Online Merchant Retail Sales:

Do "Do-Not-Ship Lists" Continue to Make Any Sense in the Twenty-First Century?

by Attorney J. D. Obenberger

J. D. Obenberger and Associates, XXXLAW.COM, Chicago, Illinois

© MMXII J. D. Obenberger, All Rights Reserved

(This Article was adapted from the original which appeared in AVN.com in November, 2012 and in the print edition of AVN Magazine, December, 2012. The print edition version of this article was substantially trimmed for reasons of space, and so this is best source for the article, as written.)

 

Are "Do Not Ship" Lists Inneffective, Unsafe Remedies That Deflect Attention From the Sources of Actual Risk?

   

    It's hard to find any online DVD sales that don't employ a "Do Not Ship" list or a protocol that rejects orders in the background to protect the (expensively-purchased) list from prying eyes - which presumably protects the operation from the risk of obscenity prosecution. Some lawyers create lists, but they've never made much sense to me and I've been telling that to clients for ten years. I think that they are relatively worthless voodoo. The usual reaction from online merchants hearing that is wide-eyed disbelief that I'd give up an opportunity to bill them for something that I really don't think is worth the bother and sometimes I get a sermonette from adult professionals to the effect that (in the words of one executive at a major player) "very talented industry lawyers came up with these list who are paid to protect their clients." But I don’t think that stands up to any kind of examination. I think that Do Not Ship lists remain because some significant major-player distributors want to feel protected even if it isn't true.

    But in this era, it’s the extreme nature of content on any particular DVD that predicts the likelihood of prosecution far, far better than its destination zip code.

     If there is any actual value to these lists, it should be that their use reduces the number of criminal prosecutions against retailers and tips the balance in favor of acquittals when prosecutions actually do take place. There is no evidence that these lists have done either of those things in recent decades but there is evidence that they don’t exclude shipments to some of the jurisdictions most connected with obscenity prosecution and, at the same time, they are too cautious in regard to other jurisdictions: that’s why I call them voodoo. They cost distributors lost profits in tough economic times, in some sense they encourage a false confidence that distracts producers from the major risk factor - namely the extreme nature of the content. At the same time, they have the dangerous potential  of actually assisting prosecutors to get obscenity prosecutions, more about which I've written about below.  

     To judge the real value of these often expensive lists, it might be prudent to compare the outcome with online merchants who don't use any list at all, and who ship into the "high risk" places identified on these lists. These merchants do exist, and I've been able to informally confirm - with customers of online DVD merchants - that these customers have no trouble getting whatever content is they want, regardless of where they live. The shippers who take care of them aren't being prosecuted anywhere. I think that establishes something important about whether these lists have any value in this era.

    Very hard, strongly deviant material can be set up and prosecuted anywhere, from Oregon and Los Angeles to Tampa - and "buys" have bee set up in all of those places exactly because they don't appear on the lists; less intense depictions shipped through the mail aren't being prosecuted anywhere. One must ask, if an Agent is hellbent on prosecuting a title, what stops him from ordering the title he wants to nail from a jurisdiction that's not on a particular Do Not Ship list? Nothing that I can see. I think that, too, establishes something about the real "value" of these lists.  If Do Not Ship lists were a drug, the FDA would deny them the right to market because it has not been demonstrated that they are effective to cure a problem.

    In fact, the jurisdictions that have, in recent decades, most frequently have brought and tried obscenity prosecutions, with the highest profile, appear on no list that I've found online.

What's the Risk of Obscenity Prosecution for Vanilla Porn in the 2100's, Anyway?

     To call the risk of obscenity prosecution for most mainline adult products “modest” would probably  actually overstate the risk in these times; they are actually rare: no federal obscenity prosecutions have been initiated since President Bush left office and the DOJ Obscenity Task Force has been disbanded. I can't find any record in recent decades of a state obscenity prosecution that was built on a mail or express shipment; nothing suggests that local police departments have any taste for going after websites or mail order porn, and there is only one reported case during the past fifteen years that shows a federal obscenity prosecution arising from a local police investigation. (In that case the merchant/producer himself,  Garry [sic] Ragsdale,  was a Dallas, Texas police officer (fired for conduct unbecoming shortly after a search warrant was executed) and the prosecution involved eight rape videos all mailed to a post office box in Dallas fourteen years ago. I can't find a "Do Not Ship" list online that includes Dallas, Texas.

     One real problem here is that—in the grand scheme of things—obscenity prosecutions are so rare that they do not come close to providing any statistically significant data. My own compilation of state and federal obscenity prosecutions from 2003 to the present lists thirty cases—an average of about three per year. A slightly earlier and slightly longer sampling by a political scientist (January 1, 1990 through June 1, 2006) revealed a slight­ly higher average of 6.36 obscenity prosecutions per year. As time goes on, the prosecutions initiated are fewer.

     One curious trend emerging from recent obscenity prosecutions is that they seem to come from the top-down, from the attitudes of prosecutors and activists rather than members of the community; I think that the probable cause is that free and abundant Internet porn has importantly affected the attitudes of individuals and communities. (The apparent exception seems to be the grand juries convened in Johnson County Kansas by petitions bearing 8,000 signatures and addressed to local porn retailing. http://www.firstamendmentcenter.org/kan-grand-juries-to-launch-obscenity-investigations. Such a petition – especially because prosecutors themselves dismissed some of the misdemeanor indictments – and were used to pressure convenience stores to take material off the shelf – tells us very little about whether an intercepted package would be investigated and prosecuted and less about what the outcome would be in any trial. In the latest round of this tactic, in regard to a nude statue, the moralizers fell flat on their faces. http://www.kansascity.com/2012/10/27/3887013/joco-grand-jury-dismisses-obscenity.html#disqus_thread). So far as I can discern, no one has ever been prosecuted for discretely mailing adult content materials to Johnson County; the small handful of moralizing activists seem to be largely concerned with materials (including Halloween costumes!) that appear in the public eye, but yet Johnson County is included in all of the lists. So far as I can determine, all of the prosecutions in the Cincinnati area track the same pattern - as reactions to the public sale of pornography rather than its private acquisition Nowhere does there appears to be any correlation between the prosecution of porn stores on Main Street (or convenience stores) and the interception of packages by the Postal Inspectors or the FBI for prosecution. I believe that a meaningful dichotomy exists between official reaction to “open and obvious” porn and that which arrives via UPS, FEDEX, the mails, or the Internet. These phenomena are regarded as different things by those who make decisions.  And it’s that difference that pressured the gas station stores to take Penthouse off the shelves when it featured hardcore insertions, a factor that apparently pushed Penthouse to stop publishing such depictions.

     And that's part of an another important point: One might conclude that, in the absence of reliable survey-data that can help ascertain whether "prevailing contemporary community values" vary in communities across the country, by region, by absolute population or by population density, in order for any such list to be effective, it must depend on reported investigatory activity by law enforcement or cases actually brought, but there appears to be little or no correlation between those lists and any known prosecutions. It's hard to make a predictive indicator of danger with as few judicial prosecutions as have taken place - they are generally isolated and not part of obvious, overall trends; the Do Not Ship lists in circulation do not begin to correlate with the number and location of prosecutions and/or convictions.


Places Where Porn Got Prosecuted - But Which Don't Appear in the "Do Not Ship" Lists

     * So far as I can determine, Los Angeles County, California itself has tried more obscenity cases than any other county in the United States during the past twenty years. The Los Angeles Police Department has been one of the few local police departments in the nation to regularly investigate obscenity allegations. In the Ira Isaacs prosecution, according to Isaac's attorney, Roger John Diamond, undercover sting maildrops used by LAPD and the Postal Inspectors were located in Los Angeles, Huntington Beach, and in Maryland. Max Hardcore was at least once prosecuted in LA as well. So far as I can determine online, no one has ever included any community in LA County in any No Ship List.

     * Montana has been the scene of three major obscenity prosecutions in comparatively recent decades. In addition to the Gary Robinson (“Suzie’s Corral”) case, the recent Barry Goldman's case was based on surreptitious mail or express shipment stings to Montana (ultimately the case was transferred for disposition to his home, New Jersey). Finally, Sanford Wasserman, who shipped extreme content from Billings Montana to Topaz, California, College Station, Texas, and Clackamas, Oregon was prosecuted before federal authorities Montana. Neither Montana nor any of these cities appear in any of the lists, shipments of orders has presumably been ongoing, and no pattern of prosecutions has emerged.

    In theory, the United States can set the venue of prosecution where any material is sent, where it is received, and even any jurisdiction through which it travels. However, since the case of Barry Goldman, the Department of Justice has backed off of  the pattern of setting up and demanding trials in distant jurisdictions that have no connection with the defendant's course of dealings, having discovered the provision in its own US Attorney's Manual § 9-75.400, which indicates that the government should not ordinarily prosecute a postal-obscenity case involving sales to an undercover agent in the district in which the materials are received, absent information that the defendant had some prior contact(s) with that forum independent of the undercover sales

     * In the Max Hardcore case, the sting involved a shipment to Tampa, Florida. It appears on no lists.

     * In the John Stagliano Case, the sting involved a shipment to the District of Columbia, which appears on none of the lists.

     * In the Extreme Associates case materials were delivered to Pittsburgh - that city does appear in most or all lists - but it does little to inspire confidence in the lists. The thrust of that prosecution was the online activities of Extreme Associates and the videos were ordered from that jurisdiction -  probably by calculation to establish a friendly venue - but certainly because its US Attorney welcomed the chance to prosecute porn. (It's not clear that Pittsburgh was included on anyone's list before that prosecution was brought.) The subsequent prosecutions in that federal jurisdiction were for online text publication of pedophilic interest stories and the quiet corporate plea bargain of Adult DVD Empire for hard BDSM material. Because all three sets of defendants pled guilty, we have no data point regarding the opinion of anyone about community standards there except the grand jury - and the former US Attorney. Since Mary Beth Buchanan left that position, no subsequent pattern of prosecution has emerged in Pittsburgh.

     * West Virginia has been the site of mail-order or express obscenity prosecutions at least twice in the recent era. Two-times convicted Loren J. Adams (originally convicted in Indiana) for bestiality and fisting material and Michael Corbett (“Girls Pooping”) were each prosecuted there on the basis of mail order shipments in the early to mid 2000’s. No subsequent pattern of prosecutions emerged, West Virginia is included in few, if any lists, and one Martinsburg, West Virginia adult operator posted his history of ordering “numerous” DVDs from adult merchants without incident on an adult board on June 2, 2008. To some extent, these lists exclude prosecutions based on the most deviant material.   

     * Despite the partial conviction of After Hours Video in Staunton, Virginia, Northern Virginia has yet to make an appearance on anyone’s Do Not Ship list. Yet jurors exiting the courtroom said that sex with more than two partners offended local community standards as they understood them.

     * Despite the November, 2004 plea of Ronald and Alina Urbassik for shipment of BDSM, scat, and urination materials, the Northern District of Ohio appears on almost no one’s Do Not Ship list, and no subsequent pattern of prosecutions emerged. On some very rudimentary level, even these lists seem take into account that risk is better predicted by content than by isolated cases, but insufficiently so to make them helpful or reliable.

     What's clear from the history of the obscenity prosecution of materials delivered by mail or express shipment during the past ten years demonstrates a high level of calculation and choice by Federal authorities to select jurisdictions that are friendly to their aims and which are not included on Do Not Ship lists. Agents and prosecutors will chose a jurisdiction not on the List and that makes any such List, in my estimation, pretty worthless to protect anyone. Hiding the list from view and using it in the background to screen orders will simply require the crafty investigating Agent to make repeated tries from different jurisdictions until his order is placed for delivery in a jurisdiction that he thinks friendly to his prosecutorial aims.

"False Positives" On the "Do Not Ship" Lists: Places Where Porn Isn't Prosecuted or Isn't Convicted


     * Just as the lists tend to exclude locations that have actually investigated and prosecuted mail and express deliveries of porn, the lists also seem to include "false positives" where prosecution and conviction are unlikely. The lists all included Arkansas, and when I attempted a dummy order on one prominent site that chooses to hide its list in an invisible screening process (Gamelink) my "order from Arkansas" was rejected by its system. Yet, in one of the few state court prosecutions of obscenity in recent years, brought against the Phillpot Brothers for a freeway megastore near Forest City, Arkansas two years ago, some jurors applauded the Private videos featuring double penetration when they were shown in court-  and the jury acquitted on all counts inside four hours on September 3, 2010.  When the local prosecutor spoke to the press afterwards, the essence of his comments was that he had misjudged community values. Two hundred miles away and seven months later, John Wesley Hall defended X-Mart in Clarksville, Arkansas: there, another Arkansas jury acquitted another Interstate adult superstore against charges arising from the hardest content the investigators could find in the store. No prosecutions have followed. Outside Forest City,  the massive store and its towering signage still stand like a statue of the Marines planting the Flag on an Iwo Jima mountain. My own sense is that the inclusion of such entire states as Arkansas is simply a pointless loss of profits during a time when this Industry, especially the part of this Industry concerned with physical copies, can least afford the lost potential income. Mr. Hall tells me that these two acquittals came out of the only obscenity cases brought in Arkansas in the past decade. Two for two, but Arkansas remains on all the lists going into 2013.  

    * Certain entire states appear by custom on these lists, notably Utah, Mississippi, and Alabama. There has been one reported retail by mail prosecution in those states in recent years, that of Movies by Mail in Utah, based on Max Hardcore material that involved tubular auto-felching, scenes with performers asking to “stop” while the video kept rolling and picking up pigtailed girls from playgrounds; it resulted in an isolated guilty plea, which can’t be said to establish anything; it’s my sense that these states are included – in the absence of but one retail prosecution in twenty years – because of the visceral opinions of lawyers in California and New York about religiosity in those distant places. In fact, Google Tools has been used to establish that the number of Internet searches using “hot” sexual search terms tend to be higher in that kind of locale than in the Blue States. The same Internet that delivers adult content to Chicago and LA serves the Deep South as well, and shapes the attitudes of prosecutors, cops, and potential jurors. Indeed, hardcore amateur porn is made and quietly sold via the Internet all through the Bible Belt. In general, it’s a poor guess that churchgoing people all follow doctrine lockstep with their Elders and Pastors, or even a majority of them: ask Catholics in the pews about birth control or allegations of religious persecution arising from Obamacare. It’s been 34 years since Larry Flynnt was shot for porn; the nature of society in the South has changed many ways in those intervening years; ask any Black person old enough to remember 1974.  It’s been 22 years since Adam and Eve’s Phil Harvey was under obscenity charges in Utah and Alabama, before the Adult Internet was born and long before the tube sites started pumping out wall-to-wall, free porn. A Utah lawyer representing porn stores for many years told me that availability of hardcore varies from one town to another but that there’s never been a problem to his knowledge in getting explicit materials shipped to consumers without aftershocks. But Utah remains on every list – and no case seems to have emerged from Mississippi in twenty years or more.

       

Extreme Themes and Depictions Are the Only Valid Factors Predicting Risk

"Do Not Ship" Lists Undercut Powerful Defense Arguments

     A far, far better indicator of risk in shipping to any American jurisdiction is the thematic nature or niche of the content rather than its destination; it's unlikely that Postal Inspectors will set up a sting buy of routine boy-girl material anywhere it the country, and it's highly likely that fecal-themed, extreme brutality, felching or bestiality materials will be prosecuted eventually - in a jurisdiction where the distributor would least expect a sting – like Huntington Beach  The focus should be on content at all times because high-risk material carries appreciable risk wherever it is sent. Risk is not a one-size fits all proposition, but the lists ignore the chief source of actual risk; it’s not geography that creates major risk in these times or even in a Republican presidency, it’s content. Why? There is an increasing convergence of broad American social values and an increasing diminution of geographical variability in them -  as a result of network television and radio, premium cable channels, the Internet, broadband availability, the ascent of newspapers aimed at national readership, and - free porn via the tubes. Give the devil its due. As many of them or their users are alleged to steal content, their free distribution of hard core content also tends to benefit producers and distributors by affecting contemporary community standards in a direction that is more tolerant and accepting of hardcore depictions of every kind. Indeed, in the Killbride case, the Ninth Circuit has already gone on record holding that a "national community standard" must apply to any prosecutions judging the obscenity of any porn published online; the Government did not take an appeal in this regard. Moreover, a hidden danger of these lists is that they may be used by an aggressive prosecutor against a defendant to establish that even the adult industry concedes contemporary community standards adverse to explicit depictions. (The comparative decline of DVD’s share of the market is attributed to both invisible mail shipments and Internet sales; this gives rise to an interesting and possibly powerful obscenity defense argument that it is impossible for a jury to assume knowledgeability about community standards in the absence of prosecution expert testimony, because the lion’s share of consumption is truly invisible to the other members of the community where no porn shops exist; you can't assess "community standards" without consideration of what people actually consume, and it's impossible for jurors fresh off the street to know what their neighbors are actually buying). No Ship lists tend to undercut both of these defense arguments and work in the opposite direction, potentially assisting prosecutors.

"Do Not Ship" Lists Reflect Ancient History More Than Present Reality 

    In my considered judgment, in the case of mainline, adult, commercial pornography, these "Do Not Ship" lists are about as valuable and purposeful today as wearing two condoms - instead of one - with a partner who has had her tubes tied – in order to prevent pregnancy. Might a Republican in the White House change that down the road? I doubt that even aggressive prosecutions of obscenity would make a difference. The sting orders will then come from Huntington Beach, California, Montana, small towns in Oregon and other places like them not found in the existing Lists - and then perhaps other lawyers may advise clients that it’s time to revise the Do Not Ship lists and charge handsomely for that - but none of them will ever be effective and reliable for their articulated purposes.

 

             
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This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is xxxlaw@execpc.com