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taken from http://www.thestranger.com/seattle/Content?oid=25246

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.

BY ELI SANDERS

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.

* * *

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.

* * *

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.

* * *

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?"