It’s never wise to write to a trend simply because it’s a trend. However, if you already have an interest in writing something that’s just starting to be popular, it’s often a wise idea to jump on that bandwagon before everyone else does. To that end I keep my eye out for trends.

I never suspected that Regency Romance would be the enduring historical love affair of the romance genre until everyone else in the world already knew it. I did predict the rise of Steampunk before it happened; it just wasn’t something I felt that I was well-suited to write.

However, I think my own interests and a trend may be on a collision course at last. After a modest but thrilling bidding war, I recently accepted an offer from Berkley Books to publish my new collection of 1920s erotic romance novellas. The anchor story, WHEN I’M BAD I’M BETTER, is based loosely on silent screen siren Clara Bow and a fictional bdsm love affair with a dashing American aviator. I expect the collection to release from Berkley Sensation in January 2013–which, for traditional publishing–is downright speedy! The first novella in the collection may be released digitally in anticipation of the release of the collection. (And yes, I’m dancing a jig over here!)

I wrote about my crazy serendipitous writing discovery here. So, now I’m going to make another prediction and we’ll see how it bears out. I’m going to predict the rise of early 20th century romances. In specific, the Roaring Twenties. Why? Well, here’s a list.

1. Money. These have been hard economic times–so having plenty is a potent fantasy. The Roaring Twenties were a time of plenty. Folks were realizing the American dream, making money hand over fist, and using that money to experience all the joys that life had to offer.
2. Sex. The twenties were sexy. Let’s face it. Dancing. Drinking. Music. Excess. Sexploration. Flouting authority. The decade has it all wrapped up in a feather boa and the slang of the era was almost all sexual innuendo.
3. Gender Roles. In the 1920s women had just got the vote and were starting to come into their own. There’s a certain tension in all the literature about how women should behave as liberated human beings as well as mothers and keepers of family values. That tension hasn’t ever gone away and there’s a certain appeal to a more genteel era when men may have been less ambivalent about their own roles.
4. Fashion. There’s a certain elegance to clothing in the early 20th century that we haven’t recaptured. From the lovely Edwardian dresses to the wild glitter of the flappers, it’s pretty–and it’s over the top. These have been hard economic times for the world; thinking back to a time of elegance and glamour is a pretty fantasy.
5. Politics. There is a certain cyclical nature to history. I’m pretty sure that Margaret Sanger suspected that we’d still be talking about birth control almost 100 years after she was arrested for advocating family planning, but I admit, I’m a little stunned that it’s a hot topic again in 2012. It seems like almost everything that was a matter of political debate in the 1920s is back again with the exception of Prohibition.
6. Collective Consciousness. I’ve argued before that things get into the minds of lots of people at the same time. You can see the evidence of it in media. First, take the surprise success of Oscar Winner, “The Artist” about silent films in the 1920s. It’s the first silent film to have won the prize since the very first prize went to Clara Bow’s WINGS. Then consider that the smash-success, DOWNTON ABBEY will return for its third season set firmly in the 1920s. We can expect all manner of beautiful sets and inspiring costuming. That new season will air within weeks of the re-make of THE GREAT GATSBY, starring Leo DiCaprio. Last, but not least, there’s HBO’s marvelous BOARDWALK EMPIRE, set during Prohibition. It will return this coming fall and, in combination with Gatsby, should create a snowball effect. Anyone else have any other 1920s trends they’ve spotted in media?

As I watch the discussion unfold about Paypal’s (a financial company) decision to pressure Smashwords (a publisher) into changing its policy about what kinds of books it can publish, I’ve noticed the mis-use of a lot of terms and ideas. I’m hoping to bring some clarity to the debate with this primer.

First, a caveat about my biases. In law school I directed my energies towards defeating the Communications Decency Act of 1996. Because of that specialty, during the ten minutes that I practiced law, I represented a company whose business it was to verify the age of people who wanted to access adult content on the internet. I am no longer a practicing lawyer, but when it comes to free expression, I am quite nearly an absolutist. That bias may show in this post.

Here are the terms I’ve seen bandied about in this discussion and why they are, or aren’t relevant.

Constitutional Right to Free Speech: The First Amendment of the United States Constitution forbids the government from suppressing the expression of its citizens, with few exceptions. Those exceptions form the basis of vast swaths of case-law, but boil down to the idea that any government intrusion into this area faces a test of strict scrutiny. Hence the government can prohibit someone from falsely crying fire in a crowded theatre in the interest of saving lives, but the government cannot prohibit someone from burning a flag as political expression. American pride in free expression that is at the core of the objections to Paypal’s actions, but Paypal is not a government entity. Consequently, the First Amendment is not directly at issue here. (The argument over whether or not Paypal is an unregulated monopoly, uniquely positioned to have a chilling effect on expression, is a different one. Whether or not Paypal is doing this in response to government pressure or out of fear of government regulation, is currently not known.)

Censorship: Censorship is the suppression of expression. It derives from the ancient tradition of Rome in which censors were elected to purge the Senate of undesirables and watch over the public morality. Sometimes censorship is perfectly appropriate–such as the example of forbidding others to create a panic in shouting fire. Sometimes censorship is not appropriate. Either way, the term has taken on a pejorative implication in our country because we don’t like to think of ourselves as repressed old Romans. Censorship is almost universally legal outside the context of government action. Paypal and Smashwords may not be involved in any wrongdoing whatsoever. Nonetheless, the decision to remove books from the major outlets based on content is a form of censorship, right or wrong.

Pornography: American jurisprudence does not concern itself with the definition of pornography, only obscenity, which I will cover next. Pornography is, by and large, a layman’s term. However, case-law on the whole tends to support the commonly held definition of pornography as the explicit visual depiction of sexual acts intended for the purpose of arousing its viewers. A thin wall between visual representations and written representations has helped to serve as a social boundary to allow for artistic expression within fairly easy-to-understand limits. Many of the objections to Paypal’s policy stem from what is now perceived as a brand new transgression over the social line of detente–from the classification of visual sex acts as pornography to a broadened definition that catches up literature as well.

Obscenity: Obscenity law is one of the least understood and most tortured fields of law in American jurisprudence. Almost all prosecutions surrounding obscenity have had to do with visual depictions of sexual acts, with a few exceptions, some of them famous. Although the Supreme Court declared in Kaplan vs. California that “Obscene material in book form is not entitled to any First Amendment protection merely because it has no pictorial content,” prosecutions brought against books have fared relatively poorly.* The court has never explicitly articulated a reason for the relative difference in legal outcomes. However, some argue that it’s because visual representations of sex acts involve both conduct and the chance of exploitation of real human beings whereas written fiction is not conduct and has not yet been shown to categorically cause a societal harm.

The standard for obscenity was once ‘I know it when I see it,’ but that was eventually replaced by a community standards test. Unfortunately–or fortunately, depending on your point of view–the internet blew apart that legal test. The idea of the boundaries of a community is in flux. The most important recent decision relevant to free speech was decided in 1997, Reno v. ACLU in which the court struck down applying indecency laws to the internet, but indecency is a different standard than obscenity. The internet has since become it’s own community with its own evolving standards, and we’ve had ten years of relative legal silence on the issue.

It is very clear that the appellate courts do not want to spend their time debating the individual merits of either pornography or erotic fiction, and yet, their tests call for just such individual decisions. Some people–including this author–do not believe that government regulation for obscenity is compatible with the First Amendment and that the entire field of law ought to be a relic of the past. Others would argue more narrowly that the ongoing uncertainty in the field of obscenity law leads directly to companies like Paypal making over-inclusive policies to guard against prosecution, thereby resulting in a chilling effect on public discourse.

This is relevant to all of us because if obscenity is based upon community standards, then we are members of the community and our opinions about free expression are vital to the equation. Moreover, to be fair to Paypal, if this move is being made in anticipation of U.S. government regulation, the problem is much more fundamental.

Why Paypal should feel themselves accountable for monitoring the content of the companies for whom they process payments is beyond me. I invite a lawyer with expertise on the matter of third party liability to correct me, but in taking on such a role, they may be exposing themselves to more legal liability than if they took a neutral stance. This might lead some to conclude that either Paypal is seeking to impose a privately held moral stance on their business partners, or, they are seeking to appease governments or entities outside the U.S.

Free Expression: Contrary to what most Americans might believe, the right to free expression exists outside the boundaries of the U.S. Constitution and it is not just a matter of the individual versus the state. In fact, the right to freedom of opinion and expression has been declared to be a universal human right by Article 19 of the Declaration of Human Rights, which says that free expression is, “a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”

This is relevant for two reasons. It’s relevant because it specifically points out that the right to free expression is a moral issue that transcends governments. It is also relevant because Paypal is a member of a global community, certainly an organ of society, that has proved itself willing to have an influence over global public discourse. The rights and responsibilities of financial industries–especially one as relatively unregulated as Paypal–is a legitimate topic for conversation with respect to their ability to influence the public sphere of ideas.

Article 19 also means that it’s fair for consumers who support Paypal by using its services to question whether or not the arbitrary and capricious enforcement of their policies should subject them to public censure.

Further discussion might include wikipedia’s entry on corporate censorship.

Any other terms or phrases you’ve seen used improperly to the detriment of this debate?

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Updated to Include:

Protected Class: There are certain kinds of people that have been traditionally discriminated against such that the law regards them as protected classes, and laws aimed against them are subject to a higher degree of scrutiny. (ie. the justifications for those laws are vital.) In the United States, protected classes are based on race, color, religion, national origin, age, sex, familial status, disability status, veteran status, or genetics. Sexual orientation–gay, lesbian, transgendered, bisexual, dominant, submissive, were-lover, etc.–is not a protected class, though some people believe it should be. Protected classes are important because discrimination against them can be forbidden even by private actors. This has been brought up with regard to whether or not it would be legal for Paypal to demand the removal of all books about LBGT relationships. I have no expertise in discrimination law, so again, I invite a qualified attorney to correct me, but I believe it would be perfectly legal either because the discrimination would be aimed at literature and not people or because this is not a protected class of people, or both. However, I would point out that just because something is legal doesn’t mean it’s not also wrong. In related news, an author has just filed a gender-based complaint against Paypal with the European Court of Human Rights–which has its own version of protected classes.

Pseudo-Incest: The taboo is strong enough that I hesitated to even post this definition to my site, but I’m going to do it anyway. Why? Because it falls under the kinds of materials that are apparently being removed from online bookstores to comply with Paypal’s new policies. Pseudo-incest is a term used in the erotic literature industry to describe relationships that carry with them a patina of taboo, but do not actually involve a depiction of illegal activity of any kind. For example, an affair between consenting adult step-siblings.

* I don’t mean to imply that prosecutions against written works are never successful. Often pled out early, many of these cases never reach the appellate courts. I simply mean to say that words have fared better than pictures at the Supreme Court.

Does HQN author Victoria Janssen know me and my people’s tastes, or what? When I invited her to do a guest blog here, I had no idea she’d manage to scare up an excerpt from the Odyssey, but she does, and she does it with aplomb. After her discussion, she’s even shared a little excerpt from her forthcoming novel, so let’s make her feel welcome.

The Lotus Eaters

by Victoria Janssen

One section of The Duke and the Pirate Queen would not exist if not for revisions.

When writing the synopsis for the novel I knew I had to visit an island, and if possible my protagonists needed to be taken captive by islanders. Since this was an erotic novel, the islanders would force them to compete in a sort of sexual display contest. It wasn’t until I’d had a little break from the manuscript, though, that I realized I’d completely missed an opportunity.

Luckily, around then I received the manuscript back with a request for some minor revisions. I checked in with my editor, told her my idea, and received permission to revamp the island scene by making it an homage to The Odyssey.

Here’s a brief excerpt from Odyssey IX, from a translation I found online: “…on the tenth day we reached the land of the Lotus-eaters, who live on a food that comes from a kind of flower. … the Lotus-Eaters gave [the crew] to eat of the lotus, which was so delicious that those who ate of it left off caring about home, and did not even want to go back and say what had happened to them, but were for staying and munching lotus with the Lotus-eaters without thinking further of their return; nevertheless, though they wept bitterly I forced them back to the ships and made them fast under the benches.”

Some historians suggest the plant meant was Ziziphus lotus, which is related to the jujube, though I suspect there’s also an element of fantasy in the description.

The idea of islanders who subsist mainly on drugging flora fit in well with an erotic novel. I could thus easily force the protagonists into the otherwise unlikely situation of a sex competition, which led to new revelations about their characters. The drugged islanders added not only an element of humor but also of dystopic fear, resulting in a chapter that was much more gripping than before the revision.

I knew my liberal arts education was good for something.

The Duke and the Pirate Queen is Victoria Janssen’s third novel for Harlequin Spice.  Her novel The Moonlight Mistress was nominated for an RT Book Reviews Reviewers’ Choice Award.  She’s also written The Duchess, Her Maid, The Groom and Their Lover.  Find out more at victoriajanssen.com

Bonus

The Duke and the Pirate Queen is set in the same world as The Duchess, Her Maid, The Groom & Their Lover and features characters who appeared in that novel, Duke Maxime and Captain Imena Leung. Captain Leung is forced to abduct Duke Maxime, who is her employer, to thwart an assassination plot against him. He wants her. She wants him. Unfortunately, issues of birth, rank, and their own pasts are in conflict with their desires. And then there are the pirates, the storm, the hostile islanders…not to mention the sharks.

Excerpt:

They were forced to walk at spear-point through the forest towards an unknown destination. Imena glanced at Maxime, then indicated the man in front of them with the barest inclination of her chin. Another wary glance told her Maxime was now watching the man, too, and his slightly unsteady gait; he walked as if his feet were numb, or not attached to the ends of his legs. He smiled widely and incessantly, which she found disturbing. He still carried a spear, though; all five of the islanders did, in menacing contrast to the crowns and streamers of pink and orange flowers they wore tangled in their long hair. She wished she could see the other four men, who walked behind them and to the side, occasionally prodding her and Maxime with the butts of the spears.

Sunlight filtered down through the trees where the heat was trapped. She felt it more powerfully with her clothing on. Sweat had begun to trickle down her back, mingling with tiny fragments of bark from her tree-climbing and the sticky residue from insect repelling balm. She was going mad with the urge to scratch. Finally, she gave in. Aside from a brief poke from a spear butt, their captors allowed the movement.

Maxime eased over, his hand lifted to scratch for her, but a spear promptly shoved them apart.

She waited a few minutes, then asked, in patois, “Where are we going?”

One of the men behind her spoke. His tone was slow, measured. “Don’t worry, beautiful lady. We won’t kill you. Unless you do something we don’t want you to do.”

She and Maxime exchanged a glance, ripe with irony. She said, “What don’t you want us to do?”

Another of the men began to sing. It wasn’t any song she’d ever heard, and it didn’t seem to have any words, only vowel sounds. She didn’t think it was a language. The pitch wavered gently up and down long stair-steps. Mostly, it was loud. Soon, one of the other men joined in, and the first man, the one who’d spoken, began mumbling to himself. She couldn’t catch any individual words. Some sort of ritual?

She didn’t like not knowing who had taken them captive. She didn’t like not knowing what purpose their captivity would serve. …

She shifted her weight, so she was walking a little closer to Maxime. In a low voice she hoped the singing would cover, she said, “I don’t smell alcohol, but….”

“They do seem a bit to the wind,” Maxime agreed.

She waited to see if any of their captors would react to their conversation. None of them displayed any reaction; they continued with their strange song and mumbling. She murmured, “I don’t like unpredictable people with spears.”

“They haven’t harmed us yet.”

“Unless you count my bleeding ears,” Imena remarked.

Maxime hid his laughter in his fist.

They walked through the afternoon. When the singing finally died out, Imena didn’t risk speaking again, but she and Maxime communicated their feelings with eloquent glances, until it began to grow dark. As the stars began to be visible, Imena smelled a hint of smoke. Soon, she was sure the smoke was from campfires, some of them being used to grill fish on flat rocks. Her stomach growled. Maxime shifted closer and bumped her shoulder with his, suffering a punch from a spear butt without complaint.

The camp was substantial, with at least three hearths and numerous shelters leaning against the trunks of the towering trees. Perhaps fifteen men and women were in easy view, though she couldn’t be sure of that, outside of the flickering firelight.

An old man with matted hair came forward and, smiling broadly, gestured for them to sit. Under guard from their original five captors, plus five more who ambled forward, the old man bound Imena and Maxime, both wrists to opposite elbows across their chests and ankles to knees, and their ankles then bound to each other. He smiled all the while, his hands as swift as birds. Imena’s mood plummeted just as swiftly.

I’ve been saying for a while that I think the more inventive and creative writing in the industry is happening on the erotica end of the scale. Megan Hart, one of the most literary writers in th genre, has been pushing that envelope with deep and thoughtful novels that happen to center around sexual topics.

My editor at Berkley is quoted in this very interesting article in Publisher’s Weekly:

Relationship-centered erotica is very important at Berkley, where executive editor Cindy Hwang notes that although the imprint has only been publishing its Heat line since 2005, “In that short period of time, we’ve really seen the erotic romance take off. This isn’t to say these books aren’t as sexy as other erotica—just that there’s an emphasis on the character development and emotional connection between the characters.” Hwang cites Emma Holly’s September Fairyville as a great example of a book that combines intense emotional connections with “envelope-pushing sexuality.”