...And the culture wars on filthy silhouttes.

Much of this journal entry is only relevant to people in the US, but I'll try to discuss the overall topic in broad terms that apply to everyone.

Anarchism For Beginners

If you follow my journals, you've probably already caught onto the idea that I'm pretty derisive of the whole concept of dividing media into

• "mature content" or "(immature) content"


• "good media" and "bad media"


• "porn" and "art"

Whatever you want to call it, the idea is to define categories into which different types of media are going to fall. I suppose, if it's just irrelevant then nobody needs to worry about it - but plenty of people want to use those categories to try to enforce choices on others.

Enforcing your choices or opinions on another is something that should never be undertaken lightly - it's a huge responsibility. Because, if you're going to push your ideas onto another person, in some way that will affect their life, you have a moral obligation to be fair and accurate. That is why, under the rule of law, laws must be drafted so that it's possible to make the distinctions fairly and consistently. If a body of laws is not clear, the judicial system enforcing it will either be bogged down in pointless cases that must be decided on a case-by-case basis, or it will become an arbitrary sham.

Arbitrariness is the inevitable result when the guidelines for what is "good" or "bad" are not clearly understandable and are left to wide interpretation. As we've seen on DA, the "explicit" or "mature content" decisions rendered by staffers are - at best - irregular. So, instead of people being able to reside fairly within what they see as a set of agreed-upon rules, we have some people that are happy, some people that are pissed off, and a majority in the middle who don't see what all the fuss is about.

There is another dimension of arbitrariness (this is the connection to Anarchism) and that's the source of rules and laws. For example, on a website like DA, it's entirely legitimate for the site's owners to say, basically, "our site: our rules." But it's different when you're talking about the social compact between governed and government. In theory (for you fans of Locke) the government rules with the consent of the governed and it's not quite the same situation as "you signed up to our website, now follow the rules" - at certain times it's appropriate for the governed to repudiate the government and stand in revolt. That's all very theoretical, I know, but it's important that people understand that laws should be just and good and that (in principle) you shouldn't have to suffer under any arbitrary silliness that some jumped-up nutcase decides is important to them.

What is 2257?

Title 18 of the US Code, section 2257a is a section of the US code that has deep and serious implications for anyone who is interested in erotic art, explicit entertainment, or - well - as we'll see, free speech. 2257a was snuck onto The Walsh Act (" Adam Walsh Child Protection And Safety Act Of 2006") with no congressional review or debate, and signed into law by President Bush. It contains some provisions, such as section 1465, which are probably never going to be invoked because any District Attorney in his right mind knows he'll lose on a constitutional challenge.

Those of us who are US citizens, and are familiar with the 1st Amendment to our Constitution remember it reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Now, that, my friends, is as clear as a law can be. So is 1465:
Whoever knowingly produces with the intent to transport, distribute, or transmit in interstate or foreign commerce, or whoever knowingly transports or travels in, or uses a facility or means of, interstate or foreign commerce or an interactive computer service (as defined in section 230(e)(2) [1] of the Communications Act of 1934) in or affecting such commerce, for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both.

Got that? 5 years for "filthy book" "picture" "paper" "silhouette" - of indecent or immoral character. I don't know about you but "indecent or immoral" sounds awfully damn vague. And, if you compare it to Amendment #1, I don't see how that is not "abridging the freedom of speech, or of the press."

In the past some commenters on my journals have observed that perhaps this stuff is not worth ranting about; after all it's just a little bit of censorship (and in the case of DA, it's voluntary and is part of the terms and conditions for being here) but I see this as nothing less than a counter-revolutionary power-grab by deranged fundangelicals who are trying to use the law to push their own social agenda. They must really hate silhouettes! Or is it filth? Either way, I can tell you one thing: they do not respect our rights.

2257A has gotten a lot of attention from photographers, particularly those who enjoy photographing erotic, racy, or even - dare I say - filthy and naughty content. 2257A, as part of the supposed attempt to help prevent child pornography, places burdens on anyone:
(a) Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter that—
(1) contains 1 or more visual depictions of simulated sexually explicit conduct; and
(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;
shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

That means "you need to keep a photo of the model's ID." OK. That much is fine. If I were shooting explicit content, I'd worry about it, but... Wait. What IS "explicit content"??

Explicit Content, Defined

Section 2256 of the US Code defines "explicit content" as:
“sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;

And, oopsie! Now we're back in the soup. As a non-commercial photographer who shoots stuff just for fun, I have to decide whether my work is "lascivious" or not. Intercourse - now - that's pretty clear. But things go off a cliff fairly quickly after that point.

Obviously, the intent of the legislation is not to be clear, as the 1st Amendment is, it is to scare people and to suppress our actions by making us wonder if we're going to get in trouble for something we're about to do. In legal-ese, that's called "prior restraint." That's when a government tries to prevent materials from being published and, usually, it has been upheld by the Supreme Court only in cases like H-bomb secrets and wartime military secrets. Our lawmakers have sunk so low as to sneak this kind of crap onto a piece of legislation - with no public debate or announcement - pass it into law, and then expect us to follow it.

They know that their actions are not constitutional - that's why they have to try to sneak such laws past. And to any of you who are thinking "Why should I care? It's just a bunch of dirty pictures or silhouettes or whatever..." consider that freedom of speech or of the press is an all-or-nothing business. I will lay my life down (in 1983, at Ft Dix New Jersey, I did swear - and mean - an oath to protect the constitution against all enemies foreign and domestic) if necessary to protect your right to print your Bible, or Baghvad-Gita, or your puppy pictures, or your libertarian or conservative political screed. I may not agree with you - and I certainly might not listen to you - but I absolutely respect your right to say whatever you want in public, however you want, even if it bugs the hell out of me.

It Cuts All Ways

Let me end this with an illustration of why it is absolutely crucial that laws be clear, well-written, and exposed to public scrutiny before they are passed. Because, when they aren't, you get mistakes that make some people shake their heads and decide "I'm not going to enforce it (over here) because that'd be crazy, but I'll enforce it (over there) because I don't like what he's doing." If you don't like my naughty pictures, and you want to block them using 2256's definition of "simulated explicit conduct" just remember that this:

(large)
...surely is homoerotic "sadistic or masochistic abuse" under 2256. Someone run tell DA that they are hosting what The Department Of Justice defines as "sexually explicit material"!!!*

Personally, this is not the kind of imagery I like (I prefer smiling naked girls, not gay snuffporn) but if you want to look at this kinda stuff, that's fine with me. It's all over DA. If any of you support "mature content" tags and online censorship, you can do a search for "crucifixion" and start hitting the "report deviation" button. Personally, I don't recommend that you do it, because I do not support censorship of any sort - not even when it helps prove my point.

James Madison wrote the 1st Amendment, but it was probably motivated by Thomas Jefferson - who, in turn, was channelling the entire Enlightenment behind him. Locke, and Paine, and Jefferson, and other political thinkers of the Enlightenment era understood that, if you try to take freedoms from one, you risk them all. They understood that it was crucial to be willing to defend someone else's right to disagree with you. Or, to offend you.

Whenever you find yourself thinking casually about someone else's rights, remember that you'd feel a lot differently if it was yours that were being infringed. And, in the end, you should feel thankful that you have any, at all. When I used to look at my personal web-gallery logs, I had a huge number of visitors from the Islamic world - places where religiously-inspired intolerance for sexuality has been enacted in laws that force everyone to make a mockery of them, by sneaking around them.

I am always reminded of Miles Vorkosigan's observation: "Saying 'death before dishonor' divides the world into the dead and the forsworn." Laws such as 2257 and other censorship laws are severely corrosive to a government's authority, because they are so easy to make a mockery of. When someone realizes "the government has no teeth" - which they quickly do when they encounter bad laws - it's not a long stretch to begin to ignore others. And that, Dear Reader, is why I constantly harp on this topic: making stupid laws shows you're stupid. Making unfair laws shows you're willing to be unfair. And, if you're a US lawmaker, sneaking legislation past the public shows that you're stupid, unfair, and sneaky.

We should always be inherently suspicious of our desire to control others that are not directly affecting us.


mjr.

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* and I wish that some of the retards who post "ooh, your model is SKINNY!" comments would go around complaining that it's "pro-ana" imagery.