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

[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.