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.

© 2012 – 2013, David Newhoff. All rights reserved.

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