?

Log in

No account? Create an account

Previous Entry | Next Entry

My Take on Strikethrough '07 (Finally)

OK, let's start on getting this written down, even though my thoughts are by no means finalized.

First of all, for those (few) of you who have no idea what I'm talking about when I refer to Strikethrough '07, and who don't want to take the time to read stewardess's full essay "How Six Apart's Greed Allied Them with Neo-Nazis (Revised)," let's start with a minimal summary. LiveJournal and its parent company Six Apart have come to the top of the separate "hit lists" maintained by two anti-pedophile Internet vigilante groups, the famous Perverted Justice and the rather more obscure (as in two people with a web site) Warriors for Innocence. What both vigilante groups agree upon is that if you're going to set up an Internet service that allows children or teenagers to use it, it is your responsibility to not merely have strict policies against adults soliciting children for sex, but to hire at least one full time employee whose job it is to do nothing but run searches on your site, and use every other investigative tool available, spending all day every day doing nothing but looking for pedophiles and throwing them off of the site. Even they don't expect this to completely solve the problem. But having gotten at least this much cooperation from MySpace and from Blogspot, they've now set their sights on LiveJournal. Where the two groups disagree is that Warriors for Innocence doesn't want to settle for expelling people only for cruising teens for sex; they also want web sites to expel anybody who advocates cruising teens for sex or who writes or produces any kind of pornography involving teens and sex; this appears to be the basis for their claim that they, not their older and more successful competitors Perverted Justice, are "the only group protecting children on the Internet."

Other than quiet negotiations behind the scenes regarding policies, and one public statement buried deep on their website, Perverted Justice hasn't done anything about it yet. But some time in April or May, after running searches on LiveJournal, Warriors for Innocence mailed off to Six Apart a list of at least 200 LiveJournal user accounts and communities that, in WfI's opinion, either belonged to pedophiles or which advocated pedophilia. LiveJournal's abuse team skimmed the list and concluded that while some of those people may have been pedophiles and some of those communities may have been writing stuff about (mostly fictional) teens having sex with (mostly fictional) adults, nobody on that list was actually using LiveJournal to arrange sexual trysts with minors, so they declined to take action. Warriors for Innocence responded by screen-capturing pages showing advertisers, on ad-supported journals, next to what seemed to be pedophiles talking about their sex lives and their sexual feelings, pedophiles defending the idea of pedophilia, and pedophiles writing porn about children, and sent those screen captures to the advertisers (with copies to Six Apart). In response to that, Six Apart ordered LiveJournal's abuse team to get rid of all such material on LiveJournal. The result was that on May 28th, over the Memorial Day holiday here in the US, a short-staffed abuse team drift-netted LiveJournal and ended up deleting an estimated 500 accounts and communities, many of which can be seen listed in the "support communities" entry on the users' response community innocence_jihad.

Some few of them had nothing to do with pedophilia, and were deleted entirely by mistake. Some of them were by people who'd been victims themselves, not perpetrators, and who were also deleted by mistake. Some of them were, in fact, clearly accounts by pedophiles, either talking about having sex with children or writing what was clearly intended to be written porn for other pedophiles to be aroused by. And an awful lot of them were by people writing in-character fiction for various role-playing games or people writing "fanfic" accounts of fictional sex between fictional children or between fictional children and fictional adults. The fanfic community organized a massive rebellion and protest about this, and under pressure from users Six Apart CEO Barak Berkowitz apologized publicly for the fact that many more journals were deleted than should have been, and said that the deleted journals were being more carefully reviewed one at a time and most of them being restored.

Quite a few of my friends and my readers want to know what I think about all of this, and have expressed disappointment to me, in writing and in person, over the fact that I didn't say anything about it while it was happening. They assumed that I was waiting for more facts to come out, as I often do. But their disappointment has risen now that the controversy is completely over, or almost completely, and I still haven't commented. They know that, as someone who's been the victim of a pedophilia panic before (the Satanic Ritual Abuse hoax of 1983-1991), I know better than many of you do the pain of having been wrongly accused of being a pedophile in a very public way. They know that I'm a constitutional law and First Amendment law otaku, an obsessive fan and collector of trivia about censorship and other constitutional law topics. They know that I'm famous for having opinions about nearly everything. And they know that I could easily have ended up in the cross-hairs of this persecution myself, for my handling of the question of what it meant that the very first democracy was built upon a foundation of sex between adult men and teenage boys, my February 3rd, 2005 essay "Do it the Greek way." So yeah, the pressure on me to get off the fence and say something has been growing.

Yeah, I have some opinions. Some of them, some of you aren't going to like. I know some relevant facts that some of you don't know, too. Some of you are going to like those even less. But the main thing that has kept me from writing about this for almost two weeks now is that it has taken me this long to be able to write even vaguely coherently about it. See, to me the key that opens the lock to what this all means was when I noticed two things. The first clue was that an awful lot of the protests were coming from people who write pornographic Harry Potter fanfic. The clincher was when I noticed that at least some of the users were deleted for listing in their interests, or in one case having in their user name, the Japanese manga/animé porn sub-genre called yaoi. In fact, rather more accounts were deleted for these reasons than were deleted for any actual pedophilia or defense thereof, and that's what all the controversy is about. LiveJournal has since backed down and reinstated all, or at least nearly all, of the Harry Potter porn communities and journals and all or nearly all of the yaoi fans' journals and communities. But this isn't over, not even vaguely. Because what they have in common is that both are porn about teenagers' sex lives. And the blunt fact is that there is neither yaoi or Harry Potter slashfic is legal in the US, no way in hell. Not legal to write, not legal to possess, not legal to read.

Let's review. The defining law on what constitutes obscenity is the 1973 US Supreme Court ruling Miller v California. It said that 1st Amendment protection does not apply to, and states and the federal government can outlaw, any material that relates in any way to sex or to private parts, that is meant to arouse or gratify sexual feelings, that is patently offensive, and that is completely lacking in any historical, medical, scientific, educational, artistic or literary merit. All of those facts are to be weighed by a jury, and the jury is to be instructed to judge whether all of those facts are true as measured against "contemporary community standards." There is a metric ton of case law that says that any porn that involves actual or fictional children in any way is by definition "patently offensive" and not even vaguely protected. And the 1994 case Florida v Mike Diana established two other facts, both of them relevant to this issue. First of all, it doesn't count as a defense that no actual children were harmed or involved, it doesn't help if it's 100% fictional. And second, to the deep shock of those of us who followed the case at the time, and contrary to the perception that many of you have, something can be drawn and still be ruled to have no artistic merit, something can be written and be found to have no literary merit.

Harry Potter slashfic is all about sexual encounters between fictional under-aged students at Hogwarts, whether with each other or (mildly worse) with their adult teachers. Yaoi is all about romantic and sexual encounters between fictional teenage boys. Absent a jury ruling of literary or artistic merit, these things are clearly defined under US law as child pornography. Period. Possessing or producing such child pornography is a federal crime, one that gets you listed on the sex offender registries as a predator on children. Period. End of sentence. No disputing it. If that's true, then why does it take neo-Nazi nutcases like Warriors for Innocence to make a big deal out of it? Where are the prosecutors? Please. We know where the prosecutors are. They're hiding from the fact that slashfic and yaoi have something in common: they are both genres that are primarily popular with middle aged heterosexual women, particularly white middle and upper class women. (Which is why gay romance and gay sex in those genres is almost completely and entirely unlike actual descriptions of romance and sex from gay men, whether talking about their lives now as adults or then as teens. It's not about gay sex, it's about gay sex the way that women wish it was, the way they think they'd be if they were gay teenage boys or gay men. Not that het-male porn about lesbians is any more realistic, I know, but we're talking about yaoi and slashfic here.) Respectable middle aged women are not exactly the defendants that most prosecutors are eager to go after; juries are too sympathetic.

But what makes this not even vaguely over is that moral panics have pressured prosecutors to take cases they didn't want to take before. And there is an argument being made, including by people perceptibly saner than Warriors for Innocence, that things like yaoi and slashfic produce more pedophiles by encouraging adults to fantasize about sex with (or even just between) children, by encouraging adults to think of teens and even pre-teens as sex objects. And while I think that that argument is a load of horse manure, even I have a harder time arguing against an even saner, even stronger argument than that: the existence of Harry Potter slashfic legitimizes the idea of adult/teen sex. Whether any actual pedophiles are pointing their would-be victims towards archives of slashfic and saying, "see, there's nothing wrong with it" or not, that's what's got some people worried: not the legitimizing it to the potential victims, but legitimizing it to prospective jurors.

About a month ago I linked to a New York Times article about the dispute in their neighborhood over the fact that BDSM website Kink.com bought a historic building to be their new office and film studio, Jon Mooallem's "A Disciplined Business," and there was only one thing that the reporter left out that I wish had made it into the article. In reviewing the history of the Kink.com website, founder Peter Acworth mentioned that he was a BDSM aficionado himself who was annoyed by the fact that BDSM porn that was available to him didn't look anything like the sex lives of BDSM lifestylers like himself and his friends. So he asked a lawyer why not, and the lawyer told him that it was legal to show people having sex, and it was legal to show people tied up and/or being beaten, but it was illegal to show people having sex while being tied up and/or beaten. Acworth asked his lawyer to show him the law that says that, and the lawyer couldn't find it. So Acworth decided to risk opening Kink.com, and to show people having sex during BDSM, and see what happened. What happened was "nothing."

As it so happens, I do know where that law is, and why nothing happened. See, many years ago I remember seeing a documentary about the history of pornography prosecution that actually had this information. What happened was that when the justices wrote Miller v California, what they specifically didn't want to do was come up with a Hayes-Code-like list: this, this, and this are legal, but this, this, and this aren't. But let's say that you're either Peter Acworth, or you're a prosecutor looking to maybe make an obscenity case against Peter Acworth. You don't want to bet your freedom, or your career, on your vague sense of what a jury will find. You want to know in advance what a jury will find. So separately the porn prosecutors' bar and the porn defense lawyers' bar commissioned statistical studies of at least 10 years' worth of verdicts in porn cases after Miller v California. They came up with separate lists that concluded that juries are only willing to find something "patently offensive" if it includes at least one of the things on the list. It's not as odd as it sounds that the defense attorneys' list was longer; their clients have more to lose than a prosecutor does, so they erred on the side of saying "no."

And one of the things that both sides agreed upon was that any bondage and discipline, dominance and submission, or sado-masochistic porn that showed actual sex was something that juries were highly likely to convict over ... from 1973 to 1983. But Peter Acworth wasn't opening his website in 1983. He was opening it in 1998. The law didn't change in those 15 years, but contemporary community standards did. In particular, amateur porn informal distribution networks made it possible for all kinds of people whose kinks were legally obscene to share their photos with each other, and for those photos to leak out of their networks into the broader public; everybody with a 14.4k modem and an ISP that supported Usenet access to alt.binaries.pictures.erotica could find any fetish imaginable, legal or illegal. Some of those fetishes continued to gross out the general public, and still do. But after repeated exposure, BDSM porn not only came to be accepted, it even went through a brief fashion fad.

And that, whether you like it or not, is why the issue of yaoi and slashfic on any part of the Internet, including LiveJournal, is not going to go away. There are people out there who are deeply troubled by the idea that slashfic, especially slashfic involving such nearly universally known and loved characters as those from the Harry Potter books, will encourage people to imagine that even some of their favorite people, even highly sympathetic characters, have underaged sex or worse, sex between adults and the underaged, and more to the point, that this doesn't make anybody involved seem any less likeable. And if that leads to a world in which child pornography is as hard to get criminal convictions for as BDSM pornography is now, they will be quite unhappy, to say the least. And I am not even vaguely sure that, no matter how many respectable and supposedly entirely safe middle aged middle class white women wallow in the stuff without doing themselves or (so far as we can tell) any children any harm, I'm not sure that the public isn't going to side with them on this and against the yaoi fans and the slashficcers. Because if there's anything that the American public are in very near agreement about it's this: if you're adult, you are not supposed to be thinking about teenagers' sex lives at all, unless you're the parent or a medical professional, let alone getting off on the idea.

Comments

( 208 comments — Leave a comment )
Page 1 of 4
<<[1] [2] [3] [4] >>
tinyjo
Jun. 14th, 2007 08:40 am (UTC)
This is an interesting response - thank you. As an outsider, it's often difficult to get a perspective on what US law is.

One aspect I had wondered about is the fact that the age of consent in the UK is 16. Does fic with 16 year old British characters set in Britain count as pornographic in states where the age of consent is higher? Has that even been tested?
bradhicks
Jun. 14th, 2007 09:37 am (UTC)
ObDisclaimer: I Am Not A Lawyer (IANAL), and this is not intended as a substitute for legal advice.

My understanding of the law is that it wouldn't matter what the age of consent where the characters are is, or where they're from. What would matter would be the age of consent where the author lived or where any copies were distributed.

For example, remember the Mark Foley congressional page scandal? One of the controversies in that case was that the boy in question was of legal age where he was when Foley sent him those messages, but not of legal age in his home state. Absent any evidence that either Foley or the page were ever in a state where he wasn't of age to consent at any time when Foley was hitting on him, they were unable to convict. But if the page had been in his own home state, Florida, when he got one of Foley's messages, then Foley would have been guilty of sexually soliciting a minor. As I say, such issues are tried under the jurisdiction of the law where the actual crime occurred.

But remember, IANAL. Need to know what a lawyer would say? Ask one. Or more.
(no subject) - velvetpage - Jun. 14th, 2007 10:28 am (UTC) - Expand
(no subject) - naath - Jun. 14th, 2007 12:33 pm (UTC) - Expand
(no subject) - mightydoll - Jun. 14th, 2007 12:52 pm (UTC) - Expand
(no subject) - velvetpage - Jun. 14th, 2007 09:23 pm (UTC) - Expand
(no subject) - theweaselking - Jun. 14th, 2007 02:33 pm (UTC) - Expand
(no subject) - gentlemaitresse - Jun. 14th, 2007 01:41 pm (UTC) - Expand
(no subject) - marnanel - Jun. 14th, 2007 02:19 pm (UTC) - Expand
(no subject) - gentlemaitresse - Jun. 14th, 2007 02:24 pm (UTC) - Expand
(no subject) - galbinus_caeli - Jun. 14th, 2007 02:48 pm (UTC) - Expand
(no subject) - gentlemaitresse - Jun. 14th, 2007 02:58 pm (UTC) - Expand
(no subject) - galbinus_caeli - Jun. 14th, 2007 03:01 pm (UTC) - Expand
intent no longer has to be proven in the US. - jsl32 - Jun. 14th, 2007 03:58 pm (UTC) - Expand
(no subject) - peristaltor - Jun. 14th, 2007 08:34 pm (UTC) - Expand
(no subject) - marnanel - Jun. 14th, 2007 08:41 pm (UTC) - Expand
(no subject) - licensed2hench - Jun. 14th, 2007 06:00 pm (UTC) - Expand
(no subject) - naath - Jun. 14th, 2007 10:44 am (UTC) - Expand
(Deleted comment)
(no subject) - naath - Jun. 14th, 2007 12:22 pm (UTC) - Expand
(no subject) - marnanel - Jun. 14th, 2007 01:51 pm (UTC) - Expand
(no subject) - emarkienna - Jun. 15th, 2007 11:00 am (UTC) - Expand
(no subject) - marnanel - Jun. 15th, 2007 11:06 am (UTC) - Expand
(no subject) - dkmnow - Jun. 14th, 2007 12:48 pm (UTC) - Expand
(no subject) - marnanel - Jun. 14th, 2007 01:46 pm (UTC) - Expand
(no subject) - marnanel - Jun. 14th, 2007 01:55 pm (UTC) - Expand
(no subject) - twfarlan - Jun. 14th, 2007 02:02 pm (UTC) - Expand
(no subject) - galbinus_caeli - Jun. 14th, 2007 02:52 pm (UTC) - Expand
(no subject) - marnanel - Jun. 14th, 2007 03:17 pm (UTC) - Expand
(no subject) - galbinus_caeli - Jun. 14th, 2007 03:24 pm (UTC) - Expand
joemorf
Jun. 14th, 2007 09:24 am (UTC)
Absolutely the best examination of this subject that I've yet seen. It makes a startling amount of sense.

It makes one wonder what other taboos will fall by the cultural wayside in 25, 50, or 100 years...

~j
liviapenn
Jun. 14th, 2007 09:39 am (UTC)

Harry Potter slashfic is all about sexual encounters between fictional under-aged students at Hogwarts, whether with each other or (mildly worse) with their adult teachers. Yaoi is all about romantic and sexual encounters between fictional teenage boys.

I am not a writer of HP slash, but I feel the need to point out that your definitions here are not quite accurate. HP slashfic is not "all about" about teenagers having sex; quite a lot of HP slashfic deals with adult characters having sex with each other. HP slash fiction does not *by definition* include underage sex any more than HP het fiction does. Similarly, "yaoi" is any gay-themed manga-- it is not specifically gay-themed manga about teenage boys.

Admittedly, in the mind of the average person on the street, there's not likely to be much difference between "I write fanfiction about underage characters having sex" and "I write fanfiction about of-age characters (from a book aimed mostly at pre-teens) having sex," but I think it's a distinction that's important in a discussion of this type.
clodia_risa
Jun. 14th, 2007 12:49 pm (UTC)
liviapenn is correct. Slashfic and yaoi are not categorically underage, and I think that that is an important distinction to make.

Otherwise, I find your essay very well written and will give me much to think about.

(no subject) - redstapler - Jun. 14th, 2007 01:23 pm (UTC) - Expand
(no subject) - liviapenn - Jun. 14th, 2007 01:43 pm (UTC) - Expand
(no subject) - redstapler - Jun. 14th, 2007 01:52 pm (UTC) - Expand
(no subject) - eslington - Jun. 14th, 2007 06:25 pm (UTC) - Expand
(no subject) - drunkencarousal - Jun. 14th, 2007 03:51 pm (UTC) - Expand
(no subject) - therck - Jun. 14th, 2007 01:47 pm (UTC) - Expand
(no subject) - toxictattoo - Jun. 14th, 2007 03:05 pm (UTC) - Expand
(no subject) - lyras - Jun. 15th, 2007 04:02 am (UTC) - Expand
(no subject) - liviapenn - Jun. 15th, 2007 04:48 am (UTC) - Expand
inkbrush76
Jun. 14th, 2007 11:59 am (UTC)
I have a question: Since first amendment law specifically deals with what the government may or may not do in relationship to freedom of speech, how does that in any way relate to what a private institution such as Six Apart decides to do? I remember when this whole nasty affair first blew up, there were quite a few people screaming about how their first amendment rights had been trampled. The problem is the government isn't the entity that stepped in and acted. Six Apart deleted accounts without the direct involvment of any governmental institution. The pressure applied to them by WfI was commercial: WfI notified Advertisers that their ads were appearing on journals advocating pedophilia, and this pressure is what motivated Six Apart to action, not the threat of any governmental interference.

From what you've written, it seems that First Amendment Law would apply in this case insofar as what could be considered illegal content should the government decide to prosecute. Sound business practices aside, that's the only way that First Amendment Law applies to the situation and if Six Apart had decided that Precious Moments cartoons are more offensive than slashfic and deleted those instead, there would be no legal wrongdoing. As I understand it, Six Apart could delete any blog at any time, for any reason, and it would never be a violation of a person's first amendment rights, because Six Apart is a private entity offering a service. This is different from State or Federal government stepping in and telling Six Apart what could and couldn't be on their website. A different example: It would be ok for Barnes and Noble to fling open its doors and start burning books (even if it would be a spectacularly bad PR move), but it would not be ok for the government to send soldiers/agents into Barnes and Noble to forcibly remove books and burn them in the parking lot.

It just seems that in all the hubbub over the LJ Account deletion fiasco, a lot of people have been arguing that what LJ/Six Apart did was unconstitutional. I'm pretty sure it is completely constitutional, but I thought I should check.
kuangning
Jun. 14th, 2007 12:32 pm (UTC)
It is, in fact, completely constitutional. A private company has ~absolute control over what it allows or doesn't allow users to store on its servers. I really hate when people cry First Amendment when it doesn't remotely apply.
(no subject) - redhawk - Jun. 14th, 2007 01:33 pm (UTC) - Expand
(no subject) - inkbrush76 - Jun. 14th, 2007 01:35 pm (UTC) - Expand
(no subject) - redhawk - Jun. 14th, 2007 01:38 pm (UTC) - Expand
(no subject) - inkbrush76 - Jun. 14th, 2007 01:58 pm (UTC) - Expand
(no subject) - redhawk - Jun. 14th, 2007 02:02 pm (UTC) - Expand
(no subject) - kuangning - Jun. 14th, 2007 08:09 pm (UTC) - Expand
(Deleted comment)
(no subject) - redhawk - Jun. 17th, 2007 04:27 pm (UTC) - Expand
(Deleted comment)
(no subject) - redhawk - Jun. 17th, 2007 06:01 pm (UTC) - Expand
(no subject) - bradhicks - Jun. 17th, 2007 07:17 pm (UTC) - Expand
(no subject) - bradhicks - Jun. 14th, 2007 06:03 pm (UTC) - Expand
IANAL - terpsichoros - Jun. 15th, 2007 04:43 am (UTC) - Expand
theferrett
Jun. 14th, 2007 12:15 pm (UTC)
Got a link to your experiences with the Satanic Panic?
(no subject) - bradhicks - Jun. 14th, 2007 05:44 pm (UTC) - Expand
twfarlan
Jun. 14th, 2007 12:37 pm (UTC)
Brad, you mention that there is no exception for virtual children, for works where no real child is harmed. However, that doesn't seem to be true. 2002's Supreme Court decision in Ashcroft v. Free Speech Coalition would seem to make clear that actual people (specifically actual children) would have to be involved in a work to reach the levels of "abuse" or "child pornography" for the court's purposes. While Congress passed the PROTECT Act of 2003 in answer to this, all PROTECT has done is specifically target cases where it is not obvious that the subjects are virtual. What do you think of these, and how do you feel they would change the situation?
correspondguy
Jun. 14th, 2007 12:51 pm (UTC)
Thanks for posting that case - I couldn't remember the citation.
(Deleted comment)
(no subject) - twfarlan - Jun. 14th, 2007 02:38 pm (UTC) - Expand
(no subject) - (Anonymous) - Jun. 14th, 2007 02:49 pm (UTC) - Expand
(no subject) - bradhicks - Jun. 14th, 2007 08:49 pm (UTC) - Expand
(no subject) - emarkienna - Jun. 15th, 2007 11:07 am (UTC) - Expand
dreamking00
Jun. 14th, 2007 12:48 pm (UTC)
Quite frankly, this whole LJ episode seems to be nothing more than a carnival of sideshow freaks. I put most of the blame on PJ/WFI who have so much free time it offends me on a gastrointestinal level. People that obsessed have got to be repressing something.

On the other side, we have Slash/Yaoi fandom, who seem to have no actual perspective on how far outside the mainstream their tastes are, nor do they seem to have any true grasp of their relative importance in the scheme of things. I have zero problem with what they read or write on an intellectual level...arguably they're more healthy than their opponents in that they have a healthy and safe avenue for their kinks.

But LJ is a private business and if they were having, say, a peer-editing group at a coffeehouse and they were asked to leave...bye-bye. I bang my head against the wall whenever people start throwing the First Amendment around like it was a universal human right. In a sense, it is, of course, but your right to swing your fist ends at someone else's nose, you can't yell fire in a crowded theater, and when you're under someone else's roof, you should obey their rules.

I have no patience for online screaming matches. I used to participate in them when I was an officer of worldwide fan club, but I got heartily sick of it. And as I said to my CoH guild when I switched back to WoW, "yesterday I had to tell a 70-year-old woman we wouldn't take her credit card as fraudulent because it was her daughter who used it. Words cannot express how much I don't care about this situation."
thetathx1138
Jun. 14th, 2007 01:01 pm (UTC)
My opinion on this whole mess? Ultimately, just a bunch of melodrama. WfI achieved, in the end, precisely fuck and all, regardless of their motives and that would be my opinion even if those journals had stayed deleted. Those fanfic communities who got struck through really A) should have backed up their work in the first place and B) weren't aware of the legalities, either in terms of the law or in terms of LJ's TOS.

Still, WfI's passive-aggressive attitude and fire-and-brimstone rhetoric has, deservedly, won them no friends and probably dealt them a real setback in achieving anything remotely meaningful.
correspondguy
Jun. 14th, 2007 01:53 pm (UTC)
I am a lawyer, and I have to disagree with your interpretation of State v. Diana. Since the Supreme Court denied certiorari, it's by no means certain that the holding applies to anywhere but Florida. It's also by no means certain that it applies generally in Florida. I've been unable to locate the decision of the State Appellate Court, so I'm not sure what the legal precedent actually says, but from the article and my minimal research says, it's a state appellate court decision. Both the Florida Supremes and the Federal Supremes denied certiorari.

Denial of certiorari (or "cert") is not an endorsement of the lower (or state) court's holding. Rather, it's a statement that the court denying cert does not wish to decide the issues at this time. This might be because the issue has been decided to the satisfaction of the denying court, or the issues are unique to the case at bar, or because the court is bored with the issues, or because someone lost the game of johnny-on-the-pony. No one actually knows.

So, Florida v. Diana (or State v. Diana) isn't actually binding precedent anywhere but Florida, and I'd be comfortable arguing to a Florida Appellate court that it can be distinguished or is wrong.

In light of Miller v. California and Ashcroft v. Free Speech Coalition, which are binding precedent, I'd be very hesitant to argue that the law's as clear as you're suggesting. It does suggest that a lot of people could end up being what I call "the schmuck with the test case," and very few people really want to be that person.

Personally, I'd feel very comfortable arguing that a work consisting entirely of words and dealing with clearly fictional characters would be protected from state action.
technosage
Jun. 14th, 2007 02:27 pm (UTC)
Damn. Thank you. I've been out of the academic legal game so long I didn't have the resources at hand to figure out why this was, at best, a dodgy argument.

I do know that the intention of the various child endangerment statutes relating to pornography are designed to protect actual children from exploitation but has been extended to computerized graphics.

Text has always been a special case, but in this legal climate, I'd seriously hate to be the schmuck.
(no subject) - correspondguy - Jun. 14th, 2007 03:25 pm (UTC) - Expand
(no subject) - technosage - Jun. 14th, 2007 03:58 pm (UTC) - Expand
(no subject) - bradhicks - Jun. 14th, 2007 05:48 pm (UTC) - Expand
(no subject) - technosage - Jun. 14th, 2007 06:12 pm (UTC) - Expand
(Deleted comment)
(no subject) - correspondguy - Jun. 14th, 2007 03:27 pm (UTC) - Expand
(no subject) - zvi_likes_tv - Jun. 14th, 2007 03:40 pm (UTC) - Expand
(Deleted comment)
(no subject) - darthparadox - Jun. 14th, 2007 05:20 pm (UTC) - Expand
(no subject) - nightsinger - Jun. 14th, 2007 05:39 pm (UTC) - Expand
(no subject) - thesigother - Jun. 15th, 2007 10:12 pm (UTC) - Expand
(no subject) - zvi_likes_tv - Jun. 14th, 2007 07:41 pm (UTC) - Expand
(Deleted comment)
technosage
Jun. 14th, 2007 02:38 pm (UTC)
The contention that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children runs afoul of the principle that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it. See, e.g., Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 130-131.

Ayup.

And: First, Ferber's judgment about child pornography was based upon how it was made, not on what it communicated. The case reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the First Amendment's protection. See id., at 764-765. Second, Ferber did not hold that child pornography is by definition without value. It recognized some works in this category might have significant value, see id., at 761, but relied on virtual images--the very images prohibited by the CPPA--as an alternative and permissible means of expression, id., at 763. Because Ferber relied on the distinction between actual and virtual child pornography as supporting its holding, it provides no support for a statute that eliminates the distinction and makes the alternative mode criminal as well. Pp. 11-13.

Thank you thank you thank you THANK you for this link. Not only is it applicable, it's so surprisingly sensible on the part of the Court that I'm actually happy to be reading case law again.
(no subject) - oakdragon - Jun. 14th, 2007 04:17 pm (UTC) - Expand
idonotlikepeas
Jun. 14th, 2007 02:04 pm (UTC)
Thank you; this is a very interesting article.

I can't talk directly about anything related to this specific case because of my NDA (although I can point you at the second sentence of this news post since it was publicly disclosed by someone else). But I can talk a little bit about Abuse policy, because there is one thing here I'd like to correct.

Presently, Abuse does not drift-net the site. In fact, our interpretation of the common carrier laws is that if we do that we become responsible for catching problems before they happen rather than fixing them after they happen. And given the relative sizes of the userbase and the Abuse Prevention Team, we literally can't do that.

Abuse acts only when it receives a specific report of a specific journal/account/community violating policy. So in any case where you see an account getting suspended or Abuse taking some other action, that action was prompted by a specific report that we received from someone, somewhere.
bradhicks
Jun. 14th, 2007 06:01 pm (UTC)
And that, my friend, is exactly why Perverted Justice is not going to get off of Six Apart's back. While Internet law generally tolerates policies of "we act upon reports," Perverted Justice and their supporters will not rest until every social networking site hires at least one full time employee to search for pedophiles without waiting for them to be reported. And while Warriors for Innocence can probably be safely blown off, Perverted Justice has friends in law enforcement all over the country and a long-term contract with NBC News; it is well within their power to make Six Apart miserable if they conclude that Six Apart isn't negotiating with them in good faith.

MySpace took exactly the line that you just took, initially. So groups like Perverted Justice stepped up the pressure on them, manufactured a media panic over pedophiles on MySpace. Not very many months thereafter I remember a kid in a restaurant who mentioned his MySpace page, and an older woman at the table (his grandmother, I assume) started yelling loud enough that she could be heard two tables away, "What are you doing on MySpace!?!? There's nothing there but a bunch of pedophiles?!? Are you TRYING to get raped?!?!?" And that is when I knew that MySpace was going to cave, just as LiveJournal will if it starts to get a media reputation as a website that doesn't crack down on pedophiles "unless they're forced to by outsiders."
(no subject) - idonotlikepeas - Jun. 15th, 2007 11:44 am (UTC) - Expand
(Deleted comment)
sushis
Jun. 14th, 2007 02:29 pm (UTC)
But, do you really think that yaoi readers are unaware that their genre is not documentary, that their fantasies of "gay" male characters may not exactly mirror the lives of real gay men? I do suppose some very young or sheltered fans may suffer from this misconception, but, I think that fiction writers/readers should be allowed some crazy *fantasies*
(Deleted comment)
(no subject) - sushis - Jun. 14th, 2007 03:12 pm (UTC) - Expand
(Deleted comment)
(no subject) - milkman_conspir - Jun. 16th, 2007 01:14 pm (UTC) - Expand
(Deleted comment)
(no subject) - milkman_conspir - Jun. 18th, 2007 10:43 am (UTC) - Expand
(no subject) - zvi_likes_tv - Jun. 14th, 2007 03:43 pm (UTC) - Expand
(no subject) - pixxelpuss - Jun. 14th, 2007 03:57 pm (UTC) - Expand
(no subject) - quatorze - Jun. 14th, 2007 04:25 pm (UTC) - Expand
(no subject) - technosage - Jun. 14th, 2007 06:19 pm (UTC) - Expand
(Deleted comment)
(no subject) - technosage - Jun. 15th, 2007 03:14 pm (UTC) - Expand
(Deleted comment)
(no subject) - technosage - Jun. 15th, 2007 07:39 pm (UTC) - Expand
(Deleted comment)
(no subject) - technosage - Jun. 15th, 2007 08:37 pm (UTC) - Expand
(Deleted comment)
(no subject) - technosage - Jun. 18th, 2007 03:41 pm (UTC) - Expand
(Deleted comment)
(no subject) - technosage - Jun. 18th, 2007 04:15 pm (UTC) - Expand
(Deleted comment)
(no subject) - technosage - Jun. 20th, 2007 04:28 pm (UTC) - Expand
(no subject) - iamadoughnut - Jun. 14th, 2007 10:12 pm (UTC) - Expand
(no subject) - zvi_likes_tv - Jun. 15th, 2007 03:08 am (UTC) - Expand
(no subject) - iamadoughnut - Jun. 15th, 2007 04:06 am (UTC) - Expand
(no subject) - zvi_likes_tv - Jun. 15th, 2007 05:07 am (UTC) - Expand
(Deleted comment)
(no subject) - zvi_likes_tv - Jun. 16th, 2007 02:04 pm (UTC) - Expand
(no subject) - (Anonymous) - Jun. 21st, 2007 04:20 am (UTC) - Expand
(no subject) - ximeria - Jun. 16th, 2007 09:46 pm (UTC) - Expand
(Deleted comment)
sushis
Jun. 14th, 2007 03:20 pm (UTC)
correspondguy has a good, informed comment on this issue, a bit above.
Child porn requires real children - elfwreck - Jun. 14th, 2007 06:52 pm (UTC) - Expand
Re: Child porn requires real children - bradhicks - Jun. 14th, 2007 07:27 pm (UTC) - Expand
Re: Child porn requires real children - tropism - Jun. 14th, 2007 11:14 pm (UTC) - Expand
Re: Child porn requires real children - chayatapa - Jun. 15th, 2007 07:56 am (UTC) - Expand
Re: Child porn requires real children - elfwreck - Jun. 15th, 2007 10:34 pm (UTC) - Expand
roninspoon
Jun. 14th, 2007 02:58 pm (UTC)
Very thorough, and interesting. I'm curious on your take of the seemingly typical American attitude to not differentiate between Ephebophilia and Pedophilia.

Not in the context of this particular example obviously, since a misunderstanding that's common enough is tantamount to a community standard. I'm more interested in why Americans seem more inclined in ignoring the distinction, when it started, and what connection (if any) it has to the fundamentalist and temperance movements of the early to mid 20th century.
pixxelpuss
Jun. 14th, 2007 04:06 pm (UTC)
Not only is there a missing distinction between pedophilia and ephebophilia/hebephilia, but there's a missing distinction between pedophilia and the act of child molestation, not just in this conversation but in nearly ALL conversation on this topic. It drives me NUTS.

Also, I'm not sure it has anything to do with the fundamentalist and temperance movements of the mid 20th century (I haven't heard a convincing case for one, so hit me if you've got one). The hysteria over the idea of children and sex (according to James Kincaide) stems from the Victorian era redefinition of children as the beautiful, innocent, blank slates, angelic so long as they were protected from the corruption of society, and the simultaneous redefinition of female beauty as, essentially, childlike. The failure to distinguish between teens and children (in my opinion) stems from the obsession with children and innocence and the perception as society as a corrupting (rather than civilizing) influence. I think that we simply extended childhood older and older in order to give us more of what we want: the illusion of innocence, which satisfies some spiritual or psychological need.

Erotic Innocence by James Kincaide discusses this theory (although some of the book is also a little ridiculous- he fails to even consider that children are in any way inherently sexual, and he seems to think that halting conversations about something will make that thing go away).
(no subject) - technosage - Jun. 14th, 2007 04:21 pm (UTC) - Expand
(no subject) - roninspoon - Jun. 14th, 2007 04:53 pm (UTC) - Expand
(no subject) - sushis - Jun. 14th, 2007 05:34 pm (UTC) - Expand
(no subject) - bradhicks - Jun. 14th, 2007 05:38 pm (UTC) - Expand
(no subject) - sushis - Jun. 14th, 2007 06:04 pm (UTC) - Expand
(no subject) - sushis - Jun. 14th, 2007 05:39 pm (UTC) - Expand
(no subject) - bradhicks - Jun. 14th, 2007 05:54 pm (UTC) - Expand
(no subject) - nancylebov - Jun. 14th, 2007 09:24 pm (UTC) - Expand
chichiri_no_da
Jun. 14th, 2007 03:34 pm (UTC)
I found this interesting reading, though I'm not sure if your legal interpretations are correct or not. I'm not from the US, and I've never heard of the legal precedents you mention before.

But I did want to bring up one thing.

Harry Potter slashfic is all about sexual encounters between fictional under-aged students at Hogwarts, whether with each other or (mildly worse) with their adult teachers. Yaoi is all about romantic and sexual encounters between fictional teenage boys.

Um...what?

Harry Potter slashfic does include sexual encounters between underaged students, but it is by no means 'all about' such things. I know in pretty much every fic that I choose to read or write, I either age up the kids, or play with adults.

Yaoi, similiarly can include sexual encounters between teenaged boys. But it is not ALL ABOUT that.

So um, what the hell? Just because someone might be interested in yaoi or Harry Potter fic does not in any way mean that they are interested in writing about anything even approaching child pornography, and I have no idea where you're getting your definitions from, but they are dead wrong.
thefacelessevil
Jun. 14th, 2007 04:01 pm (UTC)
Brad may be thinking more of the shota genre then of Yaoi itself. I can't be sure.
(no subject) - toxictattoo - Jun. 14th, 2007 05:59 pm (UTC) - Expand
(no subject) - thefacelessevil - Jun. 14th, 2007 06:03 pm (UTC) - Expand
(no subject) - ladykalessia - Jun. 14th, 2007 09:48 pm (UTC) - Expand
(no subject) - chichiri_no_da - Jun. 15th, 2007 12:32 am (UTC) - Expand
(no subject) - quatorze - Jun. 14th, 2007 04:23 pm (UTC) - Expand
Page 1 of 4
<<[1] [2] [3] [4] >>
( 208 comments — Leave a comment )