To those who may not yet be familiar with the concept, there is a bill of rights attached to the United States Constitition. Among the rights protected is the freedom of expression, and in particular, the freedom to express unpopular ideas. As Thomas Jefferson pointed out, the freedom to express popular ideas hardly needs protecting.
There is also a division between states' rights and federal jurisdiction. This permits states and comminities to define local standards for what is and is not considered protected expression. As I understand it, the theory is that the federal government allows complete freedom of expression, and that sets the default standard for the country. But to maintain local cultural variations, all communities are permitted to say that specific types of expression, which may be fine in some parts of the country, are not acceptable here.
Those of us who work in the adult entertainment industry know community standards as a set of unwritten rules which circumscribe the way we work. For us, the possibility that something we create might be deemed unacceptable in a specific community will prevent any but the most adventurous and financially independent of us from taking risks with topics successfully prosecuted against other producers, no matter how long ago. The de facto laws we abide by aren't the laws of our own community, but the laws of any community where the work we produce may be sold, bought, or even seen.
The federal government, in which we all have a say, is not the problem for once. Although it may be argued that local governments get their cues from the feds, the fact is that people who live in these communities have the privilege to prohibit pretty much any form of expression which they all agree is inappropriate. Anyone in that community who disagrees has the right to vote against the regulation, or move to another part of the United States.
But fear of local prosecution in some parts of the country effectively prevents producers of adult entertainment operating in any community in the country from exploring the evolving landscape of acceptable erotic play. It boils down to economics and inconvenience. Nobody wants to risk being thrown in jail for six months because a video produced in California was seen by a consenting adult in Utah.
The distribution channels for adult products also play a critical role in the issue. A distributor is just as liable as a producer for products which go beyond community standards. Unlike the protections offered to internet service providers, telephone companies, and delivery services, adult video distributors are forced to police the producers who work with them, or suffer the consequences.
It is relevant to point out that there are some economies of scale associated with creating a product on DVD, which do not apply to publishing information electronically. The cost of creating the first 1,000 copies of a title have to be covered by the sales of that title. Selling is a difficult and complex business in and of itself, far beyond the means of most producers. For ongoing production to be possible, most video companies rely on distributors, who focus on the sales so the producers can focus on the development of new products.
In our litigious society, it is the one with the money who is most at risk of prosecution, and that is usually the distributor rather than the producer. If a distributor has reason to be concerned about whether a title may or may not meet community standards anywhere within its entire territory, that distributor has a simple economic incentive not to carry that title. A producer, who relies on distributors for income, has a similar incentive not to produce titles which may violate community standards anywhere in the territory their distributor services.
On the other hand, producers who creates exclusively for online distribution can fall back on local community standards wherever they live as a shield against inappropriate prosecution. With nobody else at risk, producers who do not use formal distribution channels are free to explore locally acceptable, federally protected forms of expression, regardless of how they may be received in other less tolerant communityies.
Producers who work in other countries have a different range of acceptable content. For example, some countries prohibit the showing of male genitalia even in drawings, but do not limit the depiction of extreme non-consensual violence in a sexual context. Much of this work is illegal to distribute anywhere in the United States, because our national community standards have never stretched to encompass these forms of expression. But adult entertainment produced in other countries is easy to access online.
The result of all this is that porn on the internet, which relies on no formal distribution channel to define the community where it is accessed, can be as depraved as federal law will tolerate. Meanwhile, porn sold through legitimate retail outlets is subject to economic sanctions if it violates the standards of the most modest community where the product might appear.
The fact is that different communities have different standards for acceptable expression. If my artistic vision, based on my community's standards, is reasonably described as obscenity in your community, then it probably shouldn't be sold in your community. That doesn't mean that I should be thrown in jail if someone in your community does get hold of a copy, or that my distributor should be thrown in jail for making that acquisition possible.
If these laws were applied only to the people who chose to live within the community where they existed, I would not have an objection. In fact, I could see that sort of application resulting in a much more aggressive reistance to limitations of freedom of expression. Community standards are not just another way of saying, "the first amendment doesn't really protect anything." It is economic reality, not the rule of law, which keeps producers of adult entertainment from expressing themselves more freely.
There needs to be a way to keep the protections afforded to communities by this loophole in the bill of rights, known as community standards, from fossilizing the evolution of society.