I've previously blogged about the uncertain future of federal obscenity prosecutions, which increased sharply under the Bush Administration. Although based on general ideological leanings we would expect a decline in such activity in favor of fighting real crime, I also noted that both Attorney General Eric Holder and Solicitor General nominee Elena Kagan have in the past advocated for more vigorous enforcement of laws against pornography.
Now, conservative groups are attacking Deputy AG nominee David Ogden for his past work defending adult publishers and filmmakers, as well as defending reproductive rights. Both are causes Ogden has been heavily involved in over the years in a number of high-profile cases, and cultural conservatives are hopping mad that this ally of what they call "Big Porno" (no, really) will be second in command of the Justice Department. AVN has a good summary of Ogden's controversial civil-liberties resume. (As always with AVN, beware of NSFW ads.)
Showing posts with label obscenity. Show all posts
Showing posts with label obscenity. Show all posts
Monday, February 9, 2009
Monday, January 26, 2009
Miscellaneous updates
The Pittsburgh Post-Gazette reports on the upcoming trial in U.S. v. Extreme Associates, with the headline: "Obscenity case begs question: Whose standard? Extreme Associates trial may be catalyst for change." (H/t How Appealing.)
Womanist Musings discusses the invisibility of Black LGBT people and looks at some relevant data. Notably, the post points to one survey showing that among Black LGBT folks, relationship recognition ranks third as a movement priority, after tackling HIV/AIDS and hate violence. (H/t Feministing.)
hunter of justice decries the lack of any openly LGBT federal judges at the appellate level, and reports on a gay British judge's revelation that he was subjected to veritable witch hunt when he first sought appointment in 1994.
Greta Christina asks why, under the First Amendment, we treat sex differently from, well, everything else.
Sex in the Public Square notes that Sweden's National Board of Health & Welfare has eliminated the classification of gender variance, BDSM and sexual fetishes and psychological disorders. Sweden is also set to allow same-sex couples to marry come Spring. So I'll forgive the Swedes, for the moment, their flawed approach to reforming prostitution laws.
Womanist Musings discusses the invisibility of Black LGBT people and looks at some relevant data. Notably, the post points to one survey showing that among Black LGBT folks, relationship recognition ranks third as a movement priority, after tackling HIV/AIDS and hate violence. (H/t Feministing.)
hunter of justice decries the lack of any openly LGBT federal judges at the appellate level, and reports on a gay British judge's revelation that he was subjected to veritable witch hunt when he first sought appointment in 1994.
Greta Christina asks why, under the First Amendment, we treat sex differently from, well, everything else.
Sex in the Public Square notes that Sweden's National Board of Health & Welfare has eliminated the classification of gender variance, BDSM and sexual fetishes and psychological disorders. Sweden is also set to allow same-sex couples to marry come Spring. So I'll forgive the Swedes, for the moment, their flawed approach to reforming prostitution laws.
Wednesday, January 7, 2009
Elena Kagan, Obama's SG, on pornography
Earlier this week President-Elect Obama announced he would nominate Harvard Law School Dean Elena Kagan to be Solicitor General. There is much to like about the choice. Kagan is an accomplished scholar and much-lauded dean who has often been discussed as a potential Supreme Court nominee. She is also a liberal, a feminist and a former clerk for Justice Thurgood Marshall, and would be the first female appointed to the position often referred to as "the tenth Justice" and "America's lawyer." (For non-lawyers, the SG supervises government involvement in appellate litigation and represents the government in the Supreme Court.)
(Disclaimer: Let me make very, very clear that the criticisms expressed in this post do not in any way reflect the view of any organization with which I am or have been affiliated.)
I think Kagan will make a fine SG, and deserves confirmation. Given the focus of this blog, however, I want to highlight published views of Kagan's with which I disagree, and which could impact her work as Solicitor General. Those views are contained in a now somewhat dated article (Kagan hasn't written much since becoming dean of HLS): Regulation of Hate Speech and Pornography After R.A.V, 60 University of Chicago Law Review 873 (1993). In it, Kagan advocates policies that could have could seriously limit and discourage sexual speech.
Kagan begins her article thusly:
She then suggests, in light of the Supreme Court's then-recent ruling in R.A.V. v City of St. Paul (striking down a ban on racially motivated cross-burning because it was "viewpoint-based"), what approaches to regulating pornography and hate speech are and are not likely to be successful, i.e. held constitutional. Her points about pornography are more or less as follows:
1. Regulations based on whether material endorses, approves, or actually causes harm to women will be struck down.
2. Communities should act to prosecute attempts to force people into pornography and "the sexual assaults and other violent acts so frequently committed against women in the making of pornography."
3. Using pimping/pandering/prostitution laws against pornographers, however, may be unconstitutional.
4. Regulating material on the basis that it depicts "sexual violence" has promise. However, a focus on "sexual violence" is subject to dispute as being viewpoint discrimination in disguise, since "violence" may be interpreted to mean simply that the material is "demeaning" to women.
5. If we can ban distribution of material depicting child abuse, perhaps we can also ban distribution of adult pornography the production of which involves unlawful conduct.
6. Feminists should embrace the doctrine of obscenity, despite its vagueness and its link to "traditional" notions of sexual morality, as a means of prosecuting pornographers.
7. Feminists should press courts to recognize a new First Amendment exception for pornography that would permit viewpoint-based regulations.
Kagan's legal analysis in this article is smart, nuanced, and overall has to be admired. But some of her proposals (4, 6, 7) are troubling, as they are clearly targeted at imposing broad bans on the general category of sexually explicit speech (though Kagan suggests the narrower, and probably unworkable, category of "materials that operate primarily ...as masturbatory devices"). Indeed, at several points (2, 5) Kagan makes clear that targeting actual crimes against women and the depiction of such crimes does not, in her view, go far enough. At the same time, the article takes for granted, as much anti-pornography literature does, that the adult entertainment industry is rife with coercion and violence (which, if it were true, would mean that local, state and federal law enforcement are essentially ignoring large-scale, organized violent crime). It's also notable that she rejects other approaches (1, 3) only with reluctance.
These are not views I would like to see espoused by America's lawyer. In particular her enthusiasm for the outmoded, unworkable and puritanical obscenity doctrine is troubling. But, even assuming Kagan's views have not changed since 1993, I doubt she will have opportunities to have much influence on these issues in her term as SG. At any event, I think Kagan will make an excellent SG despite my disagreement with her views on these issues.
EDIT: As I've previously noted here, AG nominee Eric Holder has also been a past advocate for obscenity enforcement. Hard to say, though, what these two nominations for top DOJ slots portend for the new administration's legal and law enforcement priorities in relation to obscenity.
(Disclaimer: Let me make very, very clear that the criticisms expressed in this post do not in any way reflect the view of any organization with which I am or have been affiliated.)
I think Kagan will make a fine SG, and deserves confirmation. Given the focus of this blog, however, I want to highlight published views of Kagan's with which I disagree, and which could impact her work as Solicitor General. Those views are contained in a now somewhat dated article (Kagan hasn't written much since becoming dean of HLS): Regulation of Hate Speech and Pornography After R.A.V, 60 University of Chicago Law Review 873 (1993). In it, Kagan advocates policies that could have could seriously limit and discourage sexual speech.
Kagan begins her article thusly:
This Essay on the regulation of hate speech and pornography addresses both practicalities and principles. I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.Thus, Kagan equates pornography with hate speech, characterizing it as fundamentally harmful and undesirable speech.
She then suggests, in light of the Supreme Court's then-recent ruling in R.A.V. v City of St. Paul (striking down a ban on racially motivated cross-burning because it was "viewpoint-based"), what approaches to regulating pornography and hate speech are and are not likely to be successful, i.e. held constitutional. Her points about pornography are more or less as follows:
1. Regulations based on whether material endorses, approves, or actually causes harm to women will be struck down.
2. Communities should act to prosecute attempts to force people into pornography and "the sexual assaults and other violent acts so frequently committed against women in the making of pornography."
3. Using pimping/pandering/prostitution laws against pornographers, however, may be unconstitutional.
4. Regulating material on the basis that it depicts "sexual violence" has promise. However, a focus on "sexual violence" is subject to dispute as being viewpoint discrimination in disguise, since "violence" may be interpreted to mean simply that the material is "demeaning" to women.
5. If we can ban distribution of material depicting child abuse, perhaps we can also ban distribution of adult pornography the production of which involves unlawful conduct.
6. Feminists should embrace the doctrine of obscenity, despite its vagueness and its link to "traditional" notions of sexual morality, as a means of prosecuting pornographers.
7. Feminists should press courts to recognize a new First Amendment exception for pornography that would permit viewpoint-based regulations.
Kagan's legal analysis in this article is smart, nuanced, and overall has to be admired. But some of her proposals (4, 6, 7) are troubling, as they are clearly targeted at imposing broad bans on the general category of sexually explicit speech (though Kagan suggests the narrower, and probably unworkable, category of "materials that operate primarily ...as masturbatory devices"). Indeed, at several points (2, 5) Kagan makes clear that targeting actual crimes against women and the depiction of such crimes does not, in her view, go far enough. At the same time, the article takes for granted, as much anti-pornography literature does, that the adult entertainment industry is rife with coercion and violence (which, if it were true, would mean that local, state and federal law enforcement are essentially ignoring large-scale, organized violent crime). It's also notable that she rejects other approaches (1, 3) only with reluctance.
These are not views I would like to see espoused by America's lawyer. In particular her enthusiasm for the outmoded, unworkable and puritanical obscenity doctrine is troubling. But, even assuming Kagan's views have not changed since 1993, I doubt she will have opportunities to have much influence on these issues in her term as SG. At any event, I think Kagan will make an excellent SG despite my disagreement with her views on these issues.
EDIT: As I've previously noted here, AG nominee Eric Holder has also been a past advocate for obscenity enforcement. Hard to say, though, what these two nominations for top DOJ slots portend for the new administration's legal and law enforcement priorities in relation to obscenity.
Miscellaneous updates
Today's LA Times reports that porn king Larry Flynt is suing his nephews, apparently on a basis of alleged trademark violation, for using the Flynt name on what he argues are inferior adult videos that are tarnishing his good name. After all everyone knows the Flynt name stands for refinement and good taste. Says one of the defendants: ""The fact of the matter is my name is Flynt. If I can't use my name to do business, then what kind of society, what kind of world is that?" He may well have a point. I know little to nothing about IP law, but I suspect the case to turn on just how the name is used, and whether buyers would be confused about which Flynt products are which.
The NY Times reports on the government's bid for Supreme Court review in U.S. v. Stevens, the (so far successful) challenge to a federal ban on depictions on animal cruelty. The article notes that the law was designed to target fetishistic "crush videos" but has been used by the Justice Department to go after dogfight videos. It also notes that the Supreme Court is likely to take the case, since the lower court struck down a federal statute. The case is particularly interesting because it poses the question whether First Amendment exceptions for obscenity and child pornography can be expanded to reach other "harmful" and "low-value" speech.
And marriage equality group Freedom to Marry has issued an analysis of the Prop 8 vote that includes these findings:
The NY Times reports on the government's bid for Supreme Court review in U.S. v. Stevens, the (so far successful) challenge to a federal ban on depictions on animal cruelty. The article notes that the law was designed to target fetishistic "crush videos" but has been used by the Justice Department to go after dogfight videos. It also notes that the Supreme Court is likely to take the case, since the lower court struck down a federal statute. The case is particularly interesting because it poses the question whether First Amendment exceptions for obscenity and child pornography can be expanded to reach other "harmful" and "low-value" speech.
And marriage equality group Freedom to Marry has issued an analysis of the Prop 8 vote that includes these findings:
- Party, ideology, religious attendance, age were the four major factors that drove voters' approval.
- Higher Black and Latino support was largely explained by higher religious attendance; when controlling for this factor the racial differences largely disappeared.
- Compared to the 2000 vote, support for marriage equality grew significantly across every demographic group (age, race, religion) except Republicans.
Monday, December 22, 2008
More on "obscene" email convictions
I find the convictions based on cartoons and private, textual emails in U.S. v Whorley. quite disturbing, as do some other bloggers (even ones with whom I would disagree on a great many other things). But I don't blame the Fourth Circuit Court of Appeals. I blame the Supreme Court.
The result is appalling, but it is not that surprising, given three clear principles the Supreme Court has announced: First, words by themselves can support an obscenity conviction. At the appellate panel points out, the Supreme Court upheld a conviction based on words in a book on the same day it decided the landmark Miller obscenity case in 1973. Second, materials that cannot be defined as "child pornography" under the Court's precedents can nevertheless be defined as "obscenity." And third, the right to privacy that entitles individuals to possess obscene materials does not extend to sharing those materials with others over the Internet, which the Court treats as an "instrument of interstate commerce" regardless of the noncommercial context of its use.
Combine that with the inherent mushiness of the "obscenity" concept itself, and the dissenting opinion begins to look like more of a stretch than the majority. So it's not surprising that the dissent also calls that precedent into question, saying:
The result is appalling, but it is not that surprising, given three clear principles the Supreme Court has announced: First, words by themselves can support an obscenity conviction. At the appellate panel points out, the Supreme Court upheld a conviction based on words in a book on the same day it decided the landmark Miller obscenity case in 1973. Second, materials that cannot be defined as "child pornography" under the Court's precedents can nevertheless be defined as "obscenity." And third, the right to privacy that entitles individuals to possess obscene materials does not extend to sharing those materials with others over the Internet, which the Court treats as an "instrument of interstate commerce" regardless of the noncommercial context of its use.
Combine that with the inherent mushiness of the "obscenity" concept itself, and the dissenting opinion begins to look like more of a stretch than the majority. So it's not surprising that the dissent also calls that precedent into question, saying:
The Supreme Court’s attempts to define obscenity for over half a century, including its enunciation of differing standards for obscenity and child pornography, reveal one truth: a material’s obscenity, or lack thereof, ultimately depends on the subjective view of at least five individuals. Predicting how any person subjectively views material is impossible, an infallible truth that prompted Justice Stewart to pronounce a simple, yet honest test for identifying obscenity: "I know it when I see it . . . ."Although I find it unlikely that the Supreme Court will reconsider any of these constitutional principles in the foreseeable future, Congress certainly can and should narrow the obscenity statute to a) exempt text, b) exempt drawings, c) exempt private, noncommcerial communications between individuals, or d) all of the above. Of course, that isn't a great deal more likely.
Friday, December 19, 2008
Fourth Circuit upholds obscenity conviction for private emails
You read that right. In the case of U.S. v. Whorley (PDF), the circuit panel held 2-1 that the obscenity statute applied to Mr. Whorley's private emails to another adult describing fantasies of sexual acts with children, and that this application of the law was constitutional. It did not matter, the courts said, the possessing obscene matter is constitutionally protected; that right does not extend to sharing it through private emails. The Internet is an instrument of commerce, and communications using it are not genuinely private.
It also did not matter, the court said, that the Supreme Court has held the treatment of prose and cartoons as "child pornography" unconstitutional; the same material could still be criminalized as obscenity.
Mr. Whorley is not a sympathetic guy. He has been twice convicted of receiving actual child pornography. But he has also been convicted for the textual descriptions of "obscene" matters in his private emails, as well as receiving "obscene" anime cartoons of minors engaged in sexual behavior. (He's also not a clever guy: he got caught doing it at his job at the Virginia Employment Commission.)
One of the two judges who made this ruling said he "share[d] some disquiet" regarding the email convictions, but that they were proper under governing law. The panel's third judge wrote a long dissent objecting to the email and cartoon convictions. The dissenting judge reasoned that (1) the text conviction violate the First Amendment, and (2) the cartoons were simply not covered by the relevant statute. The portion regarding the emails is worth excerpting at length:
In my lifetime, prosecutions for obscenity based purely on text are rare. The only other case I know of regarded much media comment and resulted in a guilty plea.
H/t to How Appealing and the Volokh Conspiracy.
It also did not matter, the court said, that the Supreme Court has held the treatment of prose and cartoons as "child pornography" unconstitutional; the same material could still be criminalized as obscenity.
Mr. Whorley is not a sympathetic guy. He has been twice convicted of receiving actual child pornography. But he has also been convicted for the textual descriptions of "obscene" matters in his private emails, as well as receiving "obscene" anime cartoons of minors engaged in sexual behavior. (He's also not a clever guy: he got caught doing it at his job at the Virginia Employment Commission.)
One of the two judges who made this ruling said he "share[d] some disquiet" regarding the email convictions, but that they were proper under governing law. The panel's third judge wrote a long dissent objecting to the email and cartoon convictions. The dissenting judge reasoned that (1) the text conviction violate the First Amendment, and (2) the cartoons were simply not covered by the relevant statute. The portion regarding the emails is worth excerpting at length:
The emails did not include any visual depictions or attachments containing child pornography of any type, and the Government does not allege that Whorley used the e-mails to convince or lure a child into any sexual activity. ....The economic and social justifications for regulating e-mail fantasies — even those involving activities that would be criminal if the fantasies were acted out — are minimal. Indeed, the harm, if any, involved in Whorley’s conduct is not readily discernible because the e-mails were written and exchanged for the sole "enjoyment" of Whorley and his counterpart. Unlike the facts in Ferber, this exchange of information did not have any economic consequences on the child pornography trade and real children were not harmed (or even discussed) during the "production" of these e-mails.The dissenting judge also had some things to say about the Supreme Court's obscenity doctrine in general, which deserve their own post.
The majority resolves this issue by citing the well-known proposition that words can be obscene. ...However, simply because words can be obscene is not sufficient, on its own, to criminalize pure speech. Incest and sexual relationships between children and adults are distasteful subjects to most individuals, yet writers routinely publish such material....The expert provided the district court with numerous examples of recognized writings involving child sex with adults and/or incest including: Sigmund Freud’s writings on incest and fantasies, Alice Walker’s The Color Purple, and William Faulkner’s Absalom, Absalom!...
One need not delve into the rare archives of the Library of Congress to find works describing an adult’s sexual fantasies about children. Some of these writings, Lolita for example, are seated at the head table of great literary works of all time. ... The subject of adults fantasizing about having sex with minors, or alternatively, adults actually consummating relationships with children, is not limited to popular literature and academic discourse. A central theme of the Academy Award winner American Beauty is a forty-two year old man’s sexual fantasies about his teenage daughter’s high school classmate....
From my perspective, the iconic books and movies above render unsustainable the claim that writings describing sexual acts between children and adults, generated by fantasy, have no demonstrated socially redeeming artistic value. If the writers of the aforementioned books and movie scripts e-mailed the sections of their work that described the sexual relationship between the minor and the adult to a willing recipient, presumably both the writer and the recipient could have been subject to prosecution for sending or receiving obscene material under § 1462, an untoward result....
Incursions on our citizenry’s right to be free from governmental regulation of speech are viewed with skepticism and scrutiny....Whorley’s e-mails are pure speech at the very heart of the First Amendment....Frankly, I am hard pressed to find a permissible governmental interest that is served in suppressing Whorley’s emails as such an action would not aid in "protect[ing] the victims of child pornography" or the "destr[uction] [of] a market for the exploitative use of children."The most obvious interest the government might have in suppressing such speech — that such fantasies may "whet[ ] the appetites of pedophiles and encourage[ ] them to engage in illegal conduct," has been soundly rejected by the Supreme Court.
Today, under the guise of suppressing obscenity — whatever meaning that term may encompass — we have provided the government with the power to roll back our previously inviolable right to use our imaginations to create fantasies. It is precisely this unencumbered ability to fantasize that has allowed this nation to reap the benefits of great literary insight and scientific invention. The Constitution’s inviolable promise to us is its guarantee to defend thought, imagination and fantasy from unlawful governmental interference regardless of whether such thoughts, imaginings, or fantasies are popular with the masses. It is in these moments that our grip on the rule of law and our fidelity to constitutional values is tested.
In my lifetime, prosecutions for obscenity based purely on text are rare. The only other case I know of regarded much media comment and resulted in a guilty plea.
H/t to How Appealing and the Volokh Conspiracy.
Monday, December 8, 2008
Whither Obscenity Enforcement?
We can expect the Obama administration to make a clear and positive break on a number of issues covered here. For example, the new administration is expected to favor comprehensive sex education and undo the reviled "Global Gag Rule." But what about the Bush Administration's obscenity crusade? Can we expect that, simply because Obama is a Democrat and has voiced progressive positions on most social issues that his Justice Department will turn away from systematic obscenity prosecutions?
That's less clear, for a number of reasons. Obama has never spoken to the issue, so far as I'm aware. He and AG pick Eric Holder can certainly guide DOJ priorities, but ultimately federal prosecutors have considerable discretion to enforce the laws on the books. Additionally, Holder has in the past made noises favoring robust obscenity enforcement. For a discussion from the adult industry perspective, see this column by Mark Kernes over at AVN.
That's less clear, for a number of reasons. Obama has never spoken to the issue, so far as I'm aware. He and AG pick Eric Holder can certainly guide DOJ priorities, but ultimately federal prosecutors have considerable discretion to enforce the laws on the books. Additionally, Holder has in the past made noises favoring robust obscenity enforcement. For a discussion from the adult industry perspective, see this column by Mark Kernes over at AVN.
Friday, November 7, 2008
Prosecutors seek recusal of entire Ninth Circuit in obscenity case
Yes, you read that right.
Some of you will recall the kerfluffle this past June about Ninth Circuit Chief Judge Alex Kozinski's personal porn stash, which he foolishly (and apparently inadvertently) kept on a publicly-accessible server. This was big news in the legal community; Kozinski (a Reagan appointee) is one of the most prominent federal judges, perhaps best known for his witty opinions and his passionate interest in issues of speech, intellectual property, and the Internet. The revelation caused Kozinski to recuse himself from presiding over the obscenity trial of fringe pornographer Ira Isaacs. Kozinski also declared a mistrial and called for an ethics probe of his conduct.
When the Department of Justice sought to retry Isaacs, he argued that a new trial would constitute double jeopardy. This is the issue in his current appeal. And federal prosecutors think that since the circuit's chief judge declared the mistrial, all the other judges should recuse, and have the case heard by judge's from another circuit. There is apparently only one precedent for this, when the Eleventh Circuit recused themselves en masse from the 1992 appeal of a man convicted of murdering one of their colleagues. I don't really see a mass recusal happening here.
Some of you will recall the kerfluffle this past June about Ninth Circuit Chief Judge Alex Kozinski's personal porn stash, which he foolishly (and apparently inadvertently) kept on a publicly-accessible server. This was big news in the legal community; Kozinski (a Reagan appointee) is one of the most prominent federal judges, perhaps best known for his witty opinions and his passionate interest in issues of speech, intellectual property, and the Internet. The revelation caused Kozinski to recuse himself from presiding over the obscenity trial of fringe pornographer Ira Isaacs. Kozinski also declared a mistrial and called for an ethics probe of his conduct.
When the Department of Justice sought to retry Isaacs, he argued that a new trial would constitute double jeopardy. This is the issue in his current appeal. And federal prosecutors think that since the circuit's chief judge declared the mistrial, all the other judges should recuse, and have the case heard by judge's from another circuit. There is apparently only one precedent for this, when the Eleventh Circuit recused themselves en masse from the 1992 appeal of a man convicted of murdering one of their colleagues. I don't really see a mass recusal happening here.
Monday, October 13, 2008
Keeping sexual material away from sex offenders (1 of 2)
Nowadays it is common to impose conditions of release on sex offenders that place broad limitations on their access to sexually explicit materials. Here are some conditions of community custody imposed on a Washington state man convicted of rape:
Veterans and students of the feminist sex wars will recognize this as a version of the old canard, "Pornography is the theory, rape is the practice." It has long been argued, by those who favor subjecting to pornography to legal prohibition and/or strengthened social stigmatization, that (strong thesis) pornography cultivates violent sexual impulses and thereby creates rapists, or at least (weak thesis) that it feeds the impulses of those predisposed to commit sex crimes. Many have chronicled the history of these debates; suffice to say that neither thesis is supported by the evidence of social science (e.g., here). Given that this logic has been rejected by courts and legislatures as a basis for restricting access to pornography and adult businesses by the public at large, it makes little sense to impose such restrictions on
Yet in the context of the current social panic around sex offenders, applying this logic to conditions of release goes virtually unquestioned. Moreover, a lack of empirical support is probably not sufficient for render these conditions constitutionally suspect, given the lenient "reasonableness" standard usually applied to conditions of release.
On the other hand, claims that conditions of this nature are overly vague have been successful. Thus, in State v. Bahl, Washington's high court ruled that two of the above three conditions were unconstitutional because they were too vague. Tomorrow I'll discuss this case in detail.
- Do not possess or access pornographic materials, as directed by the supervising Community Corrections Officer (CCO).
- Do not possess or control sexual stimulus material for your particular deviancy as defined by the supervising CCO and therapist except as provided for therapeutic purposes.
- Do not frequent establishments whose primary business pertains to sexually explicit or erotic material.
Veterans and students of the feminist sex wars will recognize this as a version of the old canard, "Pornography is the theory, rape is the practice." It has long been argued, by those who favor subjecting to pornography to legal prohibition and/or strengthened social stigmatization, that (strong thesis) pornography cultivates violent sexual impulses and thereby creates rapists, or at least (weak thesis) that it feeds the impulses of those predisposed to commit sex crimes. Many have chronicled the history of these debates; suffice to say that neither thesis is supported by the evidence of social science (e.g., here). Given that this logic has been rejected by courts and legislatures as a basis for restricting access to pornography and adult businesses by the public at large, it makes little sense to impose such restrictions on
Yet in the context of the current social panic around sex offenders, applying this logic to conditions of release goes virtually unquestioned. Moreover, a lack of empirical support is probably not sufficient for render these conditions constitutionally suspect, given the lenient "reasonableness" standard usually applied to conditions of release.
On the other hand, claims that conditions of this nature are overly vague have been successful. Thus, in State v. Bahl, Washington's high court ruled that two of the above three conditions were unconstitutional because they were too vague. Tomorrow I'll discuss this case in detail.
Thursday, October 9, 2008
The CIA can do it to you, but you can't do it on film
Apparently "humiliating and degrading treatment" doesn't qualify as torture, but its depiction does qualify as obscenity. This from a Tampa judge who sentenced pornographer and sleazeball "Max Hardcore" to nearly four years in the slammer. As defense counsel explained to AVN, he faced sentencing enhancements for making money off the offending videos, for use of the Internet to distribute them, for a previous DUI, and for "sadomasochistic" content.
The defense argued that since the videos at issue didn't depict acts causing serious injury or pain, and therefore was not "sadistic or masochistic" material meriting an increased sentence. As Glenn Greenwald at Salon.com observes, this is similar to the Bush Administration's legal defense of its "enhanced interrogation techniques," save that here the prosecution if for the depiction of consensual conduct rather than for forcing acts upon unwilling persons. But the judge said that in the context of an obscenity prosecution this "isn't even a close call" - no one needs to get hurt to earn you a longer prison sentence.
So: if you're a federal agent, you can, say, tie someone up and pee on them, with no fear of legal consequences. But if you tie someone up and pee on them with their consent, and you dare to record the heinous act, you could go to federal prison. (But please, if you do, at least do it with more class than this guy.)
H/t to let them eat pro-s/m feminist safe spaces.
The defense argued that since the videos at issue didn't depict acts causing serious injury or pain, and therefore was not "sadistic or masochistic" material meriting an increased sentence. As Glenn Greenwald at Salon.com observes, this is similar to the Bush Administration's legal defense of its "enhanced interrogation techniques," save that here the prosecution if for the depiction of consensual conduct rather than for forcing acts upon unwilling persons. But the judge said that in the context of an obscenity prosecution this "isn't even a close call" - no one needs to get hurt to earn you a longer prison sentence.
So: if you're a federal agent, you can, say, tie someone up and pee on them, with no fear of legal consequences. But if you tie someone up and pee on them with their consent, and you dare to record the heinous act, you could go to federal prison. (But please, if you do, at least do it with more class than this guy.)
H/t to let them eat pro-s/m feminist safe spaces.
Tuesday, September 30, 2008
Pregnancy, fisting, and labia clamps: another look at the feds' idea of obscenity
Now comes before this blog another federal obscenity prosecution. This one targets Florida-based producer Barry Goldman, who has now been saved from total obscurity by the Justice Department's dubious attentions.
Given the inherent vagueness of the law of obscenity, the only way to really tell what's "obscene" is to look at patterns in prosecutions, convictions, and appeal outcomes. When adult industry lion John Stagliano was indicted earlier this year, I had a look at the trailers for the indicted videos and surmised that, out of the massive catalogue of Evil Angel Productions, the prosecutor cherry-picked the films in the indictment because they prominently featured enemas, female ejaculation, and BDSM. In this more typical case, involving obscure, low-quality productions, I didn't relish the prospect of doing my own research. Fortunately, Blowfish blogger Thomas Roche has watched this bad porn so I don't have to. (Much thanks to Mr. Roche, since he describes it as "low-quality SM porn by what appears to be an independent, amateur producer with vaguely misogynistic tendencies.")
So what does Justice think stands out about these videos other than bad taste? Based on Roche's description, the feds' interest was probably piqued by: knife play (no cutting), use of clamps on the nipples and labia, (apparent) vaginal fisting, and the use of a pregnant star. "Pregnant and Willing" sounds like the tamest of the bunch, and it will be remarkable if the prosecutor chooses to argue that the presence of a pregnancy should contribute to a finding of obscenity. The one thing that did jump out at me from Roche's description was the use of a face-down hogtie on the pregnant actress; as Roche puts it, "doesn’t seem even remotely safe, no matter how barely-pregnant she is." Unsafe working conditions are a big concern, but they should have no more bearing on a finding of obscenity than the safety of lighting rigs or adherence to industry STD testing protocols.
It also appears likely - again, remarkably - that the prosecutor will focus on the depiction (or suggestion) of fisting. As in the Evil Angel case, one suspects that the prosecutor will try to mischaracterize what is going on. Fisting will likely be presented to the jury as an "extreme," sadistic, painful, and perhaps dangerous act - when in fact it is simply a technically advanced (and admittedly visually dramatic), but perfectly safe and not necessarily painful, sexual technique. I'm basing this guess in part on the fact that fisting is a favorite topic of social conservatives' attacks on sexuality and HIV education funding.
Finally, this case is a stark example of prosecutorial forum-shopping. In the age of the Internet, you can bring an obscenity prosecution anywhere, and thanks to the Miller test you can rely on local "community values" to set the bar for conviction. So, the Evil Angel case involved material produced in California, but the indictment was brought in Florida. Here, the material was produced in Florida, but the indictment was in Montana!
Given the inherent vagueness of the law of obscenity, the only way to really tell what's "obscene" is to look at patterns in prosecutions, convictions, and appeal outcomes. When adult industry lion John Stagliano was indicted earlier this year, I had a look at the trailers for the indicted videos and surmised that, out of the massive catalogue of Evil Angel Productions, the prosecutor cherry-picked the films in the indictment because they prominently featured enemas, female ejaculation, and BDSM. In this more typical case, involving obscure, low-quality productions, I didn't relish the prospect of doing my own research. Fortunately, Blowfish blogger Thomas Roche has watched this bad porn so I don't have to. (Much thanks to Mr. Roche, since he describes it as "low-quality SM porn by what appears to be an independent, amateur producer with vaguely misogynistic tendencies.")
So what does Justice think stands out about these videos other than bad taste? Based on Roche's description, the feds' interest was probably piqued by: knife play (no cutting), use of clamps on the nipples and labia, (apparent) vaginal fisting, and the use of a pregnant star. "Pregnant and Willing" sounds like the tamest of the bunch, and it will be remarkable if the prosecutor chooses to argue that the presence of a pregnancy should contribute to a finding of obscenity. The one thing that did jump out at me from Roche's description was the use of a face-down hogtie on the pregnant actress; as Roche puts it, "doesn’t seem even remotely safe, no matter how barely-pregnant she is." Unsafe working conditions are a big concern, but they should have no more bearing on a finding of obscenity than the safety of lighting rigs or adherence to industry STD testing protocols.
It also appears likely - again, remarkably - that the prosecutor will focus on the depiction (or suggestion) of fisting. As in the Evil Angel case, one suspects that the prosecutor will try to mischaracterize what is going on. Fisting will likely be presented to the jury as an "extreme," sadistic, painful, and perhaps dangerous act - when in fact it is simply a technically advanced (and admittedly visually dramatic), but perfectly safe and not necessarily painful, sexual technique. I'm basing this guess in part on the fact that fisting is a favorite topic of social conservatives' attacks on sexuality and HIV education funding.
Finally, this case is a stark example of prosecutorial forum-shopping. In the age of the Internet, you can bring an obscenity prosecution anywhere, and thanks to the Miller test you can rely on local "community values" to set the bar for conviction. So, the Evil Angel case involved material produced in California, but the indictment was brought in Florida. Here, the material was produced in Florida, but the indictment was in Montana!
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