Bob Chatelle is Steering Committee Member,
The Boston Coalition
For Freedom of Expression
Political Issues Cochair, The
National Writers Union.
[This is an unpublished, and probably unpublishable, article that began as a rewrite of an article that I'd written for The PIC Newsletter. The opinions expressed are my own, and do not necessarily represent the views of either the National Writers Union or the Boston Coalition for Freedom of Expression.
I mention in the following article that parents are frequently arrested for taking innocent photographs of their own children. I urge you to read this horri fying account of a young mother who was beat up by police, in the presence of her little boy, for photographing him for a Harvard photography class. This took place where I no longer live, the infamous People's Republic of Cambridge, where all are free to think politically correct thoughts--or else.]
The First Amendment to the U.S. Constitution, which simply states "Congress shall make no law...abridging the freedom of speech, or of the press," specifies no limits whatsoever. Courts, including the Supreme Court, have taken a very different view and have created a long and ever expanding laundry list of First Amendment "exceptions." No coherent legal theory, however, provides any rational basis for this list. Many "exceptions"--such as the obscenity exception--reflect only the personal prejudices of judges. But one cannot effectively oppose censorship without a logically consistent theory of limits.
To call a form of speech Constitutionally unprotected simply because the Supreme Court has so ruled is not argument but appeal to authority. The Supreme Court is a fallible institution that makes a great many mistakes and has historically reversed itself many times. Because of the Supreme Court, "separate but equal" was once the law of the land. Because of Bowers v. Hardwick, states are free to jail sexually active gay and lesbian people, thus effectively denying them their rights altogether. As a civil libertarian I agree with the Declaration of Independence that certain rights are inalienable, and among these are "life, liberty, and the pursuit of happiness." An inalienable right can not be legitimately denied by any agency of any government, including the U.S. Supreme Court.
The aim of censorship is to restrict thought--that is, to prevent people from thinking "bad" thoughts. The censors' basic premise is: Some ideas are so dangerous they must be suppressed. Material is censored because, "it might give people ideas"--ideas that the censors wish to eradicate. Some censors believe that "bad" thoughts cause direct harm to the person who entertains them. Some Christians, for example, consider "impure" thoughts mortal sins that doom a soul to suffer in Hell for eternity. Others simply hold that bad thoughts "corrupt" the thinker. For many years, this direct-harm argument was used to suppress sexual material. According to the Hicklin doctrine, formulated in England in 1868, the state had the right to suppress obscene material, which had a "tendency" to "deprave and corrupt those whose minds are open to such immoral influences."
This justification still has its fervent adherents. On 8 August 1995, for example, right-wing activist Terry Rakolta (best known for her campaign against the TV show Married With Children) spoke in favor of cyberspace censorship on the talk show CNN and Company. In her words, "There are people online that are in your children's bedrooms that are giving them ideas." Rakolta was quoted in an article by Bruce Mirken in the November 1995 issues of The Guide. Mirken comments: "What scares conservatives to death about online communication is that it can give their kids a glimpse of the world outside the barbed wire and guard towers of the right-wing Christian Thought Police. Once they've peered beyond the gates, they might not want to come back."
Modern censors on the left more often argue that "bad" thoughts compel people to commit "bad" actions, actions that harm others. Thus soi disant liberals--such as Senator Paul Simon and Congressman Ed Markey--crusade to cleanse the media of fictional depictions of violence. Anti-pornography activists--such as Catharine MacKinnon, Andrea Dworkin, John Stoltenberg, and their followers--claim that pornography "drives" men to rape and murder defenseless women and children. For example, Barry Crimmins on 24 July 1995 testified before a Congressional committee arguing that Congress should outlaw discussions of pedophilia (which Crimmins erroneously identifies with child sexual abuse) on computer networks such as America OnLine. In his words, "People, who may have never acted on such impulses before, are emboldened when they see that there are so many other individuals who have similar interests..." (In other, words: some ideas are so dangerous they must be suppressed. Religious fundamentalists make the identical argument for the elimination of forums that permit discussions of homosexuality.) If he is consistent, Crimmins would also have to argue that private businesses should not be permitted to rent meeting rooms for groups such as the North American Man-Boy Love Association (NAMBLA).
Catharine MacKinnon, who is the chief contemporary theorist for this line of argument, says in Only Words:
Sooner or later, in one way or another, the consumers [of pornography] want to live out the pornography further in three dimensions. Sooner or later, in one way or another, they do. It makes them want to; when they believe they can, when they feel they can get away with it, they do." (In other words, pornography "gives people ideas," ideas that must be suppressed.)
Crimmins and MacKinnon make the same argument: bad speech leads to bad thought, which inevitably compels bad action. Pedophiles and people who enjoy pornography are accorded no free will or meaningful moral agency. In their view, such unfortunates are not really human. Their main anger, however, is directed at those who create, permit, or defend the dangerous speech that contains the dangerous ideas: "pornographers," media access providers who refuse to censor, and civil libertarians.
For most people, however, fantasy does not compel reality but rather provides a satisfying alternative to it. Men do not use pornography to build sexual pressure so that they can commit rape. Men use pornography to masturbate--a pleasant, harmless, and time-proven way or relieving sexual pressure. I admit that the notion of an adult masturbating before, for example, an image of a child makes me uncomfortable. But I'm much more uncomfortable with the notion of an adult doing the same thing in the presence of an actual child. In countries where pornography is more accessible and where there's less social stigma attached to enjoying it, rape is not more common but less.
Barry Crimmins is a stand-up comic and freelance journalist who calls himself a radical. (Crimmins also claims to have "recovered" the memory of being repeatedly anally raped over a period of months by an unknown man, brought to his home by a 13-15 year-old baby sitter, when Crimmins was two. These brutal and life-threatening assaults supposedly raised no suspicions on the part of either of Crimmins' parents.) Catharine MacKinnon is a law professor who identifies as a Marxist. Both claim to be "on the left" and belie the popular notion that censorship is only advocated from the right. A free and democratic society is founded on the premise that its citizens have free will and are responsible before the law for their own actions. If individual freedom is impossible so is the goal of a free society. But most who now identify as "liberal" or on the left have discarded the belief in both individual freedom and a free society and have instead embraced social determinism, psychological determinism, or both.
Determinism solves for liberals the problem of evil. Liberals believe that people are basically good. Thus bad actions must have social and/or psychological "causes" and the elimination of evil is attainable through correct social engineering. People who do bad things are "victims" of bad ideas that they got through exposure to bad speech. If we can just suppress bad speech, people won't get bad ideas, and we will all live peaceably together in utopia, happily ever after. Since ordinary people are too dumb to monitor their own speech, such monitoring must of course be left to the morally incorruptible--i.e., the liberals.
As a civil libertarian, I reject both the censorship of the left and the censorship of the right. Our ability to think is what makes us human, and our freedom of thought must be preserved at all costs. And freedom of thought is not the freedom to think "good" thoughts. The distinction between fantasy and reality is ignored or dismissed by the censors. This is why art is so feared by those at the extremes of both the right and the left. But in the realm of the imagination, anything goes. In one's own mind, one may do heinous things. One may rape, torture, steal, and murder. Fantasy is not reality and does not become reality by magic. Fantasy becomes real only by an act of will and anyone who commits that act of will is responsible for the consequences.
This was clearly understood by the late David Wojnarowicz. In his essay "X-Rays From Hell," he wrote:
At least in my ungoverned imagination I can fuck somebody without a rubber or I can, in the privacy of my own skull, douse [Jesse] Helms with a bucket of gasoline and set his putrid ass on fire or throw rep. William Dannemeyer off the empire state building. These fantasies give me distance from my outrage for a few seconds.
Wojnarowicz, who was dying of AIDS at the time, included "X-Rays From Hell" in the catalog of an art show about AIDS called Witnesses: Against Our Vanishing that was on exhibit at Artists Space in New York City in the fall of 1989. Witnesses had some funding from the National Endowment for the Arts (NEA). Then NEA Chairman, John Frohnmayer, who didn't appreciate the distinction between fantasy and reality, was so upset by this essay that he announced he was pulling all NEA funding from the show. After a public outcry, Frohnmayer relented with the provision that no NEA funds be applied towards the cost of the catalog.
Freedom of thought is meaningless without the freedom to communicate one's thoughts to others. Thus if freedom of thought is an absolute right, it would seem to follow that freedom of speech must also be absolute. But speech is a transaction between two (or more) parties: one conveying information and one or more receiving. All parties have the equal right to freedom of thought, and freedom of thought entails the right not to hear, not to read, not to view, etc. In other words, by the principle of equality, no one has the unlimited right to impose unwanted speech upon another.
Finally, the distinction must always be recognized between freedom of speech and freedom of action. That is, adding a speech element to a criminal act cannot legitimize it. Catharine MacKinnon has argued that speech is just another form of action and that if the state may regulate action it may regulate speech. But speech differs from all other forms of action in that it conveys information and is therefore privileged.
I'd like to summarize this introduction by stating three principles relevant to limiting expression:
Freedom of speech differs from freedom of action. But speech and action are so closely interwoven in human behavior that it's not always immediately obvious which is which. Thus it's not surprising that we often criminalize speech as well as, or even instead of, the action that it accompanies. This is a mistake. Consider, for example, the apocryphal "snuff" movie. (I say apocryphal because, in my years of anti-censorship activism, I've encountered no credible evidence that such things actually exist. I believe that they're as much a myth as "Satanic ritual abuse.") A "snuff" movie, by definition, would entail murder. Therefore, anyone who made a "snuff" movie should be prosecuted for first-degree homicide.
You can not decriminalize an act by adding a speech element to it. Sexually coercing a child, for example, is a crime. Photographing the act does not make it less of a crime. The child-pornography analogy, of course, is misleading. When most people imagine child pornography they visualize pictures of children being raped. According to Congress, the Justice Department, and the Courts, however, any picture of any person under 18, clothed or unclothed, can be prosecuted as child pornography if the government decides to harass you. The legal definition is so broad (and it will become even broader) that people are prosecuted under child pornography laws for possessing material even when no laws whatsoever were violated in producing it. In other words, a legal activity can now become criminalized merely by adding a speech element to it. A now common example is the case of parents who are arrested for taking non-sexual but nude photographs of their own children.
Linked speech and action are not always concurrent. Consider, for example, conspiracies, bribes, or threats. (I'm talking about true conspiracies, bribes, or threats. I'm not talking about a parent who says, "Stop making that racket or I'm going to wring your neck.") In these cases, the criminal act occurs later in time than the associated speech. Sometimes, speech is a direct and immediate incitement to action. As Alan Dershowitz points out in his 1989 Atlanta Monthly essay "Shouting Fire!":
The message `Fire!' is directed not to the mind and conscience of the listener but, rather, to his adrenaline and his feet. It is a stimulus to immediate action..the shout of "Fire!" is not even speech, in any meaningful sense of that term. It is a clang sound, the equivalent of setting off a nonverbal alarm. Had Justice Holmes been more honest about his example, he would have said that freedom of speech does not protect a kid who pulls a fire alarm in the absence of a fire.Inciting a frenzied mob to rioting or lynching is somewhat analogous. The Supreme Court, to its credit, recognized in 1969 in Brandenburg v. Ohio that speech advocating violence is protected unless the speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Limiting freedom of action is clearly not an exception to the First Amendment. Endless debate is possible, of course, over what constitutes speech. Some conservatives, for example, believe that images have no First Amendment protection. I personally believe that individual freedom should be maximized and that speech must be interpreted as broadly as possible.
Lies injure those who believe them. If a lie is about a person, and the lie is believed and acted upon, the person lied about is also injured. Thus lying involves at least one non-consenting party. By lying, of course, I do not mean fiction. Reasonable people (becoming scarcer all the time) know that fiction is not literally true. Fighting lies with the truth is the best strategy, but this strategy is often difficult because wealth, power, and access to the media are so unfairly distributed within our society. Thus seeking legal redress through civil suit is also a reasonable recourse.
The relation between information and action must be clearly understood. Information never "causes" action. Information belongs to a different realm of discourse than matter and energy. Information cannot be measured in units of mass, energy, force, etc. Information thus has no direct physical effect. Censors of left and right continually equate the obvious indirect effects of speech upon thought with direct causes of action, and rely upon this equation to justify censorship.
Our brains process information. We evaluate information and make decisions, and these decisions lead to action. The process, of course, can be short circuited. When we respond instantly to someone shouting "Fire!" we have not processed fire as information. We've responded to a stimulus, using primitive parts of our nervous systems. Information processing, like stimulus-response reactions, evolved because it helps us survive.
Give people false information and they may make terrible decisions and do terrible things. People, of course, have a responsibility to be skeptical. People should be very wary, for example, about believing anything they read in the Weekly World News or The New York Times. But sometimes reasonable people believe lies and innocent people are injured as a result. In such cases, it is just to grant people a legal cause of action. Both civil and criminal penalties may be appropriate. That's why we have laws against libel, slander, fraud, false advertising, and falsely shouting "Fire!".
I don't, however, under any circumstances support laws against "dangerous" books, regardless of the amount of misinformation they contain. For example, an unsuccessful attempt was made to sue the authors of a book called The Courage to Heal. Many people believe (I am one of them) that this particular book abounds in false information that has caused, and will continue to cause, immeasurable harm. (I don't believe, however, that the authors' intent was malicious: I presume that they believe what they've written and that their hope was to help people, not to hurt them.) Although I disagree vigorously with its content, I believe absolutely that The Courage to Heal is protected by the First Amendment.
The limits-to-lying argument, of course, can be taken to absurd extremes. Examples of this are attempts to ban speech that "libels" groups, not individuals. If you permit this, it could become illegal to criticize any group whatsoever--even (or especially) Republicans. Another absurdity is the claim of anti-pornography activists that pornography should be banned because it "defames" women or tells men that women want to be raped. (Some pornography, of course, asserts that women enjoy sex and some censorship advocates--such as Andrea Dworkin--believe that intercourse and rape are equivalent.) But pornography is fantasy and is not taken literally by reasonable people. As for unreasonable people, who knows what can set them off?
I'm unsure whether permitting victims of malicious lies legal redress is an "exception that proves the rule" or a true First Amendment exception. I don't support any form of prior restraint. And sanctions against lying are not content based. That is, truth or falsehood is not a form of "content" but rather a relationship between speech and reality. Nevertheless, permitting legal redress for lying certainly has a "chilling" effect, and this chilling effect can in some instances constitute censorship. In Britain, for example, it is much easier to sue for libel than it is in the US. I much prefer the more stringent libel requirements that exist in America.
Advocates of censorship--from Catharine MacKinnon to Pat Robertson--reject the principle of equality. They believe that a certain segment of society, by virtue of its moral superiority, should have the power and privilege of controlling access to information for society as a whole. Free-speech advocates, on the other hand, believe that people should decide for themselves which books to read, which movies to view, which images to observe, and what recordings to listen to. MacKinnon cleverly argues the contrary--that equality dictates censorship to curb abuses by the powerful. What she doesn't acknowledge is that whenever a censorship mechanism is established it is always used by the powerful to silence the powerless and not the other way around.
Some people in our society are without doubt unfairly privileged. The wealthy of course. Others are privileged by their sheer numbers. Parents, for example, are always treated as a privileged class by politicians, leading to the frequent infringement of the rights of non-parents. But a free-speech advocate must hold to the principle that no one should be privileged under the First Amendment. No one, for example, can properly use their free-speech rights to silence another. A simple example of this is that shouting down a speaker is not legitimate free speech. (Falsely shouting "Fire!" in a crowded theater abridges the First Amendment rights of both the actors and the rest of the audience. Unless it's in the script.) Free speech is a right, not a privilege: it belongs to all of us equally.
The right of choice belongs to both producers and consumers of speech. I have the right to choose what I read, what I listen to, what I watch. I also have the right to choose not to read, not to listen, not to watch. Again, no one has the unlimited right to impose unwanted speech upon another.
For example, When I lived in Cambridge, I had noisy upstairs neighbors who sometimes played their music so loudly that my apartment literally shook. At times like that, even though I'm a First Amendment absolutist, I went upstairs and asked them to turn it down. They had no right to invade my personal space and force me to listen to their awful music. As another example, I have joined with several others and am suing the Massachusetts Bay Transit Authority to try to stop them from permeating the entire subway system with TV monitors blaring commercial messages. If a billboard in a station offends me, I simply walk away. But you can't move away from one of those monitors without encountering another one.
In our suit against the MBTA, we're using a principle enunciated by no less a First Amendment absolutist than the late Justice William O. Douglas in the 1949 case of Public Utilities Commission v. Pollack. In his opinion, Douglas states "The right to be let alone is indeed the beginning of all freedom." (Douglas was echoing Louis Brandeis, who said in Olmstead v. United States [1928], "...the right to be let alone--the most comprehensive of rights and the right most valued by civilized men.") The Pollack case involved an attempt to impose audio messages upon a streetcar audience. Douglas argued that a "streetcar audience is a captive audience...there as a matter of necessity and not by choice." Douglas also said: "One who enters any public place sacrifices some of his privacy. My protest is against the invasion of his privacy over and beyond the risks of travel."
In applying the captive-audience principle, several relevant questions suggest themselves: Has the unwanted speech invaded personal space? Can one move away from the offending speech without incurring an unacceptable cost for doing so? Does one have the opportunity to respond to the offending speech without risking unfair retribution?
Clear examples of unwanted speech imposed upon an unwilling audience are verbal abuse and sexually harassing speech. If either of these, of course, are accompanied by actions (usually the case), we are no longer dealing with instances of pure speech. But the captive-audience principle is relevant if the unwanted speech invades personal boundaries (especially the sanctity of the home) or permeates an environment--such as the workplace--where one is by necessity and not by choice. Unfortunately, the captive-audience doctrine is seldom employed in cases of harassment, and, when it is, it's often employed inappropriately.
For example, here in Massachusetts the Supreme Court found for the plaintiff, Patricia Bowman, in a harassment suit brought against a co-worker. Bowman was running for president of her union. David Heller--a long-time political enemy and supporter of Bowman's opponent--satirized her campaign literature by making tasteless collages that appended Bowman's head to nudes found in Penthouse and Hustler. Heller made seven copies, which he showed to allies. After the election, a Bowman supporter obtained copies of the collages and showed them to Bowman, who sued Heller two years later, just under the statute-of-limitations deadline, claiming to be suffering from post traumatic stress disorder. Part of Bowman's case was that the collage were shown to people in the workplace and that the workplace is a captive environment. But there was no imposition of the collages upon anyone who chose not to view them, nor was there any permeation. Also, although Heller had battled Bowman for years, this was the only time he'd ridiculed her with sexually explicit images. Thus I believe the Massachusetts Court erred. Heller is appealing the decision to the US Supreme Court.
Rather than use the captive-audience doctrine, courts have unfortunately relied upon the vague and dangerous hostile-environment principle, originally stated in Title VII of the Civil Rights Act of 1964, upheld by the Supreme Court in the 1986 case of Meritor Savings Bank v. Vinson, and reaffirmed in 1993 in the case of Harris v. Forklift. According to this principle, harassment includes anything that creates a discriminatorily hostile or abusive working environment. The problem with the "hostile environment" principle is that people apply it to anything they see or hear that they don't happen to agree with or to like. In November of 1991, for example, Professor Nancy Stumhofer of Penn State University complained that a reproduction of Goya's Naked Maja hanging on a wall of the Schuylkill campus music room constituted sexual harassment. She was vigorously supported in this absurd claim by a Penn State Commission for Women committee and the director of the university's Affirmative Action Office. The painting came down.
Although the Harris decision was unanimous, Justice Anthony Scalia voiced a cautionary comment in his concurring opinion:
Abusive (or hostile, which in this context I take to mean the same thing) does not seem to me a very clear standard--and I do not think clarity is at all increased by adding the adverb objectively or appealing to a reasonable person's motion of what the vague word means.
Equality under the First Amendment is in no way an exception to the First Amendment. And using this principle helps us avoid the trap of inventing bogus rights--the right not to be offended, the right not to have one's feeling hurt, etc.--that somehow must be "balanced" against the inalienable right to free speech.
Samuel Johnson said, "No man but a blockhead ever wrote, except for money." The right to speak, write, paint, sculpt, etc. implies the right to own what is thus created. My right to free speech does not permit me to steal words that belong to another and treat them as my own. Thou shalt not plagiarize. Thou shalt not violate copyright. Thou shalt not sell your employer's trade secrets to their competitors.
Although I've some sympathy for the notion that "property is theft," I don't believe that this in any way applies to intellectual property. That which I create--especially that which I create entirely within the realm of imagination and information--belongs to me, unless I contractually transfer ownership to another. The right to own your own words and ideas, and to be paid for what you create, is as fundamental as the right to express yourself.
At times, freedom of expression and intellectual-property rights come into apparent conflict. A recent example was the LaMacchia case. A then 20-year-old MIT junior, David LaMacchia, was indicted on one count of conspiracy to commit wire fraud because he ran a computer bulletin board, Cynosure, and it was alleged that Cynosure users used the BBS to exchange copyrighted software. The case was thrown out of Court by the judge who stated that what had happened was not covered by existing law. Although I don't support copyright violation, I believe that charges should be brought directly against the perpetrators and that computer communication systems are "common carriers" and their operators should be indemnified against criminal activity by users. As LaMacchia's attorney, Harvey Silverglate, said in the response to the indictment, "this case raises the hotly disputed question of whether the operator of a `common carrier' may be held criminally responsible for the manner in which others use his communication system."
As a writer, I'm allowed to use words belonging to another if I do so according to "fair use" guidelines. For example, in this article I've so far quoted Barry Crimmins, Catharine MacKinnon, Alan Dershowitz, William O. Douglas, Louis Brandeis, Anthony Scalia, Samuel Johnson, and Harvey Silverglate. I attributed each quote to the appropriate author. Furthermore, the quotes from Crimmins, Scalia, Douglas, Johnson, and Silverglate are in the public domain. Brief quotes, such as the ones by MacKinnon and Dershowitz, qualify as fair use. Rich and powerful people can use copyright law to harass writers even when there's no violation of the principles of fair use.
Recently, there have been some outrageous examples of this kind of censorship. The Church of Scientology, through its attorneys, has been threatening systems administrators with lawsuits for carrying internet newsgroups that discuss (and criticize) Scientology. The lawyers are alleging that some messages posted in these newsgroups infringe Church of Scientology copyrights or intellectual property rights.
Another particularly outrageous instance was recently perpetrated by media mega-mogul, Ted Turner, and reported in the February 6 edition of Newsweek. (The Turners--whose greed is approximately infinite--are now salivating over the prospect of even more obscene profits with the anticipated demise of the Corporation for Public Broadcasting.) Turner, it seems, demanded that Salman Rushdie remove two lines from his most recent collection of short stories, East, West. The lines?
Flintstones! Meet the Flintstones!
They're the modern stone age family.
Turner, it seems, owns (in addition to approximately half the known universe) the rights to the Flintstones theme song. When Rushdie was informed of Turner's request, he asked "If I quoted these lines, somebody would shoot Fred Flintstone?"
Private citizens not only own any intellectual property that they create, they also own their own names, their images, and the details of their private lives. (Courts have held, and I think legitimately, that only very limited rights are retained by those who choose to become public figures or limited public figures.) Thus it is a violation of privacy and property rights to use for commercial purposes a person's name, image, or personal life without that person's knowledge and legal consent. In some cases, individual rights can be violated even when no financial transactions are involved.
On 9 January 1995, for example, a University of Michigan student named Jake Baker posted on the internet a crude, talentless, and distasteful story depicting the rape and murder of a young woman. Since Baker evidently lacks sufficient creative ability to even invent names for characters, he gave his fictional victim the name of one of his actual classmates. Needless to say, Baker did not inform his classmate or obtain her consent.
Rightly or wrongly, the woman named decided to take no legal action against Baker. The U.S. government then foolishly decided to prosecute Baker on its own. The government first indicted Baker on transmitting threats, based on unspecified computer communications that presumably included the posted story. When the final indictment was submitted, however, no mention was made of the story and the indictment instead focused on several private email conversations Baker had with someone in Toronto named Arthur Gonda. The indictment was dismissed when Judge Avern Cohen ruled that the communications did not constitute a true threat.
The issues in the Baker case would have been quite different had Baker used the name of a public figure, such as Catharine MacKinnon. Courts have held that those who voluntarily enter public life sacrifice much of their right to privacy. In a functioning democracy, public figures must be subject to scrutiny and criticism, including criticism by satire, no matter how crude and tasteless. The most important relevant Supreme Court ruling was Falwell v. Hustler, which upheld the right of Hustler magazine to publish a crude and offensive satire attacking the Reverend Jerry Falwell.
The Falwell decision, unfortunately, is in peril because of the fore-mentioned Bowman case. Heller justified his unauthorized use of Bowman's image with the fact that he was satirizing her campaign literature at a time when she was running for the presidency of a very large and important union, and therefore (at least within the limited context of that union) she was certainly a public figure.
Everyone wants to protect the speech that they like. People only try to suppress speech that offends them. Speech that offends no one, therefore, requires no legal protection. Your commitment to free expression can only be measured by your willingness to defend the speech that you really hate. And currently, the most uniformly hated genre of speech is so called child pornography.
This is so for a number of reasons. First of all, we live in an intensely sexphobic society. Americans have a bizarre horror of (and fascination with) sex, especially "unorthodox" sex. Of course people have been trying to legislate "unorthodox" sex out of existence for thousands of years. They always have, and always will, fail. Any form of consensual sex is extremely pleasurable, and orthodoxy should be simply a matter of personal taste. One person's perversion is another's sublime ecstasy. Sexphobia, however, provides an powerful mechanism of social control to the people who own and run America. Power is maintained by instilling fear of dreadful enemies into citizens so that the powerful can justify themselves as "protectors." The best enemies are those that most citizens know little about, either because they live far away and are products of unfamiliar cultures, or exist as shadowy and hidden minorities within our own.
During the 50s, Communists (both foreign and domestic) made excellent enemies. The media demonized Communists as unfeeling monsters. Most Americans believed that the threat of Communism was so terrible that they were more than willing to "give up a few rights" to fight it. When the populace is scared, it is easy to persuade it that their protection is dependent on the sacrifice of basic human rights. Those who own and run this country (and who don't need rights because they have ample privileges) have always viewed the Bill of Rights as nothing more than an impediment to effective law enforcement.
Sexual minorities make even better enemies than Communists--who often were accused of being queer in addition to everything else. A person who hates and/or fears sex is in deep conflict with his or her own self, because the sex drive is both universal and powerful. All sexphobic persons have a "dirty little secret" and they live in terror that this secret will be exposed. Sexphobic people will go to great lengths to protect their secrets, including giving up both their own rights and the rights of others. Instilling sexphobia is a divide-and-conquer strategy applied to the human soul.
One of the most prevalent expressions of American sex phobia is homophobia, which is common across the political spectrum. Theocratic conservatives are blatant and upfront about their homophobia. In most left and liberal circles, however, open homophobia is currently considered politically incorrect. But homophobia can be disguised as a concern about childhood sexuality and the protection of children.
No civil libertarian supports any form of coerced sexual activity. Sexual coercion is the precise opposite of sexual freedom. Brandeis and Douglas's "right to be let alone" certainly encompasses the right not to be sexually coerced, pressured, or exploited. This right belongs to all, but children--because of their lesser physical strength, because of their lesser sexual knowledge, because of their training to obey adults (especially parents and other relatives, and parent surrogates such as teachers, members of the clergy, coaches, etc.)--are particularly vulnerable to coercion. Parents have every right to be concerned that no harm, sexual or otherwise, come to their offspring. Problems occur, however, when these legitimate concerns dovetail with irrational fears that evil adults will "recruit" children into sexual unorthodoxy. The reasonable fear of one's kids being molested becomes subsumed by the unreasonable fear that these kids will be "turned queer."
Actual sexual coercion of children is dreadful--one of the most dreadful and frightening things that can happen to a child. The horror is compounded by the fact that our society is sexphobic and most children absorb this at a very early age. A child sexually coerced thus experiences that which he or she has been trained most to fear. In a less phobic society, there would be less sexual coercion, because all forms of consensual sex would be acceptable. And sexual coercion, when it did occur, would be less traumatic to the victim. Unfortunately, sexual coercion (like other forms of physical assault, including murder) will occur to some degree in any society. No amount of social engineering will ever eliminate forever the problem of evil.
Sexual pleasure is a good and glorious thing. Tragically, some people never outgrow the cruel lies that they are taught and thus deny themselves sexual pleasure. More tragically, many of these same people, not content with impoverishing their own lives, tirelessly campaign to deny sexual pleasure to others as well. Coerced sex is wrong because it is coerced: no one who believes in freedom supports the right of anyone to take freedom from another. And uninformed consensual sex has its own dangers: unwanted pregnancy and sexually transmitted diseases. These dangers can be eliminated, or at least drastically minimized, by adequate sex education. Informed consensual sex harms no one and is of great benefit to the participants.
One reason that legitimate concerns about protecting children have been replaced with sex-abuse hysteria has been the media promotion of "recovered" memories of childhood sexual abuse (and the related allegations of so called "Satanic ritual abuse.") No one to my knowledge has an accurate idea of the actual percentage of people who were sexually coerced or exploited as children. For the affected person, of course, the numbers are irrelevant. If it has happened to you, then the rate is 100 percent. But the American public is impressed with numbers, and it is difficult to get them to take a problem seriously unless you can persuade them that it is widespread and affects a great many people. Thus when the reported statistics on a phenomena are small, people who want action taken often resort to the "tip of the iceberg" argument.
Users of this argument claim that documented instances of some phenomena are "the tip of the iceberg" and argue that the overwhelming majority of instances are unreported and undocumented. This may of course be absolutely true. Because of the historical stigma attached to rape, a great many rapes go unreported. Because of the stigma attached to homosexuality, any census will record a smaller number of gay and lesbian people than actually exist. If accurate information is to be obtained, barriers to reporting must be removed.
But the "tip of the iceberg" argument can lead to fallacies. First of all, something invisible can be estimated to be of any size whatsoever. Thus statistics can be conveniently inflated by assuming that only one in X instances is reported, where X is the number that gives a sufficiently alarming result. After all, one can't prove that X has been overestimated, since one guess about the size of an invisible population is as good as another.
Second, removing barriers to reporting can cause the recording of a lot of false instances. Definitions may be broadened and made so vague that all sorts of events are counted that should not be. Also, people interviewed for social-science studies want to please their interviewers and tell them what they want to hear. Interviewers who think they are merely making the subjects comfortable may be leading them instead. And, of course, even the most "objective" researcher is not immune to the fallacy of confirmation bias. These problems, for example, have flawed rape studies, producing alarming (and false) statistics, such as that one in three women will be raped.
In the case of childhood sexual abuse, many therapists claim that the phenomena is under reported not just because victims are reluctant, but also because most have forgotten their abuse--that is, they have "repressed" the memory, even in cases where the abuse supposedly occurred repeatedly over many years. Some therapists even argue that the perpetrators (or "perps," in Recovery Movement jargon) themselves repress memories. Thus the Incest Survivors club becomes one that anyone can join. Everyone is a probable victim, a probable perpetrator, or both. (Part of the dogma is that abuse victims are doomed to become "perps" without the benefit of extensive and expensive memory "therapy.") Not remembering abuse is even taken as evidence that abuse has occurred! (The abuse must have been really bad if you had to repress it.)
"Recovering" memories has proved a most lucrative pursuit for many therapists. The theory of "recovered" memory has created a nationwide cult of abuse "survivors," many of whom belong to Incest Survivors Anonymous, and the true believers are every bit as dogmatic as the followers of L. Ron Hubbard or the Reverend Moon. Because of the well-known power of suggestion, patients are easily persuaded that their "recovered" memories are true. For one thing, it provides the patient with a simple explanation for everything wrong with his or her life, and it is an explanation that relieves the patient of all moral responsibility. If the recovered-memory movement had a slogan, it would be "I am not responsible." We unfortunately have little sympathy for "ordinary" people, oppressed by "ordinary" discrimination and "ordinary" injustice. But if you claim to be an incest survivor, you become an extraordinary person who can demand unstinted sympathy. The more horrible your "memories," the more attention and adulation you can expect. Barry Crimmins, for example, was a washed-up middle-aged comedian when he recovered his "memories." After broadcasting his tale of mind boggling abuse far and wide, he not only revived his flagging career, he also received a Humanitarian award from a prestigious educational institution, Wellesley College. I don't believe, however, that Barry Crimmins is a dishonest person who consciously invented his memories for personal gain. Having read his account, I'm convinced that he absolutely believes that he was horribly abused. I'm just saying that our well-meaning desire to offer comfort and sympathy to victims can have the unintended consequence of encouraging and rewarding irresponsibility and irrationality.
There is no good evidence supporting recovered memories. For events that happen before the age of about three, no one has true memories because the nervous system is not sufficiently developed to store them. This is the well known phenomena, childhood amnesia. Before the ages of five or six, memory is notoriously unreliable. If abuse occurs beyond that age, the memories of it remain all too clear. Some believe that the memory of a single traumatic event can be lost and later retrieved, but no indisputable evidence supports this hypothesis.
Recovered-memory therapists posit something quite different than ordinary forgetting and remembering, or the conscious suppression of memories of unpleasant events. They believe in an unconscious mechanism that causes traumatic memories, even of frequently recurring tramuas, to vanish without a trace (leaving no holes in the memory) and remain perfectly intact, invulnerable to normal decay or distortion, until they are miraculously "recovered" years later through Recovered Memory Therapy--which involves such discredited "techniques" as hypnosis, guided imagery, and interrogation under the influence of Sodium Amytal.
Recovered Memory Therapy has achieved undeserved credibility through confusion with established and documented manifestations of both normal memory and memory dysfunction--such as ordinary forgetting and remembering, sudden and radical reinterpretation of past events, psychogenic amnesia (temporary trauma-induced near total memory loss, which may or may not be a valid phenomena), unstored memories (e.g., childhood amnesia, alcoholic and drug-induced amnesia, memories never stored--as opposed to "repressed"--due to trauma), and (more controversially) dissociation and Multiple Personality Disorder. (The "symptoms" of MPD are most often therapy induced, but true cases may exist. Nevertheless, no evidence supports the hypothesis that MPD, should it exist, is caused by childhood sexual abuse.) The late psychologist, Dr. Nicholas Spanos, in his book Multiple Personalities & False Memories has argued persuasively that MPD is not a psychiatric disorder but rather a cultural construct. But I suspect the same could be said for most psychiatric diagnoses.
The recovered-memory movement has destroyed countless lives and families and will no doubt destroy countless more. The avaricious therapists who promote this idiocy, and the equally avaricious authors of books such as The Courage to Heal, do far more harm to far more people than so called pedophiles and child pornographers. The writings and teachings of the recovered-memory cult "give people ideas"--terrible ideas that cause them to make dreadful accusations. Many innocent people are now in prison because of these accusations.
More innocent people have been imprisoned as a result of another manifestation of the sex panic that underlies the recovered-memory cult: the unfounded and hysterical claims of sexual abuse at day-care centers. The day-care cases are not instances of recovered memory. But the same thesis underlies them: that childhood sexual abuse in our society is nearly universal and that it has remained invisible because of heinous conspiracies to silence the victims. Most of the imprisoned people have been subjected to legal proceedings every bit as outrageous and hysterical as the Salem Witch Trials. I would never, however, suggest trying to combat even these most grievous and dreadful injustices with censorship.
The first and best known case began in August of 1983, in Los Angeles, when an alcoholic woman (later diagnosed as a paranoid schizophrenic) named Judy Johnson decided (on the basis of no physical evidence other than she thought his bottom was red) that her pre-verbal two-year-old son had been sodomized by Ray Buckey, a 25-year-old man who was a day-care worker at the McMartin preschool. The police--always eager to believe such accusations--without bothering to investigate sent a letter to over 200 McMartin parents, warning them of "possible criminal acts" such as "oral sex, fondling of genitals, buttocks or chest area, and sodomy." The children--most of them three and four--were anxiously questioned by their parents and, not surprisingly, told their parents what they thought they wanted to hear.
By this time, the multi-billion dollar sex-abuse industry was already well-established, largely through the infusion of federal money mandated by the Mondale act of 1974, providing matching funds to states that passed their own laws establishing mechanisms for investigating and prosecuting abuse. The Mondale Act also removed disincentives for false accusations, by requiring that states, to qualify for funding, must guarantee both anonymity and absolute immunity from prosecution for anyone alleging abuse. Moreover, by the Mondale act, states had to mandate that certain professionals--such as therapists and educators--had to report to the state all allegations of child sexual abuse, regardless how baseless and ridiculous they might be, and regardless whether the false charges were transparently being made for vindictive and hostile motives.
Agencies sprouted up such as the Children's Institute International (CII), where many of the McMartin parents took their children for questioning. Under the coercive and leading prodding of therapists, especially a zealot named Kee MacFarlane, the children soon created bizarre tales of being forced to drink blood and urine, animal sacrifices, and Satanic rituals conducted in tunnels underneath the preschool. (Gloria Steinem eventually provided public support and donated money to finance an expedition in search of these non-existent tunnels. The expedition was led by Ted Gunderson, a former FBI agent with ties to the right-wing militia movement and to Lyndon Larouche.) Those accused soon included both Ray Buckey's mother and sister (both named Peggy), and Virginia McMartin, Ray's grandmother and the preschool's founder, who was at the time a septuagenarian in a wheelchair. Judy Johnson, the original accuser, claimed that Ray Buckey had sodomized her two-year-old while sticking his head in a toilet, had forced him to ride naked on a horse, and had molested him while Buckey dressed as a policeman, a fireman, a clown, and Santa Claus. Other teachers supposedly jabbed scissors in his eyes, shot staples in his ears, nipples and tongue, and killed a baby and made him drink the blood.
A further allegation in the McMartin case was that "pornographic" films and photos were taken of the children being abused. These accusations provided a convenient answer to a mystery: if a child-pornography industry existed, how were the materials produced, given that law-enforcement had failed to find any evidence of a commercial child-porn-producing industry? Child porn has carried draconian legal penalties since 1978, and the Supreme Court ruled in 1982 (New York v. Ferber) ruled that serious artistic, scientific, or social merit is not a defense. Since the market was very small and the penalties extremely high, commercial production of materials vulnerable to kiddie-porn prosecution ceased immediately. Since the existence of an abundant supply of kiddie-porn is a basic tenet of the new sexphobia, the notion that day-care centers were kiddie-porn factories fit nicely with the ideology.
Most child "pornography" is just pictures of naked children indulging in non-sexual activities. When children are portrayed as sexually aroused, or engaged in sexual play, they are clearly presented as enjoying themselves. Adults are almost never portrayed. The central "idea" of child pornography--the idea that makes it appealing to some and so abhorred by many more that they believe it must at all costs be suppressed--is that adolescents and children are sexual beings who can freely and willingly engage in sexual activity. Nothing could be more antithetical to this basic idea than the picture of a toddler being raped by an adult. Yet it is precisely this sort of child "pornography" that was supposedly manufactured at the McMartin Preschool. No actual films or photographs, of course, were ever found. This did not prevent Kee MacFarlane from testifying before Congress in 1984 that "We're dealing with an organized operation of child predators" and that the McMartin Preschool was a "ruse for a larger, unthinkable network of crimes against children."
The media gave full credit to the bizarre McMartin accusations, assuring a nationwide panic and the duplication of similar charges at other day-care centers. (This campaign dovetailed nicely with rightwing opposition to day-care centers, based on the notion that a mother's place is in the home.) The Buckeys were jailed for two years before their case ever came to trial. They were eventually exonerated (in 1990) but their lives had been destroyed. They tried to sue, but were unable to because of Walter Mondale's bright idea of granting accusers, prosecutors, and those who assisted them, absolute immunity. Robert Kelly--an accused worker at the Little Rascals Day Care in Edenton, North Carolina, is serving twelve consecutive life terms and his wife Betsey (while maintaining her innocence) pled "no contest" to avoid a trial. (In this case, the allegations included being thrown into shark-infested waters, trips to outer space, and devil worship. Kelly's conviction was overturned in the summer of 1996, but the state may retry him.) Kelly Michaels in New Jersey was jailed for five years before an appeals court overturned her conviction, but the state attempted to retry her.
Homophobia played a major role in one of the earliest dubious conviction, which was of Bernie Baran, of Pittsfield, Massachusetts. Bernie was a 19-year-old openly gay aide at the Early Childhood Development Center in Pittsfield. When one homophobe discovered that a queer was teaching his four-year-old nephew, he went ballistic. Soon afterwards he and the boy's mother accused Bernie of molesting the child. While no credible physical evidence was found, and the boy refused to testify against Bernie, he is now serving three concurrent life terms.
Some of the zealous prosecutors made political capital of their "successes" in destroying and jailing innocent people. Two well-known examples are Massachusetts Attorney General Scott Harshbarger and US Attorney General Janet Reno.
Harshbarger was the Middlesex County District Attorney during the infamous Fells Acre Case, which bears a strong resemblance to the McMartin case--not surprisingly because chief prosecutor Larry Hardoon flew to California at taxpayers' expense to consult with the McMartin prosecution team. The case began on September 2, 1984, when Denise Caissie--in the middle of a breakup of a troubled marriage--phoned the Massachusetts Department of Social Services and accused 25-year-old Gerald Amirault of taking her son (just shy of five years old) Murray to a "secret room" at the Fells Acre School and molesting him. Three days later Gerald was arrested for rape, and the police summoned the Fells Acre parents to a meeting at the police station, where social workers panicked them into believing that their children too had been abused. As a result, 40 cases surfaced and the accusations spread to include Gerald's sister Cheryl LaFave and their mother and the school's founder, Violet Amirault. The outlandish charges included molestations by clowns, robots, and a lobster. Violet supposedly fed a child a frog that quacked like a duck; Cheryl killed animals and buried their blood in the sandbox; someone tied a naked boy to a tree in front of all the pupils and teachers. (Miraculously, none of the neighbors or passersby witnessed this.) The case was assigned to an outrageously biased judge named Elizabeth Dolan, who disregarded all normal rules that protect the rights of the accused. Testifying children did not have to look at the accused, and prosecutors were given a free hand to lead the witnesses. If a "wrong" answer was given, the prosecutor simply badgered the child until the "right" answer was given. All three Amiraults were convicted and sent to prison. Late in 1995, the two women were finally awarded new trials (because of Dolan's grievous errors), but Gerald Amirault remains in prison where he may stay for the rest of his life. Also, the state is appealing the decision to grant new trials, and the two innocent women may be sent back to prison as well. Although Harshbarger didn't try the case himself, he has always vigorously defended its prosecution, and used it to his political advantage when running for re-election. Now he has ambitions to become Governor.
Reno actively prosecuted three highly dubious as Dade County Florida state attorney. Grant Snowden, a south Miami police officer whose wife ran a baby-sitting service, is serving five life sentences in prison, partly through testimony contrived by a Ms. Laurie Braga, a therapist that Reno hired to create "evidence" in such cases. Better known was the Country Walk Case, in which a 36-year-old Cuban immigrant, Francisco Fuster-Escalona, and his 17-year-old Honduran wife, Ileana, were accused of molesting children in their home-based baby-sitting service. Ileana, a frightened teenage immigrant, maintained their innocence for nearly a year, despite being held naked in solitary confinement. Reno hired another quack, Miami psychologist Michael Rappaport, and they he and Reno visited her cell at least 34 times, leading her in guided imagery and visualization. Reno held her hand and offered encouragement. The poor kid finally cracked and "confessed" and made the asked-for accusations against her husband--such as he'd sodomized her with a cross while he forced her to give oral sex to a child. In return for her testimony, Ileana was finally released from Prison and allowed to return to Honduras. Her husband was sentenced to six life terms plus 165 years in prison. Reno fortunately failed to get a conviction in the equally outrageous case a 14-year-old diabetic boy named Bobby Fijnje who had an after-school job working in day care at Old Cutlery Presbyterian. Reno and her accomplices extracted the usual outlandish claims from the children: Bobby had eaten a new-born baby, raped them, danced nude on the roof, dug up a grave, turned a woman into a witch. Soon there were rumors that the entire Fijnje family (Bobby's father was a retired Dutch diplomat) was trafficking in international pornography. The father himself was accused of sodomizing a boy. Reno tried the boy as an adult and mounted, according to defense psychologist David Raskin, "the most inhumane and despicable case" he'd ever seen in 23 years. Bobby was held in custody for over 20 months, but to Reno's chagrin he was acquitted on all counts after a three-and-a-half month trial. The Fijnje family moved back to Holland after Bobby's release.
Reno, of course, never repented her actions, which have had no political costs and so earned her the admiration of Hillary Rodham Clinton that she's now US Attorney General. She remains as psychotically sexphobic as ever. One of her first acts as Attorney General was the Waco Massacre, prompted in part because of unfounded allegations of the sexual abuse of children. More recently, Reno refused to intervene in Wenatchee, Washington, where dozens of law-abiding citizens--at least 30 of them mentally retarded--have been sent to prison on the basis of manufactured evidence of a Satanic Sex Abuse ring.
While the day-care accusations have somewhat abated, another alarming phenomena has grown in recent years: false accusations of child sex abuse in custody cases. While some women have been accused by husbands, most of the accusations have been made against fathers. Over the past twenty years, as women entered traditional male preserves professionally, resentment against them resulted in some very odious and discriminatory cases of sexual harassment in the workplace. As a corollary, resentments arose against men who started taking a more active role in the traditionally feminine preserve of child care. At present, any father who physically expresses love and affection to his own children runs the very real risk of being falsely accused as an abuser should the marriage ever end in divorce.
As a gay man, I'm part of the community that has the most to lose from the panic over the sexual abuse of children. Sexual minorities have always been demonized as threats to children. A particularly nasty outbreak of this occurred in the late 70s with the homophobic Save the Children campaign, led by rightwing Christian Anita Bryant, which was a backlash against minor gains made by gays and lesbians seeking legal protection from discrimination. The presence of many lesbians in the women's movement assured that it did not support Bryant's campaign. But in later cases, prominent feminists--Gloria Steinem in particular--were all too eager to credit the most flimsy evidence in support of allegations of sexual abuse, both at day-care centers and amongst those who claimed to have "recovered" memories. Unfortunately, Steinem's "ideas" carry a lot of weight among many lesbians.
Because queers have for so long been falsely (and effectively) labeled child molesters, we've been too frightened to speak out against false and unfounded accusations. Gay leaders--emulating "liberals" (such as Hubert Humphrey) who abandoned their commitment to civil liberties in order to become rabid anti-Communists in the 40s and 50s--rushed to take the strongest possible stand against child "abuse," even when there was no credible evidence that abuse had occurred. It is no coincidence that most of the day-care cases began with a man being accused of abusing a little boy. This is precisely what we should have expected in a society as homophobic as ours. Because we were making some small gains, people were easily panicked into believing that tolerance for sexual-minority people would put children at risk. Also, there was general cultural anxiety over the breakdown of traditional gender roles: women were leaving the home and pursuing careers, and men were becoming involved in child care. Male workers at day-care centers--who not only had abandoned their traditional role but were aiding women in abandoning theirs--thus became a most vulnerable target. The day-care hysteria was a natural expression of anti-feminist and homophobic panic. But instead of fighting it, we encouraged it.
We made a Faustian bargain with the powers-that-rule: occasionally "give" us a few of our rights (based, of course, on our "orientation" not our behavior), and we will abandon our demands for sexual freedom. We will abase ourselves and honor those who oppress us. Rather than speak out in defense of the falsely accused, we will waste our time insuring that NAMBLA will not be allowed to march in "our" parades. We will fight homophobia by promoting sexphobia--which makes about as much sense as the Anti-Defamation League trying to fight anti-Semitism by promoting ethnic prejudice in general. Homophobia is just a common manifestation of sexphobia, and it will plague us until sexphobia has been eradicated.
To complicate matters further, the most influential and destructive book promoting "recovered" memory and sex hysteria in general, The Courage to Heal, was written by two lesbians: Ellen Bass and Laura Davis. Bass even has another book out, Free Your Mind that was written especially for gay and lesbian youth. Bass and Davis have done deep and lasting damage to the movement for the rights of sexual minorities--certainly far more damage than could ever be done by a tiny and despised group such as NAMBLA.
Janet Reno remains unaccountably popular with most of the so called gay community. Many even like to think that she herself is a lesbian--as if her inclusion within our ranks would somehow do us honor. And in June of 1996, when a rally was held in Boston to celebrate the overturning of Colorado's Amendment Two by the US Supreme Court, the honored speaker was none other than Scott Harshbarger. And in April of 1995, at it's annual Dinner Party, Boston's Fenway Community Health Center, whose mission is "to provide compassionate, affordable, quality health care to the gay and lesbian community of New England" presented a Humanitarian of the Year award to Ellen Bass. This is roughly equivalent to the NAACP giving a humanitarian award to David Duke. (Roseanne Barr, who also claims to have "recovered" memories, and who promotes this garbage, is also disgustingly popular in the gay community.) With friends like Bass, Davis, Barr, Reno and Harshbarger, queers don't need enemies. But I fear our own internalized sexphobia will long continue to be our worst enemy. As a gay man, it deeply offends me that the organizations that purport to serve me are intellectually and morally bankrupt.
Child abusers willfully inflict harm upon children, just as rapists willfully inflict harm upon women (or men for that matter). Anti-porn activists, and the mainstream media, have now taken to use the term pedophile as synonymous with child abuser. Barry Crimmins, for example does this consistently in his Senate testimony in favor of government regulation of speech transmitted over computer networks. But the two terms have very different definitions. A pedophile is emotionally (and often physically) attracted to children. (By children I mean those below the age of puberty. The term pedophile, however, is often applied to those attracted to sexually mature young people as well. But I use it only in the true and restricted sense.) Pedophilia thus denotes a sexual orientation. No self-identified child lover, however, would ever intentionally harm a child. Whether child lovers unintentionally harm children is a serious question that must be debated among all who care or claim to care about children--including self-identified child lovers. Most would hold that pedophiles do harm children if they behave sexually with them (even with their "consent"), and if a child lover believes otherwise, that is not a defense.
A well-known historical child lover is the Reverend Charles Dodgson, better known as Lewis Carroll, the author of children's' classics such as Alice in Wonderland and Through the Looking Class. Dodgson constantly sought out the company of little girls, and took beautiful photographs of them, including photos of them nude. It's very possible, even likely, that Dodgson never acknowledged his physical attraction to pre-pubescent girls. And if he did, there's no evidence that he ever acted improperly with a child. Most child lovers likely never do. Nevertheless, if Dodgson were living today he would be more than out of a job--he'd be in jail.
Some child lovers argue that children are capable of consenting to other forms of activity and thus can consent to sex as well. Sexually mature young people, of course, almost universally consensually engage in sex, masturbation being the most prevalent activity. And immature children often engage in sex play, both by themselves and with their peers. Everyone of us reaches the "age of consent" at some stage in our sexual and social development, and the variation in chronological age when this miraculous transition occurs is enormous. (I believe a more useful concept than age of consent is age of sexual agency: that point in one's development where one has achieved sufficient maturity to be a sexual free agent.) Although my mind is not closed, I am nonetheless skeptical about claims that the sexually immature freely consent to sex with adults. This question, of course, is not beyond debate. But unless compelling evidence is presented for thinking otherwise, I believe that the immature should be off limits sexually.
I have examined some of the literature of one pedophile organization, the constantly demonized NAMBLA. Much of their literature is thoughtful, clearly reasoned, and provocative. Because NAMBLA emphasizes the necessity of consent, and because NAMBLA provides a forum for discussion among boy lovers, I believe that NAMBLA has prevented far more instances of child abuse than it may have "caused."
Hardly a day now goes by without a report on television or in the newspaper about someone being arrested for possessing child pornography. These accounts almost invariably leave the description of the seized materials to the viewers' or readers' imagination, and most will naturally imagine the worst. Thus what might have been a picture of a seventeen-year-old in an unrevealing gym suit gets visualized as an infant being brutally sodomized by a brawny adult. A major problem is that the legal definition of child pornography is so broad, and becoming even broader, that no one any longer has a clear idea exactly what material is contraband. As a result, parents have been arrested or otherwise harassed for photographing their own children. And internationally acclaimed photographers, such as Jock Sturges, have had their studios invaded and their property seized by law-enforcement agents on a witch hunt.
Child pornography, according to the US Comprehensive Crime Act, is the visual depiction of persons under 18 engaging in sexually explicit conduct, real or simulated, including lascivious exhibition of the genitals or pubic areas. Lascivious is a subjective pejorative term. At one time, courts interpreted the term lascivious exhibition to refer to the behavior of the model. But they now apply the term in cases where there is no intent whatsoever on the part of the model to sexually arouse the viewer. Lasciviousness is now legally in the eye of the beholder, and if any person might conceivably look upon a picture of someone under 18 with lust in his or her heart, then that picture is potentially child pornography. Nudity is not necessary, nor is it even necessary that genitals be discernible beneath opaque clothing--according to the ruling in The United States v. Knox. Child pornography is illegal not because it harms children, but rather because "it might give people ideas."
The main idea present in child pornography, however, is not the idea that it's morally permissible to coerce children. The main idea is rather that children (and I mean the pre-pubescent) are free sexual agents. In child pornography, children are always portrayed as willing and eager sexual agents. This is the idea that people wish to suppress. Any parent discovering that his or her child has engaged in sexual activity with an older person (including an older child) would much prefer to believe that the child had been coerced or seduced, and had not been a willing participant in the act.
As if the laws weren't already ridiculous enough, Senators Orrin Hatch (R-UT) and Diane Feinstein (D-CA) co-sponsored a bill (S.1237) that would've expanded the definition of child pornography in two ways. One, it would've additionally banned depictions in which the buttocks or female breasts were visible. Two, (and this part unfortunately did pass and was enthusiastically signed by Bill Clinton into law) it includes visual images for which no child posed: i.e., paintings, drawings, and computer-generated images. In other words, if the new law is upheld by the Supreme Court, Gainsborough's Blue Boy could be child pornography. Museum directors could be arrested for hanging on their walls renaissance paintings of the Madonna and Child. The passage of S.1237 makes it even clearer that legislators believe that child pornography harms children not directly, but rather indirectly by giving people "bad" ideas. S.1237 was not a serious attempt to prevent crime; it was an attempt to legislate and control thought. If S.1237 survives legal challenges, Congress will almost certainly take the next logical step and ban writing.
One reason why politicians love child pornography as an issue is that it arouses such strong emotion. When people are angry, grief-stricken, or frightened they stop thinking and politicians can persuade them almost anything. Emotionally distraught people readily surrender their rights, especially when their "protectors" don't tell them that there are other and better ways to approach the problem. The primary aim of most politicians is not to solve problems--the primary aim of most politicians is to increase their own power by diminishing the rights of citizens.
To get a sense of the emotional pitch of the anti-porn crusaders, consider this sentence from Barry Crimmins' fore-mentioned testimony: "People need to see their neighbors (who have participated in these criminal acts) taken away, jailed, and stigmatized as `perverts.'" Substitute traitors for perverts and this same statement could have been made by an anti-Communist witch hunter of 40 years ago.
Child pornography is evil if and only if children are harmed--physically or emotionally--in its production. (And I think it appropriate to define harm in very broad terms when children are involved. Invasion of a child's privacy, for example, most definitely counts as harm.) Thus the primary interest of law enforcement should be tracking down those who actually harm children and preventing the abusers from doing further damage.
For example, there is no law against possessing photographs or videos of children being physically abused. Suppose, however, that a company begin publishing a magazine showing small children being beaten, children with black eyes, bloody noses, bruises, etc. Would politicians rush to enact laws against possession? Would the FBI begin entrapping people by attempting to sell them copies of this magazine? Of course not. The police would simply track down the abusers and arrest them.
A photo or video can be evidence of a crime. If I came across photos of my next door neighbor beating up his or her child, I would turn them over to the police. To do otherwise would be suppressing crime evidence. Thus someone should be prosecuted for possession of images if and only if it's reasonable to hold that these images constitute evidence of crime.
It's not always apparent to the viewer whether coercion was employed to produce a photo or video. Until recently, people did not assume coercion in the case of a photo of a child who is simply nude. People have been taking pictures of naked children, usually their own, since photography was invented. Pictures of nude children can be very beautiful, and it's absurd to label anyone who finds them so a pedophile. But the hysteria over child pornography has gotten so out of hand, and the confusion between simple nudity and sexuality has become so general, that many people are now arrested for innocently photographing their own children.
The most clear-cut cases would be photos showing sexual activity between a child (i.e., a prepubescent) and an adult. More ambiguous are photos of little boys with erections (which can be as innocent as any nude child photo) and pictures of children masturbating or indulging in sex play with peers. In these cases, no abuse would be taking place if the children were alone. But if the act is photographed (presumably by an adult), this is no longer the case and it is legitimate to ask if the photographer coerced, pressured or exploited the children.
Even in cases where there is no probable abuse, one must protect the privacy of the child and his or her parents. Private citizens own their own images and it is illegal to use a private person's image for commercial purposes without the person's knowledge and consent. Moreover, children can not sign legal contracts, and consent in these cases would have to be given by the parent or legal guardian. (No parent or guardian, of course, can legally give consent for a child to be abused.)
Until recently, wide-spread distribution of photographs and text was possible only through commercial channels. This has changed with the evolution of huge private computer networks and the immense public network known as the internet. Any subscriber to one of these services can post a digitally-encoded photograph and make it available to millions of people all over the world. Private citizens' rights of privacy can thus be invaded in a way never before imaginable.
Suppose some friends gave you a beautiful and innocent photo of their three-year-old daughter climbing out of the bathtub. You could scan that image and post it on the internet. Such an image is not (at least in my mind) child pornography, and no one was harmed in its production. But by posting it in such a public forum, without the knowledge or consent of your friends, you have abused their rights to privacy and the rights of their infant daughter as well. They may have a cause of legal action against you, even though you have profited in no way from what you had done.
Current legal approaches to the "problem" of child pornography err fundamentally in treating it not as the result of child abuse, but rather as a "cause." Law enforcement therefore ignores production and concentrates on possession, often resorting to entrapment. But materials must never be banned for "giving people ideas," no matter how heinous those ideas might be. A reasonable approach to the problem of child pornography would not involve the surrender of the fundamental rights of freedom of thought or freedom of expression. A rational approach would punish those who harm children, would limit restrictions on possession to cases of crime evidence, and would protect everyone's right to privacy--"the right to be let alone," which "is indeed the beginning of all freedom."
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