J. Brad Hicks (bradhicks) wrote,
J. Brad Hicks

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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.
Tags: current events, politics, sex, tech
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