In 2003, Congress outlawed drawings, cartoons, and sculpture depicting minors engaging in sexually explicit acts, if a local jury found that it lacked "serious literary, artistic, political, or scientific value."
You may not know that. But Christopher Handley, a 39-year-old Iowa office worker knows it now. He just pled guilty to owning some Japanese manga--comic books--with drawings of children being sexual with children, adults, and animals. He faces as much as 10 years in jail and a $250,000 fine. His life is ruined.
There was no allegation that he owned "child pornography," no allegation that he ever touched a child sexually.
He was charged with, and pled guilty to, "Obscene visual representations of the sexual abuse of children." Not photos of real children. Not computer morphs or simulations that look like real children. Cartoons. Line drawings.
The case started when customs officials intercepted and opened a package from Japan addressed to Handley. They found cartoon drawings of minors engaged in sexual acts. This material, along with the rest of the genre, is huge in Japan. Handley is a prolific collector of manga; not just "this type," said his lawyer; "he collected everything that was out there."
To get really creeped out, read the plea agreement. And say goodbye to Handley, the first person to be convicted for possessing cartoon art.
How did drawings of cartoon kids being sexually exploited by cartoon adults or cartoon animals become illegal in the U.S.? It's an interesting--and important--story.
In 2002, the Supreme Court overturned the Child Pornography Prevention Act of 1996. The law had, among other things, criminalized virtual child pornography. So in 2003, Congress passed the PROTECT Act. To get around the Supreme Court's support for the Constitution, Congress created a sub-category of speech that does not have First Amendment protection: drawings of childhood sexuality that a jury deemed obscene.
By excluding material that had "serious value," the law could stand. But we continue to see that this exclusion is shaky and undependable. Convene a jury of people who are angry, ignorant, frightened, or very religious, and the concept of "serious value" wilts away--Shakespeare, Picasso, and manga be damned. Handley's lawyer recommended the plea agreement because he feared the jury wouldn't acquit his client.
Child pornography laws--including the PROTECT Act--are meant to protect children. Real child porn is the documentation of a crime, the sexual exploitation of children. Who is being protected by eliminating drawings of children being sexual--whether the kids are drawn smiling or terrified?
Laws like these soothe adult consciences, comfort adult rage, and grant the illusion of adult power. By siphoning precious law enforcement resources, they make actual children less safe, not more.
America is developing a new class of political prisoner: those who think thoughts about sex and children that are judged evil. When you consider that only 25 years ago these thoughts were not unthinkable, you have to wonder: what thoughts about sex do you have today that will one day be declared legally unthinkable?
When it comes to America's panic about sex, respect for fact is in short supply.
Blogs, CNN & Fox, well-intentioned family advocates, right-wing "decency" groups, and the whole machinery of the Sexual Disaster Industry continually pour out a single message: there's sexual danger out there waiting for every child, woman, and man.
In reality, many facts of life are pretty encouraging: the FBI says that rape, child sexual exploitation, suicide, and domestic violence have all declined this past decade. But if you have ears, eyes, or a computer, you'd never know it. Sexual violence and exploitation are what pass for "news" and "public debate" in America.
Understandably, people are upset about their perceptions of danger. But many people are also upset about any attempt to discuss this alleged danger rationally. Here are some common beliefs and behaviors that interfere with clear thinking.
* A story is a trend; anecdotes are evidence
The Today Show, among others, says that sexting "caused" a suicide, leading to nationwide calls for its criminalization; stories are also commonly told about one or two guys masturbating in a library, leading to demands that all public computers be filtered. Tales like these get the public's juices flowing. But the only danger they really reflect is the danger of creating fear-driven public policy.
* "One is too many"
We're told that since "one [molest, rape, divorce, hate crime, botched abortion] is too many," the fact that rates aren't nearly as high as headlines imply is irrelevant. That's like saying, 'since even one kid with measles is too many, let's abandon vaccination.'
* Victimization creates expertise
A typical example is Congress inviting Miss Utah to testify at a hearing about internet porn. Her expertise? As a teen she typed in "hotmale" instead of "hotmail," saw an explicit photo, and was scared almost to death. Similarly, Donna Rice Hughes is considered an expert on internet porn because her ex-husband became a "porn addict" and destroyed their marriage.
* Challenging conventional wisdom reflects a lack of compassion
Anti-porn, anti-exploitation, and anti-hate advocates like Morality in Media's Robert Peters often say things like, "if you'd ever seen a child after he's been raped, you'd change your tune," or "if you actually cared about women who are trafficked, you wouldn't argue about how often this actually happens."
America is reeling from a decade of aggressively anti-science government and anti-fact blogging and pundit culture. The very nature of expertise and reality are now up for grabs. In a culture aching with sexual alienation, fear, and rage, this is dangerous.
For a half-century, the Federal Communications Commission (FCC) has had the right to decide which words and pictures are excluded from the Free Speech guarantees all Americans enjoy.
The FCC's criterion for this cruel abridgment of the Bill of Rights is material that involves "sexual and excretory functions." This sounds clearer than it actually is. For example, do the words "dickhead" and "buttface" refer to sexual or execretory functions (controlling whether you're allowed to watch South Park or The Daily Show)? Are plain buttocks (not the anus, just the cheeks) a sexual organ? (The FCC recently ruled they are.)
The FCC's attitude, especially under the Bush regime, has been 'when in doubt, throw it out'. And so Saving Private Ryan was unavailable to many viewers last Memorial Day, as stations feared punitive fines for airing this testament to the (salty-mouthed) soldiers who died to preserve democratic institutions (like the FCC).
So the FCC is obsessed with sex, seeing it everywhere, and attempting to exclude depictions of or references to it--no matter how indirect or esoteric.
This week the Supreme Court affirmed that it, too, sees sex wherever it looks. First it affirmed the FCC's right to banish and therefore punish the occasional coarse word fleeting across your TV screen--say, Bono exclaiming something is "fucking brilliant"or Paris Hilton noting the difficulty of getting "cow shit out of a Prada purse."
Days later, the Supreme Court challenged a lower court ruling that the 1/2-second glimpse of Janet Jackson's breast during the 2004 Superbowl halftime show should not be punished.
In both rulings, the Supreme Court sought to "protect"Americans from "sexual" words or images that would either harm them, offend them, or undermine the country's "morality." Justice Scalia and colleagues offered absolutely no science to support their fear. Indeed, Scalia conveniently omitted the fact that the rates of sexual violence, divorce, and child molestation have remained stable since 300 million American eyeballs were seared with the horrifying image of the Jackson tit 5 1/2 years ago.
Indeed, Scalia himself warned, in his scathing dissent in the case that de-criminalized gay sodomy (Lawrence v. Texas, 2003), that the majority decision would end the government's ability to legislate based on "morality." His anxiety about what he quaintly calls "the f-word" seems to have separated him from his own beliefs.
The obsession with seeing sex where it doesn't exist isn't limited to media issues.
Author Sally Wendkos Olds reminds us about those who successfully demand that mothers who breastfeed on airplanes or other public places stop or cover up--because breasts are sexual, and immature adults have a right to be "protected" from seeing them.
There are lots of fascinating technical arguments about these FCC cases, which legal writer Mark Kernes [possibly NSFW] explains quite clearly.
But the real question is: why are people like Justice Scalia, Rush Limbaugh, and Bill O'Reilly more concerned about protecting the sensibilities of some people than the Constitution of everybody?
The President spoke eloquently this week on the need for Americans to find common ground on the issue of abortion.
He made a start by naming the ONLY common ground--the desire of almost everyone to reduce the number of abortions done each year.
And that's the end of the "common ground" conversation. People don't even agree on WHY they want fewer abortions. Some people think abortion is a bad thing. Other people think the need for abortion is a bad thing.
The anti-choice side (we're ALL pro-life, after all) says it takes a "moral" position--that abortion is wrong. The pro-choice side says it takes a "moral" position--that adults should have personal autonomy.
So OK, everyone has a moral position on abortion. These positions may conflict, but they're both based on a moral vision. Neither side can logically deny that--these positions are based on equally heartfelt, equally clear, moral visions.
What is NOT equivalent, however, is the political relevance of these moral visions.
The success of our country, our political system, and our way of life comes from a set of principles--unusual in the history of the world--that are NOT up for discussion.
The most important one of those principles is this: Everyone is allowed to believe what they want. Adults are free to do what they want, as long as they don't hurt other people. In exchange for this extraordinary freedom, adults are expected to tolerate other adults believing and doing what they want.
While the pro-choice and anti-choice positions are equally based on morality, the difference between them politically is quite simple, and quite profound.
The pro-choice position is "I'll behave according to my morality, and you behave according to yours." The anti-choice position is "I'll behave according to my morality, and you must behave according to mine, too."
And that's the end of the common ground that our President, and all these feel-good dialoging communities, yearn for.
So let's acknowledge the real world.
Let's all agree to do what we can to reduce the number of abortions. Let all the self-described "pro-life" people finally prove that they're genuinely against abortion--and not simply against sex--by supporting contraception, and the sex education that encourages people to use it.
Beyond that, the "common ground" is to be found in our uniquely American legacy.
Over two centuries ago, our founders created a system that magically made it possible for people with conflicting moralities to live and thrive together. Until then, human communities were either morally homogenous, or they lived with continuous warfare. America was the first country with neither, and so it has been a fountain of creativity and wealth--and yes, religious fervor--ever since.
The system works. People just have to live within its rules.
There's a name for people who want to undermine the political system in order to impose their moral viewpoint on their fellow citizens. In other countries, we call them terrorists.
Today is Memorial Day, when we're supposed to honor those who have fallen in defense of our great nation and its principles. Many will do this by participating in a parade, going to a cemetery, or looking through photos of loved ones buried across the globe.
There are other ways to celebrate the sacrifices that have made America the world's most radical experiment in free speech and free thought. Remember, it's not the fact that you were born here that makes America great. It's the principles that America stands for, struggles with, and protects.
So this week you'll be honoring those who have fought and died for America when you:
* Use birth control
* Download porn
* Watch the Sopranos or South Park
* Go to a raunchy comedy club or listen to a raunchy CD
* Have non-intercourse sex
* Get a lapdance at a neighborhood club
* Read a gay magazine
* Have sex with someone of a different race
* Write a letter to the editor about same-sex marriage
Every single one of these acts took a court decision to affirm its legality. Many of these required Supreme Court action. Yes, the same historic court that decided the fate of racial segregation, "one man, one vote," and the 2000 presidential election was needed to decide that whites and blacks could have sex together, and that Americans could legally purchase contraceptives.
When you live your normal life this week--using condoms, watching grownup TV, shopping in private on the internet, enjoying oral sex, ignoring ads for massage parlors in your local newspaper--you'll be honoring the lives and hard work of thousands of plaintiffs, lawyers, judges, clerks, and volunteers.
These men and women may not have died in the line of duty, but they are on the front lines, serving our country. We have no medals for Bill Baird, Phil Harvey, Mildred Loving, or other heroes who have risked their lives, freedom, and sanity to protect our sexual expression. They fought not against a foreign enemy, but against tremendous pressure right here at home--from tyrannical majorities, powerful minorities, vindictive government agents.
These same elements threaten our basic American rights today.
Like other freedoms, sexual freedom isn't free. Today, on Memorial Day, let's remember those mostly-anonymous people who struggled and suffered to make America safer for sexual expression and the commercial and intellectual activities needed to support it.
Some will say that granddad or the local barber didn't die in Flanders, Gettysburg, or Vietnam so that his neighbor could go see a stripper, or his nephew could buy rubbers or hear Jon Stewart say "dickhead." I say that that's exactly why people died to defend America--a special country in which people have the extraordinary right to do, say, and think things of which their neighbors disapprove.