Sunday, August 28, 2011

Why 2257 Bothers Me (And Why It Should Bother You)

Disclaimer: I am not a lawyer, and the following does not constitute legal advice. Actually, one of the things that bugs me most about our laws is that legalese is so hard to parse, that you often have no idea what constitutes "following the law" without paying a highly-priced professional to interpret the rules for you - which may well be overturned in a court setting. Nevertheless, the following are the issues as I understand them, and I may not be a lawyer, but I am a critical thinker.

I've been trying unsuccessfully to articulate the reasons why the 2257 Regulations make me feel uneasy, and I think it all comes down to this: the law places an unconstitutional burden on protected speech, but it does so with the justification of protecting children from sexual exploitation. And, frankly, it's incredibly difficult to construct a convincing argument placing the importance of essential liberty above the alleged "safety" of children (and there is no doubt policy-makers take advantage of this fact). No matter what I say about how 2257 chills speech and gives the state way too much control while taking away the privacy of its citizens, my entire argument could be destroyed by a simple, "don't you care about the children who are being sexually abused and exploited?"

I don't want to seem insensitive (though it may be inevitable) to the plights of abused children, but where does it stop? How much of our rights and freedoms are we willing to give away "to protect the children", when it's not even clear that we're doing that much? The 2257 Regulations do nothing to prevent child sexual abuse. If someone is intent on breaking the law, drafting more laws isn't going to stop them. What 2257 does is make it easier for law enforcement to identify and prosecute illegal speech. But at what cost?

What really bothers me about 2257 is that it shifts the burden of proof from the accuser to the accused. If you are accused, then you are guilty unless you can provide the required records proving your innocence. If you cannot, then even if the prosecution can't prove the speech you've created is illegal, then you can still be punished (rather harshly) on account of not having those records. I get the sense this law was pushed forward by frustrated prosecutors who felt it was unfair that producers of "indecent" pornographic speech were getting off unpunished just because they couldn't prove that the speech was breaking any laws.

The other thing that really bothers me about 2257 is that it reinforces the position of law enforcement as enforcers of social control, instead of mediators of public conflict, which they're supposed to be. I am unnerved by the thought that a cop could look at an image, decide that a crime has been committed, and then press charges without ever receiving (or even soliciting) a complaint from anyone involved in the creation of that image. I know victims are not always in a position to stand up for themselves, but I was under the impression that this country was founded on the principle of NOT infringing on the fundamental rights of the innocent in a [sloppy] attempt to get at criminals.

You might think that the 2257 Regulations (read them here) don't apply to you. You might think they only apply to big profit-making pornography industry companies. Well, you're wrong. The courts have argued that individuals intent on sexually exploiting children are not motivated purely by commercial interests, and therefore ALL speech that includes pornographic content ("actual or simulated sexually explicit conduct") falls under this law, including the videos you make with your wife in your bedroom.

You could argue that the courts are never going to prosecute you, for any number of reasons (because you're not a threat, because the videos you've made are obviously not illegal, whatever), but that's entirely beside the point. The law is on the books, and you are expected to obey it. If you do not, you are subject to the penalties, whether you manage to get away with it or not. And it's not good for society to have laws that most people aren't expected (or don't expect) to follow. Above all, this is not like getting a speeding ticket; failure to comply is a federal crime, and you could spend up to 5 years in prison - all because protecting children from sexual exploitation (even if that means tossing innocent people in the slammer) is serious business.

You might think that the 2257 Regulations are reasonable. After all, there is an official age limit for involvement in pornographic media, what's so bad about keeping records to enforce that? Well, it's reasonable to require individuals intent on creating this type of media to check first and make sure those involved are of age. What the recordkeeping requirements do is burden the civilian with what should be law enforcement's duty to investigate. It's their job to get in contact with those involved and ensure they are of age, if they believe otherwise. This falls under shifting the burden of proof.

Moreover, the recordkeeping requirements are simply too much. Can you imagine having to create and maintain documents (viewable by government agents at any time) for every single alcoholic beverage you drink, every single cigarette you smoke, every NC-17 movie you ever watch, just so that law enforcement has an easier job of prosecuting people who give alcohol, cigarettes, and NC-17 movies to minors? It may be a noble task, but it's just too much control, it takes the fun out of everything, and most of all, it's an unlawful restriction on liberty. And it gives the impression that law enforcement doesn't trust you to follow the law. Sure, distrusting its civilians is a better way of cracking down on crime, but do you really want to live in a country where the government doesn't trust you? It's "guilty until proven innocent" all over again.

IDing is reasonable, given the age restriction. But having to keep these records is overkill. I would even go so far as to say that having these records for cases that appear to be borderline (i.e., "barely legal" porn) is not just reasonable, but a really good idea. Still, I don't think it should be a legal requirement (especially not across the board), simply an intelligent defense for those few who think that misunderstandings could lead to mistaken charges.

In a discussion on the constitutionality of the 2257 Regulations, and whether they should apply to all producers of pornographic content or only those producers of content that could be reasonably mistaken for illegal speech*, one defender argued that one could not always tell, just by looking, the difference between an 18 year old and a 21 year old, or, more importantly, the difference between an 18 year old and a 15 year old - hence why the records are crucial. This may be true, but it reveals much of the intent behind the law. Very few cases would involve a reasonable confusion between a 15 year old and a 21 year old (or, more importantly, between a 12 year old and an 18 year old).

We have a federal age restriction on pornography set at 18, even though teens under the age of 18 have often been sexually active of their own volition. Remember that the purpose of these laws is to combat the sexual exploitation of children - a concept that evokes images of prepubescent children being raped on camera for profit: very visceral, emotional images that tug on our heartstrings, and short-circuits those reasoning faculties that might prevent us from agreeing to give up more of our rights and liberties. Is the state really using this law to prevent prepubescent children from being raped? I think, comparatively, it would be very easy to tell the difference between a prepubescent child and an adult, as opposed to trying to parse younger teens from older teens. After all, if (actual) child pornography were indistinguishable from adult pornography, then why would pedophiles even bother?

No, this law is being defended on the merit that the state wants to be able to criminalize speech that is visually indistinguishable from legal speech: porn that features teenagers that are indistinguishable from adults. Teens that, quite unlike victimized children, may actually want to participate in pornographic speech - speech that, in some cases where the teen is over the local age of sexual consent, depicts legal conduct (quite apart from the court's conviction that child pornography - which really has nothing to do with this - is a form of speech inextricably linked to conduct that the court has a "compelling interest" to combat. I agree that the courts have a compelling interest to combat the sexual victimization of children, but the interest is far from compelling when we're talking about sexually mature teens).

If setting an age limit at 18 means a few prematurely developed 15 year olds might slip through the cracks, I fail to see why that is a serious problem. The real activity the age limit is meant to prevent is the abuse and exploitation of children who are too young to have an interest in sex, and there are extremely few cases where an 8 year old could possibly be mistaken for an 18 year old. We've already got more than enough laws on the books, that cover more than enough ground; the more we expand their reach, the more protected speech will be chilled, and the less freedom and privacy we'll have.

Once the government has put into place a system that can enforce the criminalization of speech indistinguishable from protected speech, what's going to stop them from raising the age cutoff from 18 to 21? After all, some 18 year olds are still in high school. What about parents who don't want their kids wasting their college tuition on fucking when they should be studying at university? Boom, the cutoff age jumps from 21 to 25. Which will be great for the lobby who wants you to wait until marriage and only have sex for procreation, in church-approved positions (and still feel ashamed afterwards). Because, you know, the worst possible thing that could happen in the world is a 17 year old masturbating on a live webcam feed - worse than widespread poverty, drug addiction, gang violence, war and famine, murder and genocide...

You think any of this would happen if we had a healthy and positive approach towards sexuality? And what really gets me is the fact that sexual crime and pathology thrives in a climate of sexual repression and obsession. Pathologizing healthy sexual urges does nothing to curtail criminal sexual behavior (in fact, it may have the opposite effect). If we want to "fix" the sex problems we have, the answer is not to push sex further and further under the rug, but to pull it out, dust it off, and stop behaving so pathologically towards it. Sex is a part of life.

*Read this argument for the unconstitutionality of the 2257 Regulations (it's very good). And then read this response (a bit harder to stomach). I know, they're long, and filled with legalese, but they're very interesting if you have the time and patience to plod through them.


  1. You do a fantastic job of defending a viewpoint that, as you admit, most consider indeffendable at first thought. A deeply well-crafted dissertation.

    I agree with you up until the (let me count) 12th paragraph, excluding the disclaimer. A 15 year old might willingly film pornography, and the possibility exists that she not be damaged by this endeavor. But it is not gaurenteed or even necessarily likely, and that makes the difference.

    Sexual liberation is an appealing ideal. But the world is imperfect, and sexual liberated individuals are rare. Giving a mature 15 year old the ability to consent to pornography, is a separate issue from protecting the 15 year olds who are not ready to engage in such activities. Taking protection away from every vulnerable 15 year old in order to protect the rights of those who are mature, makes no better sense than taking away the rights of the mature ones in order to protect the vulnerable ones. And the former opens the door to the potential abuse of youths, so I daresay it's the lesser option. Whether our child protection laws protect children or not is another issue. But until superior laws are drafted, I will forever opt in favor of laws that attempt to protect youths above the option wherein no attempt is made at all.

    Young girls are rightfully intrigued by sex, interested in sex, fascinated by it and sometimes obsessed with it. The important point to carry, however, is that being intrigued by an exciting new frontier is not the same as being ready to have a cock inside you. They are two entirely different things. To our adult minds the distinction can seem vague, as we've been fully aware of sex and all of its intricacies for many years. To a young girl who has just begun to learn what sex even is, whose experience level is limited to terse references on TV and confusing internet content, sex is a fantasy and not a reality. They may say they want to have sex, but often times they are mistaken. Most youths don't know enough yet to adequately make that judgment. An interest in sex is not an interest in having sex.

    Young girls, perhaps more than any other group, are vulnerable, are sentimental, are confused. Can young girls be strong, mature and self-assured as well? Absolutely, no one has higher regard for the intellect of youths than I. Are there young girls who are sexually liberated enough to understand that they can have sex and it doesn't have to include giving away a piece of their soul to their lover? Young girls who have already mastered their sexuality? Young girls who lack sentimentality? Young girls who are impervious to influence and understand the risks enheraint in pornography? Yes, of course. But it's not common, let's face that fact. Sexual liberation of that level is rarely even found in adults, let alone young girls. To award the mature few their freedom at the expense of so many vulnerable people would be deplorable and rightfully criminal.

    Youth are, by and large, not yet fully developed. They may be physically capable of engaging in sex but most youths lack the experience and the perspective to make a valid judgment on getting involved with something that can carry so much weight, hence why their consent to engage in such is not legally binding. It's the same concept as the drinking age, age to join the military, and etc. There are many reasons why it's such a big deal. Not only can sex be emotionally scarring and spiritually devestating, but it can result in diseases, pregnancy, exposure to various nefarious elements (in relation to the porn industry), and it's something that can follow you for your whole life. It's something that can damage job prospects and believe it or not it truly can ruin your social life. It's a decision too big for most 15 year olds to make.

  2. Perhaps you prefer freedom to safety, which is understandable. But we do not live in an anarchist society. Your doomsday scenario of a sliding-slope where free thought is eventually extinguished because 15 year olds can't participate in pornograhy is no more likely than that very same sliding slope that they employ against us, stating that one who is attracted to a 17 year old will invariably bury the mutilated remains of an 8 year old beneath their basement (eventually, after various incrementing steps).

    I agree whole-heartedly with many of the sexual freedoms you espouse. But if individuals such as us cannot divorce ourselves from our own sexual appreciation and maintain a neutral state, no progress for our cause will be accomplished. It is the safety of youths that we must most voraciously champion and keep watch over, or is our claim of harboring love for this ageset merely a lie?

    There are freedoms that are unfortunately being tresspassed upon. Unfortunately I am aware of no reasonable compromise that would leave both sides liberated; vulnerable girls liberated from abuse and precocious ones liberated from restriction. There are 18 year olds who aren't ready to perform in pornography, and 15 year olds who are. But since judging on an individual basis is impossible, society has to find a balance. I disagree with the law's ruling on many issues (for example the outlawing of digital content depicting fictitious youths is preposterous). But as far as the issue of what age is the right age, I think it hit a pretty good medium ground. Unfortunately exceptions can't be accomodated. I am as sad about that as anyone is. But to protect young people is the greater concern, and if we are to make progress on our other goals I believe this is a stance our community must adopt.

  3. Thanks for your comment! It's nice to see that you've given a lot of thought to your position. However, I think you may have strayed from the issue a bit. In regards to your comment on what is the greater concern, I think that supporting young people is far more important than "protecting" them. You seem to be making a lot of assumptions about 15 year old girls. Maybe you've had a lot of experience with them. I haven't. But I'm willing to treat them as unique individuals, not as a stereotype.

    But the issue here is not whether sexually mature 15 year olds should be allowed to participate in pornography. The issue is whether the recordkeeping restrictions imposed by the 2257 Regulations are justified. I don't think they are, because the cost they impose on individuals producing protected speech (adult pornography) is too great, and the proposed benefit (cracking down on "child" pornography) is largely illusory. The age restriction is set at 18 so that most 15 year olds who are, probably, not ready or interested in performing pornographically (which involves filming oneself just as much as it involves being recruited by a shady porno director), will be protected from doing so.

    My argument is that if a few willing 15 year olds who can pass for 18 year olds get past the barrier, then what's the big deal? I'm sure some over-18s are pressured into doing pornography against their better wishes. No 8 year old is ever going to be mistaken for an 18 year old in pornography, and if there exist 18 year old porn stars who look 8 years old, then it's only smart to make sure those who are producing that porn have the proper documents to defend themselves against accusations.

    Meanwhile, there's no justification for forcing everyone else who produces porn with over-18s to not only check their models' ages, but maintain exhausting records for everything they produce, and include notes for that documentation everywhere their porn is distributed, just so the cops can stick their nose in your business at the slightest hint of dirty dealings, because sex is not like other speech - it is a sin and a vice. And the majority of the reasons you've given for why sex or porn specifically is a "big deal" can actually be addressed and overturned if we're willing to talk about it and be honest. I support sexual liberation, but like I said here, minds must be changed before bodies. That's what the point of this discussion is.

  4. Just because I don't want cops approving my every action doesn't mean I support anarchy. Choosing freedom over safety doesn't mean giving up safety entirely. Maybe the police can't police everyone, so as to make sure noone commits a crime in the absence of draconian "protection" measures, but you know who can? We can. You say that we can't judge on an individual basis, but isn't that the principle the court was founded on? When a crime is committed, there is a victim, and that victim can alert the authorities, who can then act as their protector. Eliminating a person's rights to protect them from a crime that hasn't been committed is unjust. And guess what? Once you've taken a person's voice away, they have no way to ask for help when they become victimized.

    We police the populace so strictly because we've moved beyond the point where "crime" is something that one person does to hurt another person. We're at the point where "crime" is anything a person might privately do that offends public sentiments - sentiments that are in large part dictated by sex-phobic religious beliefs. If the state has to resort to across-the-board restrictions that infringe basic liberties because they don't have the knowledge or the power to police more selectively, then maybe the state isn't the best man for the job. Why should they have jurisdiction over my private life, anyway, when I'm not hurting or infringing on the rights of anyone?

  5. One final note. You said:

    "if we are to make progress on our other goals I believe this is a stance our community must adopt."

    I'm not sure which community you are referring to (the sexually liberated community?) but I do not count myself as a member of a community, since doing so requires that you support whatever the rest of the community supports (and that whatever you say reflects the community's position). I am an individual. No more, and no less. Furthermore, regarding the adopting of stances, this blog is devoted to the exploration of truth, not party lines.