Erotic Stories by Alicia Night Orchid

Most everyone has an opinion about the First Amendment and free speech. It’s as American as apple pie or graffiti on a wall.

My opinion is that free speech means free speech. With very few exceptions, I think we should be able to speak or write about whatever we choose without government intervention. If I want to write and post a hot story about sex on the red-eye flight or at a convention hotel in New Orleans, that should be between me and my adult readers. I mean, no one wants George Bush or Alberto Gonzales looking over their shoulder while they’re writing or wanking.

I suspect most visitors to this site share a similar opinion.

But here’s a dirty, little secret. Lean in a little closer, while I put my lips to your ear, my hot breath scalding you like sex itself, my hard little nipples pressing against your arm. Here’s the secret.

The truth is, if you are reading, writing or viewing sexually explicit material on the Internet, neither your opinion nor mine count for much. What does count are your rights, the current state of the law, and the Bush Administration’s litigation position. And these are matters of which you should know.

After all, you don’t want to be caught with your pants down, if the FBI appears at your door with a warrant to search your computer.

Try explaining that to a spouse or an employer.

Your Rights

Your rights concerning free speech derive from the First Amendment to the Constitution. Written by our fourth President, James Madison, and ratified in 1791, about four years after adoption of the Constitution, the First Amendment is one of the ten amendments that make up the Bill of Rights.

It is deceptively straightforward in its language:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Then, as now, a fundamental principle of our democratic republic was the “balance of power” that existed between the legislative branch (Congress), the executive branch (the office of the President, the Cabinet and agencies of the federal government) and the judiciary. Consequently, although the First Amendment was introduced by the President, enacted by Congress and ratified by the various states, it is the third component of our government, the judicial branch, which has responsibility for interpretation of its application in specific situations.

The judicial branch of the federal government is made up of district courts, which decide matters of fact and law, appeals courts that review matters of law ,and the Supreme Court, which resolves conflicting decisions between the appeals courts and takes on really important matters like sorting out Presidential elections.

So, while you and I are entitled to your opinion about free speech, it’s the Supreme Court’s opinions that count. You may not agree with the Court’s constitutionally sanctioned final say. You may not agree with the Court’s opinion in a particular case. But under our system of government, as it has stood for over 200 years, the Supreme Court’s decision in a case litigated before it is the law in that and other similar cases.

So, what have those nine justices been doing under those robes and in those back rooms for all these years?

Well, over time, the Court has interpreted the First Amendment to protect several rights and privileges:

--It prohibits the establishment of a state religion whether it be Christianity, Islam or Buddhism. This is why a judge in Alabama was prohibited from displaying a stone tablet with the Ten Commandments inscribed on it in his courtroom—it smacked of the state, through the offices of its court system, favoring Christianity over other religions.

--It protects one’s free exercise of religion, however weird or incomprehensible to others, without interference by government. This is why groups as diverse as snake-handling Pentecostals and Hari Krishnas are welcome under our roof and why the Amish can remove their children from public schooling after completion of the 8^th grade.

--It protects one’s right to speak freely without interference or censorship by the government. But what is speech and what limits can be rightfully imposed on speech? For example, is burning the flag speech? Is a false bomb threat in a crowded airport protected speech?

--It protects the right of the press to freely report the news without interference or censorship by the government. This is why everyone from political bloggers to the New York Times to Bill O’Reilly are allowed to praise or criticize the government and politicians as they wish.

--It protects the right of individuals to assemble both privately and publicly without interference by the government. This is why Gays and Lesbians, African-Americans and war protesters are granted access to public streets for marches and protests.

--It protects the right of individuals to petition the government for redress of grievances. This is why individuals can petition elected officials to change laws or demand a referendum.

It should be noted that the First Amendment only protects speech from censorship or interference by the federal government. A later amendment, the 14^th Amendment, extends First Amendment protection to the states. One upshot of this is that your right to free speech ends at your private employer’s door. Although privacy laws may come into play, nothing in the First Amendment prohibits private employers (or private individuals for that matter) from monitoring your conversations, reading your e-mail or limiting what you can look at on the Internet during work. Furthermore, nothing in the First Amendment prohibits private businesses, such as Wal-Mart and Blockbuster, from effectively censoring what you read or view. Want to purchase Penthouse Letters or rent “Wet Teen Neighbors?” Try another venue.

The Law

While the right to free speech appears straightforward and unadorned in the First Amendment, its application in individual cases has created controversy.

Early on, the Supreme Court was forced to decide whether “speech” meant only the spoken word, or whether “speech” should be more broadly interpreted to include the written word, images or even actions. Furthermore, the Court was challenged to decide whether all speech was protected, or whether some speech was so harmful to the public good that it could not be tolerated.

On the first issue, the Court has determined that it would be contrary to the intent and spirit of the First Amendment to restrict its application to the spoken word. James Madison may never have had it in mind when he put quill and ink to parchment, but under today’s Constitution speech includes the written word in books, articles, and stories. It includes images, videos, and e-mails. It even includes acts like flag burning. Basically, for First Amendment purposes, “speech” is nearly any communication.

On the second issue, the Court has made a distinction between “protected” and “unprotected” speech. Taking a common sense approach, the Court has balanced the right of the individual to “say” whatever he or she wishes against the rights of society as a whole

Thus, in 1919, in the first “freedom of speech” case decided by the Court, Oliver Wendell Holmes concluded that while not all speech was protected, criticism of the government, even during times of war, could not be prohibited by Congress, unless the speech (whether in the form of the spoken word, brochures, letters, etc.) created a “clear and present” danger to the Republic. On the other hand, Holmes used the case to enunciate his famous dictum that there were some instances when government can lawfully restrict speech—for example, shouting fire in a crowded theater where no fire flamed is not protected, the potential benefit of such speech being outweighed by its potential harm.

Since then, the Court has been forced to decide whether other forms of speech are so harmful that they merit restraint by the government.

For example, the Supreme Court has consistently held that there are narrow categories of speech which are not protected by the First Amendment. Speech that is libelous, perjurous, contemptuous of the courts, or that amounts to false advertising or copyright infringement is not protected.

Another example, perhaps more pertinent to erotica readers, involves obscene speech. In general, obscenity is not protected by the First Amendment. But defining what constitutes obscenity has been difficult for the Supreme Court. Perhaps the most famous articulation of this difficulty is Justice Potter Stewart’s frustrated exclamation that while he couldn’t define pornography, “I know it when I see it.”

As a side note (come here, I’m whispering again), the case in which Justice Stewart uttered these words involved “pornographic videos.” I’ve been told by a gentleman who was a clerk at the time that the justices actually viewed the videos in the privacy of their chambers. Is there any image that more clearly defines a circle jerk? Nine old men with drool on their chins and boners under their robes.

Well, anyway, you see how my mind works.

Notwithstanding their difficulty with defining the obscene, the Court issued its seminal opinion on the matter in 1973. Miller v. California sets forth the guidelines for use by juries in determining whether a story, book, or video is protected speech or unprotected obscenity. Juries should consider:

· Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.

· Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.

· Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

One troubling aspect of the Miller guidelines concerns the application of community standards. Erotic stories posted on Internet are available for everyone to see, so what is the community? Under one argument, those of us who post and/or read the stories on sites like Literotica are the “community.” Under another argument, the entire Internet is the community. Under yet another argument, the localities where our stories are read, from Las Vegas to Little Rock, are the communities in question.

It’s an important question, because judging from some of the stories I’ve read on this site, it takes a lot to offend most of us. We’re tolerant of bondage and domination, incest and same sex sex. We’re not offended by hard cocks and wet pussies—even when those words are used over and over in the same story.

On the other hand, if you live in Charlotte, North Carolina or Dunlap, Indiana your neighbors might be offended by no more than my tongue dancing across your belly or my denimed crotch pressing against your hip on a crowded commuter train.

For better or worse, this issue of what constitutes a “community” appears to be unresolved.

Another aspect of Miller v. California with implications for erotic stories relates to the “patently offensive” standard. It has become widely accepted that certain material is obscene because it is patently offensive by just about anyone’s standards. Bestiality—stories, books, videos, etc. about humans having sex with animals—falls into this category. Stories and films involving non-consensual sexual violence, necrophilia (sex with the dead) or containing “snuff” imagery are also considered obscene. That’s why none of the well-known websites featuring erotica including Literotica and ERWA permit the posting of stories with these themes.

Which reminds me, I’ve stopped receiving spam about “Farm Girls Going Wild” and “Girls Who Love Dogs.” Maybe those guys got busted.

Another form of “speech” that the Supreme Court has said the government has a “compelling interest” in prohibiting is child pornography. Not only can the government pass laws restricting the production and dissemination of child pornography, it can punish the private viewing of child pornography within one’s home.

However, even when it comes to prohibiting child pornography, the government can go too far. Two recent attempts to legislate against child pornography have been held to be unconstitutional.

First, in June of 1997, in the case of Reno v. ACLU, the Supreme Court held that the Communications Decency Act (CDA) of 1996 crossed the line.

The CDA criminalized the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age. It also prohibited the "knowin[g] sending or displaying to a person under 18 of any message that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Affirmative defenses were provided for those who take "good faith, . . . effective . . . actions" to restrict access by minors to the prohibited communications and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number.

The Court threw out the CDA for several reasons, but the gist of its decision was that the law was too broad and too vague. According to the Court, First Amendment rights are so valuable that laws restricting free speech must be narrowly tailored. Furthermore, such laws will not upheld if there are less restrictive alternatives available. In this case, the government did not demonstrate that possible alternatives such as requiring that indecent material be "tagged" to facilitate parental control, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice and regulating some portions of the Internet differently than others would fail to protect minors.

Similarly, in April 2002, the Court struck down two provisions of the 1996 Child Pornography Prevention Act (CPPA) in Ashcroft v. Free Speech Coalition. The CPPA expanded the definition of child pornography to include “any visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” The other challenged provision banned any sexually explicit material that is advertised or promoted in a way that “conveys the impression” that a minor is engaging in sexually explicit conduct.

Again, the Court was concerned that the language in the CPPA was too broad and that other less restrictive alternatives might be available. The justices noted that the law could theoretically be applied to certain Hollywood movies that use youthful adult actors in sexual scenes or even to Renaissance paintings.

Nevertheless, it remains clear that states do have an interest in protecting minors from being used to produce child pornography or being targeted with explicit materials. Consequently local enforcement of state anti-child pornography statutes is likely to continue unabated. Some of the cases may get thrown out, but some of them will stick.

Interestingly, the Court has made a distinction between indecency and obscenity. In this regard, the Court has held that the government has an interest in regulating material that is not necessarily obscene but merely indecent in its efforts to protect minors. Thus, in 1978, the Court ruled that the Federal Communications Commission could limit the transmission of indecent speech on the radio during hours when children are likely to be listening. That case dealt with a fine imposed on a radio station that played George Carlin’s “Filthy Words” monologue during daytime hours.

See how times have changed. Today most kids on my block could teach George Carlin a few new words.

In any event, the Court’s ruling in this case has been largely confined to the broadcast medium. As for other media, the Court has ruled that the government cannot use the protection-of-minors rationale to shield adults from viewing indecent material. Thus, in a 1989 dial-a-porn case, the Supreme Court stated that “sexual expression which is indecent but not obscene is protected by the First Amendment.” The Court also has struck down prohibitions on indecent speech on the Internet and cable television.

The Bush Administration’s Position

Against this backdrop of your First Amendment rights and a rich history of court rulings about what is and is not obscene comes the Bush Administration. Whether you are for or against “W” on other matters, if you are writing and reading erotica, you should know that George is wagging his finger at you.

In a speech given by John Ashcroft at the outset of his tenure during the first George W. Bush Administration, the former Attorney General said:

"Obscenity invades our homes persistently through the mail, phone, VCR, cable TV, and now the Internet. This multi-million dollar industry with links to organized crime has strewn its victims from coast-to-coast. The Department of Justice is committed unequivocally to the task of prosecuting obscenity, and we are waging an aggressive battle to protect children and families from individuals who use computers to abuse, exploit and assault them."

Bush’s new appointee as Attorney General, following Ashcroft’s resignation, Alberto Gonzalez, has reaffirmed the Administration’s position.

A posting on the Department of Justice’s website contains the following statements:

--The Justice Department has used every legal tool available to prosecute illegal obscenity.

--Under the Bush Administration, the Justice Department has more than doubled obscenity prosecutions in the past 3 years compared to the prior 8 years

--The Justice Department holds an annual training seminar for prosecutors and federal agents on investigating and prosecuting obscenity cases. Approximately 90 federal agents and prosecutors attended the most recent training session. It provided prosecutors and investigators with practical guidance on investigations, anticipating defenses, and handling trial issues such as jury selection. The course emphasized Internet investigations and included presentations on how the Internet is used to advertise and distribute obscene material.

You may be thinking, “what’s the problem?” Ashcroft and Gonzalez and Bush are only concerned about “illegal” obscenity like child porn, bestiality and necrophilia, right?

Wrong!

Unfortunately, these guys are in your knickers, friend.

A reading of DOJ training materials for attorneys and investigators (it’s available on the DOJ website) makes it clear that the Bush Administration is intent on chilling the entire “porn industry.”

Along these lines, Bruce Taylor a DOJ operative told PBS’s Frontline in 2001 "just about everything on the Internet and everything in the video stores and everything in the adult bookstores is still prosecutable illegal obscenity .... Legitimate companies, to stay legitimate, are going to have to distance themselves from it." In 2004 the Bush Administration formed an Adult Obscenity Initiative made up of specially-trained FBI agents whose job it is to round up adult purveyors and users of smut.

Ouch!

Furthermore, it is no secret that the Bush Administration is backed by and derives much of its political power from Christian Fundamentalists. To these folks, erotica is not merely sleazy or nasty, it is sinful and harmful — a cause of divorce, family breakdown, and spiritual degradation. The first article on the pornography section of the American Family Association's Website begins, "Temptation always precedes the process of sin. Thoughts are either placed in a person's mind by one of Satan's emissaries or simply appear as a longing of the flesh."

If you’ve read any of my stories published, here and elsewhere, you know I’m Satan’s emissary.

Finally, if you have any lingering doubt about the Bush Administration’s view of free speech and obscenity, you need look no further than its recent (February 2005) decision to appeal a Pennsylvania case in which the Federal Appeals Court held that certain “anti-obscenity” laws were unconstitutional.

At issue are five hard-core pornographic movies that were sold and distributed by Extreme Associates, including several that were bought through the company’s Web site by an undercover postal inspector in Pittsburgh. Federal and local law enforcement agents executed a search warrant and seized material from the company’s Southern California office in 2003. The company, as well as its owners, Robert Zicari and his wife Janet Romano, who also goes by the name Lizzie Borden, was charged with violating federal obscenity laws.

Justice Department officials acknowledge that federal courts have given people the protection to view obscene material in their own homes, but they say that protection does not extend to selling and distributing obscene material.

The federal appeals court, speaking through a Judge Lancaster disagreed. In his opinion, which throws out the criminal charges, he relied on a 2003 Supreme Court decision, Lawrence v. Texas that struck down a Texas homosexual sodomy law. In that case, the Supreme Court held that “liberty protects the person from unwarranted government intrusions into a dwelling or other private places.”

Judge Lancaster interpreted that ruling to mean that “public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual, sexual conduct even if that conduct is deemed offensive to the general public’s sense of morality.”

The judge said he was not convinced by the government’s insistence that shutting down Extreme Associates was the only way it could keep the videos away from children or unwitting adults. In fact, as the judge pointed out, Extreme Associates required its customers to give their names and credit card information, join a club and pay a fee before downloading or buying videos. In the Judge’s view, these were adequate protections—the only people who watched to videos were adults who made the effort to buy them.

Even so, a Bush Administration official at the Justice Department was confident that settled case law clearly established the government’s power to regulate obscenity. In reviewing Judge Lancaster’s ruling, the official said, “We believe the court is wrong.”

Hmmm.

This sounds to me like “W” and Laura want to tell us what adults can read and watch in the privacy of our homes. If it were just “W” and Laura, I’d tell them to fuck off and maybe write a story about them having anal sex in the Oval office, but it’s not just “W” and Laura. It’s “W” and Laura utilizing the power of the Justice Department and the FBI.

That’s not funny. That’s scary.

Conclusion

The First Amendment grants us broad Free Speech rights. In addition, a long line of Supreme Court cases have limited government restriction of those rights except in cases of child pornography, patently offensive erotica such as bestiality and necrophilia and stuff like libel, false advertising, perjury and incitement to riot.

The Bush Administration, backed by Christian Fundamentalists, is attacking our Constitutional rights and threatening to overturn the common sense approach to obscenity and free speech taken by the Supreme Court over the last 100 years.

I am firmly against child pornography or the solicitation of minors for the sale of adult erotic material—nearly all of us are. But the Bush Administration wants to restrict all erotic materials, using the narrowest of community standards to define what is “patently offensive.” The Administration’s decision to appeal the recent Pennsylvania case brings it out of the closet.

The Administration and its new Attorney General want to deny adults the ability to write and read stories like those posted on Literotica in the privacy of their own homes. That alone should be reason enough to keep us all coming back here for more, for if the government succeeds in intimidating us from exercising our rights it has succeeded in usurping those rights.

I for one will not be so easily defeated.

If you believe in free speech, and apparently you do or you wouldn’t have visited this site and read this article, put your money where your mouth is and join the ACLU. Support law makers and leaders who are interested in defending your rights, not running roughshod over them. And, write to your Senators. Just this week, the US Senate takes up consideration of the appointment of a raft of federal judges nominated by President Bush. By and large, those appointees oppose websites like this one—they threaten your First Amendment free speech rights.

If you value free speech, the best way to keep it is to exercise it.