Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

One Man’s Speech

“If your freedom of speech has no limits, may you accept our freedom of action.”   

This was a statement painted on a wall in Cairo where protestors yesterday stormed the U.S. embassy.  And this morning, we learn that U.S. Ambassador to Libya, Christopher Stevens was killed along with three other embassy staff in a rocket attack on their car.  These acts and other protests in the Middle East are in response to a film, The Innocence of Muslims, that supposedly contains insulting depictions of the prophet Muhammad and was recently promoted by the Muslim-bashing, Florida pastor Terry Jones.

This is a travesty in the world of diplomacy as much as it may also be a painful examination into the nature of free speech. It is a terrible thing when thoughtful leaders and diplomats have to avoid starting wars because the worst of us has inflamed the worst of them, but is there anything we can learn from this?

The First Amendment protects Jones’s right to be a colossal son of a bitch and the Israeli filmmaker Sam Bacile* to spew whatever nonsense he chooses. As Americans, we value the sanctity of speech to the extent that we must endure hate speak for what it is and know that it does not represent who most of us are. And I, for one, would not have it any other way. To the Middle East citizens who have risen in protest, however, no such distinctions are made. Their cultural indignation resulted first in protest, which is speech, and then in assassination of  four members of our State Department, which is not.

Is this a digital age story?  I think so. Jones and Bacile enjoy the same, free tools as everyone else for disseminating their venom, and they wound up killing American public servants and creating a diplomatic nightmare for the State Department. If that isn’t an example of the dangers of amateur kooks wielding powerful communication tools writ large, I don’t know what is. I have no thesis to offer, only an invitation to share your thoughts.  Certainly, it is clear in moments like this that while speech should always be free, it can run smack into some very substantial limits without anyone passing a single law.

*UPDATE:  The story keeps getting stranger.  Bacile may not even exist.  Read this from The Atlantic. 

FURTHER UPDATE:  Reports today (9/13) indicate that the Libyan attack on the American consulate may have been planned, possibly even for 9/11, and that the attackers seized on the opportunity of the protests against the film.  At this point, the attack is still being investigated, and no party has claimed responsibility.

Dear Rick II – Response to Rick Falkvinge on Legalizing Child Porn

Dear Rick:

Yesterday, I opened up on you without actually taking the time to refute your positions or points. Honestly, it’s tough to read that many words, disagree with every one of them, and know quite where to begin.  I know you said you would respond, but then GoDaddy sites were down for many hours.  In the interim, I took the time to write a more analytical response to your article, lest anyone think I’m merely reacting to the nature of child porn itself.  As I said in my open letter, I think many of the fallacies in the article speak for themselves, but let’s take look at its three main assertions:

1. The ban [on child porn] prevents catching/jailing child molesters.

Your support for this premise, which you write in the present tense, is to leap immediately to a very obscure hypothetical situation ten years in the future.  Never mind the fact that your scenario has a one-in-many-million chance of happening; but even in the event that an innocent citizen inadvertently records a child molestation while wearing his Google glass, you are merely speculating that this witness would be treated as a criminal. By this argument, if I found a tape in my neighbor’s trash that turned out to be child pornography and brought the tape to the police, you insist that they would charge me with possession.

Sure, this could happen if the police are corrupt or inept, but it is certainly not the intent of the law. Moreover, when technological or societal change really does demand amendment to the law, it happens. Writing a statute that exonerates your as yet imaginary, inadvertent witness/recorder of a crime involving a naked child seems like an afternoon’s work for a decent law clerk.

Far more serious than your purely hypothetical (and frankly paranoid) example is the very real tragedy that people languish in prison right now who have been wrongfully convicted of homicide.  As terrible as that is, I’m confident we will never legalize murder in order to right these miscarriages of justice.

 2.  The laws brand a whole generation as sex offenders

You state:   “Our current laws treat the video of a seven-year-old being brutally raped, on one hand, and two seventeen-year-olds who have eyes for nothing in the world but each other making consensual passionate love, on the other hand, as the exact same thing. This is mind-bogglingly odd.”

That would indeed be mind-bogglingly odd if it were true — or had subject/verb agreement seeing as a video itself cannot be charged with a crime.  Suppose a priest rapes a seven year-old altar boy and the act is caught on surveillance video.  The priest has committed a crime for sure, but is the owner of the building guilty of possession of child pornography, even when he marches that tape straight into the authorities as he should? All smoke, mirrors, and Google glass aside, this is basically what you’re saying, and it doesn’t make a lick of sense.

As for your 17 year-old lovers, the age of consent in Sweden I believe is 15, and the age of consent in the U.S. ranges from state to state between 15 and 17. So these kids are free to make “consensual passionate love,” as you put it; although at that age, there’s a decent chance it’s awkward, brief, and bit bumbly to be honest.  Still, you’re really painting this picture as a provocative intro to get us to focus on criminalizing the teenager who photographs him/herself naked and presumably shares those photos via telecom.  You state that criminalizing this behavior both equates the act with serious molestation against young children and makes teens feel bad about their bodies.  Again, nothing you’re saying makes sense to me as either an experienced parent or as a citizen with a working knowledge of the law.

In the first instance, the teen in possession of photos of him/herself can be charged in various states in the U.S. with misdemeanors, ordered to engage in counseling, etc. They will not face penalties equal to those of an adult convicted of physical child abuse. You’re guilty of the same associative argument you criticize with your “jaywalking-and-murder” example.  You’re lumping it all together for dramatic effect, but what you’re saying just ain’t so.

Regardless of legality, the act is very dangerous and very stupid; and it is not proscribing the self-photography that makes teens feel bad about their bodies.  When teens feel bad about their bodies, it’s because they’re teens, who have been feeling self-conscious long before technology gave them new toys to play with. A teen who chooses to exhibit him or herself naked via digital communication might be due for a serious discussion with an adult about self-worth and self-preservation.  It’s not about criminalizing the kids to appease some prudish authority — I’m a parent and couldn’t be further from the religious nuts you refer to in your article —  it’s about helping them take care of themselves, which includes protecting them from their own ignorance about the world, about child predators, about putting something out into the digital universe that they can never get back.

 3. The free speech war is won/lost at the battle of child porn.

At last, we get to something approximating your real goal, I believe.  This statement reminds me of another one from the protectmarriage.com website, active during the Prop8 fight to ban same-sex marriage.  I may be paraphrasing slightly as the site is currently down.  They stated:

 “While abortion is a foundational issue, we see marriage as a survival issue.” 

Interesting language, if you think about it.  Like you, these Protectors of Marriage also imagine an ideological war to be won or lost on the basis of a single law that taps into people’s emotions.  And just as they claim to be fighting for the religious soul of America, you claim to be fighting for the soul of free speech itself.  Both of you, of course, are guilty of ignorance in your premises and gross exaggeration in your purposes.  They believe American law is fundamentally more religious than it is; and you believe free speech is truly in jeopardy.

I happen to believe very strongly that the secular laws we write in a free and democratic society are, at their best, a unified declaration of our humanity without requiring religious doctrine. That which we protect and that which we abhor, as expressed through the rule of law, actually does matter a great deal.  But in a very similar way to our Christian zealots, Rick, you fabricate wedge issues in order to draw oblique lines toward dangerous conclusions about the very notion of law itself. To be blunt, I believe you are a technocrat who envisions a world in which technology either obviates the need for law or demands that the law bend beyond reason to accommodate technology’s endless vicissitudes.

In truth, you may be less like the American Christian zealot in your use of child porn here than you are like Ronald Reagan using flag burning as a distraction from your real agenda.  You knew you would draw fire for appearing to be pro-child pornography, and I am reasonably confident that you do not in reality advocate harming children, so perhaps your real mission has more to do with this statement:

“There is a reason the copyright industry loves child pornography.  This reason. It opens the door to censorship.”

This is your party platform, Rick, isn’t it? If so, I think you should be more transparent about it, champion of transparency that you are. Certainly, more straight talk would afford you more opportunity for concision in your writing, and what you’re saying is really pretty simple:  “Copyright is censorship.”  And, of course, if that’s what you truly believe, it’s no wonder you see censorship everywhere you look.

I happen to find your position naive, fallacious, and destructive for some of the reasons I mention above about law and humanity. You believe those of us who would defend copyright don’t understand the Internet, but the truth is you don’t understand copyright. What you want to call censorship is in fact one of the strongest statements my country makes about the importance and the value of a single voice.  Go ahead and blast media oligopolies and their lobbyists all you like.  It’s not my role to defend everything they produce, say, or do.  But as an artist, a big mouth, an atheist, and a liberal; I’m willing to bet I care a hell of a lot more about our First Amendment than you do, and I truly resent when amateurs misuse it.

Open Letter to Rick Falkvinge

Dear Rick:

When I wrote a criticism last week of your incomprehensible TED video, in which you  vaguely stump for the Swedish Pirate Party, I had no idea that you were about to produce an article that so beautifully exemplifies the depraved extremes to which you and your kind will go to protect your cherished technology.  In your BLOTTR article, you insist that child pornography must inevitably be, as you say, “re-legalized” in order to first, accommodate technological changes (you refer to Google Glasses); and second, hedge against censorship in general.

In truth, your unforgivably longwinded article would require an even more unforgivably longwinded response were I to criticize it point by point; but I’m sure most rational readers will be able to understand it’s legal and humanistic fallacies as long as they have even the slightest memory of high school civics.  For a pirate, you’re not much of a sailor on the sea of reason, it seems. As in your TED video, you yaw about on a rudderless ship, spilling gibberish and actual lies through those oversized scuppers in your principles.

If it sounds like I’m taking this personally, it’s because I am; and so should any other adult who understands that exploiting children is (I know this a word you don’t like) wrong. Sometimes, Richard, the utter wrongness of an act is sufficient reason to make it illegal, even if the laws themselves are imperfect. If human civilization demands that we seek every opportunity to stop the exploitation of children in any form, then your technology be damned.  Let it conform to humanity’s needs or let it fail.  But, of course, you’ve made a career out of promoting exploitation in another form — that of artists and craftspeople who actually work for a living — so it should be little surprise that your first concern is for your toys and not our children.

Photo by Thomas Bedenk.

Funny that you point to CNN coverage of Operation Desert Storm as a seminal moment because I do too, but from exactly the opposite perspective.  That war, which put CNN on the map and, therefore, validated 24-hour news, transformed news reporting forever and not necessarily for the better. It meant that news would compete with entertainment and then become entertainment, which is precisely what happened, all to the benefit of side-show politicians such as yourself.  As one real journalist I know put it so well during that time, “It’s all presentation and no information.” It is a perfect example of what I mean by The Illusion of More, and suddenly you so neatly personify this myopia gazing at the world through those Google-colored glasses of yours.

I predict your fifteen minutes are nearly up, Rick. See what you can do to avoid further damage, while you’re here.

Ciao!

DN