The gist of LJ's inexpertly-communicated policy appears to be:
- Our servers are in the US. Therefore US law is a forcing function.
- Therefore, you cannot use LJ resources to promote certain illegal activities, or assist in committing certain crimes.
- Therefore, you also cannot post "material which [sic] violates United States law".
Note the clarification: CLARIFICATION: Not all content describing underage sexuality is in violation of our policies (or of United States law). Rather, using LJ to distrubute [sic] "obscene" content (as defined by the Miller Test) is illegal. If it qualifies as obscene, and if it involves minors (people under the age of 18), then it's not allowed.
The Miller Test is the test that mentions community standards and the presence or absence of serious literary value. (Read the article if you're unfamiliar with it.)
I've read many times that it's just about impossible for text (that is, the fiction that is mostly what we're worried about) to be judged obscene by this standard. US law has consistently made distinctions between visual material and written material. So if LJ is in fact using the Miller test plus an additional requirement of underaged-ness, we have no worries. (Assuming, perhaps dangerously, that the community would be "California", where their servers are, or "LJ itself".)
But I think it's difficult to figure out what LJ's policy truly is. It's about as vague and unenforceable as US obscenity laws are, which is amusing in some ways but unsettling in most others. That unsettling feeling is not a happy one for you & me.
LJ/Six Apart could have chosen to simply ban a range of materials on the "we own it; we set the rules" principle. In that case, fandom would be exploding and then moving without bothering to argue. This is perhaps why LJ/Six Apart chose not to phrase the policy that way, but instead to shield behind a vague invocation of "US law". Phrased this way, it means that they can argue that fandom is fine, while preserving their ability to turn around and yank material if somebody complains. The policy is best viewed as mealy-mouthed evasion of the issues. They wish to have a policy that looks good on paper, doesn't offend their customers too much, and allows them freedom of action should an advertiser complain.
This policy is not fandom-friendly. Is it the best anybody can expect from a service provider? Does Six Apart in fact want fandom's business?
I'm not exactly a fountain of underaged smut, but this uneasiness includes me. One story, rated mature, not even in question if the Miller test is truly the test used. But can I have confidence that it is?
ETA: Ooh. Check this single case of a woman being prosecuted on obscenity charges for a text-only for-pay website.
They should have had a lawyer write & post the policy.
Because if it is just what the clarification says, fandom has nothing to worry about. burr86 should have kept his hands in his pockets; every time he answered a question he made the policy look worse.
Note, I am not a lawyer. I am a software engineer. That, strangely, means I have power. It means that if fandom wants to move elsewhere, I can help make it so. Hmm!
Tell me what you think, or if I've misunderstood anything here.