The 6th Circuit Court of Appeals has ruled[PDF] that posting dirty pictures on (in this case) swingers sites is protected speech, and need not be subject to the same record-keeping and reporting requirements as ordinary commerical porn.
Regina Lynn, Wired's Sex Drive columnist, writes that technology has confused this issue, muddling the distinctions between different kinds of speech and behavior, including sex:
We can do a better job of accepting how adults adapt new technologies to sex. And we need to stop underestimating our own ingenuity....Certainly laws designed for VHS don't fit very well into a web 2.0 world.
The root of this particular case is that modern tech bridges the gap between sex (interaction) and porn (entertainment). Some forms of sex look a lot like porn: documenting and publishing our lovemaking to an adult community site, for example,
The cliché is that we like porn because it's sex without the work of a relationship. But now we've developed technology that lets us experience one part porn, one part prostitution and one part long-term relationship. Our only commitment is an hour or two a week and a credit card. It's a compelling combination.
So, while this kind of hybrid speech is safe for now, porn attorney Christopher C. Corwin writes on his blog NY XXX Law that this case might go all the way. To the Supreme Court, I mean. Obviously.
More on dubious online solicitation and the courts here. More on swingers and the law here.