I’m in a social group called “Thinkers and Drinkers”, who meet every two weeks to debate. I submitted a question yesterday that I thought would be pretty controversial. I was surprised when it wasn’t, and I’d be very interested in thoughts from our readers.
It’s a two part question, with a hypothetical to set up the actual question. Here’s the hypothetical part:
There are a number of books with titles like “The Hitman’s Handbook”, which ostensibly tell you how to kill someone and get away with it. Let’s say that someone reads one of these books, takes its advice, and kills someone. That person is caught, convicted, and sent to jail. Then the family of the victim sues the publisher in a civil suit. The ACLU is defending the publisher on First Amendment grounds.
No one would doubt that the murderer, and the publisher, are morally in the wrong. The question is, given that there’s a world full of hurt out there, is it wrong for the ACLU to offer its time and money in support of the publisher?
The discussion group, which is largely made up of center/ center-left, religious, young female professionals, uniformly came down in defense of the ACLU. There was widespread agreement that publishers can’t be held responsible for the actions taken by people who read their books, and that a victory would set a dangerous precedent. We refused to see a distinction between fiction that could inspire people to commit crime and explicit how-to books. It would be easy to lightly mask a how-to book with a fictional veneer, and we didn’t want courts trying to interpret that distinction. We all agreed that this book doesn’t make anyone commit murder- that only the murderer, and people who actively aid him, could be held responsible.
In real life, as I learned from Radley Balko, there’s a horrible case involving the National Man-Boy Love Association. Two men read a NAMBLA publication and abducted a ten-year old boy. They murdered him, molested his corpse, and hid his body. They were caught and sent to prison for life. The parents are suing NAMBLA for $200 million in a civil case, arguing that NAMBLA has aided and abetted felonious conduct. The Massachussets ACLU is defending NAMBLA.
The publication in question is absolutely revolting. Deroy Murdock writes in the National Review:
Frisoli cites a NAMBLA publication he calls “The Rape and Escape Manual.” Its actual title is “The Survival Manual: The Man’s Guide to Staying Alive in Man-Boy Sexual Relationships.”
“Its chapters explain how to build relationships with children,” Frisoli tells me. “How to gain the confidence of children’s parents. Where to go to have sex with children so as not to get caught…There is advice, if one gets caught, on when to leave America and how to rip off credit card companies to get cash to finance your flight. It’s pretty detailed.”
NAMBLA’s decision to publish this document is pretty much indefensible. But, I asked the group, could they still support the decision of the ACLU to defend NAMBLA?
As I said, I thought that this would be controversial. Radley, who is pretty much a perfect libertarian, couldn’t do it. He said:
I know that the ACLU exists to protect the most objectionable of speech, and I think the ACLU’s on the right side when it defends the likes of Nazis, Black Panthers, militias, or anti-abortion militants…
But there’s nothing remotely political about the NAMBLA pamphlet. It’s a how-to guide to rape. Even if the ACLU were privy to unlimited resources, it ought to have let this one go. And of course it isn’t. There’s only so much money to go around, only so many cases its lawyers have time to litigate. And that makes the ACLU’s decision to take this particular case all the more shameful.
His commentors were torn (there’s a good discussion on his site). But our discussion group was not- the firm consensus remainded supportive of the ACLU. They rejected the argument that a publication could aid and abet a criminal act, and hung on to the arguments they made about the “Hitman Handbook”.
I asked, doesn’t this mean that we’re saying that we’re saying that our society has no right to prevent the publication of child-molestation how-to books? The uncomfortable consensus was that, yeah, that’s right.
Personally, I think that I’m on the ACLU’s side on this, but I don’t have to like it. What do you think?
UPDATE: Henry points to this Eugene Volokh article on thie question.
{ 54 comments }
Jonathan Ichikawa 03.05.04 at 5:50 pm
No one would doubt that the murderer, and the publisher, are morally in the wrong. The question is, given that there’s a world full of hurt out there, is it wrong for the ACLU to offer its time and money in support of the publisher?
“Morally in the wrong” isn’t the issue at all. This is a question of what should be legal, not what is right. Kobe Bryant was clearly morally in the wrong, since he either raped a woman or committed consentual adultury — this doesn’t raise any question as to whether it’s worth defending him with respect to the question of whether he committed rape.
(I don’t think that you made this confusion in your analysis in general, or throughout the post — I just take issue with the quoted passage. For the record, I’m with you in the end: ACLU should defend, but I’m not happy about it.)
Henry 03.05.04 at 5:55 pm
Eugene Volokh has an interesting take on this problem “here”:http://www1.law.ucla.edu/~volokh/facilitating.pdf. He provides what seems to me to be a principled libertarian argument for the case that NAMBLA type literature should be banned, because it (a) causes very serious harms, and (b) has no lawful value (although his standard for ‘serious harm’ may be higher than the one set out here; he’s mostly interested in information on building nuclear weapons and the like).
jdsm 03.05.04 at 6:11 pm
This is a case where on grounds of consistency, you have to do something completely absurd – like permit the publication of this kind of pamphlet and have the ACLU defend it.
I don’t doubt the value of free speech in general but there are cases when it leads to revolting consequences which benefit only a very few highly marginal and probably very disturbed people. I don’t think restricting it in this case would lead to any kind of slippery slope either. People are perfectly capable of deciding on a case-by-case basis whether it’s really in the public interest to restrict something.
rea 03.05.04 at 6:19 pm
Not everything immoral is, or ought to be illegal, or even civilly actionable.
You can’t bar advocacy of particular ideas in a democracy on the basis that most people find those ideas regunanat. There was a time when most people would have found things like freeing the slaves, or parliament thwarting the monarch’s will, to be repugnant.
The way to deal with people advocating ideas you don’t like is to out-argue them, not to silence them.
You are offended by the fact that the book in question did not merely advocate sex with kids, but also contained information about how to do it and get away with it. Imagine, however, a book containing all the same information, but written as a manual on how to prevent your children from being raped. Would you ban that, too? Or imagine a detective novel about the hunt for a child rapist, copntaaining information about the criminal’s modus operandi. Would you ban that?
Imagine a hypothetical play about teenagers becomming lovers and running off together contrary to the wishes of their families, and eventually both committing suicide. Maybe you would ban that?
rea 03.05.04 at 6:23 pm
My use of “you” in the foregoing post is very unfair to Ted–please consider “you” as referring to some hypothetical censorship advocate.
David W. 03.05.04 at 6:35 pm
I’m reminded of one of the most vile books I ever have come across in a bookstore (Iowa State University, FYI), which was about methods of torture being applied to get information. Gruesome stuff, believe me, sparing no detail about how to inflict the most pain possible while keeping the victim conscious enough to talk. It’s not difficult to imagine how such a book could be used for other terrible purposes.
However, I’ve never heard of a case of such a book being used in the commission of a crime, and having such information available to the public can inform them about the subject of torture in general. No one could read such a book or even glance at it without thinking of how important groups like Amnesty International are in putting a stop to the use of torture worldwide. So I’d fall down on the side of the ACLU in defending the right to publish such material.
LizardBreath 03.05.04 at 6:35 pm
I think an issue that’s not being considered sufficiently is that the ACLU doesn’t exist so much to defend the rights of individuals as to defend the laws that protect our civil liberties generally.
In a world of limited resources, NAMBLA is fairly obviously about as undeserving a recipient of aid as any organization could be — if the ACLU could protect anyone else’s rights before NAMBLA’s, it should. However, if, in the judgment of the ACLU’s lawyers, the legal tactics that are being used against NAMBLA won’t be limited to being used against similarly horrible organizations but will be used against publishers generally, the ACLU must defend NAMBLA — the question isn’t whether NAMBLA is the most deserving recipient of aid, it’s whether the point of law being litigated is the most important attack on the civil liberties law.
Now it’s possible that there is a legally coherent way to protect all speech short of NAMBLA’s while leaving NAMBLA and its moral peers open to liability, but even then the ACLU probably needs to defend NAMBLA anyway. The ACLU’s involvement guarantees that the wider civil liberties issues will be addressed and considered, and hopefully makes it more likely that a court will do the very minimum necessary damage to the principles of free speech protection, rather than thoughtlessly creating broad liability for anyone publishing material that could be considered an aid to crime.
Antoni Jaume 03.05.04 at 7:20 pm
I do not think the case you advance is hypothetical. A few years ago I read about a similar case, there were three murders done as explained in a book of this kind.
Personally I do not find any problem in banning such publication, or rather to be precise any diffusion of an equivalent information. It is not an opinion that murder is against the law. If you do not see it clearly, then it is clear that it is right to kill you.
As to the case of prevention, simply you only have to maintain a prudential distance from the critical data. If a curve cannot be done at 111.67682 km/h or more, you do not put that on the speed limit, you put rather 100 km/h as maximum speed.
DSW
Russell Arben Fox 03.05.04 at 7:38 pm
No one has taken the communitarian line yet, so I will: NAMBLA is at least partially culpable for what happened to that boy, the ACLU should not be defending them, and one shouldn’t expect the First Amendment to protect a “Hitman’s Handbook” nor anything like it. There can be, and should be, collectively articulated standards and norms which constitute a pale, beyond which the application of legal principle is not only inappropriate, but counter-productive.
The key, I think, can be found in rethinking lizardbreath’s statement “Now it’s possible that there is a legally coherent way to protect all speech short of NAMBLA’s while leaving NAMBLA and its moral peers open to liability…” Actually, I’m not sure that’s possible–not if you begin with legal principles and attempt to assess allowable or disallowable moral conclusions and assessments of culpability in light of such. However, it is most certainly possible to articulate a “culturally coherent” account of speech that would leave NAMBLA’s message out in the cold. Any number of moral ontologies can do the trick. But to do so you need to accept the idea of the law being a servant of such collective ends, rather than the other way around. Legalistic societies, desperately frightened by the idea that individual prerogatives might be taken away, put the cart before the horse. Do that too often, and people will come to disrespect the cart as an appropriate vehicle of social order–which is the case in the U.S. today, where the main result of actions like these, as far as I can tell, is to simply make worthwhile organizations like the ACLU even more unpopular, and thus even more polemical and unconcerned with the common good.
harry 03.05.04 at 7:40 pm
What if I came up with a novel way of creating a weapon of mass destruction from a bunch of standard household chemicals, and then published it (knowing, as I do, that doing so would place thousands of lives at risk)? Then, when a terrorist uses the knowledge that I am *uniquely* responsible for having made available, the government prosecutes me for aiding and abetting.
How does this differ from the other cases? The magnitude of the bad consequences? The fact that there were other ways of finding the information out in the other cases but not this?
For what it’s worth I think the government would be right to prosecute in this case, and if the ACLU supported me on first amendement grounds I’d hope any decent person would leave the ACLU instantly.
Robert Lyman 03.05.04 at 7:42 pm
Antoni,
What about a perfectly legitimate book on unarmed combat (think Karate or Judo) or a book on pistol and rifle marksmanship? Such publications are 100% legitmate and are in fact widely available in most of the world.
As I emailed to Volokh back when he was still writing his “crime facilitating speech” article, such books are likely to be far more useful to criminals than fanciful “how to be a hit man” books of questionable validity. But I certainly can’t see making them illegal.
Or, to put it another way, you can have my various books on armed and unarmed combat when you pry them from my cold, dead fingers.
GMT 03.05.04 at 7:47 pm
No one would doubt that the murderer, and the publisher, are morally in the wrong.
Since I do in fact doubt it, this statement is wrong.
Furthermore, your NAMBLA example is a poor analogy, to put it mildly. NAMBLA actually advocates something that is illegal. The writer and publisher of a book on killing people are not advocating anything except book sales. If no one is killed in the manner described in the book, are they disappointed or hurt in any way?
Strictly speaking, The Turner Diaries doesn’t advocate anything, either, although it may have inspired something.
I’ve described the “making of the blood eagle” to countless students. To date, I have not heard of anyone dying in this fashion.
GMT 03.05.04 at 7:50 pm
should have said: “have not heard of anyone dying in this fashion in this century, or in the last.”
The technique most certainly has seen use, although a long time ago.
Michael C 03.05.04 at 8:25 pm
“You are offended by the fact that the book in question did not merely advocate sex with kids, but also contained information about how to do it and get away with it. Imagine, however, a book containing all the same information, but written as a manual on how to prevent your children from being raped. Would you ban that, too? Or imagine a detective novel about the hunt for a child rapist, copntaaining information about the criminal’s modus operandi. Would you ban that?”
Big differences here: NAMBLA’s publication clearly describes how to commit a crime and expressly advocates doing so. Advocating harm and talking about how to prevent it are in clearly distinct moral categories. NAMBLA’s book has no political content, as (I presume) it does not advance any substantive moral or religious precept (such as that sexual relations between adults and children could be healthy, etc.). It advocates illegally harming another and describes how to do so. Works that appear to advocate unlawful behavior for the purposes of civil disobedience might be tolerable, but NAMBLA is not, e.g, encouraging civil disobedience to the laws against child rape. The objection is not to the “offensiveness” of NAMBLA’s views, but to their advocacy of behavior that is definitely illegal and certain. If NAMBLA or its publisher want to publicly advocate for adult-child sexual relations, so be it, but I draw the line at their advocating illegal and harmful conduct without any clear political content.
A second idea that occured to me: The original post was about a suit filed against NAMBLA. Is it a consistent position to say that both that NAMBLA has a right to publish the book AND that the parents have a right to sue for the harms? In other words, with the right to advocate harm, you get the burden of other people taking you up on it and causing harms for which you are partially responsible.
dipnut 03.05.04 at 8:54 pm
It’s funny: reading the hypothetical, I thought the question would turn out to be: should the publisher assume liability for the murderer being caught, since the idea of the book was to get away with murder? We presume the murderer acted competently and in good faith; is he not entitled to redress, for being jailed and branded a felon?
“Your Honor, the defendant knew, or should have known, about certain advances in forensic entomology…”
Kevin 03.05.04 at 9:03 pm
Without referring to any specific comment here, I am sympathetic to those who would like to see NAMBLA and “How to Keel Reel Gud” books banned, but the negative emotional response they elicit in me suggests that such a belief would run contrary to the law. The rights I enjoy aren’t special. They are the same rights that everyone else has, and to hold otherwise is to grant special preference to one ideology over another. I’m uncomfortable with that.
Off topic, I worked in a bookstore and special ordered… um, a book for cuisine d’anarchiste. It wasn’t an act of rebellion as much as it was curiosity. I just wanted to see what the fuss was about.
tim 03.05.04 at 9:07 pm
Rea wonders:
“You are offended by the fact that the book in question did not merely advocate sex with kids, but also contained information about how to do it and get away with it. Imagine, however, a book containing all the same information, but written as a manual on how to prevent your children from being raped. Would you ban that, too? Or imagine a detective novel about the hunt for a child rapist, copntaaining information about the criminal?s modus operandi. Would you ban that?
Imagine a hypothetical play about teenagers becomming lovers and running off together contrary to the wishes of their families, and eventually both committing suicide. Maybe you would ban that?”
Oh that terrible slippery slope.
It brings to mind the following passage from Richard Mitchell’s =The Graves of Academe=.
————————-
Consider, for instance, the case of a certain tenth-grade English teacher in a Maryland high school. This audacious fellow had his students read the Poetics of Aristotle and The Prince of Machiavelli as obviously useful and thought-provoking adjuncts to the study of Julius Caesar. Since Aristotle and Machiavelli are not approved by the local curriculum facilitators, the teacher, who refused to recant, was suspended without pay for insubordination and misconduct in office…. The superintendent of the school system where this outrage occurred was quoted in Time (December 15, 1980) as follows:
“I don’t know whether [he] is right or wrong about the books. But in a public school system, you have to have reasonable procedures to determine what is to be used, and the superintendent has to uphold them…. What if a teacher decided to use Playboy or Hustler? I think the school system has an obligation to set standards and to set curriculum.”
Now you might say, speaking as an individual mind that can know, understand, and judge, that the difference between Playboy and the Poetics is obvious…. But a superintendent is not an individual mind but rather a functionary of a collective ideology. It is not his function to know, understand, and judge, but only to function appropriately according to his place in the apparatus…. The apparatus is not intended to distinguish what is worthy from what is not, but what is approved from what is not. That distinction requires only knowledge of the list, and it absolutely precludes understanding and judgment. Therefore, from the point of view of the apparatus of which the superintendent is simply a component, there is no difference between Playboy and the Poetics.
————————
I don’t find it that hard, myself, to distinguish between Aristotle and Hefner, or a how-to book on child molestation and Shakespeare. Or, for that matter, surgery and murder with a knife, even if the presence of blades and blood and guts hopelessly blurs the distinction for some.
Robert Lyman 03.05.04 at 9:09 pm
the negative emotional response they elicit in me suggests that such a belief would run contrary to the law
I’m not convinced that a court would accept the “negative emotional response” theory of First Amendment jurisprudence, but I can’t help but agree with kevin: generally sympathetic to but nervious about bans.
Kevin 03.05.04 at 9:16 pm
Just to clarify that remark, what I meant to say was that, because these things elicit a strong emotional response, it is probably the case that they should remain legal. That is: my feelings don’t form a sufficient legal argument. =)
Robert Lyman 03.05.04 at 9:17 pm
I don’t find it that hard, myself, to distinguish between Aristotle and Hefner, or a how-to book on child molestation and Shakespeare.
Well, no, of course not. But I find it hard to distinguish, as a matter of both law and practice, between books that tell you how to escape the police and books that talk about police procedure and 4th Amendment constraints on it, or between books that tell you how be a sniper killing people and books about hunting big game.
One needn’t be a slippery-sloper to recognize that most of the information in NAMBLA or “hit man” publications is also available in other forms, under less-offensive guises, and thus the line-drawing problem is much trickier than ban advocates seem willing to admit.
Steve 03.05.04 at 9:25 pm
Note that this is by no means an unusual/hypothetical eggregious (sp?) case. In fact, I think it is theoretically identical to:
1) Howard Stern is being fined, and possibly banned, for obscenity on the airways, and
2) Gay marriage. Obviously, Gay marriage isn’t speech, but it is an ‘take the logic of equality and apply it to the next unequal situation’ argument. In all 3 cases, the defenders are not defending the activity itself, so much as either using the argument of equality (NAMBLA=Romeo and Juliet, Howard Stern=Shakespeare, Gay marriage=straight marriage) (with the case of Gay marriage, some defend the concept itself either privately or on blogs like this, but in terms of public policy argument, more commonly one hears the ‘equality’ argument).
As a counterargument, I have always thought the following:
Imagine some year in the past (say, 1960). Would this book have been published? Would Howard Stern have been allowed to say what he said? Was gay marriage legal? The obvious answer was no.
Now, the next question. Was the United States an oppressive police state? Again, the answer is pretty clearly no. Third step; So what’s the problem? I mean really, so my grandfather couldn’t hear Howard Stern-style porn on the radio. He could still say it with his poker buddies, and frankly, he wasn’t missing out on anything, anyway. This argument suggests that there is some core speech that is protected under the first amendment, and of course the fringes of that core is constantly being redefined by the society at large. But there is also a fringe of speech (the most extreme speech) that is not defended by the first amendment, but is rather ‘culturally chosen’ (i.e. we choose Howard Stern, our grandparents didn’t. Again, what’s the problem?)
In essence, the contrary to the slippery slope argument is: that’s obviously not true. Throughout our history, we’ve been able to negotiate the fringes of all of our rights without slipping into any serious oppression. We have occasionally made mistakes, but by and large, we’ve done all right. Our parents and grandparents weren’t oppressed in any serious degree.
To clean up the argument a bit:
1) If we ban NAMBLA rape documentation, we may eventually ban Romeo and Juliet.
2) We have historically banned NAMBLA rape documentation without banning Romeo and Juliet.
3) Ergo, 1) is incorrect, or at least too far fetched to be a basis for public policy.
In this scheme, we debate the fringes of first amendment rights (just like our country has always done) rather than avoid debate by always jumping to absurd cases to avoid debate NAMBLA=Romeo and Juliet). The danger is really then that we will ban a few too many things (i.e. if we ban NAMBLA rape document, maybe we’ll ban murder how-to manuals, then Karate manuals, but then the democratic process will balance the freedom out again, and Karate manuals will be reinstated).
Steve
[note: I’m not necessarily convinced of this argument, but I think its a reasonable argument to consider, and perhaps improve upon, and a way out of the “if you ban X, you can’t draw the line below a police state!” rejoinder]
[Another note: I’d like to clean this up a bit, but I’m at work, and its time to go home! Sorry if its a bit rambling]
Robert Lyman 03.05.04 at 9:42 pm
Steve,
The problem isn’t that we may ban Karate books and then later discover that we’ve gone too far, the problem is more: how do we draft a law forbidding one kind of speech (teaching someone to torture/kill/etc.) without, at the very same time, banning Karate books?
It is inadequate to simply say that judges or the public will be able to tell the difference between “hit man” books and NRA marksmanship publications. The law must give clear guidence so that publishers can be reasonably certain that what they are doing isn’t criminal. Else it will be found void by the courts for vagueness.
Also, if the law is written in such a way that people determined to publish the banned material can do so anyway by changing a few things about it, then it is a waste of time and resources to pass and attempt to enforce such a law.
Third, in relation to the above two points, in 1960 our unoppressed grandparents may have shared cultural assumptions which are no longer shared today by everyone. I have absolutely no doubt that, these days at least, there are people who would like to ban books on both armed and unarmed combat, and restrict books on poisons to doctors, etc. I’m not comfortable giving this power to people I agree with, be cause it may someday be held by my political enemies. Maybe the won’t create a police state, but they may well do things which are deeply objectionable to me. That is less likely in a more culturally homogenous country such as the US once was.
I’d like to ask anyone advocating a ban to go ahead and suggest language which would 1) accomplish their purposes in banning publications they think need banning 2) NOT ban clearly legitimate publications with contain information useful to criminals 3) NOT permit authors to push their works from 1 into 2, above, with simple devices such as “novelizing.”
Show me the language that does that, and I’ll at least tentatively get behind it.
Robert Lyman 03.05.04 at 9:50 pm
Also, many of our grandparents might well have agreed that books advocating lawbreaking in the form of lunch-counter sit-ins, freedom riding, etc. should be banned as encouraging criminal behavior and disturbing the peace.
That is to say, perhaps 1960’s America was more of an oppressive police state than we care to remember.
Harry Tuttle 03.05.04 at 9:51 pm
It should be legal to publish anything. One must, however, take responsibility for one’s words.
The classic example is yelling “Fire!” in a theater. It would be both unconstitutional and pretty damned stupid to ban the word “fire” from theaters. What if there is a fire? What about dialogue in a film? What one would be charged with if one yelled “Fire!” in a theater and people were injured would be something like public endangerment or disturbing the peace.
See? You are free to say what you will, but you are responsible for the consequences of your speach.
Prior restraint – not letting NAMBLA publish their nasty pamphlet for instance – is unconstitutional, but charging them after the fact for the consequences of the pamphlet and seeking to prohibit further dissemination of the work is not unconstitutional.
Whether there is a case for such against NAMBLA I do not know, but the hitman book example is probably safe since it doesn’t seem to actually advocate criminal acts per se.
Russell Arben Fox 03.05.04 at 10:09 pm
Robert, I think the language you’re asking for is contained in the point Steve made, and which you acknowledge: that is, the proper language would not be one which begins with negative concerns regarding the consequences of banning, but with positive attention to that which is “culturally chosen”; attending to such acts of choosing, which of course involve establishing boundries, would mean that “banning” (or shaming, or discouraging, or limiting, or marginalizing) would follow in it’s own course. Obviously culturally divided societies won’t affirm quite as much as less divided ones. Is the U.S. less culturally homogenous than it was in 1960? Of course. Is it utterly heterogenous now? Probably not. Could Americans get behind choosing to not put up with advocates of violence, while still putting up with karate lessons? Sure. I mean, it would take time and discourse, so that those worried about violence wouldn’t get the wrong impression about teachers of karate–and similarly, so that teachers of karate would recognize the concerns of those worried about violence. No doubt there would be failures to communicate on occasion. But I’m not sure why we should treat such failures as so much more potentially disturbing to society than the present day failure, as I see it (to tie back to the beginning of this thread), of an important and needed organization like the ACLU feeling duty-bound to drag itself through the mud on behalf of a wholly scurrious NAMBLA publication.
tim 03.05.04 at 10:09 pm
“the line-drawing problem is much trickier than ban advocates seem willing to admit.”
And yet, the line isn’t so blurry, as Rea would have it, that we can’t sensibly distinguish between the NAMBLA publication and “Romeo and Juliet.”
Surely most of us in this discussion imagine that the line-drawing problem falls somewhere in-between those extremes – and more to the point, that there are two line drawing problems: one is in making the individual judgement, and the other is in making a legal construct that reflects those judgements accurately and consistently, so that we can rely on our legal functionaries. (Ours is a judicial system which does not want individual Solomons.)
Mitchell, though he clearly has no use for the superintendent in his tale, alludes to this problem; so did russell arben fox in his post above – the difficulty is having the law make the kinds of judgements which most of us can handle (despite rea’s doubts: see michael c’s post for a good example).
We expect the law to stand in for individual judgements – with good reason. I was in a debate years ago with a university VP of computing over what many of us felt was a bad policy. The VP, in an effort, I suppose, to be reassuring, confided that he would never misuse the power. As the brouhaha came about because many of us felt he had misused his power, we wanted a rule change to remove the judgement call from the unreliable human in charge. (I was more politic, I explained only that we were concerned about what would happen were he to move on and be replaced by someone less reliable.)
But *that’s* where things get hairy. In our ability to craft laws simple enough to follow, but complex enough to reflect our judgements, and robust enough to survive in the hands of unreliable people. Not in our individual ability to make judgements.
That’s why pretending that we can’t recognize why Shakespeare is different, even though it is a recipe for double suicide, is a poor argument.
robbo 03.05.04 at 10:10 pm
The ACLU may freely choose to spend its money defending NAMBLA, but it won’t be my money. Which is unfortunate, because I would support them in probably 95% of their causes — even in their defense of Rush Limbaugh. I do believe that certain cases fall outside the pale, however, and choose not to have any of my discretionary income spent in the service of predatory pedophiles. My point is that idealists in many cases could extend their positive influence quite a bit farther by employing a little more discriminatory judgment in selecting the battles they fight.
Ted Barlow 03.05.04 at 10:10 pm
I’d like to ask anyone advocating a ban to go ahead and suggest language which would 1) accomplish their purposes in banning publications they think need banning 2) NOT ban clearly legitimate publications with contain information useful to criminals 3) NOT permit authors to push their works from 1 into 2, above, with simple devices such as “novelizing.â€
Show me the language that does that, and I’ll at least tentatively get behind it.
For the record, I’m with Rob. I can’t come up with such language, but that might be a simple failure of imagination on my part.
Russell Arben Fox 03.05.04 at 10:21 pm
Also Robert, regarding the civil rights protests of the 1950s and 1960s: thinking about that movement as proving a point about oppressive cultural majorities fails to account for half the story, maybe more than half. Remember that much of that movement explicitly invoked a shared majority religious and civic culture with white America; MLK and others depended upon and repeatedly affirmed the cultural meaning of Christianity and Lincoln in making their claims. Allowing a role to cultural choice in regards to determining the bounds of discourse doesn’t mean buying into oppression; on the contrary, that may be the only approach which truly takes cultural dissent seriously.
Robbo: Exactly right.
John Casey 03.05.04 at 10:30 pm
Ok, I’m confused. Both the hypothetical murder manual case and the actual NAMBLA rape manual case are not issues of _prior restraint_. Although the case descriptions are not real clear on the point, they seem to suggest that the publishers be responsible in damages for the consequences of their conduct, not that their publications be banned.
How is this different from the law of libel? If I publish lies about someone, (many quibbles could be inserted here, but won’t be), I have to pay that person to compensate for the damage I’ve done. If I publish directions on how to kill or rapre someone, and those directions are in fact used for that purpose, how is it any different if I am required to pay damages?
Chuchundra 03.05.04 at 10:46 pm
Compare the NAMBLA handbook to a hypothetical “Protesters Guide to Effective Action”, which would encourage civil disobedience and tell potential protesters how they may cause the most harm and tie up the most civil resources. What seperates this book, or something like “The Monkey Wrench Gang” from the NAMBLA book?
It’s all well and good to argue that, “Well of course this law would never apply to legitimate materials, it’s only for the worst of the worst” as the Bush administration has argued in the current COPA case before the US Supreme Court. In practice, such laws, once legitimized, tend to attract overzealous prosecutors like flies to honey.
son volt 03.05.04 at 10:47 pm
I’m not a free-speech absolutist, so it would be easy for me to defend outlawing things like the NAMBLA pamphlet. (The language wouldn’t have to be nearly as perfect as the libertarians here insist upon; I’m perfectly comfortable leaving the close calls to judges and juries.)
But the ACLU, I presume, are more or less absolutists on free speech, and not only would it not be wrong for them to defend NAMBLA in this case, it would be wrong for the ACLU to refuse to defend them.
John Isbell 03.05.04 at 11:16 pm
One more jury vote for banning certain texts. I’ll trust to judgement here and widen some definitions. I’ll include poetry, like Plato. The ACLU is in a different position, natch.
But the NAMBLA tract is a no-brainer for me. If I’m king, no f***ing way. Beyond that, their free will is intact.
Adam Rice 03.05.04 at 11:24 pm
The NAMBLA manual and the murder manual differ in terms of context.
1. NAMBLA is a criminal organization: it advocates and facilitates criminal behavior. It is not out there saying “we must work within the law and the culture to gain acceptance for our position”–if that really were the case, NAMBLA would be a defensible organization. But it’s not. For that reason, I’d say the ACLU is wasting its time.
2. I suspect that the NAMBLA manual is not available on the child-molestation rack at Bookstop. I’m not sure if there’s a legal definition for “publication,” but I’d imagine that “public” would be in there somewhere. In that sense, the manual could simply be regarded as concrete evidence of conspiracy to commit a crime. More like a letter than a book. Whether the murder manual is sold publicly (where potential victims can benefit from it just as much as would-be killers) or passed along from one black-gloved hand to another would color my take on its legality.
Three hypotheticals:
1. Alice and Bob go into a store. Bob makes a purchase, and when the clerk is ringing him up, the phone rings. The clerk goes in back with the cash drawer open. Alice murmurs “Hey Bob, you could take that money.”
2. Alice posts flyers around town advocating “if the clerk goes in the back with the cash drawer open, you can take the money out of it.”
3. Alice establishes a den of cash-drawer watchers who loiter surreptitiously in stores, and who pass notes to sleazy-looking patrons when they see that the cash drawer is open suggesting that the money can be removed.
Are the notes in case 3 more akin to the whispered comments in case 1, or the flyers in case 2? I’d say the former. And I’d say that protecting that as a publication is dubious.
bryan 03.05.04 at 11:35 pm
‘There is advice, if one gets caught, on when to leave America and how to rip off credit card companies to get cash to finance your flight. It’s pretty detailed.
‘
there’s a little bit of muddle-headedness here, which is no doubt caused by the emotions engendered by the subject: it seems to me, from my acquaintence with the subject of ripping off credit cards and leaving america instructions, that these instructions are probably the same if one has followed a NAMBLA how-to manual or done any action whatsoever that requires this action. There are in fact many publications that leave the NAMBLA specific details out and focus only on the details of ripping off the credit companies etc.
‘Although the case descriptions are not real clear on the point, they seem to suggest that the publishers be responsible in damages for the consequences of their conduct, not that their publications be banned.’
I think the main issue with suing NAMBLA is that this book can be shown rather easily to have been written with the express purpose of helping people to do the things that the malefactors in this case did. As such it was malicious; the family that is suing have a good reason to sue, I doubt that the publishers of an instruction manual for sit-ins could be sued for anything like a similar amount of money, because it would be rather hard to find anyone that had been harmed to the degree that such an amount would not seem frivolous, and at any rate any such harm would most likely be a byproduct of a sit-in, not its purpose.
It is true that many artists have been sued under similar grounds, that their texts etc. had a bad effect on somebody and caused them to do bad things, these suits tend not to succeed because of the rather simple fact that despite the aesthetic works under discussion not being to everyones tastes it seemed evident that their creators did not create them with malicious intent.
before someone posts all ranting about how do you determine malicious intent, well gee, how the hell do people determine it now!?
Nick 03.05.04 at 11:41 pm
I’m pretty far away from being even vaguely knowledgeable about the legal aspects of this, so apologies in advance if this makes no sense:
Isn’t the difference between the NAMBLA book and other publications mentioned here that the NAMBLA book actively encourages and enables the targeted audience of the work to do harm against others?
For instance, a guide on how to do karate, or even make explosives, gives the reader the knowledge to do that but doesn’t give specific advice on how to use it – it’s not ‘How To Use Karate to beat up Joe Bloggs’ or ‘How to blow up building X’ whereas the NAMBLA book is a specific guide to how to use this knowledge against certain individuals in breach of the law.
And then, with regard to the idea that this could be used against guides to civil disobedience, isn’t the principle that this book is not merely advocating breaking the law, but (physically) harming other people?
Just my 2p, anyway.
Robert Lyman 03.06.04 at 12:02 am
Isn’t the difference between the NAMBLA book and other publications mentioned here that the NAMBLA book actively encourages and enables the targeted audience of the work to do harm against others?
I have a couple of books on pistol technique that are intended to tell you (and perhaps to advocate) how to do severe and possibly lethal harm to people. Now, the authors intend to promote perfectly lawful self-defense–but it really wouldn’t be hard to write a book on how to molest children as a “manual for defense attorneys” or a “manual for law enforcement,” any more than it is difficult to write a book on murder as “how to defend yourself from rapists” or “the physiological impact of gunshots.”
I’m back to asking for specific legal language for a ban.
It is true that this is a civil case, but we don’t permit this kind of case to go forward in many cases precisely because it permits individuals to “ban” free expression with massive judgments in a manner forbidden to the government. In other words, this has nothing to do with democracy, cultural norms, or reasonableness. It has to do with what one judge (or, ultimately, nine judges) decide, without your or my input. With that in mind, I’d ask the advocates of civil liability to explain why we don’t let Congress ban books but we should let unelected Federal judges do so.
Alex Halavais 03.06.04 at 12:29 am
There is a reason the courts have limited incitement to “imminent” action. It would be hard to find a closer connection than in the “Hit Man” Case, where the defendant actually followed, point-by-point, the instructions to commit murder. (You can find the book in question on the net or at Amazon.) Yet even in this case, it was clear that there was no incitement: that knowledge of how to commit a crime is not a crime itself.
If it were made a crime, it wouldn’t even have to be that a slippery slope before things got pretty bad. Would criminal trials be closed so no one “got any good ideas”? Would forensics journals be banned? It’s just a mess.
What about the video game? Is it just entertainment? I think that the war games that the military pursues are meant for more than merely entertainment: they are simulations meant to help someone become a more efficient killer. Can we really assume that those games available to kids are anything other than “practice.” In some ways, the immersive nature of these games could be seen as having more influence over behavior than a book might.
It’s hard not to be an absolutist when it comes to the spread of knowledge. We have a way to fight this: more free speech; the marketplace of ideas.
Steve 03.06.04 at 4:40 am
Hmm-
I still don’t buy the slippery slope argument, and I still don’t buy the ‘we can’t craft the language properly to ban NAMBLA but not Karate books’ argument.
We censor in different segments of our society all the time. In schools, we censor what is taught in schools, and censor what is contained in the library (we do teach Mark Twain, we don’t teach Hustler, we sometimes teach the Prince). We don’t always get it right, and presumably make mistakes in both directions (i.e. sometimes too lenient, sometimes too strict).
We censor what is broadcast on the radio all the time (witness Howard Stern). The line we tend to draw is higher than it is in schools (we do hear alot of talk about drugs, sex, when Howard was around, anal sex, etc etc). But we don’t hear stuff that is ‘above the line’ whereever that line is (say, pre Howard Stern, the line included bomb making but not anal sex, post Howard Stern the line included both bomb making and anal sex).
How do we determine these lines? We debate them-our judiciary, our civil servants, our PTAs, our elected officials, in short, our society, debates where the line should fall. That’s what a democracy does.
So the question of How will we avoid banning Romeo and Juliet, or Karate books, or how can we write a law specifically crafted to ban child rape instructions but not hitman instructions isn’t really important. We do it the same way we do it in any other case. The line would be much higher than the line in schools, and higher than the line in public broadcasting, but so what? What makes this line in particular impossible to draw?
Funny aside: As I was writing this, my wife leaned over and read the first paragraphs of the initial article (describing the hypothetical with the hitman’s handbook). She asked what the ACLU was. I quickly explained to her they were a volunteer organization devoted to protecting civil rights, and mentioned the Skokie Nazi example. Presumably, based on the hitman paragraph, she then asked “so they are involved because of handguns?” I was forced to explain to her that the ACLU, because it is predominantly liberal, is somewhat selective in their definition of civil rights…
Steve
Chris 03.06.04 at 6:02 am
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).
msg 03.06.04 at 9:54 am
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.
bryan 03.06.04 at 9:55 am
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.
Charlie Stross 03.06.04 at 1:09 pm
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?
Robert Lyman 03.06.04 at 2:02 pm
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.
Anon 03.06.04 at 4:23 pm
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.
bryan 03.06.04 at 6:43 pm
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?
msg 03.06.04 at 7:39 pm
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.
Steve 03.06.04 at 8:09 pm
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
bryan 03.06.04 at 10:15 pm
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.
Visiting Troll 03.07.04 at 2:04 pm
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.
ginger 03.07.04 at 6:44 pm
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?
Joshua W. Burton 03.07.04 at 10:50 pm
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.
Flaming Troll 03.07.04 at 11:06 pm
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.
Joshua W. Burton 03.07.04 at 11:59 pm
_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.
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