One recent occasion for reflection on obscenity, the internet, and art

As someone who reads a lot of law review articles, I must say I use footnotes because I personally find them helpful, and from my first paper to this one maybe it's evident I'm trying to write to people like Professors Adler, Mey, or Kincaid--I'm not sure that the latter two do find all of this as obvious as you do. Maybe this is insular or upitsownass, but no more than the work that comes out of any humanities department? A deeper answer to why would probably have to be Freudian or go to my individual neuroses.

Is Miller really universally defended? What do you think of the dissents? US v. Stevens (2010), as far as I can tell, involves a similar anti-perversion statute that the Supreme Court nonetheless struck down as violative of the 1st Amendment, even though the Humane Society (cited by Alito in dissent) pointed to the fact that there might be value in stopping the circulation of economic incentive for the cruel killing of animals.

Also, couldn't we conceivably separate Ferber child pornography from anime cartoon pictures from Whorley's emails? I don't think Judge Gregory would call Ferber child porn "thought crimes," but the emails certainly were to him, prompting all of the florid language of imagination and freedom.

The argument, I think, that Adler, Kincaid, Debbie Nathan and others make is essentially that BECAUSE of the recent intense cultural avoidance of issues of child sexuality and intense criminalization of predators, then yes, as you say, to argue for Whorley's constitutional rights is "to argue that it is acceptable to allow circulation of child pornography."

But isn't there a place for an argument that it needn't be this packed together? Drawing a picture of an imaginary person isn't the same as kidnapping someone and taking THEIR picture. The latter should be criminalized for all kinds of reasons, and the former shouldn't be, for all kinds of reasons. Doesn't Ashcroft v. Free Speech Coalition have a place in all of this? Souter joined by Ginsburg dissented in the US v. Williams pandering case based on Ferber and Free Speech Coalition.

I am not convinced that I need to accept child sexual abuse to believe that 1. thoughts, representations, and deeds should maybe not be treated equivalently; 2. prosecutorial discretion in some cases weighs extremely heavily against application of the Protect Act; and 3. Miller is entirely antithetical to contemporary art. Personally, the all-or-nothing stakes of point 3 weren't obvious to me until recently.

-- BryanKimButler - 12 Nov 2010