Is (some) fanfiction obscene?
Fandom has been all ababble (which sounds so much better than "all awank") with talk about whether rapefic causes rape--or more accurately, whether incest fic promotes incest and chanfic causes or encourages child molestation. bradhicks went so far as to claim that Harry Potter slashfic and Yaoi "are clearly defined under US law as child pornography."
A quick look at the laws about "child pornography" shows this isn't true. Child porn laws are a form of child protection laws; they involve
1) Images of some sort, and
2) A real child.
The most obvious example is "movies of kid having sex," followed by "erotic photos of child" (which have led to some atrocious busts where grandparents get arrested for photos of their 4-year-old grandchild parading around the front yard in her birthday suit), but also including "artistic depictions of a child in an erotic setting." (The child has to be *specific*, but doesn't have to be *identified* for the charge to stick.)
So. Text is not "child pornography," no matter how graphic, because no child was involved in the making thereof, and fictional children are also not included, because, duh, fictional children have no legal rights, period.
However... slash, yaoi, and similar genres (is it still slash if it involves original characters?) might be affected by U.S. obscenity laws.
US Code, Title 18, Chapter 71: Obscenity--briefly (from another site): ..."something is obscene if the average person would find that the work, taken as a whole, (1) appeals to the prurient interest, (2) is patently offensive in light of contemporary community standards, and (3) lacks serious literary, artistic, political or scientific value. Because the test for obscenity incorporates the views of the community evaluating the material, something may be considered obscene in one jurisdiction that may not be considered obscene in another jurisdiction." (Numbers & emphasis added.)
So let's take this in stages... Obscenity is currently defined by the Miller Test.
1) Appeals to prurient interest.
Not all slash or yaoi does this, but a great muchness of it does. A lot is written for exactly this purpose: "an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex." Not necessarily a support of... but the stuff that deals with chan themes, the incest non-con, the Harry-boinks-Hogwarts stories... I don't think we should bother, as a community, fighting this one in general. (In specific, sure. In any potential legal case, the author and readers are free to insist that the stories in question do not appeal to morbid/degrading/unhealthy sexuality, but to candid and normal sexuality. Some stories, I'll buy that for; others, not so much. In case of lawsuit, get an expert witness psychologist who specializes in sexuality.)
Let's move on.
2) Is patently offensive in light of contemporary community standards.
This one is headtwisty *fun* to contemplate. Which community are we talking about? The one where the author's ISP is located? The one where the web-host owners are located? (LJ, owned by SixApart, is in downtown San Francisco. Let's just think about those community standards for public same-sex behavior, hmmm?) The one where the author lives, or where the readers live?
This hasn't been addressed for online content--and it's important; the other two questions don't matter if the material is not "offensive by community standards." This is one of the first, possibly the very first, questions we should get answered if there is any legal challenge to any fanfic site on obscenity grounds: Which community's standards will rule here? The first precedent will be important for all of us.
3) lacks serious literary and/or artistic, political, or scientific value. (Also know as (S)LAPS test: (Serious) Literary, Artistic, Political, Scientific)
Ah. This is the real one. Does slashfic have literary and/or artistic value? Hell, some of it has political value as commentary or propaganda. But most of it is just fiction.
Do Harlequin romances have "literary value?" Do car advertisements? Do sitcoms?
Of course, none of those are being attacked as "obscene"--but there's no reason they couldn't be, if some fanfic is judged both prurient and offensive... all three of those can appeal to prurient interest and be offensive in some communities. The first legal case that goes after fanfic qua fanfic should be countered by examples of mainstream media productions of similar levels of sensuality... or, if that's not directly possible, by insistence that "literary value" means "people enjoy reading it because of the writing style as well as the content" rather than "university professors would promote it as an example of English literature." "Artistic value" needs to mean "people like to look at it," not "you could find an art gallery to display it."
I don't have any direct answers to the issues facing fanfic. I just wanted to sort out some of my thoughts, and remind people what the legal issues actually might be, when we get past the bizarre propaganda of "pr0tect t3h ch1ldr3n!!!"
It is legal to write "porn," which has no legal definition. Distribution of obscenity, however, is limited by law... but the question of whether slashfic (even gruesome, graphic slashfic) is legally "obscene" has not yet gone to court. While it hasn't, I'm assuming--on that "innocent until proven guilty" theory--that restricting access to minors is a matter of community choice for politeness' sake, not legal necessity.
A quick look at the laws about "child pornography" shows this isn't true. Child porn laws are a form of child protection laws; they involve
1) Images of some sort, and
2) A real child.
The most obvious example is "movies of kid having sex," followed by "erotic photos of child" (which have led to some atrocious busts where grandparents get arrested for photos of their 4-year-old grandchild parading around the front yard in her birthday suit), but also including "artistic depictions of a child in an erotic setting." (The child has to be *specific*, but doesn't have to be *identified* for the charge to stick.)
So. Text is not "child pornography," no matter how graphic, because no child was involved in the making thereof, and fictional children are also not included, because, duh, fictional children have no legal rights, period.
However... slash, yaoi, and similar genres (is it still slash if it involves original characters?) might be affected by U.S. obscenity laws.
US Code, Title 18, Chapter 71: Obscenity--briefly (from another site): ..."something is obscene if the average person would find that the work, taken as a whole, (1) appeals to the prurient interest, (2) is patently offensive in light of contemporary community standards, and (3) lacks serious literary, artistic, political or scientific value. Because the test for obscenity incorporates the views of the community evaluating the material, something may be considered obscene in one jurisdiction that may not be considered obscene in another jurisdiction." (Numbers & emphasis added.)
So let's take this in stages... Obscenity is currently defined by the Miller Test.
1) Appeals to prurient interest.
Not all slash or yaoi does this, but a great muchness of it does. A lot is written for exactly this purpose: "an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex." Not necessarily a support of... but the stuff that deals with chan themes, the incest non-con, the Harry-boinks-Hogwarts stories... I don't think we should bother, as a community, fighting this one in general. (In specific, sure. In any potential legal case, the author and readers are free to insist that the stories in question do not appeal to morbid/degrading/unhealthy sexuality, but to candid and normal sexuality. Some stories, I'll buy that for; others, not so much. In case of lawsuit, get an expert witness psychologist who specializes in sexuality.)
Let's move on.
2) Is patently offensive in light of contemporary community standards.
This one is headtwisty *fun* to contemplate. Which community are we talking about? The one where the author's ISP is located? The one where the web-host owners are located? (LJ, owned by SixApart, is in downtown San Francisco. Let's just think about those community standards for public same-sex behavior, hmmm?) The one where the author lives, or where the readers live?
This hasn't been addressed for online content--and it's important; the other two questions don't matter if the material is not "offensive by community standards." This is one of the first, possibly the very first, questions we should get answered if there is any legal challenge to any fanfic site on obscenity grounds: Which community's standards will rule here? The first precedent will be important for all of us.
3) lacks serious literary and/or artistic, political, or scientific value. (Also know as (S)LAPS test: (Serious) Literary, Artistic, Political, Scientific)
Ah. This is the real one. Does slashfic have literary and/or artistic value? Hell, some of it has political value as commentary or propaganda. But most of it is just fiction.
Do Harlequin romances have "literary value?" Do car advertisements? Do sitcoms?
Of course, none of those are being attacked as "obscene"--but there's no reason they couldn't be, if some fanfic is judged both prurient and offensive... all three of those can appeal to prurient interest and be offensive in some communities. The first legal case that goes after fanfic qua fanfic should be countered by examples of mainstream media productions of similar levels of sensuality... or, if that's not directly possible, by insistence that "literary value" means "people enjoy reading it because of the writing style as well as the content" rather than "university professors would promote it as an example of English literature." "Artistic value" needs to mean "people like to look at it," not "you could find an art gallery to display it."
I don't have any direct answers to the issues facing fanfic. I just wanted to sort out some of my thoughts, and remind people what the legal issues actually might be, when we get past the bizarre propaganda of "pr0tect t3h ch1ldr3n!!!"
It is legal to write "porn," which has no legal definition. Distribution of obscenity, however, is limited by law... but the question of whether slashfic (even gruesome, graphic slashfic) is legally "obscene" has not yet gone to court. While it hasn't, I'm assuming--on that "innocent until proven guilty" theory--that restricting access to minors is a matter of community choice for politeness' sake, not legal necessity.