Freedom of Speech (Just Watch What You Say)

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Neil Gaiman, the acclaimed author of Sandman, American Gods, and many other superb works of fantastic fiction, has a very long and very good post at his blog on why defending freedom of speech sometimes means "defending the right of people to read, or to write, or to say, what you don't say or like or want said." He's writing in response to the case of Christopher Handley, an Iowa man facing up to 20 years in prison for possessing comic books that allegedly depict minors engaged in sexual activity. These aren't photographs, it's worth repeating, they're illustrations. Here's Gaiman:

When I was writing Sandman, about eighteen years ago, I had thought that the Marquis de Sade would make a fine character for my French Revolution story (I loved the fact that at the time he was a tubby, asthmatic imprisoned for his refusal to sentence people to death) and realised I ought to read his books, rather than commntaries on them, if I was going to put him in my story. I discovered that the works of DeSade were, at that time, considered obscene and not available in the UK, and that UK Customs had declared them un-importable. I bought them in a Borders the next time I was in the US, and brought them through customs looking guilty. (You can now get De Sade in the UK. The arrival of internet porn in the UK meant that the police stopped chasing things like that.)

[…]

Freedom to write, freedom to read, freedom to own material that you believe is worth defending means you're going to have to stand up for stuff you don't believe is worth defending, even stuff you find actively distasteful, because laws are big blunt instruments that do not differentiate between what you like and what you don't, because prosecutors are humans and bear grudges and fight for re-election, because one person's obscenity is another person's art.

Because if you don't stand up for the stuff you don't like, when they come for the stuff you do like, you've already lost.

Whole thing here. reason on the panic over virtual porn here and here.

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  1. I always wondered what rationale could there possibly be for punishing someone for possession of a photograph, taken in the earliest days of photography of a 16-year old in a state of undress when that person is long since dead.

    The same goes for comic depictions of same. Since no one is harmed what’s the fuss?

  2. First they came for the *Hentai* fans, but I did nothing because I was posting my profile on the Ayn Rand dating site . . .

  3. i thought the supreme court already laid the smackdown on the issue of illustrated pedo stuff?

    or am i misremembering?

  4. Child pornography is actually a tricky situation to handle in the free speech realm.

    If speech is output, then the 1st protects the person/press that produces the child porn…but since photography or film requires consent by those involved, and children are by definition too young to give consent, you need consent from the parents. Since we define sexual exploitation of your child as abuse, parents are restrained from giving consent…

    So, even though the speech is protected the acts involved in producing that speech are not protected.

    However, the current case involves drawings. So I don’t see how you can prosecute the drawer.

    Going ofter the demand side of the equation (consumers) make sense in the case of videos and photography, but drawings harm no one, so it seems wise policy would leave this alone.

    The obvious analogy is description in fictional works. Clearly speech, clearly protected.

    People need to think more carefully about how policies are applied.

    Heck, if you prosecute film/photography that requires a child to participate, and leave drawings and descriptions alone, then you encourage the child safe version of the activity.

  5. or am i misremembering?

    Dismembering, false memory syndrome, see it all leads to no good, stay away from the stuff.

  6. The obvious analogy is description in fictional works. Clearly speech, clearly protected.

    What about hieroglyphic and ideogrammatic representations?

  7. And semaphores? What about dirty semaphores?

    And Rorschachs!

  8. Sand angels?

  9. Mudras?

  10. Semi-related query:

    Does anyone know why porn (sex for money on camera) is protected and legal, and prostitution is not?

    Better question: Can I hire a hooker under the guise of doing porn? Would that make it protected?

  11. Is child sexual abuse any more disgusting than murder, rape, or torture? All of which are depicted in comic books on a regular basis. Yeah porn for pedophiles is pretty disgusting stuff, but so are a lot of other depictions in the world of art.

    Picket the store, boycott the printer, write angry letters to the distributor and denounce it at the top of your lungs if you wish. I’m cool with all of that. Outlawing the depiction of ideas we “normal folks” find horrendous and disgusting is a step backwards for freedom that we should not take.

    I’ll go so far as say a porn film with a short flat chested adult women convincingly portraying a a pre-pubescent child being raped is not out of bounds.

    I gotta tell ya, it’s no fun defending pervert’s rights.

  12. TAO,

    The link in my name goes to New Yorks distinction between the two.

  13. But what about a campaign in a democracy? What about political speech? I mean, sure, naked wimmen is one thing, but when we have people speechifyin’ on national television, and the opposition may not have the money to respond, how do you deal with that? There have to be meaningful restrictions and reasonable regulation of the medium. If not, then some might garner an unfair advantage in what’s supposed to be a fair fight.

  14. i thought the supreme court already laid the smackdown on the issue of illustrated pedo stuff?

    or am i misremembering?

    Pornographic images of actual children, whether obscene or not, are unprotected by the First Amendment. The U.S. Supreme Court ruled in 2003 that Pornographic images which depict the likeness of children, but do not involve actual children, are First Amendment protected. Examples would be photos of 18-19 year olds who look younger, computer simulated images, drawings, etc.

    In a prosecution for possession or dissemination of child pornography, the burden is on the government to prove beyond a reasonable doubt that the images are those of actual children, just as the burden is on the government to prove every other element of the offense beyond a reasonable doubt.

  15. “Can I hire a hooker under the guise of doing porn? Would that make it protected?”

    Depends on how good your lawyer is.

    (Insert lawyer/prostitute joke here – it’s bound to be hilarious)

  16. The link in my name goes to New Yorks distinction between the two.

    I had read that previously, but I think it is funny because Professor Colb tries to present a “two sides exploration”, but she is very, very close to pretty much saying that the distinction is arbitrary.

    Also *ahem*, not to put too crude a point on it, but there is plenty of porn out there that out-and-out depicts the trading of sex for cash. Whether it’s real or fake (my money’s on fake) is a different issue, but I would think that you would have heard about the state trying to prosecute something like that if the distinction rested on that fine of a line.

  17. ah, and I see that at the very end of the article that she does call it arbitrary.

    Which it is. I just wonder how far this line can be pushed. Maybe I should be a hero for freedom and give it a try.

  18. “These aren’t photographs, it’s worth repeating, they’re illustrations.”

    It’s hard for me to even imagine the argument for this being illegal. As always, trying to be as fair as I can to the argument, I guess it would have something to do with contributing to a demand that might lead to efforts to provide pictures, but man, that’s pretty attenuated.

    “Does anyone know why porn (sex for money on camera) is protected and legal, and prostitution is not?”

    I’ve always hypothesized that one could just advertise for “actors” for a porn film (with adults of course), cast oneself as the opposite star, set up a camera, and boomshocklaka! Later if the film never materialized you could just note that not all artistic efforts make it as products…

  19. CED –

    Apparently the distinction is “who pays”. If A pays B to have sex with A, that’s prostitution. If C pays B to have sex with A, that’s protected free speech.

    I guess I have to enlist a friend here.

  20. Uhh, we’ve had our differences, but if you “produce” my film I’ll “produce” yours!

    It is silly. I can pay A to get off B which also gets off C (buyer of said porn), but what I DARE not do is pay A to get me off. Why, that is wrong.

  21. We went through this with Boiled Angel over 15 years ago, and the prosecutors were as wrong then as they are today.

    I always wondered what rationale could there possibly be for punishing someone for possession of a photograph, taken in the earliest days of photography of a 16-year old in a state of undress when that person is long since dead.

    Setting aside whether possession of that type of photo could be prosecuted (Jock Sturges is a free man) I would imagine that the argument in favor of prosecuting possession of pictures is that by creating some sort of demand for the content, regardless of when it is produced, there is an incentive to create more.

  22. what rationale could there possibly be for punishing someone for possession of a photograph, taken in the earliest days of photography of a 16-year old in a state of undress when that person is long since dead

    It’s theft? (Apples from my tree are mine.)

  23. (Insert lawyer/prostitute joke here – it’s bound to be hilarious)

    Damn, it’s just not coming to me.

  24. It’s theft? (Apples from my tree are mine.)

    I sure hope you’re joking.

  25. The kiddie porn justification was thrown out because there was no actual kiddie, but now the question is whether the material is obscene under general provisions of obscenity law.

  26. Apparently the distinction is “who pays”. If A pays B to have sex with A, that’s prostitution. If C pays B to have sex with A, that’s protected free speech.

    Not necessarily. A criminal prohibition against hiring another to engage in sex with a third party does not implicate First Amendment concerns. Filming or videotaping other persons having sex, however, is presumptively protected by the First Amendment.

  27. I thought the old joke was that lawyers and prostitutes each screw people for money.

    Two lawyers were crossing the street when they saw a nubile and busty, young and attractive woman crossing in the opposite direction. The first lawyer said to the second, “I sure would like to screw her!”

    The second lawyer replied, “Outta what?”

  28. TAO, I was addressing your question “what rationale could there possibly be.”

    But I’m too new to the libertarian copyright-invalidation position (or whatever it actually is) to understand it yet.

    Perhaps after a person, like your 16-year-old of 100 years ago, has died, no one is thought to be damaged.

    And perhaps the H&R posters who on other threads have said they would not like to have images of themselves or of their children being used for others’ sexual fantasies wouldn’t mind the same happening to those images in 100 years’ time.

    My reflex is to want to assign control of the value of one’s pudenda to its owner, heirs, and assigns.

    But I look forward to learning.

  29. Sorry, pudenda being plural, that should have been to their owner, and his/her heirs and assigns.

  30. anarch, I guess I am more confused by the idea that you would own your 16-year-old ancestor’s visage and all replications thereof.

    Oooh…but you were saying your visage, right?

    I’m still confused as to who would actually file a complaint.

  31. anyway, we “fight” the legitmitate scourge of child porn the way we fight everything else: we go after demand AND supply, which seems kind of silly.

    But there is an “ick” factor if you get your jollies looking at naked children, even if said children-become-adults have already died.

    I suppose that would be the rationale.

  32. .. I recall a story in Playboy about 30-odd years ago about some guys who had hired a prostitute to make a porn film.. the premise of this file was “a film within a film” in that the director and cameraman would have sex as well as the “actor” .. they got busted by the girl when a) one of them fell for her and b) she discovered that there was no film in the camera ..

    .. hilarity ensued ..

    .. Hobbit

  33. Visage?

    Pudenda != visage.

    Story from Oxford (or was it Cambridge) about the dons surprised on shore between skinny-dippings. Several quickly covered their private parts, but one put his hands over his face.

    Queried, he replied, “I don’t know how you’re recognized, but the people who could identify me don’t know me by my genitals.”

  34. I have nothing to add, but Neil Gaiman is a wonderful author, and I recommend him highly.

  35. “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at”
    ~ H.L. Mencken

  36. Does anyone know how obscenity laws are justified under the first amendment?

  37. Does anyone know how obscenity laws are justified under the first amendment?

    Obscenity is an unprotected category, like threats are, because….because we always found obscene stuff to be so obscene. It’s tautological, but there you go.

    Because obscenity is judged by communty standards, it’s getting harder and harder to find good examples of an obscenity prosecution. Our community is used to a lot more titillating stuff than the founding fathers were. But providing a Playboy magazine to an elementary school would probably count because elementary school community standards are different from the commnity at large which finds Playboy relatively tame.

  38. John in Nashville,

    I heard a version of that joke (on H&R no less) involving a catholic priest and a rabbi. Tres funny.

  39. hotsauce: and a boy.

  40. OK, so basically, there is no rationale for why obscenity is not protected speech. Obscenity is bad because we don’t like it, so it is bad.
    Isn’t this the sort of arbitrary standard the first amendment is supposed to protect against?

  41. OK, so basically, there is no rationale for why obscenity is not protected speech. Obscenity is bad because we don’t like it, so it is bad. Isn’t this the sort of arbitrary standard the first amendment is supposed to protect against?

    Not if you think those who enacted it intended it. And there’s at least a good argument that they did. AFAIK people didn’t argue at that time and previously over porn when invoking freedom of speech and of the press. Porn or particular types of it may have been legal or illegal, but nobody thought the principle of freedom of communication had anything to do with it, because suppression of porn wasn’t much subject to politics the way suppression of political speech was.

    In a way we’re fortunate that politics often turned to suppression of religion, because otherwise blasphemy today might also be considered an unprotected type of communication. “Your God sucks!” is recognized as the sort of venting that must be allowed.

  42. Oh. I did not know that I am a criminal.

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