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

[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.