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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Sunday, August 20, 2006

Testing the Outer Limits

And Also: Sigh. Now, there are concerns about Glavine's shoulder or whatever. Unclear what exactly is wrong or how bad -- could be short term, or not. BTW, what is with those Nike icons on catcher's chest protectors? I'm tired of various commercials -- "enhancements," debt relief, love connections, and a few less annoying products but still irritating ads. Well, ads on catchers -- as if they are members of NASCAR or something -- is not any better. Meanwhile, I wonder if this will effect me ...

In the photograph, the model is shown rising out of a bubble bath, suds dripping from her body. Her tight panties and skimpy top are soaked and revealing. She gazes at the viewer, her face showing a wisp of a smile that seems to have been coaxed from off-camera.

-- Using Nearly Nude Pictures, Child Sex Sites Test Laws

The civil libertarian usefully examines the outer limits of respectability to help set forth his/her principles, which often are challenged in particularly tricky and troubling situations. Thus, they will not simply admit to saying that it is acceptable when the government goes after "lascivious exhibition" of minors, to quote one key ruling on this subject.

One that clearly will rise a good level of disgust, for just reason. The NYT article cited links up to one of the less upsetting tease websites, one that seems to favor glossy pictures of jailbait (mid-teens, who if they are over eighteen, don't look it) in sexy outfits. A Google search of the website led to mention of another, a more cheaply done affair that favors younger fare. The rather sad example of web design claims to be one for "child models," the usual dodge.

It is just plain tricky to target such things criminally. We can step back and see the various perils of the enterprise. First, generally speaking, there are still abuses when targeting adult materials. This is especially the case since really it should not be illegal for adults to view such materials, even if there is some chance (which can be regulated) minors might get a look. Surely, it should be deemed a constitutional right -- Lawrence v. Texas mixed with Stanley v. Georgia would do the trick -- to download to your computer. This is so even though computers allow the always possible harassment (or worse) of minors by pedophiles etc. to find new homes. Few things are costfree ... computer resources and online community possibilities have benefits that are worth the risks.

But, we are dealing with images of children here, even if the puritanism of the former effort makes people suspicious overall. This also is not even the issue of so-called "virtual" porn or clearly protected written works that involve sexual themes involving minors -- including some more explicit material one might find online, including in fantasy chat rooms. [This does raise difficulties, since minors sometimes enter such rooms, though many who claim to be are not ... some are governmental officials, many truly on official business.] Line drawing is still an issue. Thus, some teen novels have mature themes, including sex and drug use. And, there are honest attempts at photography that might be deemed risque.

Legit modeling, though problematic on various levels (as are junior miss beauty contests), is also acceptable. Clearly, some might find some sort of twisted sexual excitement from such works. But, targeting the mind is the path to thought control. And, we should be wary about targeting possession, at least if clearly not meant for commercial use (or bought) or pandered to others. "Pandering" is a questionable way to justify targeting adult material, but it is more legitimately used here. Still, anything tarred as "evil" can lead to problematic overreaching. Privacy has been threatened in the past for "legit" reasons such as sedition, treason, fighting drugs, and so on. All, in some fashion, are legitimate: for instance, there are limits to anti-governmental organizing -- those British sedition trials were in the day when there was real threats to the crown.

Line drawing is a tricky business all the same. Let's take the site linked by the NYT, which some readers might find criminal. It contains various glossy jailbait sorts of pictures that are not any worse than numerous ones in clothing advertisements or even magazines covering teen celebrities. The intent is key, but it always hard to target intent. This sort of "variable" illegality might work when dealing with clearly explicit materials such as those used to address molestation and the like (involving sexual acts etc.), but much more tricky here. How about the site I referenced that highlights girls closer to junior high? A similar problem, since the picture per se are not illegal. The quote from the NYT is probably something else -- a parent might legitimately have such a photograph, but a commercial website promoting them is something else.

[Such things also arise respecting federal pornography prosecutions. The national nature of the internet and child porn industry rightly leads to such federal efforts, much more than spending money to fight adult porn. Still, though recent Supreme Court rulings tempered the tendency, there have been a few rulings that struck down mere possession prosecutions. And, the power of the feds in various cases raises additional concerns.]

Thus, the multi-part test that includes the "lascivious exhibition" of minors requirement approaches the line we can draw. The fact that fully clothed teenagers might meet that test shows that any simple catch phrase will not do. "I know it when I see it" also will not pass fair procedure muster, but it will clearly be a judgment call. We also must be on guard against overreaching, such as one ruling that basically encourages private businesses to closely monitor all employee computer use. Individual suspicion and personal privacy matters, even when fighting clearly legitimate battles.*

And, especially given the broad nature of the term, sexuality simply cannot be criminalized when minors are involved -- though visual use of younger minors clearly can be limited in various ways. It was a troubling article, worth reading. But, the fact that much of the material covered is still legal suggests the complex issues involved. Something for both sides of the fence to keep in mind.


* Off topic, here is a very good discussion of some remarks by a general involving how he enjoys fighting, perhaps intemperate remarks that led to some controversy. Simply put, the military is a necessary part of our society, and their efforts should be honored. Wishing there was less need for its use, and better leadership involving such choices, notwithstanding.

This does not mean there has not been overreaching and abuse. In fact, those who were living through and remembered the war fought to declare our independence wrote in the founding documents that the civil was to be supreme to the military power. They knew the dangers, even if they grew out of necessary, and yes, honorable institutions.