OPINIONS & POLICY: Adult Content and 'Obscenity'

[Kendo 2]

Preamble:
NSFWmods.com is an adult-oriented website based and hosted in the United States of America.  As such the U.S. Constitution, Bill of Rights, and the Constitutional Amendments do apply.  Unless otherwise specified in the NSFWmods Community Rules, NSFWmods.com does not regulate or interfere with Protected Free Speech.

 

U.S. Federal Law, Obscenity and the Miller Test:
The laws regulating pornography and what is or is not obscene vary from state to state.  There isn’t a clear and concise definition that will apply in all instances and in all states.  The Federal Law is intentionally ambiguous as to allow states to determine what obscenity is in their jurisdictions.  To remedy this NSFWmods.com uses two qualifiers to determine what is or is not obscene; The Miller Test and Staff discretion and consensus.

• If user content submitted to NSFWmods.com passes the Miller Test and does not violate Community Rules it is considered Protected Free Speech.
• If the content is not obscene as defined by Miller but has the potential to disrupt the community or draw unwanted attention to the site it will be reviewed by the Staff as to its appropriateness.  To avoid this process a good rule of thumb is if you don’t think you should post it then don’t.

 

Pornography as an Art Form:
If the U.S laws for obscenity and pornography weren’t confusing enough there are different standards for art, including computer generated images (CGI).  Since CGI related content is the primary focus of NSFWmods.com, the website's remedy again is the Miller Test and Staff discretion and consensus.  This provides for one unified standard and site continuity.

 

Loli/Shota Content and the Depiction of ‘Minors’:
This is a contentious situation on gaming websites.  Some sites forbid it in totality, others are more lax and some have it as the focal point of their content.  It is the position of NSFWmods.com that we do not dictate morality.  Our sole concerns are the legality/illegality of all content hosted at NSFWmods and the Community Rules.
With this in mind there is an existing standard for Loli/Shota depictions in art.  It is considered Protected Free Speech if it passes the Miller Test and is thus legal in the United States.  This is of course ‘school life ecchi anime’.
There are countless series depicting what could be considered ‘minors’.  High School of the Dead, High School DxD, Seikon no Qwaser, Motto To Love Ru and the list continues.  In every instance these very popular anime series depict high school aged characters engaged is sensual acts, showing nudity, and in some cases participating in soft core pornography.  Despite the content of these series they are Protected Free Speech.  They are available for viewing on-line, both censored and uncensored.  The uncensored versions can be purchased legally in the U.S. in Blu Ray or DVD format.  Loli/Shota content is not illegal by virtue.  Like any other art form it is Protected Free Speech unless it is deemed obscene.

• In summary, the PROTECT Act of 2003 asserts that depictions of sex involving CGI characters that are "virtually indistinguishable" from real children is illegal.  Depictions of "fictional beings" that might be considered to appear to be minors having sex is not illegal if they pass the Miller Test.
• The U.S. Supreme Court ruling in Ashcroft v. Free Speech Coalition held that virtual child pornography is protected free speech, provided that the virtual depictions are not obscene.

As this pertains to NSFWmods.com policy, a nude mod that adds fantasy beings who have the physical characteristics of minors and allows the users to engage in sexual activity is just as legal/illegal as a mod that adds fantasy beings who have the physical characteristics of adults.  The shape of the CGI body doesn't matter and both are equal under the law.  However, a mod that allows the player to use game children in a sexual or obscene manner is illegal and a violation of NSFWmods.com rules.  The distinction between ‘fantasy beings’ and ‘children’ is very clear.

As a for instance:

• There is a 'fairy' mod for Skyrim.  The mod uses wood elves as the template race so the game will consider them wood elves for purposes of NPC dialogue, etc.  The Skyrim game engine does not consider them to be 'children'.
• The 'fairy' race in the mod is small in stature with elfin ears and assorted skin tones and eye colors.  The females are flat-chested with narrow hips.  The males are slight of build and not muscular.
• Both genders are attractive because the targeted downloaders like beautiful characters.
• As accessories the modder adds butterfly and fairy wings along with assorted antennae as head parts.
• The modder also includes skimpy or revealing clothing made out of leaves, moss, tree bark, etc.

According to U.S. law and the 'No exploitation of children' rule the 'fairy' mod would be Protected Free Speech and thus allowed at NSFWmods.com.  As previously stated, the Staff will apply the Miller Test, discretion and consensus, and the Community Rules to make a determination should the need arise.  Again uploaders should use the rule of thumb; if you don’t think you should post it then don’t.

 

U.S Federal Laws Concerning Zoophilic Pornography (Depictions of Bestiality):
This is another instance of gray areas where the laws regulating obscenity vary from state to state.  Under U.S. Federal law, zoophilic pornography (the depiction of bestiality) would be considered obscene if it did not meet the standards of the Miller Test.  Legally it could not openly sold, mailed, distributed or imported across state boundaries or within states which prohibit it.  Under U.S. law, 'distribution' also includes transmission across the Internet.  However, production and mere possession of zoophilic pornography appears to be legal.

The only federal law prohibiting zoophilic pornography, is 18 USC 2256, which prohibits distribution in interstate commerce and on federal property (as in a U.S. Postal Office) of child pornography of a minor under 18 years old engaging in the "sexually explicit conduct" of bestiality.

At the time of this article, there is not case law or judgments for or against artistic depictions of zoophilic pornography.  The legality/illegality has not been determined on the state or Federal level.  Using known obscenity standards and standing Supreme Court rulings, artistic representations of zoophilic pornography would have to fail the Miller Test in order to be deemed obscene.  To date there haven’t been any instances of pornographic zoophilic art being challenged or government rulings against it being free speech.

Again there is an existing standard in art which depicts zoophilic pornography; ‘tentacle hentai’ and ‘demon/monster hentai’.  Probably the most iconic hentai of this genre is Urotsukidouji (including Demon Beast Invasion).  There are numerous other hentai series depicting humans and distinctly non-human creatures engaging in various sexual acts.  Again these series are readily available to view on-line and can be purchased legally in the United States.

Going by legal precedence, computer generated imagery that depicts zoophilic pornography is Protected Free Speech provided it passes the Miller Test.

Curently there is not a NSFWmods prohibition against pornographic zoophilic game content.  The Staff considers it Protected Free Speech.  We do not encourge users to upload bestiality content nor do we discourage it.  As with any other type of adult content not addressed in the Community Rules the Staff will consider the Miller Test and use our own discretion and consensus to determine if the content is appropriate for NSFWmods.com.  Yet again uploaders should use the rule of thumb; if you don’t think you should post it then don’t.

In Closing:
NSFWmods.com is an adult website ran by adults for adults.  One of the goals of this site is to provide a haven for free speech and freedom of artistic expression.  Collectively we will not attempt to censor protected free speech or dictate morality.  Members are given a level of freedom here they will not find on other gaming websites; cherish it.

The NSFWmods Staff

[happysparkles]

Thanks for this. I am actually supportive of this stance. I think for the most part, the freedom of speech is a very strong stance and glad to see it being used well here.

[Elf Prince]

Kendo2 . thank you very much for this thread. I understand much better US laws about this area. It's is quite different from the laws about same subject in my country. However, I agree with them and support them especially about child pornography.

[Sundancer]

Hum; I can only agree with Elf Prince here. It is a very interesting read for me, too and am glad that free speech is valued so much here. Just as long as no one gets in legal trouble for it, but it seems you have that well in hand, Kendo2 ^^+

Let's all agree to not push boundaries when it's not needed and stay sensible about it.

[Kendo 2]

6 hours ago, Sundancer said:

Hum; I can only agree with Elf Prince here. It is a very interesting read for me, too and am glad that free speech is valued so much here. Just as long as no one gets in legal trouble for it, but it seems you have that well in hand, Kendo2 ^^+

Let's all agree to not push boundaries when it's not needed and stay sensible about it.

The idea behind these 'Opinions & Policy' articles (there will be more if needed) is to get the NSFW membership involved and active in a new forum culture.  Unlike other gaming websites the staff here wants the members to be informed on the decision-making process.  NSFWmods is NOT a 'Nanny State'.  If a dubious post or mod gets deleted or hidden anyone will be able to see the reasoning behind what might be an unpopular staff decision.  It won't be justification, there will be a tangible reason.

Additionally, the members who read this article will be informed and can determine on their own if they should or should not upload or post something that might be an issue.  Members will also be able to identify potential problems on the forums and be an active part in making the site run smoothly.

As a side note; the conclusions in the article were made after extensive research, reviewing the forum software licensing and a lengthy staff discussion.  Cases for and against were heard and after all considerations were addressed Doublezero made his decision.  The situation wasn't taken lightly and the article is worded in a way to allow for staff discretion and consensus on all questionable content.  If the staff feels that a mod or post might be substantially disruptive or otherwise damage the site it will not be allowed.

[TheOzoneHole]

Nice to see this really spelled out in detail with reasons backing it up.

I feel that I should give you grief about using Wikipedia as the source for the Miller Test just on principal, but since they actually did a better job of simplifying it than the other sources I saw I'll just have to cope.

[Game Goblin]

>Serious side of brains enabled<

It is good to see this spelled out and readily made 'stickied' for all to see. The aformentioned topics of loli/shota and beastiality are often fuzzy depending on your source material for asking about legality. Strangely where I currently sit on my little corner of the United States. All forms of 'loli' are legal to own and/or view but not to distribute to other nearby states... unless it is legal in that state as well. Such as I could copy/paste/print loli 'art' and pass it along to an associate who resides in Oregon, but not to a resident of Idaho. As each state, like said before, has different legal rulings on loli 'art'. I surmise this is in part due to loli 'art' as being a work of fiction with (hopefully) fully fictional characters.

Oddly, animals and sexual encounters with animals is even weirder and more fuzzy. Some states juristiction is free-for-all, some are "only if you get caught", others outright ban it. Again my home state (due to a very lonely mans accident involving his stallion) has extremely odd predilictions concerning legality. Moreso here, it is up to distinct counties withing my state to determine legality. Really really. Some counties it is forbidden, others have a weight limit of a 50lb animal... and some places just think it won't happen and have no set laws on the topic.

The OP topic is concise and straight forward. I however being a somewhat free person who values personal anarchy albiet 'harm none' in the mix. I think perhaps maybe an addendum or suffix may be needed as a pre-emptive strike for some 'obscene' content. I do not wish to limit free speech, rather to be an enabler of letting people speak their mind or be creative. However certain "extreme" materials in my perview go beyond a pleasantly perverted environment.

I speak of 'murder-porn' I.E. Snuff / Guro / Dolcett. While personally I take no offense to such fantasies, there are those who want to umm lower the bar, to make things more debased on gore filled. Eventually someone will stumble into NSFW and bring this topic into the light with either requests for said topic, or with distributable content. I for one am curious as to what the allmighty lords and ladies of NSFW will rule on this case.

Sorry to bring you all down with this, but this is a serious topic posted, and I figure it's best to nip this in the butt before it comes up in the future as an issue. G.G.

>Re-initializing Fun side of brains!<

FLYING SPAGHETTI MONSTER & THE SUB-GENIUS = TWO GREAT FLAVORS TOGETHER AT LAST!

[Kendo 2]

Guro and other splatter content would have to pass Miller's and not harm the site to be allowed.  Since it isn't specifically illegal or obscene by virtue it isn't against the rules by default.  The real litmus test for any adult content is 'Does it turn more people off than them turn on'.  If uploaded content has the potential to drive members away then it would most likely not be allowed.  In other words, don't post things that would get Max Hardcore arrested.

There is indeed case law where violent rape and murder in pornography was deemed obscene and thus illegal, but the instance involved human actors.  To the best of my knowledge there isn't case law regulating those types of depictions in animated art or CGI genres.  Without cause I can't recommend that Doublezero ban something simply because I don't like it personally.  Necrophilia is illegal, but not CGI depictions of it.

[vipermagi]

Before I begin, I would like to point out that I don't want anyone to like me because of something I said, I would much rather you judge me based on my actions. I do not want the following message to be construed as "sucking up." If you like me more because I talked positive about you rather than on a stance I have taken, I would view that as a personal failure for myself.

 

In numerous occasions over on Lovers Lab, I have found Kendo 2 to be a reasonable, down to earth, no-nonsense, no bullshit kind of person, which is shockingly refreshing in my experiences. My participation in the modding community is very very light, I tend to find mods I personally enjoy, download, try to trouble shoot any problems myself given as many resources as I can gather, and occasionally shoot out a tip if I see a question I think I know the answer to. I very much don't see the inter-personnel drama in either Lovers Lab or the Nexus simply because if something doesn't interest me, or even if I find it distasteful, my first and usually last reaction is "this isn't for me, moving on." It has been in my experience (I'm willing to take the accusation of confirmation bias), that the artistic mindset // community (not at all qualified to say which breeds what) tend to favor dramatic actions morose than other groups. Examples being all the modders who had something happen they didn't immediately agree with, and so who's response was to quit all together and never come back. I SUSPECT THAT Kendo has moved away from Lovers Lab due to issues with some facet of that site (I don't know any specifics and it's not my place regardless), and yet instead of throwing a tizzy and trying to emulate a high school drama queen, it appears he (I am so totally making a gender assumption, sorry) has extracted himself from the hostile environment and moved to a less hostile environment. I find this action to be both mature and refreshing.

 

So on to my thoughts and opinions with regards to the aforementioned policies.

While growing up, my early childhood years my parents were deeply religious and followed all the guidelines outlined to them by "religious authorities" (whatever that may or may not mean). No Pokemon, that is of the devil, no electronic entertainment on Sundays, that sort of thing. However, sometime between Pokemon making it to mainstream and Harry Potter being released in the U.S., there was a mind shift in my parents that I actually took to heart. My parents really like Harry Potter, even if some figures say it's bad for their flavor of reasons. My parents came to the justification of "we can tell the difference between fantasy and reality." The point of this is, just like violent video games don't make violent people, I highly suspect some of the odder fetish's don't make you necessarily a pervert in real life. There is a difference between liking the idea of seeing a woman naked and actually sneaking next door and spying on your neighbor and I suspect the vast majority of people understand this, even if a few idiots don't. If viewing pornography of a guro or scat nature is what gets your jollies off, even though I find it personally disgusting, I am inclined to let bygones be bygones (moderators of this site may set whatever rules they so desire, they are paying the bills on it) under the assumption that we all understand this is fantasy and it's not always 100% okay to cross it with reality.

 

My unsolicited 2 cent thoughts, though you got a 2 cent discount.

[TheOzoneHole]

Overall this does look quite well researched and is very well written.  As to the snuff, bestiality, or whatever content, I'd personally like to see all mods have some kind of clear mention (in the title or in the sort description that shows on the home page) of things like that.  Clothing/armor mods are usually pretty easy to determine as such, but if someone includes cannibalism or bestiality just put that in as a note so where people can see it before they click on the link.  That isn't self censorship, it is just good manners. 

[Kendo 2]

9 hours ago, TheOzoneHole said:

Overall this does look quite well researched and is very well written.  As to the snuff, bestiality, or whatever content, I'd personally like to see all mods have some kind of clear mention (in the title or in the sort description that shows on the home page) of things like that.  Clothing/armor mods are usually pretty easy to determine as such, but if someone includes cannibalism or bestiality just put that in as a note so where people can see it before they click on the link.  That isn't self censorship, it is just good manners. 

If you see something that is in your opinion 'controversial' then tag it appropriately if the uploader didn't.  I do understand your point since I don't like gore/splatter or necrophilia and I don't wanna see it.  I hope people use tags, but there won't be a staff mandate.  That's not how we do business.

[ritualclarity]

9 hours ago, Kendo 2 said:

If you see something that is in your opinion 'controversial' then tag it appropriately if the uploader didn't.  I do understand your point since I don't like gore/splatter or necrophilia and I don't wanna see it.  I hope people use tags, but there won't be a staff mandate.  That's not how we do business.

 

Yes... I second. (provided a member can tag a file someone else uploads) Other sites regulate and use personal preferences and thoughts and feelings to run the site. We started off from the start trying to be as much "hands off" as possible. This is no way a claim that we will "never" do something or discuss something etc it is a statement that we will attempt in all ways to allow as much flexibility as humanly possible (of course barring legal concerns. The server is based in the US)

We have a very cool and awesome membership that have been very respectful and quite frankly wonderful with the interactions they have had with the site. Sure there are some that DZ, Kendo or I might not have liked, or even appreciated but it was done with consideration and a purpose. 

@TheOzoneHole

You and others like you  are the ones that can create a "mandate" on how to do things. A "Social" one. By requesting and keeping up with members to keep proper tags and info updated you can help mold the site. This is a very powerful tool if done properly and doesn't require many individuals or much effort. Just requires a level of activity and interaction with the site on a semi-weekly basis.  Moderators can only do so much. If they try too much then end up losing the battle and just end up putting out fires.