A few days ago I wrote a journal addressing cartoon erotica which involved characters taken from various types of children's entertainment, so let's keep the discussion focused on Erotic artwork in general.

Now, we see a minimum of a hundred reports a day just concerning submissions which people believe are "pornography".

In some cases we agree and take action, in some cases we disagree and do nothing and in a very small amount of cases we not only disagree, we label you some sort of prudish lunatic and talk about you behind your back.

But really many of the people reporting works as being obscene or pornographic have insanely loose definitions of these terms so maybe a quick education is in order.

The legal definition of what is or is not considered "obscene" was laid down in the 1942 case of Chaplinsky v. New Hampshire. In that case the U.S. Supreme Court declared that "obscenity" was a type of speech which is not protected by the First Amendment. The Supreme Court has labeled several other very narrow forms of speech in a similar manner as the ruling for obscene expression, essentially stating that these types of expression are undeserving of First Amendment protection because it played "no essential part of any exposition of ideas" and was "of such slight social value as a step to truth that any benefit ...derived from [it] is clearly outweighed by the social interest in order and morality."

With the ruling the Court essentially said that it is okay for just about anybody to tell obscenity to STFU and get out of the room without penalty.

The problem is exactly what is obscenity?

The definition is often said to lie in the eye of the beholder, and judging from some of the things I see people report their eyes are fitted with some sort of bizarre wide-angle fish-eye lens.

Some people are offended by any depiction of human nudity, I've met most of you in the Reports Desk over the last six years or so.

I've also deleted enough crazy hardcore pornography from the galleries to know that some of you other people consider even highly sexual images to be a classical form of artistic expression suitable to be hung up over the dining room table where the guests can view it over their meal.

Even at the time of the ruling Supreme Court Justice Potter Stewart struggled to come up with a coherent definition of obscenity, declaring in 1964, "I know it when I see it."

I think most of us can generally agree with that sort of statement, as vague as it is.

Since then though, the Supreme Court has articulated a more precise terminology, making it clear that nudity alone does not make an image obscene. We here at deviantART wholeheartedly agree with that which is why we have allowed these works since inception. Nudity in and of itself is not some sort of "Evil" and you do not have to report it regardless of how useless or ugly it may seem to be to you personally.

In 1973 the Court set guidelines for defining obscenity, laid out in the case of Miller v. California, which are still being used today. But even with a legal definition in place there is still gray area: even now, it is difficult to predict with any amount of certainty what material the courts will label as unprotected obscenity, and what they will safeguard as protected speech.



Now, our own rules here at deviantART attempt to specifically lay out exactly what we don't want to see submitted, however we simultaneously try to leave the door open for works to push the boundaries just a little bit.

So essentially we've tried to define what we officially consider to be obscene material.

The problem is that with rules like these you do need to leave room open for interpretation because a strict 'carved in stone' reading of the rules can lead to things being removed which don't need to be and things being allowed that shouldn't be. Unfortunately a lot of time the exact interpretation which  is actually used can sometimes only be described in the words of Justice Potter Stewart; "I know it when I see it."

It is our intention, for example, to remove any work which clearly shows masturbation. Seems pretty clear doesn't it? According to what I see being reported a few people have some funny ideas about what sort of situation can actually be labeled "masturbation".

It's pretty clear to me that some people believe that if they find a nude photograph where the model's hands are anywhere near their crotch of the crotch of another model they can report it as "masturbation".
Now this is clearly not the case; every time someone's hand comes near their crotch they are not automatically masturbating. It is actually fairly common for many nude models to cover themselves up with their hand(s), and it is also fairly common for other models in more erotic shots to place their hands near whatever 'junk' they happen to have to draw attention to it or otherwise place emphasis there.

It's a very similar situation with our prohibition on works showing or detailing sexual intercourse. Again it's our intention to remove things which clearly show various types of sexual acts, which I would again think was pretty clear in it's current wording.
And again I have to point out that every time two naked people come into contact with each other you cannot call it "having sex"; some of you out there seem to think this but it is unfortunately not true.
One naked person can be draped over another naked person without an actual sex act springing into being. One naked person can lay on top of another, next to another or even sit squarely in the lap of another and somehow refrain from having sex in the photograph.
This is another judgment in which you first need to drop the knee-jerk reaction and look at it objectively so that you will "know it when you see it".

The last example which I'm going to point out here is our prohibition against showing photographs with a "spread vagina or anus". If you read the FAQ I would like to think it's fairly clear what we mean by this but unfortunately some people keep substituting the word "legs" in there instead of what I actually wrote.
This particular one has nothing to do with the position of the model's legs and everything to do with pushing or pulling with the hands, or clothespins or vice grips or whatever other object happens to be in the room at the time. In short, it's about actual physical manipulation and it has nothing to do with how you might be aiming your bottom parts at the camera or where you're putting your legs.

I'll briefly point out that, as I've said so often in the past, we don't moderate for quality here and that applies to nude works just like everything else. At one point in time in the past, maybe two or three years ago, Gallery Directors did try to maintain a high standard for nude photography however that was at odds with the fact that nowhere else was a quality standard enforced so we stopped doing it. Please; the small handful of you who are still living circa 2005 can stop reporting "gratuitous nudes" to us.

I hope that I've clarified the issue a bit but it is important that the community as a whole be on the same page as far as this issue is concerned and while this journal might be a bit tl;dr at this point I still have more to say on the issue.

We make every effort to be as inclusive of all artistic expression as we possibly can and we keep our prohibitions as few and far between as possible and we do allow certain levels of erotica as a result.

This of course isn't going to please everyone because many of you are quite over-sensitive to some of the content which we allow. A very common statement which accompanies many reports points out that you don't think such content belongs on a website which caters to those as young as thirteen.

Let's talk about that for a moment and then I'll wrap it up I swear.

Few would disagree that protecting children is a legitimate and worthy function of any set of rules, whether they come from a website or the government for that matter.

When it comes to the arts, however, there is often sharp disagreement as to what exactly is "harmful" to children.

As I mentioned waaaay up there at the top the U.S. Supreme Court has held that erotic images that meet the legal definition of obscenity enjoy little, if any, constitutional protection and therefore can be banned from view of children and adults alike. But as I also tried to demonstrate the legal definition of obscenity is much narrower than many people realize and since a large part of how we fashioned out policy is based on that ruling the official deviantART definition is fairly narrow as well.

The main purpose of this journal is to echo the Courts and make it clear that art is not legally obscene simply because it depicts nudity and/or presents a sexual theme and it will not automatically be removed by our staff simply because it depicts this subject matter.

There are many who are uncomfortable with the idea of allowing children to view any artistic depiction involving nudity or a sexual theme even if it does not meet the legal definition of obscenity.

Should children be denied access to materials that adults have a constitutional right to receive? Should they have the ability to view this type of content when they log into their deviantART account?

Judging by my research into the matter it boils down to what is considered to be practical; the answer often depends on whether access by children can be limited in a manner that does not substantially impair access to the material by adults. If it can, then some sort of accommodation is often voluntarily made and usually resolves the matter (this is why video stores often move adult-oriented videos to an adult-only section of a store).

But what if such accommodation is difficult or impossible to make? On several occasions, the U.S. Supreme Court has held that government may not reduce the adult population to reading or viewing only what is fit for children. Thus, any governmental effort or law that denies both children and adults access to a non-obscene work depicting nudity or having a sexual theme is likely to be ruled unconstitutional.

As far as our galleries are concerned here at deviantART you can see that we've followed a similar principle.

First it is important that I point out that we don't actually allow obscene or pornographic works to be posted so we do not have a need to break the site into distinct pieces which prohibits access to certain age groups.

Since we're dealing with non-obscene works we've chosen to voluntarily introduce our filtering system and we've given that system two different levels of functionality; a general "click-through" which initially blocks viewing but which can be accessed by viewers of any age group, and a "strict" setting which will only allow viewing by those who are eighteen or older. The submitting artist gets to choose which level of filtering based on their personal feelings on the matter.

Personally I have a daughter who is turning ten this year; the natural question is how do I feel about her viewing nudity or erotic art?

The best way for me to answer this is to say that I have several nude works hanging in my home, in full view of my daughter;


I'll close by simply saying that this particular debate can, and probably will, continue for as long as people, nekkidness, and artwork continue to coexist.

I feel that the system that we have in place here is a good compromise that allows people who don't want to see to be spared the horror, people who want to view to browse, and artists who wish to set stricter standards to do so, and in the long run everyone can easily expose themselves to creative works of all types which will hopefully enable artistic debate and discussion which will move us all forward as artists and art appreciators.