecution of depictions of consensual rough sex play. "The other idea is, if you have a sexually repressed populace, they're a lot easier to keep frightened. It's important to, in a fascist society, keep people sexually repressed. That makes the politics of control easier."

The anonymous local pornographer recalled a former client of his website, a soldier who recently died in Iraq and whose sister called after his death to cancel his account. "He was fighting for the right of Americans to be free to live their lives, so long as they didn't harm others," he said bitterly. "And basically the administration was shooting him in the back while he was over there fighting."

The idea that the freedom to depict hardcore sex is an inalienable American right is one argument for letting Max Hardcore and others be. A more pragmatic argument is purely economic—it's about a predicted transfer of American porn profits to other, more tolerant countries, given the impossibility of stamping out kinky desires here.

"I don't know what these clowns think they're trying to achieve," he said. "If [kinky porn production] moves to Holland do they actually think Americans are going to stop downloading kink?"

But most, like Harmon, return in the end to the slippery slope argument. "If they close down," he said, speaking of a site called pissmops.com that he says recently went dark in response to the new obscenity squad, "what closes down next?"

 

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