Sex, Law, and Cinema in the Digital Age (1989-2010)

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By Tony Comstock


Okay, this is a big long info-dump as a post, and as I warned earlier, I am too close to the events of the last decade, both temporally and emotionally to claim any sort of objective perspective, so caveat lector my friend, caveat lector...

Before we dive in, I'd like to make a couple of points about the period from 1968-1975; that 'golden age' of grown up moviemaking.

I don't want to be misunderstood as saying that nothing changed, in moviemaking or in society after that time. A lot changed, and the changes in the use of language, violence, and nudity in film are easily observed.

The Owl and the Pussycat, called out in a previous post to illustrate that even as early as 1970 the X-rating had a dubious reputation, was also the first MPAA-sanctioned film to contain an utterance of the word "fuck". That word is now commonplace. Not just in movies, but also on TV (though usually bleeped). The way people talk in movies now is more or less the same as how they talk in real life.

Nudity and suggestions of sexuality are also now commonplace. Arguments and controversy still break out over where to draw appropriate boundaries for various venues, and it is still possible to go to jail for expressing sexual ideas deemed to be in criminally bad taste. But no one fears going to jail for including a bare breast in a film. That's a huge change in what sort of sexual expression our society tolerates in film and other media.

Similarly, since 1968 explicit sexuality has made periodic appearances at the very edge of the art house scene. Usually there's a strobe light, a suicide and/or a murder, and everyone speaks French. From what I know about the sales of these films, the participants have some sort of altered biology that allows them to subsist on notoriety. Or they have day jobs. Or trust funds.

And violence, my goodness, the violence! On that subject I will simply say that Saving Private Ryan convinced me I hadn't missed out on anything by never having gone to war, and also to quote from this very excellent essay by Anthony Lane in which he contemplates what was unleashed in 1968 and where we are now:

"We have, it is clear, reached the lively dead end of a process that was initiated by a fretful Martin Scorsese and inflamed, with less embarrassed glee, by Tarantino: the process of knowing everything about violence and nothing about suffering."

On that cheery note, here's my survey of the key social, legal, cinematic, and technological moments of the last 22 years, with my take on how they delivered us (and by "us" I mean "me") to where we are now.

* * *

In 1989 John "Buttman" Stagliano produced The Adventures of Buttman. Although shot and edited on BetaSP, a costly professional video format, Stagliano cast off the encumbrances of the feature approach, and fully embraced the look of video on its own terms. The film was shot in a first-person camera verite style, and set the aesthetic and production template that will later form the foundation for the great "gonzo" land rush of the late '90s and early Oughts.

In 1990 the MPAA replaced the untrademarked X with the trademarked NC-17 as its adults-only rating. Now, only films that have undergone MPAA review may carry the NC-17 mark, and the advertising and packaging for all films carrying MPAA ratings must be "all-ages appropriate". 

This change is important for two reasons. The first is that there is a fee for submitting a film to the MPAA, and like the X-rating before, carrying an NC-17 rating suggests too much legitimacy and too little nudity, sex, and titillation for an adult producer to carry the mark. It also means that the box cover artwork must be all-ages appropriate, and this simply won't work in a business where a box cover promising what's on the tape inside is the sole form of advertising. Adult producers can't afford to be discreet. Between the price of admission, an advertising code of standards, and the connotation of not being explicitly sexual, the NC-17 rating is both out of reach financially and useless promotionally to adult producers.

In 1992 the Times Square Business Improvement District is established in the hopes of revitalizing the notoriously blighted neighborhood.

That same year, Bill Clinton is elected president and will name Janet Reno as attorney general. Under Reno, the Department of Justice will abandon obscenity prosecution as a priority and focus its efforts on the prosecution of child pornography.

In 1995 Sony introduces the VX-1000 "prosumer" video camera, the first video camera purpose-built to output footage editable on home computer equipment.

Also in 1995 MGM released Showgirls with an NC-17 rating. With Paul Verhoaven at the helm and a budget of around $40 milion, Showgirls represents a serious effort by mainstream Hollywood to recapture the adults-only cinematic space. Unfortunately Showgirls simply isn't up to the task. The film performs poorly at the box office, and is panned by critics. 

In 1997 the DVD is introduced to the US. Although DVD encoding, authoring, and replication is initially more expensive than VHS duplication, by 2002, a run of 1000 DVDs in 'retail ready' packing can be had for as little as $1,200.

In 1999 John Cameron Mitchell, director of the hit off-broadway musical and indie-film Hedwig and the Angry Inch announces he is in pre-production for "The Sex Project", which he promises will depict actual sex acts in a part of the characters' normal lives and in normal cinematic language. "A painter can use all the colors in the box. Why is sex excluded from the filmmaker's palette?" he asks.

In 2000 George Bush is elected with strong social conservative backing, and promises to revive obscenity prosecution as a Justice Department priority. Less than a year after his inauguration, September 11 alters the Bush administration's priorities.

2003mariejack.jpg
[caption: Marie and Jack: A Hardcore Love Story (2003)]

Shot in July of 2001 and completed later that year, my own Marie and Jack: A Hardcore Love Story was not accepted by any 1st, 2nd, or even 3rd tier film festivals and was rejected by every distributor I approached. In 2003 we made the decision to self-distribute without festival recognition or an MPAA rating. That first year the film sells 200 copies. (Marie and Jack will go on to sell nearly 20,000 copies and receive an NC-17 from the MPAA.)

This, it turns out will be the year that Vincent Gallo premieres The Brown Bunny at Cannes. The film's final scene depicts Gallo receiving oral sex from his co-star Chloë Sevigny. In 2005 the film is released on DVD without an MPAA rating. 

Also same year, Fox Searchlight releases Bernardo Bertolucci's The Dreamers. The film depicts full frontal nudity, and the strong implication of sex, including incest. Like Showgirls,  The Dreamers is released with an NC-17 rating, but the budget for The Dreamers is one third that of Showgirls.

And finally in 2003, George Bush declares Oct. 26 - Nov. 1 as "Protection from Pornography Week". This goes largely unnoticed by his critics, supporters, the press, and everyone else.

2004 gives us director Michael Winterbottom's 9 Songs. Produced on a "prosumer" handicam similar to those used in the production of adult videos, the film features actual oral sex and intercourse between its two principles. Of the film's explicit sexual content Winterbottom says, "[I]t isn't pornography, the truth is, you know, this was an attempt to show two people in a relationship, to show two people making love. It was not an attempt to excite the audience, or arouse the audience."

2005xanadax.jpg
[caption: Xana and Dax: When Opposites Attract (2005)]

In August of 2005, the FBI raids the home of Karen Fletcher, owner and operator of the membership web site Red Rose Stories. The site features fictional, text-only accounts of the rape, torture, and murder of children. Fletcher will ultimately plead guilty to six counts of using an interactive computer service to distribute obscene materials, and is sentenced to six months home detention and five years probation.

The case is notable for two reasons. First, most of the Supreme Court cases in the '50s, '60s, and '70s that dealt with the question of obscenity did so in the context of photographic depictions of consenting adults, and although not specifically ruled out by the 1972 case Miller v California (the most recent and controlling definition of obscenity) the prosecution of ideas expressed only as text had been widely believed to be no longer a concern of the state. Furthermore, in the 2002 case Ashcroft v. The Free Speech Coalition, the Supreme Court had struck down the prosecution of sexually explicit, but purely computer generated images of children.

But Fletcher was not charged with the distribution of child pornography, she was charged with the distribution of obscenity.

Also in 2005, Digital Playground/Adam & Eve releases Pirates. Touted as a "the most expensive porno in history" the producers report the film's budget as over $1,000,000 and boast that it contains "over 300 special effects". But insiders report the film's budget is closer to $750,000 and the visual quality of the special effects resembles a late '90s video game. Like The Devil in Miss Jones 33 years earlier, Pirates will get a mention in Newsweek, but this time the mention isn't so enthusiastic. In fact, the writer specifically disavows any plans to see the film.

2006damonhunter.jpg
[caption: Damon and Hunter: Doing it Together (2006)

2006 sees the debut of Destricted, Shortbus, and my own Damon and Hunter: Doing it Together.

Destricted is collection of short films from well-known artists, which purports to explore "the boundary between art and pornography". As with 9 Songs the British Board of Film Classification takes the unusual step of granting the film an BBFC "R" (equivalent to the MPAA's NC-17) instead of the R18 usually applied to sexually explicit films. From the British newspaper The Telegraph:

After considerable agonising, the British Board of Film Classification granted an 18 rating for Destricted this week, to be released uncut on DVD. But it said that it must carry a warning that it "contains strong, real sex".

A source at the board described the film as "awful". Unusually, it was not approved until it had been seen by the board's president, Sir Quentin Thomas.

The board had considered granting a Restricted 18 DVD classification, reserved for work intended to be arousing. That would have meant that a Destricted DVD could be sold only in sex shops and would have ruled out the possibility of its being put on sale in the shop at Tate Modern, where the film is to be given five screenings in September.

Sir Quentin said that Destricted was so explicit that it would normally attract an R18 rating but he judged that it was a work of art not intended to arouse.

He said: "In purpose and effect, this work is plainly a serious consideration of sex and pornography as aspects of the human experience."

"We think that there are no grounds for depriving adults of the ability to decide themselves whether they want to see it."

Tate Modern said the film was art not pornography.

Destricted screens in the US at the Sundance Film Festival. Most of the films are composed of alterations, distortions and re-edits of exhitant footage. But Larry Clark's contribution "Impaled" features newly produced footage of a young man fulfilling his fantasy of having anal sex with a professional female adult performer.

Shortbus is the fruition of John Cameron Mitchell's "sex-project".  As promised, it contains various depictions of explicit sex acts. Like Winterbottom, Mitchell feels obliged to explain his decision to show actors having sex:

"[A]ll of the orgasms and all of the semen is real [but] no one got a hard-on watching this film... We have to keep reminding people it's not pornographic - it's not a film that's meant to arouse. We tried to de-eroticize the sex to see what kind of emotions and ideas are left over when the haze of eroticism is waved away...by the end if you're thinking only about the sex, then you have a problem."

The film is submitted to the MPAA where it receives an NC-17. The producers choose to decline the rating and distribute Shortbus as "unrated" both theatrically and on DVD. 

In July my own Damon and Hunter: Doing it Together premieres at the Melbourne Underground Film Festival and shares Best Documentary with Plagues and Pleasures on the Salton Sea, and I win the award for Best Foreign Director. But unknown to me or festival goers, the screening has taken place in defiance of the Australian Office of Film and Literature Classification. When the Sydney International Gay and Lesbian Documentary Film Festival plans two screenings for their September festival, the government informs them that if the screenings go forward without the removal of the sexually explicit footage, the festival will face fines and its director and board members may be jailed. Days before the screening I publish an open letter to the OFLC (except):

"I made this film because I believe depictions of truly joyous and wholesome sex, depictions that represent the overwhelmingly positive and important role that our sexuality plays in our humanity, are all but absent from the cinematic landscape. Moreover, in an age where it is easier than ever to see sexually explicit imagery, it is harder than ever to find imagery that reflects the common reality of sex: that sex is nice; that sex is normal; that sex is good. I made this film because even today, here in America, in Australia, and elsewhere, the state's role in the most intimate aspects of the lives of its citizens remains an open question..." [you can read the rest here.]

Damon and Hunter is replaced on the 2006 Sydney International Gay & Lesbian Documentary Film Festival Program with two episodes of a gay-theme soap opera from the UK.

2006mattkhym.jpg
[caption: Matt and Khym: Better Than Ever (2006)]

In late November 2006 massive shifts in Google's algorithm de-rank and/or completely delist websites for Good Vibrations, Babeland, and numerous other "sex-postive" bloggers, communities, and businesses. My company's website ComstockFilms.com completely disappears from any search results, including [comstock films] and [tony comstock]. The story receives relatively wide coverage, including personal interest from Google's Matt Cutts. ComstockFilms.com has its ranking restored on name-specific searches. This is when I first become aware that at least some aspects of Google's vaunted "algorithm" are in fact the result of hand-tinkering.

2007ashleykisa.jpg
[caption: Ashley and Kisha: Finding the Right Fit (2007)]

Google's algorithmic shift hit at the height of the online Christmas shopping season, and pioneering sex-positive independent feminist retailer Good Vibrations, which had already been struggling to find a workable business and organizational model emerged from the shift with their Google listing restored, but teetering on the edge of bankruptcy. In September 2007 Good Vibrations is bought by GVA-TWN, a mainstream wholesale distributor of "adult media and novelties". 

By 2008 the trend is becoming clear. Paul Little, aka Max Hardcore notorious producer of videos featuring urination, vomiting and women dressed as children is convicted on 20 obscenity counts. Over at Salon.com, Tracy Clark Flory chronicles the implosion of the market for over-sharing with her post "Sex writing goes limp" detailing lay-offs and cancelations at Wired, Playboy, The Village Voice, Gawker and elsewhere. Tartan Films and ThinkFilm, the distributors of 9 Songs and Shortbus respectively, go out of business. And in December the social networking platform Ning announces they will "no longer support adult social networks". Ning is forthright with their reasons why:

1) "Adult social networks don't pull their own weight financially." The old detective's maxim - follow the money. Over and over again we hear it asserted that businesses turn their back on "adult-content" because it's bad publicity, or that they're "getting ready for their IPO." But if the last decade showed anything, it's that capital is maddenly amoral; it seeks profit as relentlessly as water seeks the ocean, whatever the cost. 

 2) "By having legal adult social networks on Ning, we've seen a rise in volume of illegal adult social networks." This speaks to my ecological metaphor. The opening of a niche for Midnight Cowboy also opened a niche for The Devil in Miss Jones, and if it stayed there, society would probably tolerate it.

But it doesn't stay there. In the '70s, the socio-economic conditions that allowed The Devil in Miss Jones to be produced and screened publicly also allowed a host of unwelcome anti-social activities to flourish. In the digital era, the conditions that allowed me to produce and market my films also gave rise to torrents of spam and other invasive media, much of it vulgar, even menacing, all of it unwelcome. 

3) "Adult social networks on Ning receive a disproportionate number of DMCA take down notices creating additional work for our team." Again it comes down to money. If the adult social networks were cash cows, they'd be worth all the attention they require, but they aren't and they don't. It's simply impossible to come up with a rational, even-handed, scalable policy that differentiates sexual art from erotica from pornography from obscenity (add or subtract whatever, ultimately meaningless meta-tags you want to that list.) Like the standard for Obscenity set forth in Miller v California, commercial terms of service for acceptable sexual content on private platforms are practically forced to evolve to be vague and community-based. But unlike the legal standard; these commercial standards will be enforced with extreme prejudice and little or no recourse for appeal.

This last point is probably going to put some of my more libertine friends' noses out of joint, but look at your own behavior. Do you put NSFW next to links when you don't want the recipient to get in trouble at work? I bet you do. And when you do that, do you push the edge, and only label the most explicit links NSFW, or do you play it safe and label anything that might be a problem? (NSFW: But Then Again, Safety Is Over-Rated.)


2009billdesiree.jpg
[caption: Bill and Desiree: Love is Timeless (2009)]

The difficulties faced by Ning will be writ large in April, 2009 when over the weekend of April 11-12, adjustments to Amazon's merchandizing algorithm results in the wholesale deranking/delisting of gay and lesbian themed books and merchandise. The internet explodes with outrage and accusations that Amazon is caving to conservative pressure. But I see the event from a slightly different perspective.

For one, we are an Amazon consignment retailer. Since the complete collapse of Google search-driven direct sales, Amazon has become  the tent pole of our self-distribution network. This means we have to sell twice as many DVDs to make the same amount of money as we would with direct sales, but it also gives me near real time access to our sales numbers on Amazon. On the basis of those numbers I can make pretty reasonable guesses about how other titles are performing.

From that perch what I see is that Amazon has made a tweak to their merchandizing algorithms to try and prevent sexually oriented merchandise from being presented to people not specifically looking for it, ie Amazon doesn't want to accidentally push Doc Johnson products at people who are looking for Johnson and Johnson products. They don't want to do it because it's bad business.

But over this weekend they over-torqued the valve and it blows up in their face. 

It blows up in our face too. In the aftermath the of the April 2009 #AmazonFAIL, ours sales fall 65%. This puts the fear of God in me. I realize that if I don't take steps to try and move my filmmaking off the boundary of the Sphere of Deviance to firmly inside the Sphere of Legitimate Controversy, we are done for. Done for.

I am also keenly aware of who polices those boundaries. In June of 2009 I go into a near fugue-like state and begin writing The Intent to Arouse: A Concise History of Sex, Shame and the Moving Image, starting with the first post: My name is Tony Comstock and I am a thought criminal.

I know the days of simply making things and putting them on the internet for the world to marvel at are long gone, so when I'm not writing I am calling film departments, media studies departments, law schools, art departments, psychology departments, and medical colleges at Harvard, Yale, Columbia, Princeton, Cornell, Stanford, Berkley, UCLA, USC. I have to begin building my academic speaking resume, and I don't care where, so long as it's somewhere that looks impressive on paper! The films no longer matter. I need credentials.

On September 23rd I delivered The Intent to Arouse lecture for the first to the Film Studies Department, at the Tisch School of the Arts at New York University. The lecture was well received with several students and faculty staying hours after while I held court. For a week or so after I managed to hang on to the thought, "If this is what it takes, I can do it."

But six weeks later I find myself at the helm of a small boat rounding the eastern most tip of Long Island. When the boat clears the point I set a course for Bermuda and points South. I don't see my home again for seven months.

---

On June 9, 2010 Jim Fallows published my letter to him "Climax Ecology" on this very blog. In it I gave a very short version of what I hope has been interesting reading this past week.

On that very same day, Jim's colleague Jeffery Goldberg published an incredulous account of having New York Times editor Helen Cooper ask to replace "tuchas" with "tushie" in an article she was writing in which she had quoted him. The title of Goldberg's post was "Words That the New York Times Will Not Print, and in it he speculated on what other Yiddish words he should avoid.

Four years after its screening at the Sundance Film Festival, Destricted was finally set to be released on DVD in the US (unrated, of course.) As a part of the hype surrounding the release, the National Coalition Against Censorship organized a screening of the film and a panel discussion with the film's producers.  This struck me as odd. To my knowledge the film had never suffered from any prejudicial treatment either by state or corporate censors, so I made a stink about it on Twitter. 

This garnered me an invitation to the screening and to sit on the panel, which I accepted.

The film was so appallingly dull and so purposefully ugly it was all I could do not to get up and leave. The audience sat in complete, dumbstruck silence for the entire excruciating hour. I had gone to the event brimming with years of pent up rage, and by the time the house lights came up I was in a lather. How dare something like this be feted while my tenderly made films were being persecuted.

But when I got up up there on the stage, next to the producers, watching them have to stand by their ugly, detached, boring film, all I could imagine was how I would feel if I were in the same awful position. My rage departed. In its place all I felt was pity.

And oh, by the way; Larry Clark's "Impaled" was not included in the NCAC screening or on the DVD. It seems the producers had botched the paperwork. They couldn't prove that all of the young men involved in making of Clark's segment were of legal age. 

Not long after that Steve Jobs declared the iPad will be porn-free, "That's a place we don't want to go - so we're not going to go there." Jeers of "Prudery!" and "Not smart busineess!" rose from predictable quarters, but Wall Street failed to punish Apple's stock price for Jobs turning his back on the "trillion dollar/year adult industry." Perhaps they were too worried about his liver to notice.


2011brettmelanie.jpg
[caption: Brett and Melanie: Boi Meets Girl (2011)]

When people talk about trends, they often say things like "it's come full circle" or "the pendulum swings the other way" but I find those metaphors unsatisfying. History doesn't repeat itself.

In 1989, sort of on a dare, I took the pre-engineering physics course from Dr. Rudy Hwa at University of Oregon. That's the same year I was doing my BFA. One of the things I learned in that course was that it's not really accurate to say light travels in waves; more accurate to say that travels in spirals.

Depending on how you look at a spiral motion it can look look like a pendulum, or a circle. But it's not. It's a spiral. It goes around and around, but processes too. It goes back and forth, and around and around and forward.

My next post is going to be my going to be my last post. If you managed to make it all the way to the bottom of this one, I'm grateful. I guess I've got the hook set pretty deep. We still need to check Dick Cheney's heart off the list. Thanks for reading!

Tony Comstock is a documentary filmmaker whose company, Comstock Films, specializes in erotic documentaries. Follow him on Twitter at @TonyComstock.

James Fallows is a national correspondent for The Atlantic and has written for the magazine since the late 1970s. He has reported extensively from outside the United States and once worked as President Carter's chief speechwriter. His latest book is China Airborne. More

James Fallows is based in Washington as a national correspondent for The Atlantic. He has worked for the magazine for nearly 30 years and in that time has also lived in Seattle, Berkeley, Austin, Tokyo, Kuala Lumpur, Shanghai, and Beijing. He was raised in Redlands, California, received his undergraduate degree in American history and literature from Harvard, and received a graduate degree in economics from Oxford as a Rhodes scholar. In addition to working for The Atlantic, he has spent two years as chief White House speechwriter for Jimmy Carter, two years as the editor of US News & World Report, and six months as a program designer at Microsoft. He is an instrument-rated private pilot. He is also now the chair in U.S. media at the U.S. Studies Centre at the University of Sydney, in Australia.

Fallows has been a finalist for the National Magazine Award five times and has won once; he has also won the American Book Award for nonfiction and a N.Y. Emmy award for the documentary series Doing Business in China. He was the founding chairman of the New America Foundation. His recent books Blind Into Baghdad (2006) and Postcards From Tomorrow Square (2009) are based on his writings for The Atlantic. His latest book is China Airborne. He is married to Deborah Fallows, author of the recent book Dreaming in Chinese. They have two married sons.

Fallows welcomes and frequently quotes from reader mail sent via the "Email" button below. Unless you specify otherwise, we consider any incoming mail available for possible quotation -- but not with the sender's real name unless you explicitly state that it may be used. If you are wondering why Fallows does not use a "Comments" field below his posts, please see previous explanations here and here.
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