Law like love

[rivkat]

Over the years I've seen a number of fan fiction/copyright debates, and (as with most ideological disputes) people's convictions about fan fiction's legality correlate strongly, but not perfectly, with their convictions about its morality. But there's always a set of fan writers & readers who say, often without investigating the subject much, "I know it's illegal but it shouldn't be," and I assume some on the other side who say the opposite, though I don't hang out with them.

The exact same thing happens with discussions of art & fiction featuring underage sex. And here, frankly, we're on firmer ground than with fan fiction & copyright, since there aren't any litigated cases on fan fiction. Depictions that aren't pictures or video of actual minors are judged by the standards for obscenity, not child porn. It is true that the moral panic doesn't distinguish between those, so what the law actually says is not the end of the matter. It is also true that a given piece of fan art could be obscene (writing is much less likely to be so, though it's not legally impossible), just as a given fan story could infringe. The reason lawyers give unsatisfactory answers to reasonable questions is often that the truest answer is "it depends." Moreover, there are of course a huge number of things it's immoral but not illegal to do or say; citizens must populate that set for themselves, whether in communities or as a matter of individual choice.

I'll leave you with the Auden poem.

Comments

[harriet-spy.livejournal.com]

I've been struck by 6A/LJ's apparent inability to clearly communicate the idea that, as the legal standard is rather mushy, so must their standards be. Of course, their incapacity in this regard could be taken as a general proxy for their capacity for judgment in this matter altogether. A person who can't clearly explain the standard and the reasons for it is unlikely to be a wise and sensitive applier of that standard.

[rivkat.livejournal.com]

Here's the thing that makes me sympathetic: fandom time happens in nanoseconds. Clarifications and good corporate policy happen on a slower scale. This is fixable, if they can -- and are allowed to -- step back, take a deep breath, and think it out.

I actually think there's an interesting theoretical issue here: can one say that a well-drawn picture of this sort lacks artistic value? Easy enough with a porn mag; harder here. Which may indicate photography's lower status in the hierarchy of artistic value -- but "artistic" is part of the test.

[giandujakiss.livejournal.com]

Well, not just about hierarchy, but skill. A porn mag photo may simply not be Mapplethorpe level, and if it was, it would have artistic value, too. A well-drawn picture might be different; a poorly drawn one would not have much artistic value but also might so little resemble its subject that other parts of the test don't apply. I don't know how much the "artistic" aspect of the test takes into account skill (good art versus bad art) but since it's about "artistic value" there's the suggestion it's about value to the viewer - good art - versus the self-expressive value (which would not distinguish). But that's my mental masturbation; I haven't read cases on it.

The part that makes me totally unsympathetic to Corporate Time is the change in strikethrough appearance. That's not good faith, and that's where they lose my willingness to extend the benefit of the doubt.

[rivkat.livejournal.com]

It's been a while since I was reading in this area, and obscenity prosecutions have tanked so thoroughly that there may be no modern caselaw on the subject, but I recall that there was at least initially some concern that the topic be worthy of artistic depiction -- so a beautifully rendered garbage bin might lack artistic merit. But that makes artistic merit ultimately dependent on other factors, as opposed to being a separate route to protection, and many people would say that art has its own standards. The problem that the skill-as-merit interpretation creates is that it would protect a successful photorealistic depiction of an image that would be obscene if it were a photo. Now, given the difficulty of creating such an image and the unlikelihood that it would appear in a porn magazine, this discrepancy could certainly be tolerated; obscenity law would still mostly do its job (whatever that is). But neither position seems particularly attractive to me.

I'm sure we'll eventually hear that the change was designed to be destigmatizing. But maybe they should have announced that in advance.

[giandujakiss.livejournal.com]

They announced it in a teeny tiny little post about latest updates. And I"m sure it wasn't to be destigmatizing; it's far more confusing now because you can't tell whether you simply mistyped the name or whether the account is dead. It seems obvious that they noticed that "strikethrough" became a rallying cry; I'm sure they can come up with a post hoc rationalization but I won't buy it for a second.

why did the strikethrough go?

[buggery.livejournal.com]

But when they announced it, they said the change was only going to affect suspended/banned journals, not voluntary deletions -- it was supposed to help users figure out whether their suddenly-missing friend (or acquaintance, or, let's face it, some people have LJ enemies) had deleted voluntarily or not.

They went ahead and implemented the change of appearance for both voluntarily *and* involuntarily deleted journals. This makes a strong case for someone in an LJ/6A office cackling to themselves about stealing our rallying cry.

(PS love your Wingfield icon)

[londonkds.livejournal.com]

I suspect that the lack of a clear-cut policy may be partly tactical, as if they came up with the kind of detailed description of what was and wasn't allowed that some fans have been demanding, and if it wasn't a blanket PG rating, censorious types could go to the press with it yelling "Look at the disgusting pornographic material this 'social networking site' used by LITTLE KIDS!!! allows on its servers!!!".

[jonquil.livejournal.com]

Thanks. I linked to you. However, I put up a copy of the Child Pornography Prevention act of 1996, which forbids "sexually explicit contact", not "obscenity". Does that not apply until it's been litigated?

[rivkat.livejournal.com]

Unfortunately, the page you linked to is out of date. The relevant portions of the law were invalidated (http://supct.law.cornell.edu/supct/html/00-795.ZS.html) by the Supreme Court in 2002.

[jonquil.livejournal.com]

Excellent. Thank you.

[sapphoq.livejournal.com]

Yes I found that too.
In the latest stupid over at lj biz, I can never get the communities to make pretty pictures like the users, Burr says that particular Ashcroft vs the Free Speech Coalition decision 2002 was...

"Some people have noted a Supreme Court case from a couple of years ago striking computer-generated images from the definition of child pornography and asked whether, as a result, drawings of children in sexual situations can be considered illegal. The answer is, yes, in some cases. Congress reacted to the Supreme Court's decision in that case by changing the obscenity laws to put back what the Supreme Court struck down from the child pornography laws."

I asked him for a source on that one.

spike
Do you know what he is talking about there?
Cuz I don't.

[rivkat.livejournal.com]

I believe he's talking about the fact that Congress passed a law that prohibits fictional depictions of underage sex if it's obscene. That's redundant as to illegality -- it is already illegal to distribute obscenity -- but has the effect of applying the harsh penalties for child porn (featuring actual children) to obscene fictional depictions of underage sex. Congress couldn't "put back" everything the Supreme Court struck down, because the Court said that some of the law was unconstitutional -- the part that prohibited fictional depictions without any consideration of whether they met the requirements for obscenity.

thanks

[sapphoq.livejournal.com]

I appreciate that.
spike

[lorax]

Linked here from . . . .I don't know where. lol. Sorry - I had a million tabs open on the drama and not sure where I came from.

But I was wondering about the idea of art vs. porn. I wonder how many fairly explicit Greek (and other) artwork there is out there depicting nude men and young boys. There must be a ton - probably in museums somewhere . . . . I wonder if someone would get kicked for a comm that posted pictures of all of that art. :(

Granted I haven't seen the art that's being discussed at all, so I really can't have an opinion on it.

[rivkat.livejournal.com]

It's a good point. And other cultures' standards for erotic art are and have been different. Heck, John Ashcroft covered up Justice's bared breasts so he wouldn't be on stage with a naked statue.

[lorax]

And the standards just change with time as well. Depicting a 14 year old girl naked with a man probably wouldn't have even been blinked at a while back, since girls were frequently married by that age.

Sometimes the puritanical tendencies of the people in the spotlight and in power in this country still manages to shock me.

[the-rejection.livejournal.com]

What are the standards for obscenity, if you don't mind my asking?

Linked here from somewhere, forgot where.

[rivkat.livejournal.com]

There's a concise definition here (http://www.mit.edu:8001/activities/safe/safe/cases/umich-baker-story/Baker/legal/obscenity.html).

[kitsune13.livejournal.com]

This is great, thank you.

I would think that the availability of comparable material through major book chains -- such as Amazon and Borders -- would make an obscenity accusation for a fan work much less viable. For example, there is nothing in, say, Ponderosa's work that is *more* explicit than anything that can be found in Moore and Gebbie's Lost Girls; the latter includes some extremely graphic depictions of children and adults having sex. The very existence of Lost girls would, i think, make prosecution of fan artists for depicting underage sex *extremely* difficult.

[londonkds.livejournal.com]

Lost Girls is a graphic novel sold at quite high price through physical stores, whereas Potter fanart is distributed free on the net where LITTLE KIDS!!! could see it. (Yes, I know many erotic fanfic/fanart creators take measures to keep children away from the porn, a jury or tabloid journalist won't.)

[kitsune13.livejournal.com]

Good point. :) But I think my point still stands -- Ponderosa et al. are being attacked for the *content* of their art, which is presumed to be illegal/obscene; in none of the official communications has there been *any* mention of "this needs to be impossible for minors to ACCESS," it's all "OMG you're DEPICTING minors." In which case, then yes, the existence of LG is extremely pertinent.

[londonkds.livejournal.com]

I wouldn't like to gamble on the chances of a jury deciding that erotic Potter fanart had artistic merit, given horrors like the Jesus Castillo case (http://www.icv2.com/articles/news/3271.html).

[cryptoxin.livejournal.com]

Nice post. A question: I saw you comment on the post by chase820 that you didn't regard the picture by ponderosa121 as obscene. Whereas in a response by LJ Abuse team, they seemed to essentially say that any sexually explicit picture involving a minor that focused primarily/exclusively on sex would fall under their understanding of obscene. They specifically reject technical merit as a consideration in their judgment.

Offhand, how would you counter their argument? Or maybe that's really a rhetorical question in this case rather than a potential line of defense for fanartists. If that's where LJ wants to draw the line, well, at least it's a pretty clear line -- even though the two works in question actually seem like grey areas viz. 'minors'.

[rivkat.livejournal.com]

Elsewhere in the comments, I speculated on this a bit -- the constitutional test says that artistic merit is protected. There are (at least) two possible interpretations -- one that technical skill produces merit, so that a beautiful picture of underage sex would be constitutionally protected. The best example for this argument is probably, as giandujakiss suggested, a Mapplethorpe photo. Its beauty alone, regardless of whether it has some message we could express in words, is reason to say it can't be banned. Another view, which LJ seems to be adopting, is that "merit" must include something about the subject matter. The problem with that is that it's really hard to figure out what artistic merit means, other than "not depicting underage sex." As people are saying in response to LJ's explanation, that isn't a standard at all and is entirely hostage to the viewer's interpretation of the art. This is problematic for art, which may not be reducible to a political, moral, or other message. I should say that this is a problem that begins with the obscenity standard; LJ's trouble implementing it grows from the initial conceptual fuzziness of the standard.

[cryptoxin.livejournal.com]

Thanks for your thoughts; I was thinking after I commented that for fandom, part of the merit will be totally invisible to LJ or outsiders -- specifically, the contextual/intertextual part about how a picture comments on canon and fanon. In this case, it's less a question of "Snape and Harry are so doing it!" than how they're doing it and what it conveys about their relationship.

I don't look at much fanart -- hardly any really -- so I wonder if fandom has developed a critical discourse that goes beyond "pretty!" and "hot!" here. I'd be surprised if such a fan-critical discourse didn't exist, though thinking of fanfiction it seems like there's also an anti-critical tendency in play (at least, something that mitigates against aesthetic distinctions while allowing some degree of technical critique and formal classification).

*ponders*

[rivkat.livejournal.com]

Very interesting -- I don't look at much fanart either, so I'm equally uncertain. There are a lot of attempts to develop a vidding aesthetic, which I'd say is distinctive as compared to, say, machinima or music videos generally. I just don't know if fanart has similar stuff happening, but I'd be a bit surprised if it weren't. I expect, however, that explicit aesthetics coexist with lots of "pretty!" just as it does with fanfic and, to a somewhat lesser extent, with fanvids.

[folk.livejournal.com]

Here via a friend :)

How does that tally with USC 18,1466A (http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001466---A000-.html), which, although it refers to "obscene visual representations of the sexual abuse of children", leads to the regular child porn penalties in 18,2252A (http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002252---A000-.html)?

[rivkat.livejournal.com]

If the depiction meets the regular standards for obscenity (and the younger the child depicted, the more likely it will be patently offensive to contemporary community standards; a drawing of a 17-year-old having sex is much less likely to do that than a drawing of a much younger child), then it can constitutionally be banned. The post-Ashcroft law, as I understand it, applies harsher penalties to obscenity involving children than to regular obscenity, and that's certainly constitutionally permissible.

[folk.livejournal.com]

Interesting; thank you! In terms of the standards we're talking about, am I correct in assuming that we're basically still talking Miller?

I can't help thinking that a lot of the freakout is sociological -- fandom's perception of obscene is different from non-fandom's perception. I've posted flocked about this (and have just added you to my friends list because it's rude to mention it otherwise, I think!), and I find it interesting that the non-fandom person to have commented is "...yeah, that looks like child porn, and is disturbing, and not so much, really."

[rivkat.livejournal.com]

Yes, Miller's the starting point, though who the heck knows what contemporary community standards are these days. It's conventional wisdom that an obscenity defendant with a good lawyer and money to spend on the defense is very difficult to convict, because it's easy to show that there's lots of internet, mail-order, and other porn reaching even conservative communities. I'm sure it would be easier to convict with child-oriented material (though "hot teens" or "barely legal" would be a different story).

I agree that the freakout is another fandom/nonfandom collision; we know that the artists & audiences are basically women enjoying imagining two guys together, but nonfans don't. As for the specific picture -- hell, I found it disturbing. I don't care if he's of age; teacher/student squicks me.

[kitsune13.livejournal.com]

Sorry to spam, but I have a couple questions. Forgive me if these sound really dumb, but I want to make sure that I'm absolutely clear before I go making any statements in my LJ. :D

According to the 2002 Supreme Court decision, "the Miller standard... requires the Government to prove that the work in question, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value, 413 U.S., at 24." That proof, which the Government is *required* to provide before anything can be declared obscene, can only be done by taking a particular piece of art to court?

Okay, so (possibly) given the above, would it be correct to say that "obscenity" laws can only work on a case-by-case basis, and that until a particular work of art is actually declared obscene in a court of law, it is neither illegal nor obscene, but, at most, *might* be illegal/obscene? You've implied that it's been a while since a full-blown obscenity trial -- would it be fair to state that getting something declared legally obscene is pretty tough? And would the existence of comparable material available through major outlets (like, say, Amazon) be a factor in that?

[rivkat.livejournal.com]

Yes, the rule is that a full trial is required, though that's true for many things, especially in the free speech area. One legalistic answer is that you never know the scope of rights without litigation -- though there are clear and unclear cases, and obscenity is generally in the unclear category. It would certainly be difficult to rely on the fact that one work had been declared obscene as evidence that another work was also obscene. Obscenity trials are occasional but rare, though the Bush administration made it a priority to bring more prosecutions. 95% of all criminal cases are plea bargained, though, so that doesn't mean a lot of trials.

As I said elsewhere in the comments, "It's conventional wisdom that an obscenity defendant with a good lawyer and money to spend on the defense is very difficult to convict, because it's easy to show that there's lots of internet, mail-order, and other porn reaching even conservative communities. I'm sure it would be easier to convict with child-oriented material (though 'hot teens' or 'barely legal' would be a different story)." The existence of comparable, readily available material is highly relevant, though if the prosecution could show that no one in the community ordered "Lost Girls" it wouldn't matter -- the issue is what the community accepts.

[kitsune13.livejournal.com]

Thank you very much! If you wouldn't mind answering a further question, what about potentially obscene material distributed online -- whose community standards apply? Would say, the standards of the location of most LJ/6A servers apply (which, IIRC, is San Francisco)? Or the community of the person who posted the potentially obscene material? Or the community of the person who wanted it kicked off? What then?

[rivkat.livejournal.com]

The standard is that of the community where the prosecution takes place -- which is why they tend to take place in rural Southern or Western communities.

hi

[sapphoq.livejournal.com]

I am totally impressed with your knowledge of the relevant laws to all of this hoopla and I friended you so that I can find your journal easily.

I understand your explanations.

If you friend me back, that is nice.
And if you don't that is okay.
I want more to study your knowledge about these things than anything else. I am not interested in collecting comments.
I am more interested in presenting accurate info about the latest fiasco.
And you helped me do that.
I think I [platonic-style] love you.

spike

Re: hi

[rivkat.livejournal.com]

Hi. You're certainly welcome here, though I should warn you that I hope not to be spending this much time talking about LJ and more time on book reviews in the future!

Re: hi

[sapphoq.livejournal.com]

I like book reviews.
Books reviews are a welcome change to the current drama.
spike

[executrix.livejournal.com]

To me, the upsetting element is not 6A's rousing itself from slumber to enforce TOS--it's purging all of a user's journals without notice or recourse (and confiscating the balance of the money the alleged perpetrator was silly enough to pay 6A).

BTW, although obscenity laws are not an intensive focus of litigation (and in a country whose community standards have made hard-core pornography a multi-billion-dollar industry) there is a very long line of cases about when computers can be searched for evidence of child pornography, and more than a few people now serving 20-year prison terms for having child pornography images on their hard drives.

[princessofg.livejournal.com]

Thank you. Found you on metafandom (again)