I spent the weekend in Indianapolis at the 50th annual meeting of the Society for the Scientific Study of Sexuality. Mostly it was a very excellent time, with a very good reception for our work. But one thing happened that left me disturbed.

Many of the people who I spoke with were professors who taught sexually or researched aspects of sexuality in a university setting, and several of them were interested in our films, either for use in their classrooms, or in their experiments. This included a professor from an Oklahoma university, who himself was at the conference to present a paper on BDSM.

“I’d really love to use your films in my class, but penetration is illegal in Oklahoma.”

This is the second time in a month that I’ve heard this.

The first time was last month at a trade-show in Las Vegas. A woman who owns a lingerie shop was at our booth, delighted by what she saw.

“Do your films have penetration?” she asked.

“Of course they do. Our films are about sex.”

“Oh, then I can’t carry them. Penetration is illegal in Oklahoma. If you stick your tongue in someone’s ear and it’s sexual, it’s illegal in Oklahoma.”

Of course this is nonsense. Legislators in Oklahoma can no more outlaw the photographic depiction of sexual penetration than they can outlaw the photographic depiction of blue shirts.

Yet apparently they have.

There is variety of expression not seen as worthy of First Amendment protection – obscenity. Throughout the Twentieth Century, what is and is not obscenity has been the subject of a number of Supreme Court decisions, the last being the 1973 case of Miller v. California. With regard to what sort of sexually explicit expression is not protected by the First Amendment, Miller v. California is the law of the land, and defines obscenity by a three-pronged test.

A work is considered obscene, and therefore may be suppressed by the government if:

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

And

The work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law.

And

The work, taken as a whole, lacks serious literary, artistic, political, and scientific value.

What that means is that if a jury decides the answer to any one of these three questions is “no”, then the work is not obscene, and if it’s not obscene than the state of Oklahoma has no power to suppress the distribution of the work.

In theory.

In practice, the threat of an obscenity prosecution is enough to prevent work from being seen, even films recently described as, “Perhaps the most cinematic and pro-social depictions of sexual behavior ever produced.” (You gotta love how sex scientists talk!)

The simple fact is that the Oklahoma professor I talked to this weekend is afraid that if he uses our films in his classroom, he’ll go to jail. The Oklahoma shopkeeper we talked to is afraid that if she offers our films to her customers she’ll go to jail. And that fear is enough to keep people from seeing our films in the Sooner State.

“Adult sexual conduct is not illegal and it is in fact constitutionally protected. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003). The regulation of visual depictions of adult sexual activity is not based on its intrinsic relation to illegal conduct.”

That’s from the Sixth Circuit Court’s ruling 2257 regulations unconstitutional, and gets to the heart of why I am fascinated by, and passionate about making sexual imagery.

Some few years ago I directed a film about Hutu refugees in Eastern Zaire. The imagery from the camps themselves was appalling enough: emaciated men, women, and children dying as the camera rolled; bodies being stacked into the bed of trucks like cordwood. But also included was footage from the Hutu genocidal slaughter of their Tutsi countrymen (carried out largely by machete,) including footage of a man being murdered by decapitation and the desecration of corpses.

I thought long and hard about what shots I would and would not include this film. I wanted my audience to vividly understand the horrors that had played out, but I did not want to them to withdraw, to down emotionally. I wanted them to stay with the film, through to the end, and hoped that they would find meaning in what I chose to show them. I thought a lot about the line between enough and too much. But never, not even for a moment, did I think about whether or not the footage I chose to include was prosecutable.

By contrast, nothing I show in the films I make about sex is awful. In fact, it’s all quite wonderful! People who desire each other giving and receiving pleasure in the most intimate and delicious ways! Yet in choosing to document and then distributed these consensual, loving, pleasurable, and entirely legal acts, some how through the magical powers of the camera, I may be committing a crime. Depending on where my films are watched, and by whom, what I do may not be protected by the First Amendment, what I do may be considered obscene, what I do may be against the law.

“The regulation of visual depictions of adult sexual activity is not based on its intrinsic relation to illegal conduct.” That’s what the Sixth Circuit Court says. I don’t see how that squares with Miller v. California. I’d like to find out, but I don’t want to lose my house or go to jail.

The OFLC can’t stop thousands of unclassified DVDs from being sold illegally throughout Australia, but they did manage to stop the Melbourne Underground Film Festival from screening ASHLEY AND KISHA: FINDING THE RIGHT FIT in front of an audience of movie lovers at a small cinema in the Fitzroy district of Melbourne, (just to be sure, the OFLC sent a police detail to the theater the night of the screening.) The OFLC’s refusal to grant ASHLEY AND KISHA an exemption to play at MUFF comes right on the heels of “special attention” being paid to a number of gay and lesbian book and DVD stores in Melbourne. For some reason, the OFLC seems to take a special interest in what Australia’s G&L is watching on DVD.

If any good has come out of this whole mess, it’s that after years of silence, the topic of censorship is making headlines in Australia again.

Lesbian Film Banned, Melbourne Community Voice
http://mcv.e-p.net.au/news/lesbian-film-banned.html

Gay Movies Muffed, Bnews
http://www.bnews.net.au/content/view/605/66/

Radio Interview on ABC’s Hack news program
http://www.abc.net.au/triplej/hack/notes/mp3s/hack_muff.mp3

Film classification laws out of sync with the 21st century
http://www.theage.com.au/articles/2007/09/30/1191090938881.html

Fundmentally for Your Own Good, by Dean Bertum
http://www.theaustralian.news.com.au/story/0,,22531928-7583,00.html?from=public_rss

From Fancies and Fuckeries:

“Community standards as we all know are densely hypocritical, fluently contradictory, and more then often severely corrupt. Going on the basis of using an example of road rules, everyone knows that speeding kills, that it is a thoughtless act, and finally an offense, yet one only has to look at the figures for those booked speeding per year to realise that our community standards towards road safety are incredibly low. Using community standards to measure anything is the most shallow and thoughtless method of regulating anything.”

I count myself lucky that when I was about 18, my mother received a small fellowship to spend four weeks at University of Indiana studying James Madsion. Says Madison about the danger of majority rule:

“A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.”

I wonder what Madison would have to say about the Miller Test, most especially its first prong:

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

I’d venture there’s a good chance he’d say that using community standards to measure anything is the most shallow and thoughtless method of regulating anything. I’m quite sure he say it’s terrible, dangerous imposition on freedom of speech.

It’s four in the morning here and I just finished a long chat with a representative of the OFLC.

“Ashley and Kisha” has not been classified, which meant that the OFLC could have given it a festival exemption to play at MUFF.

But OFLC refused to give it a festival exemption on the basis that my previous three films were classified X.

I asked why Destricted, which features work by Larry Clark, who’s previous film was refused classification, was given a festival exemption to play the same night as Ashley and Kisha, across town at ACMI, a and they could not answer.

I asked why Destricted, which features brutally mercenary depictions of the most loveless anal sex, was given a festival exemption and they could not answer.

Their suggestion was that we submit “Ashley and Kisha” for rush classification, in the hopes that we would receive a R classification.

But…

When I asked why 9 Songs, which feature actors performing cunelingus, felatio, ejaculation, and penetration was given an R, while our films which depict actual lovers are given an X, they could not answer.

When I asked why Shortbus, which features, among other things, an actor masturbating and then ejaculating on his face was given an R, while our film, which explore sexual pleasure inside the context of committed real-life loving relationships, they could not answer.

When I asked why numerous videos from the Sinclair Institute, which feature various sex acts performed by paid models, and presented under the guise of education are given R , while our film, which are held in the libraries of The Kinsey Institute at the University of Indiana, Planned Parenthood, The Gay Mens Health Crisis, The San Francisco Sex Information Hotline and many other health and education organizations are given an X, they could not answer.

They have told me the process is subjective and imperfect; yet this process has a “perfect” track record of marginalizing our films.

Now they would ask that we once again submit our work to this subjective and imperfect process, pay $1,000 for the privilege of doing so, against the hope that the fifth time’s the charm.

I may be a fool, but I’m not that kind of fool.

Writing about “Ashley and Kisha” Megan Spencer said, “The sweetest thing - Kisha & Ashley is one of the sweetest love stories you’re ever likely to see committed to film. The Comstocks once again put their perfect documentary formula to good use - true love and real sex - on screen; what’s not to like?!”

True love and real sex, what’s not to like indeed?

Obviously the OFLC has no problem with real sex. It has granted its R classification to 9 Songs, Shortbus, and many other videos containing real sex. It has granted a festival exemption to Destricted, which contains real sex.

One can only conclude that the problem the OFLC has is with true love, and what a pity that is; for this film, for the people who wanted to see it, and for Australia.

“If all that Americans want is security, they can go to prison. They’ll have enough to eat, a bed and a roof over their heads. But if an American wants to preserve his dignity and his equality as a human being, he must not bow his neck to any dictatorial government.” – President Dwight David Eisenhower

A poster for the MUFF screening, somewhere in Melbourne’s Fitzroy district

Over the last 48 hours we’ve been writing and talking to a lot of people, including Amy Wooding, exemptions officer at the OFLC.

What has become clear is that the OFLC’s decision to ban seven films from this year’s Melbourne Underground Film Festival is an act of retaliation.

In Australia, film festivals are required to submit a list of the unclassified films they wish to screen to the OFLC and get permission to screen them. Unclassified films would include student work, undistributed work, films from outside Australia that do not yet have Australian distribution, basically any film that has not, and perhaps will never be put through Australia’s manditory ~$800 classification process.

Last year MUFF’s list included our film “Damon and Hunter: Doing it Together”, which had already been classified X by the OFLC, and the OFLC refused to grant a festival exemption to screen the film, and warned the festival not to screen the film. (The full details Aussie classification system, and the Kafkaesque x-rating is a subject for another post.)

MUFF went ahead and put “Damon and Hunter” on the program anyway. The fact that this was being done in defiance of OFLC orders was kept secret, even from me. This was our first festival outting, and we didn’t know what to expect. But we postered, blitzed the local press and hoped for the best.

In fact, so many people turned out that only by the luck that our distributor had another copy in her bag were there able to put the film up on a second screen for the overflow. By all accounts the screening was very well received.

From there the film was invited to screen at Sydney’s QueerDOC, and was scheduled to play two nights. Again the OFLC rejected the festival’s request for an exemption, only QueerDOC, citing among other things, their need to ask the OFLC’s permission to screen nearly all of the films they program, and their dependence on government funding, complied with the OFLC’s demands.

At the time, I was rather angry that QueerDOC did not go ahead with the screening of “Damon and Hunter.” But in light of the retaliatory action by the OFLC against MUFF, it would seem that QueerDOC’s course of action, if not especially courageous, was prudent. MUFF receives no government funding, but the OFLC has punnished MUFF by applying its censorship powers as broadly as it can to MUFF’s 2007 roster of film.

What happens next? Who knows.

Every Aussie filmmaker who hopes to see their work play outside the edit bay must bear in mind the OFLC as they cut their film. Every Australian distributor and festival programmer knows they must submit their films to the OFLC. Every DVD shop knows that when they sell DVDs of films that have not been classfied by the OFLC, they do so in the halflight of a selectively enforce law. I don’t know how many of our Australian collegues want to speak out against this tyranical action by the OFLC. I don’t know if any of them feel they can risk speaking out.

Our Aussie distributor is beside herself. She’s the sort of distributor every independent filmmaker dreams of finding, a passionate, tireless advocate of our work. But for now, she and MUFF would seem to stand alone. There has been no outcry, no call to arms. Right now would seem as if the Australian film community simply looks on and says, “There but for the grace of God go I” – and maybe they’re right.

More news if there is more news.

Here are the seven films that the Australian government has banned from the Melbourne Underground Film Festival:

70k
Schulmädchen-Report: Was Eltern nicht für möglich halten (aka The Schoolgirl Report)
Sex Wish
The Farmer’s Daughter
Ashley & Kisha: Finding the Right Fit
Whore
60 Second Relief

Think about this for a moment.

We’re not talking about the government of Iran or Saudi Arabia dictating what films a festival can and can’t show.

We’re not talking about self-appointed morality police picketing, protesting and lobbying.

We’re talking about the Australian government, in 2007, dictating what can and cannot be screened in a film festival.

Sons and daughters of Gallipoli, is this what you want?

I just found out that while I slept, the Australian Office of Film and Literature Classification has informed the Melbourne Underground Film Festival that they will not be given exemptions for about a half-dozen films, including ASHLEY AND KISHA: FINDING THE RIGHT FIT.

Last year our film DAMON AND HUNTER: DOING IT TOGETHER had its world premiere at MUFF, and went on to be named Best Documentary. From there it was invited to show at two screenings at QueerDOC Gay and Lesbian Film Documentary Film Festival in Sydney, but the festival was threatened by the OFLC with both a fine and jail time, and QueerDOC elected not to show our film.

More news when I have more news.

Last week, one of our best friends in Australia, OutDVD received notice from the Australian Attorney General’s Office demanding that they remove all unclassified DVDs from their retail and rental inventory.

Unclassified material makes up two thirds of OutDVD’s stock, and includes DVDs such as the third season of the critically acclaimed Showtime series THE L WORD, our own ASHLEY AND KISHA: FINDING THE RIGHT FIT, and many other titles of interest to Australia’s gay and lesbian community.

Please take a moment and sign OutDVD’s online petition to the AG’s office.