Comments on: How far

By: Joshua W. Burton

Joshua W. Burton — Sun, 07 Mar 2004 23:59:12 +0000

Well, the statistics and science on the topic is that child pornography dramatically increases the amount of pedophilia in actions OK, stipulate. (I’ve seen studies confirming and refuting, and from my stance it doesn’t matter.) i.e. causes more sexual assaults on children. Complete nonsequitur. We say “guns (or bullets, yes yes) don’t kill people; people do” because in a moral context causality resides in moral agents—and in a criminal context in legally culpable individuals, who under a just code are moral agents. Gun statistics are no counter whatever to this argument of principle. The case that “photographs don’t rape children” has at least that firm a footing.

By: Flaming Troll

Flaming Troll — Sun, 07 Mar 2004 23:06:15 +0000

Ok: “Child pornography, for example, should interest the state only insofar as it is forensic evidence of actual past crimes committed on camera, and for its evidentiary value in prosecuting those crimes.” Well, the statistics and science on the topic is that child pornography dramatically increases the amount of pedophilia in actions—i.e. causes more sexual assaults on children. Should the state merely say, hey, its free speech, so what if you kid gets raped as a result … I hope not, or, that they allow me to use my second amendment rights, such as they remain after attacks by the ACLU and others, to hunt down and kill every one of those involved in the trade.

By: Joshua W. Burton

Joshua W. Burton — Sun, 07 Mar 2004 22:50:13 +0000

All this utilitarian hair-splitting rather offends me, as a card-carrying ACLU member and free-speech fundamentalist. An adequate defense of the NAMBLA pamphlet’s publication, in the legal environment toward which I want my ACLU to strive, would run as follows: “My client offered this pamphlet for uncoerced, nondiscriminatory public sale. Our records will show that he paid any applicable sales tax. The defense rests.” The redeeming social importance of a printed document inheres in the simple fact that one person chooses to write it, and another to read it. On even-numbered days, I come at this view from a deeper utilitarian substrate, arguing that “every one that doeth evil hateth the light” and that therefore social utility is maximized by shining light into every dark corner. (I can’t vote for more local police protection from NAMBLA if I don’t know where they are selling pamphlets, and my police will be less effective if those pamphlets go underground and take their novel techniques with them.) On odd-numbered days, I don’t even concede this much, but rather hold free communication between individuals to be a higher intrinsic good than social utility, to be defended even if it throws us to the wolves. On either view, most of these cases (except, arguably, for nuclear secrets, where on even days one honestly admits one is gambling at stakes) are laughably devoid of grounds for controversy. Child pornography, for example, should interest the state only insofar as it is forensic evidence of actual past crimes committed on camera, and for its evidentiary value in prosecuting those crimes. To me the one interesting corner case is software. Uploading a virus image to a public newsgroup, as protected speech, blurs the distinction between word and act in a way that newsprint, celluloid, and airwaves never can. So far, US courts have carved out a rather nuanced doctrine here, where executable code has both expressive and operational content, like a gun with a slogan carved on the barrel. I can pass out copies of the Communist Manifesto on a public street with immunity, but the police can stop me from passing out cigarette papers to minors, even if they have Karl Marx’s words printed on them. Similarly, a virus, worm, or cryptographic exploit unfriendly to national security, though it expresses a coherent idea when read by other programmers, can be banned for what it does, so long as there exist other ways to express what it says. I’m not sure this is a tenable doctrine, but I’m quite sure it’s an interesting question. By contrast, the NAMBLA thing is mere squeamishness, half-heartedly masquerading as communitarianism.

By: ginger

ginger — Sun, 07 Mar 2004 18:44:05 +0000

Ok, I don’t know much about NAMBLA but how come if paedophilia is considered a crime, paedophilia-inciting texts are not? They’re not novels or fictional accounts of the life of a paedophile, they’re instruction manuals to criminals on how not to get caught, right? So… why are they not banned already? You can’t show a tit on tv or say fuck on the radio but you can print a literal how-to for rapists? How’s that covered by freedom of speech when it is overt and specific incitement to a major crime?

By: Visiting Troll

Visiting Troll — Sun, 07 Mar 2004 14:04:19 +0000

Ok, just a few thoughts. “It should be legal to publish anything. One must, however, take responsibility for one’s words.” Well, yes. If NAMBLA incites someone to murder my child, I should be free to return the favor. I suspect suing them over their assets is probably fruitless. The statute would be simple enough: “Books aimed at providing instructions for the criminal rape or sexual exploitation of children by adults are banned as obscene. Further, it shall be a defense to liability for civil or criminal actions for the harm to the property or person or the death of anyone involved in the distribution or sale or publication of such books that the person causing the harm was related within the twelfth degree of affinity to someone harmed by someone who possessed such a book or worked or cohabitated with such a person.” Simple enough. No one is going to take away your copy of Funakoshi’s Karate-Do or some similar work based on that statute. Easily done, appropriate all the way. The Lex Talonis back in full force to protect children. Lets have some old fashioned responsibility.

By: bryan

bryan — Sat, 06 Mar 2004 22:15:58 +0000

thought I should add a correction: when I said ‘Now, about the NAMBLA and “hit man” cases , it seems to me that the hit man case was decided wrongly, but it did not prevent the book being published’ by this I meant that as the civil case against the ‘hit man’ text took place some years after the text was available to the public, and as this would be the case in pretty much most civil cases, and all civil cases of this nature, then it certainly did not prevent the book being published – at worst it stopped the further publication of the book, the text of which was then spread via the internet.

By: Steve

Steve — Sat, 06 Mar 2004 20:09:00 +0000

I have a question for the group-something I genuinely don’t know the answer to. Is any ban on any information currently allowed in America? An earlier post referred to a how-to manual for WMD construction. I have the vague sense that information related to nuclear weapons construction is not publishable (though I don’t know how I have that information). Does anyone know if this is the case, or if it isn’t whether any information is ‘illegal’ to ban? Note: if there does end up being information that is currently ‘illegal’ to publish, I think that it completely eliminate the slippery slope arguments here. If we currently ban some information, and succeed in not banning Romeo and Juliet, then presumably, we could ban all the current information + child rape manuals and still avoid unjust banning, couldn’t we? Steve

By: msg

msg — Sat, 06 Mar 2004 19:39:08 +0000

Charlie- Your book would not result in a. intentional harm to anyone. or, possibly in b. direct harm to anyone. Intention is relatively easy to determine, we look into your heart. Indirect harm is much harder to attribute, the timeline for one, and for another linking the unconnected parts to show the process. Anon has it again, as long as we're not capable of wisdom and omniscient judgement, we have to err on the side of safety, which in these kinds of matters means the risk, of freedom and uncensored information.

By: bryan

bryan — Sat, 06 Mar 2004 18:43:00 +0000

anon, please note that Ashcroft as fucked as he is, has nothing whatsoever to do with civil law. ‘The NAMBLA and “hit man” cases under discussion would prevent anyone, anywhere, anytime from having access to these materials, which makes it dramatically more important that the line be drawn in exactly the right place.’ no, NAMBLA and hit man make consideration of possible later civil lawsuits, and possible penalties for publishing this material something that should be taken into consideration before doing the publication. I bet that this is already a consideration, my memory is not what it once was but it seems like every few years or so there’s some dimwitted heavy metal group getting sued because their audience is also dimwitted. No doubt, in an interfering with the free flow of information type of way this has deprived us of some of the best heavy metal evar but the world is an imperfect place, if we were to remove the right to sue for civil damages in cases like this from our commitment to one form of idealism I suppose it might have far-reaching negative consequences. Now, about the NAMBLA and “hit man” cases , it seems to me that the hit man case was decided wrongly, but it did not prevent the book being published, and it did not prevent the book being even more widely distributed than before. I understand in an abstract way that the decision in hit man could negatively effect possible future books, as stressed above, but I suppose first that such a negative effect was already present in the market and I don’t think the precedent will be that great, considering that there are numerous other precedents against allowing monetary damages in such cases. NAMBLA on the other hand seems to me to be liable. As I stated before I’m pretty sure the text in question describes not just how to do specific illegal acts which can be judged to be highly damaging to the people against which they are performed, it no doubt also describes these acts as being highly pleasurable, and as being something that the victim of these acts will wish for or enjoy as well (as an example, you might have a rape prevention manual describing how a rapist will stalk their prey etc. but you probably won’t get a lot of theorizing in the manual about how rape is good and the victim wants it anyway). Finally the public good of having information available has been restricted as little as possible by force because the force-applying principle, the government, is generally not adjudged a capable determiner of what comprises useful information. Instead the restriction in our societies is done via the market, this is not to say that the market is any more clever than the government in determining what comprises useful information but it is and has been the market that determines how information is distributed. Because of the market effect some information has been markedly expensive (until the emergence of the internet) information such as specialized technical knowledge provided by the small journals and academic publishers this blog loves so much. Of course we can not know if the market has ever thouroughly eliminated information, but it seems to me unlikely, given the wide variety we have available; it seems you are now in the position of arguing that the market will thouroughly eliminate specific types of information if a decision for the plaintiff is returned in NAMBLA - I do not believe you have made that argument in any clear manner. However, as noted before, the reason for limiting restriction is it can be difficult to discern what it is useful to know, and thus when we eliminate bad information we run the risk of eliminating good information, just as a spam filter can return a false positive – the worst result imaginable. One effect of the internet is the relative inexpensiveness of publishing information. Given this effect, if no governmental forceful restriction was practiced, and given the effect that people who have something important to say will often be willing to do so, run what risks they may, I suppose that any market restriction is not likely to produce many false positives in the future. This is not a prescription for lighten up and let a little sunshine in, but we might want to consider that people are after all allowed to sue in civil court for damages and we would be fucking stupid if we tried to restrict that basic right in order to safeguard another right – especially given the extreme nature of their case, if this goes against the defendant, well again, given the extreme nature of their case I don’t think we need to have an end days are upon us experience, considering the internets distribution mechanism probably being a good way of protecting against false positives from a market filter – as evidenced by the hit man text being more widespread than ever right?

By: Anon

Anon — Sat, 06 Mar 2004 16:23:13 +0000

The ACLU should defend NAMBLA in this case. There are a lot of published materials on illegal activity in regard to drugs. For example, books on how to grow marijuana, Books on the manufacture MDMA and Shulgin’s books on anologues to various drugs. The minute publishing something that describes exactly how to commit a crime in honest terms is bad, books like these become targets. If the victim of a child rape succesfully sues NAMBLA for this, there will be nothing to stop some poor sap who tries to make MDMA in their bathtub and screws it up from sueing Shulgin. Consider the book “Saying Yes: In defense of drug use. Should the publisher of that book be sued if someone reads his book and then goes out, uses datura, and kills themselves? I guess it depends on how your intuitions go, but my intuition is there is no legal difference between advocacy of child rape and advocacy of drug use. I have further intuition that allowing prosecution of NAMBLA’s publishing wing would entail prosecution of Shulgin’s books and Sullum’s (the author of Saying Yes) Book. I have further intuition that it’s wrong to allow prosecution of Saying Yes. As I am a logical fellow, I must condemn the prosecution of the NAMBLA book. Also, suppose someone found some archelogical fragments from Sparta, and published translations of the fragments in a book. These fragments include text detailing the Spartan custom of males in the military taking a boy for a lover. Someone reads this text and emulates it. It’s really hard to draw lines. If NAMBLA loses, it will be John Ashcroft drawing these lines, not some wise philosopher capable of making subtle moral decisions in a fair minded way. But even if it wasn’t ashcroft, the fact is that it could be some future ashcroft clone making the decision and who wants that. This is the guy who fights terrorism by closing down headshops on the internet, is highly secretive, and stealthly pushes through measures to reduce civil liberties while everyone was distracted.

By: Robert Lyman

Robert Lyman — Sat, 06 Mar 2004 14:02:05 +0000

there is this division between civil and criminal largely in order to keep such slippery slopes from coming about. But that division is not enough to satisfy most of us. If publishing a book will subject a publisher to massive civil liability, the book won’t get published, period. Though perhaps no publishers will go to jail, the difference for those who want to buy and read a “banned” book is basically nothing. Steve is right to point out that we draw lines all the time, and I’d like to explain how this line is different: this line is about what everyone in society is allowed to say and publish. Schools don’t teach porn. They probably also forbid discussions of unarmed combat or weapons. The may well banish controversial material like Lolita. But if parents want their children exposed to such things, they can arrange it. Likewise, if you just love Howard Stern, you can listen to him streaming on the Web. If you demand Janet’s breasts, go get pay-per-view. This sort of line-drawing restricts our freedom in special limited circumstances, but leaves other areas totally open. If we screw up, it doesn’t matter all that much, since the sphere of impact is inherently limited. The NAMBLA and “hit man” cases under discussion would prevent anyone, anywhere, anytime from having access to these materials, which makes it dramatically more important that the line be drawn in exactly the right place. Finally, the “debate” Steve proposes won’t take place in any meaningfully democratic context. It will take place in a courtroom, and ultimately 12 jurors will decide what you should and should not be allowed to read. If we admit that this is a good idea, there will be no meaningful appeal, since an appeals court will be very hesitant to overturn a jury except on legal grounds, i.e., by saying that the principle of suing publishers is invalid. And even if the decision goes the right way the first couple of times, the mere threat of litigation will tend to cause fewer potentially controversial books to get published. Ultimately, I would expect Congress to step in and restrict such litigation, but I’d rather that we simply not go there to begin with.

By: Charlie Stross

Charlie Stross — Sat, 06 Mar 2004 13:09:26 +0000

It seems to me that there’s a simple point that is being obscured by the whole censorship argument: the difference between describing an action and advocating it. By way of an illustrated example: I write novels. Were I to want to write a crime novel about, say, pederasts abducting and killing children, a book similar to the NAMBLA publication—describing such techniques—might well be of use to me for research purposes: but my use of it would not result in harm to anyone. Thus, we can see some benefit to society at large in having this sort of information available. (And the same goes for the torture texts mentioned up-thread.) The information itself isn’t the problem, but the editorializing that goes with it is another matter. If the publication goes from describing to prescribing, to actually advocating that the reader carry out criminal activities, then the fig-leaf of social utility is stripped away. (Yeah, I have a weakness for utilitarian arguments. So bite me.) If we use the court to ask if the intent behind publication was to cause crimes to be committed—to see if mens rea is present—then it seems to me that we’ve got a good test that lets us get away from absolute inviolability of free speech without jeopardizing Romeo and Juliet. (And my guess is that if we applied this yardstick, the NAMBLA publication probably falls on the wrong side of the law—but a similar descriptive publication, aimed at informing police officers or parents, would not.) Is this position coherent, or have I contradicted myself somewhere?

By: bryan

bryan — Sat, 06 Mar 2004 09:55:02 +0000

Well I haven’t read this book but I can imagine, given NAMBLA’s lobbying perspective, that it probably discusses the goodness on both sexual and moral planes of man-boy love, perhaps such discussion would be something that a jury would find to be enough of an incitement for a civil case, and combined with the description of how to achieve this worthy goal force them to pay out. This is quite different than an assassination manual (such as the Paladin press texts mentioned above), from my acquaintence with such texts they very rarely focus on how good it is to commit murder, they only focus on the ‘proper’ techniques for doing so. Finally for all the slippery-slopists out there, it’s really very difficult to make a slippery slope argument that doesn’t give the giggles if your slope involves somehow magically moving from civil penalties in an individual case to criminal penalties, considering that there is this division between civil and criminal largely in order to keep such slippery slopes from coming about.

By: msg

msg — Sat, 06 Mar 2004 09:54:55 +0000

Chris’ argument seems bizarre to me, but entirely appropriate, as long as the people on the boards and panels making censorial distinctions are as flawed, sectarian, and morally undeveloped as those currently configured. Ideally it’s like a family, right? No kid that lives in my house gets to keep books that are instruction manuals on how to kill people, or that celebrate Man-Boy love, or that make the degradation of other people seem glamorous. But biographies of Che and Ho Chi Minh, yep. It’s not that hard to conceive of a pederast who’s so appalled by socialism he thinks Marx should be banned from libraries. So in the confusion and conflict we need the risks of openness more than we need the risk of safety. Erring toward safety in this, at this time, is too dangerous. – But. I can remember shocks: new knowledge, of sex and of death, that came unexpectedly through random discoveries and literally shocked me (long ago). I don’t think that’s good, and unless there’s strong support in place it can potentially be very damaging. Children shouldn’t have access to all the knowledge in the world. There are many true things about life and the world that are too heavy for them. For example, Joel Peter Witkin shouldn’t be shown to 7 year olds, in my opinion; what those images can do on a below-conscious level is too transforming, too dis-integrating. We’re talkng about damage, which is different than talking about someone who’s talking about damage as though it’s a good thing, which is what NAMBLA literature is. Talking about damage as though it’s not damage is bad speech, but damage is harm. Advocating harm and doing harm are two different things. To be free we have to get very near that line before we say “enough, no more”. Except at home.

By: Chris

Chris — Sat, 06 Mar 2004 06:02:52 +0000

One thing that seems to have been overlooked: from the ACLU’s perspective, the fact that the NAMBLA case is so far beyond the pale is a reason to TAKE it, not a reason to spend scarce resources elsewhere. Given the organization’s scarce resources, it needs to spend them fighting the hardest, furthest-out cases that it has a reasonable chance of winning. If free speech is safe for NAMBLA, chances are extremely high that it’s safe for the rest of us too. In other words, from the ACLU’s perspective: hard cases make good law (though only when you win them).