Kicking myself

[Bramblethorn]

So I assume that the author himself was using his real name, also a bad idea.

Depends what you count as "real name". His given name was Abraham Jacob Alkhabaz, but I think? he was using "Jake Baker" as an everyday name, the way many people with non-Anglo names will do, rather than to conceal his identity.

 

[Bramblethorn]

There are 13 circuits, however, and some or all of the rest might NOT rule the same way. If one of them ruled contrary to the McCoy case, then it might create a split among the circuits that would convince the Supreme Court to take up the case to resolve the conflict. But I wouldn't hold my breath on that one.

Also, if I've understood the details of the McCoy case correctly, the FBI essentially got to choose the jurisdiction: a FBI agent in Georgia downloaded the stories and so they were able to charge McCoy in Georgia. Presumably they chose Georgia precisely because they thought it would be a favourable jurisdiction to them, and if they were handling a similar case today presumably they'd again aim for a favourable jurisdiction.

The other case I linked fell under the Fifth Circuit, and the appeal came down in 2022, so we have two recent rulings from two different circuits.

Based upon the extreme facts of the McCoy case, the state of the law, and the infrequency of the prosecution of obscenity cases based on text-only material, I think we can say with some, but not perfect, confidence, that:

1. As a practical matter, it appears only the most hard-core textual material is likely to be prosecuted as obscenity.
2. Textual and visual material are not the same and are not likely to be seen the same way by the law. Of course, there's a huge difference between images of real children and fictional stories about fictional people.
3. Literotica does not publish anything that would qualify as obscene in the sense that the McCoy material does. Its under-18 rule sees to that, and even if some seemingly inappropriate stories slip through the cracks, I have NEVER read a story anything like what McCoy describes at Literotica.
4. There are plenty of sites that publish far more hard core content than Literotica, and for the most part they seem to get away with it without being prosecuted.
5. There's some possibility that if the Supreme Court were to take up a case it might overrule McCoy and find that no purely textual material is obscene. But that's speculative. We don't know.

That last one could also go the other way; it's possible a future case might expand the scope of "obscenity". Precedent seems to carry less authority than it once did.

 

[Gamblnluck]

I think you all misunderstand me. I'm not saying there shouldn't be rules or standards, I'm saying that the method by which everything must be screened first seems outdated. You are all acting as if it's illegal to have any of those kinds of stories you're mentioning online. It's not. Morally wrong or at least questionable, yes. Against site policy, yes. But having something like that up temporary until it's deleted seems like a way better method than everyone having to wait multiple days for their stories to be published and having those two people have to scan through every story by hand first. That's all I'm saying.

I doubt everything is manually scanned. It may be for some who are new. It generally takes me 2 days or less to get a story published. Especially for a story in a series. I would bet there are scanning tools for keywords that would indicate underage activity, bestiality, snuff etc. Those take a a person to look over.
Not long ago I had a story sit for a week before I noticed I did not hit part 2 of the submission process. It sat like you as a draft for review before final submission.

 

[XerXesXu]

Have there even been any major obscenity cases recently? I can't think of any, but I'll admit that it's not something I look for. Seems like something society has mostly moved on from. From the Judiciary's standpoint it seem like a case of letting sleeping dogs lay. Absent a two major cases and a split between the circuits there just isn't a reason to bother. The number of people who are actually worried about this stuff is probably vanishingly small.

Lit is a 'Common Carrier', that's the heading of the relevant part of DCMA which provides 'safe harbor immunity' under S230. The convictions referred to were personal websites where the defendants published their own stories. S230 was not raised in either case.

If you follow the 'Similar stories' links at the bottom of the journalistic reports, you'll see that there are other convictions also.

The US doesn't require filter screening of materials, but many jurisdictions now do, and Lit publishes to the world.

In the Max Hardcore case (Paul Little 2008) "The Michigan Rules" are mentioned. Where 'deviants' solicit deviant material over the internet, the 'community standard' by which obscenity is to be determined is the community standard of 'deviants' within the receiving jurisdiction. Apply that to Lit.

 

[Bramblethorn]

Lit is a 'Common Carrier', that's the heading of the relevant part of DCMA which provides 'safe harbor immunity' under S230. The convictions referred to were personal websites where the defendants published their own stories. S230 was not raised in either case.

I don't know whether it makes a difference, but both appear to have been publishing stories written by others as well as by themselves. The McCoy appeal refers to "more than 200 stories that [McCoy] authored or edited" (not clear whether that means tweaking copy or in the "compiled" sense).

Per the DoJ release, Arthur's site "contained over 25,000 erotic stories, written by several thousand authors who contributed to the site".

 

[MyBareTorso]

Fair enough.
I guess to me, it's all fiction anyway. So I really don't understand the outrage. I'm not into gore for example. At all. Yet stuff like Walking Dead is on TV with people's guts and brains hanging out and no one seems to throw a fit about that. And that's visual and on cable television. Not just words on a screen like this website.
There are a lot of kinks people are into that I'm not. If I run across them I just stop reading. So I guess I just don't get all the outrage and paranoia. It's like if it shows up, just flag it and let the mods delete it. Why is everyone getting their panties in a twist over words on a screen?
I'll be honest, this website has perplexed the hell out of me with some of the reactions I've gotten to different things. Sometimes it's great and sometimes I feel like I stepped into a conservative Christian convention and not an erotica website.

People have been getting upset over words on a page for thousands of years...it has even caused wars! I understand it can certainly be frustrating waiting for a story to post ( I've whinged about it here myself), but I agree with others that Literotica's rules make it a considerably more civil place than other free-for-all websites. I like the fact that I will never accidentally stumble upon child porn or snuff while reading here. I'm certainly no conservative, but in this case, I like the rules!

 

[XerXesXu]

I don't know whether it makes a difference, but both appear to have been publishing stories written by others as well as by themselves. The McCoy appeal refers to "more than 200 stories that [McCoy] authored or edited" (not clear whether that means tweaking copy or in the "compiled" sense).

Per the DoJ release, Arthur's site "contained over 25,000 erotic stories, written by several thousand authors who contributed to the site".

L and M host stories published by others, they don't publish their own stories, or, if they do, they're very furtive because they could lose 'safe harbor' immunity if they personally published obscene material.

 

[Bramblethorn]

L and M host stories published by others, they don't publish their own stories, or, if they do, they're very furtive because they could lose 'safe harbor' immunity if they personally published obscene material.

Ah right, so you're saying it was the "stories written by themselves" part of the situation that's important - I think I'd misunderstood you there.

 

[SimonDoom]

Also, if I've understood the details of the McCoy case correctly, the FBI essentially got to choose the jurisdiction: a FBI agent in Georgia downloaded the stories and so they were able to charge McCoy in Georgia. Presumably they chose Georgia precisely because they thought it would be a favourable jurisdiction to them, and if they were handling a similar case today presumably they'd again aim for a favourable jurisdiction.

The other case I linked fell under the Fifth Circuit, and the appeal came down in 2022, so we have two recent rulings from two different circuits.


That last one could also go the other way; it's possible a future case might expand the scope of "obscenity". Precedent seems to carry less authority than it once did.

The Fifth Circuit covers Texas and Louisiana, and is also known as a conservative circuit. Not a big surprise.

I realize people have concerns about how far the currently conservative Supreme Court might go, but I think it's very unlikely that we would see an expansion of the concept of "obscenity." The three liberals on the Supreme Court almost certainly would not go in that direction. Gorsuch, a conservative, has some libertarian leanings that I think would make it unlikely he would rule that way. Barrett is a proclaimed admirer of former Justice Scalia's jurisprudence, and Scalia was the author of the case that held that flag burning was protected speech, one of the most startlingly pro-free speech cases in Court history. I don't see Roberts or Kavanaugh expanding the definition of obscenity. All of the current members of the Supreme Court grew up when porn and erotica had gone mainstream. I think this ship has sailed.

That's just my prediction, obviously, and I don't think predictions count for much, but I don't see a nationwide groundswell of support for more obscenity prosecutions.

 

[TheLobster]

That's just my prediction, obviously, and I don't think predictions count for much, but I don't see a nationwide groundswell of support for more obscenity prosecutions.

I could see it. This would be one of the few issues where you would actually expect bipartisan support.

Conservatives would of course have the same stance that they always had; no surprises there. But progressives these days have become just as, if not more, puritan when it comes to depictions of sexuality in art and media. Their arguments are selective, centering mostly around the concepts of so-called objectification and the general disdain for "male gaze."

It might be harder to apply these notions to literature as opposed to imagery in movies or video games but it's not inconceivable in the slightest. Lit is overflowing with stories that are little more than male wish fulfillment fantasies; they are just much less obvious than a well-endowed female character in a video game so they fly under the radar of the present-day moralists disguised as social activists. The medium certainly helps here, as does the relatively small size of the market for written erotica compared to visual porn and especially mainstream visual arts.

 

[mildlyaroused]

But having something like that up temporary until it's deleted seems like a way better method than everyone having to wait multiple days for their stories to be published and having those two people have to scan through every story by hand first. That's all I'm saying.

If this were the case, all the new story lists each day would be flooded by poorly written drivel (not to mention all of those immoral subjects we don't want here on Lit). And since the "new" lists are where 99% of story clicks seem to occur, the site would be fundamentally wounded and inefficient in its most important feature. Publishing delays are annoying, but they're far better than having the site swamped. It's much cleaner to present readers with the stories that are pre-approved than it is to be playing perpetual, public moderation catch-up.