Boldthrough '07: Uh, we're child molesters? Again?
Given Boldthrough '07, I think we should talk about legal issues regarding underage characters. NOTE THAT I AM NOT A LAWYER. Also note that I understand that LJ and SA are private organizations [ETA: and therefore can delete whatever the hell they want, legally], that they are under tremendous pressure, and that the law is kind of confusing sometimes, and covering your ass is understandable.
That said.
I am pretty sure, and PLEASE, PLEASE correct me if I'm wrong, that any fiction, and any art that is not photographic or photo-realistic, depicting minors either fictional or real, is not considered child pornography. I've been madly Googling for hours, and I'm fairly sure this is true. The only things which can legally be defined as child pornography, as far as I can figure, are photographs, videos, realistic photomanipulations, or anything else that in any way depicts or might be mistaken for depicting actual children engaged in sexual activity. There is, as far as I can figure out, no legal distinction between fictional and non-fictional participants in art, for the purpose of considering child pornography - for the very simple reason that child pornography MUST be or appear to be a representation of child abuse, and fiction doesn't actually enter into it. Non-visual depictions, drawings, or sculpture, are not considered child pornography, period. Let's just leave the whole loaded phrase "child pornography" behind, because it does not apply. Okay? Okay. Given that this is the case, the only real way in which the material which is under consideration in fandom (disregarding manips, because those are tricky) can be considered illegal speech is, like other speech, if it is considered obscene.
I'm sort of tempted to say, at this point, that the entire involvement of minors is therefore irrelevant - but of course, the inclusion of characters who are minors engaged in explicit sexual activity makes it exponentially more likely that a work will be challenged as obscene. (Never underestimate moral panics.) So I'll refrain. Also, the less mainstream the fetish, the more likely it is to fail the first part of the Miller Test - but I'm getting ahead of myself.
Obscenity is ridiculously hard to pin down. It's famously hard to pin down, actually. But we do know that for something to be considered obscene, it must have all three of the following characteristics, as stipulated by our good friend, the Miller Test:
My point is that while LJ can kick us offsite any time they please, we, and the work we produce (disregarding explicit manips), are not in violation of any United States law, unless a specific work is declared to be lacking in literary or artistic value. (Now, copyright/trademarks - thaaat's another issue, and one I'm seriously unqualified to address.) I have absolutely no idea why LJ, or anyone else, is under the impression that textual depiction of children in explicit sexual situations is, by nature, illegal. It's not. It's actually not even illegal, as far as I can tell, to talk about sexual crimes you have personally committed (even though NO ONE is claiming LJ needs to host such material), although it may lead to your arrest for the crimes themselves. Speech about illegal activities is not illegal, unless it is obscene, or it constitutes an attempt to actually solicit or encourage such activities. Which fanfiction and fanart, taken as a whole? Most certainly do not.
The only LEGAL reason for suspending Ponderosa121 would be if her work were obscene - not just the fact that it exists and depicts minors (uh, debatable minors). The reason we are currently at risk is not our material itself. It's that LiveJournal is carrying out quasi-legal, self-policing attempts at the Miller Test, and that we wholeheartedly disagree with their conclusions. Also, that they're carrying it out in a massively douche-y way.
And a note regarding RPS: while the law doesn't distinguish, for purposes of child pornography or obscenity, between fictional and non-fictional characters, and this is therefore kind of irrelevant, I might as well mention that the law DOES distinguish, for purposes of libel/slander, between public figures and non-public figures - and comes down on our side. See, especially, Larry Flint vs. Jerry Falwell. I can't say for sure that the description of Falwell's first sexual experience as occurring with his mother in an outhouse ALSO said he was a minor at the time, but, uhm. I don't think our romantic pornfiction about 16-year-old Patrick Stump falling for his bandmates is going to pose that much of a problem.
In conclusion, here are some things which I believe are irrelevant, and being used as straw man arguments:
Is a text sex story that involves kids considered child porn?
a thread in lj_biz
a thread in elynross's LJ
PROTECT Act of 2003
The Miller Test
Definition of Child Pornography
ETA: a similar post about obscenity
ETA again, because I can't shut up: Just to put this on the record, this post was largely made because the general fannish response to LJ's assertions here and elsewhere has been, "Artistic merit? Obscenity? WTF? Can you define that?" So I wanted to point out that those terms have been defined, by the US Supreme Court. The Miller Test isn't some new, random, subjective thing Six Apart made up - it's been around for forty years. There are precedents, there are test cases, there's more legal information available to us than just the original phrasing, and I absolutely believe that it would without question uphold our work as not obscene. That's why I'm so damn irritated by LJ's attempts to hide behind it. LJ, what? That's not how the law WORKS. Come on. Please just admit that you're going further than the law requires because you want to, and because you can - not because you have no other choice.
And last but not least, a plea to all readers: please, PLEASE correct and link me to information that contradicts that found in this post, if you encounter some! I'm only a college student with Google! I make mistakes.
That said.
I am pretty sure, and PLEASE, PLEASE correct me if I'm wrong, that any fiction, and any art that is not photographic or photo-realistic, depicting minors either fictional or real, is not considered child pornography. I've been madly Googling for hours, and I'm fairly sure this is true. The only things which can legally be defined as child pornography, as far as I can figure, are photographs, videos, realistic photomanipulations, or anything else that in any way depicts or might be mistaken for depicting actual children engaged in sexual activity. There is, as far as I can figure out, no legal distinction between fictional and non-fictional participants in art, for the purpose of considering child pornography - for the very simple reason that child pornography MUST be or appear to be a representation of child abuse, and fiction doesn't actually enter into it. Non-visual depictions, drawings, or sculpture, are not considered child pornography, period. Let's just leave the whole loaded phrase "child pornography" behind, because it does not apply. Okay? Okay. Given that this is the case, the only real way in which the material which is under consideration in fandom (disregarding manips, because those are tricky) can be considered illegal speech is, like other speech, if it is considered obscene.
I'm sort of tempted to say, at this point, that the entire involvement of minors is therefore irrelevant - but of course, the inclusion of characters who are minors engaged in explicit sexual activity makes it exponentially more likely that a work will be challenged as obscene. (Never underestimate moral panics.) So I'll refrain. Also, the less mainstream the fetish, the more likely it is to fail the first part of the Miller Test - but I'm getting ahead of myself.
Obscenity is ridiculously hard to pin down. It's famously hard to pin down, actually. But we do know that for something to be considered obscene, it must have all three of the following characteristics, as stipulated by our good friend, the Miller Test:
- The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, and
- The work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law, and
- The work, taken as a whole, lacks serious literary, artistic, political, and scientific value.
My point is that while LJ can kick us offsite any time they please, we, and the work we produce (disregarding explicit manips), are not in violation of any United States law, unless a specific work is declared to be lacking in literary or artistic value. (Now, copyright/trademarks - thaaat's another issue, and one I'm seriously unqualified to address.) I have absolutely no idea why LJ, or anyone else, is under the impression that textual depiction of children in explicit sexual situations is, by nature, illegal. It's not. It's actually not even illegal, as far as I can tell, to talk about sexual crimes you have personally committed (even though NO ONE is claiming LJ needs to host such material), although it may lead to your arrest for the crimes themselves. Speech about illegal activities is not illegal, unless it is obscene, or it constitutes an attempt to actually solicit or encourage such activities. Which fanfiction and fanart, taken as a whole? Most certainly do not.
The only LEGAL reason for suspending Ponderosa121 would be if her work were obscene - not just the fact that it exists and depicts minors (uh, debatable minors). The reason we are currently at risk is not our material itself. It's that LiveJournal is carrying out quasi-legal, self-policing attempts at the Miller Test, and that we wholeheartedly disagree with their conclusions. Also, that they're carrying it out in a massively douche-y way.
And a note regarding RPS: while the law doesn't distinguish, for purposes of child pornography or obscenity, between fictional and non-fictional characters, and this is therefore kind of irrelevant, I might as well mention that the law DOES distinguish, for purposes of libel/slander, between public figures and non-public figures - and comes down on our side. See, especially, Larry Flint vs. Jerry Falwell. I can't say for sure that the description of Falwell's first sexual experience as occurring with his mother in an outhouse ALSO said he was a minor at the time, but, uhm. I don't think our romantic pornfiction about 16-year-old Patrick Stump falling for his bandmates is going to pose that much of a problem.
In conclusion, here are some things which I believe are irrelevant, and being used as straw man arguments:
- Fictional vs. non-fictional participants
- The content of non-photographic or photorealistic artwork
- The content of fictional works, including RPS
- Child pornography, full stop
- Obscenity
Is a text sex story that involves kids considered child porn?
a thread in lj_biz
a thread in elynross's LJ
PROTECT Act of 2003
The Miller Test
Definition of Child Pornography
ETA: a similar post about obscenity
ETA again, because I can't shut up: Just to put this on the record, this post was largely made because the general fannish response to LJ's assertions here and elsewhere has been, "Artistic merit? Obscenity? WTF? Can you define that?" So I wanted to point out that those terms have been defined, by the US Supreme Court. The Miller Test isn't some new, random, subjective thing Six Apart made up - it's been around for forty years. There are precedents, there are test cases, there's more legal information available to us than just the original phrasing, and I absolutely believe that it would without question uphold our work as not obscene. That's why I'm so damn irritated by LJ's attempts to hide behind it. LJ, what? That's not how the law WORKS. Come on. Please just admit that you're going further than the law requires because you want to, and because you can - not because you have no other choice.
And last but not least, a plea to all readers: please, PLEASE correct and link me to information that contradicts that found in this post, if you encounter some! I'm only a college student with Google! I make mistakes.