NYgs23
06-30-2010, 04:34 PM
Another Threat to Personal Liberty
What with the vast proliferation of pornographic material in our society due to the rise of the Internet, most people, especially of the younger generation, probably assume that pornography, provided it only involves consenting individuals over the legal age of majority, is perfectly legal and tolerated in our society.
However, if you look into the actual law and current atmosphere surrounding porn, you find that this assumption is naive. Federal laws are already on the books that could, in theory, prohibit the production, sale, and viewing over the Internet of most pornography--this laws are simply vague and not enforced in a serious or consistent. But social conservatives and other groups, increasingly upset by the very proliferation of pornography that has made many others more tolerant of it, are pushing for increased enforcement to constrict, if not abolish, pornography involving consenting legal adults.
I am not speaking about this issue in order to encourage the spread of pornography as a good or moral thing. Rather, with cracks finally appearing the federal government's catastrophic Drug War, I fear that the next social crusade on the list could be the War on Porn, complete prisons full of essentially innocent citizens and massive regulation of the Internet. The legal tools for such a thing are already in place, if Obama or a later president decides to use them...
Obscenity Laws
Many people do not realize that federal obscenity laws, (http://en.wikipedia.org/wiki/Obscenity#United_States_obscenity_law) once used to try to censor works by James Joyce and Henry Miller, are still on the books. Obscenity is a federal felony punishable by up to five years in prison. It only applies to transmission of pornography across state lines, but in the age of the Internet, this could mean merely clicking a link and having the data sent across the cables to you computer's cache. And, of course, there are also plenty of state laws governing obscenity, varying widely (in Alabama, for example, the sale of dildos is banned as obscene).
The current legal standard of obscenity in the United States is the so-called Miller test (http://en.wikipedia.org/wiki/Miller_test), defined in a 5-4 Supreme Court ruling back in 1973. In essence, the Miller test tries to create an objective standard for the inherently subjective concept of obscenity by reference to other equally subjective concepts. It has three prongs: for the work to be considered obscene it must "appeal to prurient interest by contemporary community standards," it must depict or describe sexual conduct in a "patently offensive way," and, taken as a whole, it must lack "serious scientific, literary, artistic, or political value."
Clearly, this is all totally subjective and ambiguous. In effect, it means that no one knows whether or not a work is obscene until the matter is decided by the personal whims of twelve jurors. The law should be void due to vagueness, but it has been upheld time and again. Nor has that argument that if a work is subjected to state censorship it thereby acquires a sort of political value affected the courts' desire to maintain this blatant infringement on free speech.
However, almost any sort of sexual material could be illegally obscene, if some prosecutor decides to indict someone for it and it fails the Miller test according to the personal feelings of some jury. "Mere nudity" and vaginal penetration without the depiction of ejaculation have been definitively ruled as not obscene, but in theory everything else is fair game, from gay sex to money shots to naughty cartoons to dirty stories to raunchy humor in Hollywood movies (e.g. American Pie). Even here in the Western World in 2010, all the materials exist in a legal gray area; the could be illegal in some group of people says they are.
Persecution of Adult Pornographers
However, enforcement of this law has always been spotty on best, helped neither by modern society's shifting values, advancements in technology, nor the law's own ambiguity. The Reagan administration cracked down on obscenity somewhat, but the Clinton administration hardly enforced it at all, and pornography of all sorts exploded on the World Wide Web. But the Bush administration, pressured by social conservative lobbying groups, finally created the Obscenity Prosecution Task Force (http://en.wikipedia.org/wiki/Obscenity_Prosecution_Task_Force) in 2005. Anti-porn groups hoped for a major crackdown on "illegal adult pornography" but were disappointed when the Task Force wasn't really as rabid as they liked.
Nonetheless, a number of producers of pornographic materials of consenting adults have already been persecuted by this new vice squad. The OPTF has tended to concentrate on producers and distributors of the most extreme material, in hopes for easy convictions. These have included Rob Zicari and Janet Romano for simulated rape porn, Ira Isaacs for porn involving scat and bestiality, Max Hardcore for porn involving vomit, fisting, and other extremes, John Stagliano for anal porn, and Karen Fletcher for written stories involving child rape. Max Hardcore, at least, is currently serving a prison sentence. The government has even brought a case against the studio JM Productions, simply to demonstrate that merely showing a ejaculation (something 90% of non-lesbian porn shows) is obscene. That case appears to still be up in the air.
Another Bush era development was the passage of the PROTECT Act, which explicitly prohibits obscene "virtual pornography" (i.e. cartoons or drawings) of children. Under this, Christopher Handley was arrested and pled guilty for importing drawn lolicon into the country from Japan (for his own use). Meanwhile, that bastion of liberty, the UK has explicitly banned all "extreme" pornography, whatever that means, and the Australian government in busy black-listing websites it doesn't like.
Recent Developments
More recently, Barack "Bush III" Obama has unsurprisingly retained the OPTF and the extreme moralistic white knights who head it. The Obama administration seems less zealous as a whole, to be sure. Nonetheless, Attorney General Eric Holder has expressed at least moderate agreement (http://wizbangblue.com/2008/11/21/eric-holder-frightens-civil-libertarians.php) with the principle of persecuting peoples' personal sexual habits. New Supreme Court nominee, Elena Kagan, seemingly no friend of free speech or freedom, period, has spoken favorably (http://www.politico.com/news/stories/0610/39034.html) about using state force to shut down "low value" speech like pornography.
Several days ago, ICANN decided to created a new domain, ".xxx," specifically for pornography. Though optional and apparently benign, it is possible that such a domain to later become mandatory, in attempt corral pornographic websites for easy regulation and censorship.
Two weeks ago, a meeting of anti-porn (http://www.washingtontimes.com/news/2010/jun/15/epidemic-growth-of-net-porn-cited/) was held at the US Capitol, involving a whole array of religious righters, anti-porn feminists, and assorted busybodies on a mission to push Congress to push the Justice Department to enforce our nation's arcane and archaic obscenity laws against adult porn. The arguments are many: porn, they say, destroys communities. It's addictive and affects changes in your neurons (you know, just like those bad, nasty drugs, and they're banned). It encourages rape (never mind the evidence against this). It degrades women (one wonders if that includes the one-third to one-half of porn that involves only men). And, most importantly, it's for the children. Of course, none of these arguments have anything to do with the one key issue that everyone involved with this porn is so by their own free choice.
Conclusion
Unfortunately, there's very little open opposition to this loud minority of moral crusaders. Few people imagine that there could be any major government intrusion into their sex lives in the Land of the Free, in this day and age. As long as it's "consenting adults" and you don't do it the street, then its perfectly legal and will stay that way, most folks wrongly assume. And few people, least of all politicians, want to be on the side of defending pornography, just as they don't want to be on the side of drugs. But that's what freedom entails, defending the right of people to do things you otherwise disapprove of.
I think it's important for liberty advocates to pay more attention to this issue, just as the anti-porn crusaders are. The moral busybodies always need a new boogeyman to battle, and I fear that the Internet porn war could easily become another War on Drugs. We shouldn't sit pretty and ignorant until the horse is already out of the barn; we should speak out against these first steps towards yet another disaster of moral authoritarianism, today.
What with the vast proliferation of pornographic material in our society due to the rise of the Internet, most people, especially of the younger generation, probably assume that pornography, provided it only involves consenting individuals over the legal age of majority, is perfectly legal and tolerated in our society.
However, if you look into the actual law and current atmosphere surrounding porn, you find that this assumption is naive. Federal laws are already on the books that could, in theory, prohibit the production, sale, and viewing over the Internet of most pornography--this laws are simply vague and not enforced in a serious or consistent. But social conservatives and other groups, increasingly upset by the very proliferation of pornography that has made many others more tolerant of it, are pushing for increased enforcement to constrict, if not abolish, pornography involving consenting legal adults.
I am not speaking about this issue in order to encourage the spread of pornography as a good or moral thing. Rather, with cracks finally appearing the federal government's catastrophic Drug War, I fear that the next social crusade on the list could be the War on Porn, complete prisons full of essentially innocent citizens and massive regulation of the Internet. The legal tools for such a thing are already in place, if Obama or a later president decides to use them...
Obscenity Laws
Many people do not realize that federal obscenity laws, (http://en.wikipedia.org/wiki/Obscenity#United_States_obscenity_law) once used to try to censor works by James Joyce and Henry Miller, are still on the books. Obscenity is a federal felony punishable by up to five years in prison. It only applies to transmission of pornography across state lines, but in the age of the Internet, this could mean merely clicking a link and having the data sent across the cables to you computer's cache. And, of course, there are also plenty of state laws governing obscenity, varying widely (in Alabama, for example, the sale of dildos is banned as obscene).
The current legal standard of obscenity in the United States is the so-called Miller test (http://en.wikipedia.org/wiki/Miller_test), defined in a 5-4 Supreme Court ruling back in 1973. In essence, the Miller test tries to create an objective standard for the inherently subjective concept of obscenity by reference to other equally subjective concepts. It has three prongs: for the work to be considered obscene it must "appeal to prurient interest by contemporary community standards," it must depict or describe sexual conduct in a "patently offensive way," and, taken as a whole, it must lack "serious scientific, literary, artistic, or political value."
Clearly, this is all totally subjective and ambiguous. In effect, it means that no one knows whether or not a work is obscene until the matter is decided by the personal whims of twelve jurors. The law should be void due to vagueness, but it has been upheld time and again. Nor has that argument that if a work is subjected to state censorship it thereby acquires a sort of political value affected the courts' desire to maintain this blatant infringement on free speech.
However, almost any sort of sexual material could be illegally obscene, if some prosecutor decides to indict someone for it and it fails the Miller test according to the personal feelings of some jury. "Mere nudity" and vaginal penetration without the depiction of ejaculation have been definitively ruled as not obscene, but in theory everything else is fair game, from gay sex to money shots to naughty cartoons to dirty stories to raunchy humor in Hollywood movies (e.g. American Pie). Even here in the Western World in 2010, all the materials exist in a legal gray area; the could be illegal in some group of people says they are.
Persecution of Adult Pornographers
However, enforcement of this law has always been spotty on best, helped neither by modern society's shifting values, advancements in technology, nor the law's own ambiguity. The Reagan administration cracked down on obscenity somewhat, but the Clinton administration hardly enforced it at all, and pornography of all sorts exploded on the World Wide Web. But the Bush administration, pressured by social conservative lobbying groups, finally created the Obscenity Prosecution Task Force (http://en.wikipedia.org/wiki/Obscenity_Prosecution_Task_Force) in 2005. Anti-porn groups hoped for a major crackdown on "illegal adult pornography" but were disappointed when the Task Force wasn't really as rabid as they liked.
Nonetheless, a number of producers of pornographic materials of consenting adults have already been persecuted by this new vice squad. The OPTF has tended to concentrate on producers and distributors of the most extreme material, in hopes for easy convictions. These have included Rob Zicari and Janet Romano for simulated rape porn, Ira Isaacs for porn involving scat and bestiality, Max Hardcore for porn involving vomit, fisting, and other extremes, John Stagliano for anal porn, and Karen Fletcher for written stories involving child rape. Max Hardcore, at least, is currently serving a prison sentence. The government has even brought a case against the studio JM Productions, simply to demonstrate that merely showing a ejaculation (something 90% of non-lesbian porn shows) is obscene. That case appears to still be up in the air.
Another Bush era development was the passage of the PROTECT Act, which explicitly prohibits obscene "virtual pornography" (i.e. cartoons or drawings) of children. Under this, Christopher Handley was arrested and pled guilty for importing drawn lolicon into the country from Japan (for his own use). Meanwhile, that bastion of liberty, the UK has explicitly banned all "extreme" pornography, whatever that means, and the Australian government in busy black-listing websites it doesn't like.
Recent Developments
More recently, Barack "Bush III" Obama has unsurprisingly retained the OPTF and the extreme moralistic white knights who head it. The Obama administration seems less zealous as a whole, to be sure. Nonetheless, Attorney General Eric Holder has expressed at least moderate agreement (http://wizbangblue.com/2008/11/21/eric-holder-frightens-civil-libertarians.php) with the principle of persecuting peoples' personal sexual habits. New Supreme Court nominee, Elena Kagan, seemingly no friend of free speech or freedom, period, has spoken favorably (http://www.politico.com/news/stories/0610/39034.html) about using state force to shut down "low value" speech like pornography.
Several days ago, ICANN decided to created a new domain, ".xxx," specifically for pornography. Though optional and apparently benign, it is possible that such a domain to later become mandatory, in attempt corral pornographic websites for easy regulation and censorship.
Two weeks ago, a meeting of anti-porn (http://www.washingtontimes.com/news/2010/jun/15/epidemic-growth-of-net-porn-cited/) was held at the US Capitol, involving a whole array of religious righters, anti-porn feminists, and assorted busybodies on a mission to push Congress to push the Justice Department to enforce our nation's arcane and archaic obscenity laws against adult porn. The arguments are many: porn, they say, destroys communities. It's addictive and affects changes in your neurons (you know, just like those bad, nasty drugs, and they're banned). It encourages rape (never mind the evidence against this). It degrades women (one wonders if that includes the one-third to one-half of porn that involves only men). And, most importantly, it's for the children. Of course, none of these arguments have anything to do with the one key issue that everyone involved with this porn is so by their own free choice.
Conclusion
Unfortunately, there's very little open opposition to this loud minority of moral crusaders. Few people imagine that there could be any major government intrusion into their sex lives in the Land of the Free, in this day and age. As long as it's "consenting adults" and you don't do it the street, then its perfectly legal and will stay that way, most folks wrongly assume. And few people, least of all politicians, want to be on the side of defending pornography, just as they don't want to be on the side of drugs. But that's what freedom entails, defending the right of people to do things you otherwise disapprove of.
I think it's important for liberty advocates to pay more attention to this issue, just as the anti-porn crusaders are. The moral busybodies always need a new boogeyman to battle, and I fear that the Internet porn war could easily become another War on Drugs. We shouldn't sit pretty and ignorant until the horse is already out of the barn; we should speak out against these first steps towards yet another disaster of moral authoritarianism, today.