Tuesday, May 20, 2008

Imaginary crimes can land you in jail.

The Supreme Court has upheld a new law that politicians call a “tough, new law on child pornography”. So what is wrong, or right, with that?

The first question is: What does this law do that dozens of other laws of a similar nature didn’t do? Ever since the Supreme Court decision in Ferber v. New York, a quarter of a century ago, there has been no first amendment protection for child porn. The material is already illegal and the law doesn’t make it “more” illegal. Since the law already protects children then precisely why do politicians keep passing new laws which purport to do the same thing?

The best answer I can give is that they have two motivations. One is that they know no one is in favor of hurting children. And they know that people get upset when the harm of children is brought up. So they like to bring it up and then promise how they “will do something” about it. That they have been “doing something” about it for decades is not mentioned. And that the “something” they are doing really doesn’t add any more protection is ignored as well. The whole purpose of such campaigns is not to protect the children but to win support for the politicians.

The second reason for this continual parade of legislation on the very same issue is that each new law gives the state further methods to promote censorship. But the target is not child porn which is already totally illegal. The actual target is adult erotica which does not involve children.

The new law criminalizes more than child porn -- which is already illegal. It criminalizes the assumption, appearance or belief that something is child porn. It specifically targets the individual who “advertises, promotes, presents, distributes or solicits . . . any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe” that the material is child porn.

Notice how widely that the law is written. A person can be arrested as a child pornographer is something they produce causes “another to believe” that it is child porn. It doesn’t actually have to be child porn at all. All it has to do is give someone, somewhere, the impression that it might be.

What is illegal here is anything that “causes” another person to draw a conclusion. It makes producers of erotica potentially responsible for the assumptions of others. And since the material itself need not even exist, or actually contain illegal images of actual children, the fact that no child pornography may exist is not a defense. They have found a way to criminalize the possession of child porn without the defendant actually having to possess any child porn. What is illegal is not what they produce but the fact that their production caused someone else to perceive it as a child porn.

I contend that we won’t see any actual children being protected by this law. What we will see is that a lot of Religious-Right prosecutors in various parts of the country will use the law to harass adult shops and producers of erotica -- and by that I mean legal erotica.

Notice that the crime is anyone who “advertises, promotes, presents, distributes or solicits” material that “reflects the belief, or that is intended to cause another to believe” that it is child porn. So District Attorney Billy Bob Biblebeater prosecutes local erotica outlets for selling Girls Gone Wild. His argument is that the term “girls” implies underaged females. And that is the formal definition of the term. It means “female child” or “young, immature woman”.

The erotica shop owner can contend that he never thought the title implied that it involved children. But Mr. Biblebeater can note that the title alone “intended to cause another to believe” that it did. The shop owner can argue that the product never included any children at all. But that is no longer a defense since the crime is not related to whether the material actually contains children or not. The absence of any child pornography is no longer a defense for violating laws on child pornography.

Ever since Nabokov penned his novel the name Lolita has been synonymous for a underage temptress. Is having a character in the film name Lolita enough for a conviction? Does the name alone intend “to cause another to believe” that the character is underaged and therefore illegal?

In 1971 Wakefield Poole’s gay erotic film Boys in the Sand opened in New York City and became an instant success. Poole earned his investment back almost in the first hour of release alone. No one in film was underage and it the advertising clearly implied it was about an adult male. But was the use of “boys” in the title an indication of an intention to market the film as child porn? If one person, seeing the ad thought it was, and went to the film believing he would see young boys in the film, would Poole have been guilty of a crime under this new law?

Would a particular costume in the film, or plot line be sufficient to get one arrested for child porn. Would a character dressed like a school girl or school boy be a crime under this law even if the actual actor was of legal age? Would shaved genitals, something some adults have done for years, be a crime under this law just because it could give another person the impression that the shaved actor is prepubescent even if the actor is not?

This idea of intending to cause others to believe something is so nebulous that you can’t really get a grasp on it. Obviously if someone says: “I got some child porn for sale” that would be a crime even if they had nothing of the sort. Merely implying they had it would be a criminal offense. But what boundaries are there to this law to prevent it from being used by pro-censorship prosecutors who merely want to harass adult material?

Imagine a traffic cop with a similar loop hole. He could go to court and get someone convicted with this statement: “Your honor, the defendant actually never went over the speed limit. But he was driving a flashy red sports car. When I saw him he revved his engine and did speed up, though he stayed under the speed limit. But he caused me to believe that he was speeding. Therefore he violated the law on speeding.”

What the law does is offer the censorship crowd opportunities. They can scour every film, advertisement, plot line, or appearance for anything that causes them to imagine that the item might involve someone underage. Since the person no longer has to actually be underage they have a blank check to use when and were they want. Even if they lose the cases they can bankrupt the people they prosecute. Yet not one single child would be protected, who wasn’t already protected by the law. This law doesn’t give real children additional protection. But it does give protection to non-existent, imaginary children. And it provides opportunity to the would-be censors. When we consider the kind of people who have been put on the Court by Mr. Bush we can’t look to them to rectify this problem -- especially since they were the ones that have put their stamp of approval on the law.

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