Ottawa Citizen: Crimes of imagination
Canada has charged an American and is threatening him with at least a year in jail because he came over the border in 2010 with comics on his laptop, comics the customs officer decided were child pornography. If he's convicted, he faces a mandatory minimum sentence of a year for importing the material. This case and others like it demonstrate the flaws in Canada's law.
According to the Comic Book Legal Defence Fund, the comics were in the "manga" style that originated in Japan (Astro Boy and Sailor Moon are examples of manga comics. Charles Brownstein of the CBLDF says he believes the comics in this case include images of stick figures in sexual positions).
The Canadian law criminalizes fictional child pornography, by which I mean pornographic material like drawings or text that features children, but that no real children were abused in the making of. I'll let the Citizen finish:
But Canada's current law goes beyond pornography that causes harm to children. It also makes some works of the imagination - stories and drawings - illegal if they depict people under the age of 18 in sexual situations. Many classic works of art might meet that definition, and the law does allow for a defence on the grounds of artistic merit. This puts the courts in the bizarre position of determining what is a work of art. Citizens cannot hope to know in advance what the law really forbids, and whether the judge will share their opinion of what is art. Policing the way you express yourself on a piece of paper or on your laptop comes awfully close to policing your thoughts.
Judges are not meant to be arbiters of taste; they are meant to balance rights in a free society. Imaginary people do not have rights.
Similar laws are in the works in Finland as well, where it will join other highly questionable laws that already make even the definition of child pornography arbitrary. In fact, Finnish courts are already not only determining what constitutes art, but also whether parody is succesful, because that is the determining criterion to whether a parody constitutes an IP violation. So in Finland, courts determining what is art won't be anything new.
If you think they're exaggerating about policing thoughts, by the way, Finland's state police have already applied for a law criminalizing talking about having sex with children in an approving manner. I so wish I was making that up.
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There are those who say that protecting children from sexual abuse is so important that we must do anything to stop it. Whatever one may think of this, laws against fictional child pornography fail on that count.
Daily Mail: Charity's anger at proposal to make child porn legal 'to protect children from abusers'
The research found that child sex crimes fell when child pornography was more easily accessible.
The discovery tallies with similar studies in Denmark and Japan, where child pornography is not illegal, that found incidences of child sex abuse were lower in those countries.
The conclusion of the new study is that ‘artificially-produced’ child pornography should be made available to prevent real children being abused.
Pornography was strictly prohibited in the Czech Republic between 1948 and 1989.
The ban was lifted with the country's transition to democracy and, by 1990, the availability and ownership of sexually explicit materials rose dramatically. Even the possession of child pornography was not a criminal offence.
Diamond and his team looked at what actually happened to sex-related crimes as it moved from having a strict ban on sexually explicit materials to the material being decriminalised.
Results from the Czech Republic showed that rape and other sex crimes have not increased following the legalisation and wide availability of pornography.
Most significantly, the incidence of child sex abuse has fallen considerably since 1989, when child pornography became readily accessible – a phenomenon also seen in Denmark and Japan.
They also found that the number of cases of indecent exposure and other, less serious, sex crimes fell dramatically in the wake of pornography becoming more readily available.
The researchers say: ‘As with adult pornography appearing to substitute for sexual aggression everywhere it has been investigated, we believe the availability of child porn does similarly.’
So not only are no children harmed in the making of fictional child pornography, its availability seems to decrease sex crimes against children. In general, pornography decreases sex crime, so this finding makes sense. I know that this cuts no ice with determined anti-pornography crusaders, who replace scientific data with claims that porn makes you gay, but the reality is that fictional child pornography, if anything, seems to make children more safe.
However, that's a terrible argument for not banning it. The Ottawa Citizen put it quite nicely when they said:
There's no point in having a right to free speech if we make exceptions for everything that people find distasteful or offensive.
In fact, that's the kind of free speech we have in Finland; our constitution guarantees Finnish citizens freedom of expression, except when constrained by law. In other words, our constitution gives us a right to say things that we're not banned from saying. Some right! The only place I can think of that doesn't allow its citizens to do things that aren't specifically forbidden is the fictional city of Raseir in the classic CRPG Quest for Glory 2, which boasted a street named "Everything Not Mandatory is Forbidden". So we, as Finnish citizens, have more rights than the inhabitants of a fictional computer game dictatorship.
Hooray!
But I digress. As a criterion for banning expression, the harm it causes is a dangerous guideline. In nearly every debate on free speech, someone quotes the example of shouting "fire!" in a crowded theater. It might be salutary to remember where the expression comes from: it was used by Supreme Court Justice Oliver Wendell Holmes, Jr., to justify sentencing a man to six months in prison for distributnig anti-draft leaflets. It was the judge's opinion that inciting people against the draft posed a "clear and present danger" to the United States, and was therefore illegal.
This tug-of-war between the desire to criminalize dissent and uphold freedom of expression should serve to point out that the harmfulness or harmlessness of speech is insufficient in itself as a criterion. Harm is a flexible concept that can be stretched a long way, and if we subordinate free expression to a critetion of harm, are we really willing to ban anything that can be considered, or even proven, to have harmful effects?
Suppose that someone demonstrated that people who read detective novels are more likely to commit violent crime than people who don't? Or, to take a real-life example, someone came up with data to support the decades-old idea that comic books predispose childrne to crime? Would you then be willing to ban detective novels and comic books under the same criteria as fictional child pornography? After all, they'd be harmful. Remember that as far as we know, no form of expression can directly cause a person to commit a crime; all they can do is predispose. That's a matter of much correlation and very little causation.
This is why it's dangerous, and I believe in many cases morally dishonest to argue against banning fictional child pornography just by quoting its beneficial effect on sex crime rates. That isn't actually an argument in favor of freedom of expression; it's an argument that this particular kind of expression is beneficial and should therefore be allowed. It's a whole different story, and begs the question: if the data should be refuted by a better study, would you change your mind? And would you support the hypothetical comic-book ban if data in its favor were produced? If not, you're making a morally dishonest argument.
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In other words, this isn't a question of whether fictional child pornography is beneficial or harmful, but of what the limits of free expression are. It's been shown time and again that juging expression by the harm it supposedly causes is a primrose path to censorship. I can't believe that even the most ardent anti-child pornography crusaders would want to live in a country where all expresion is regulated based on whether it's deemed harmful to society or not. There's practically no limit to what such a dystopia might end up banning. After all, people are healthier if they're happy; therefore things that make them unhappy make them less healthy, and are therefore harmful. Under this rationale anything could be banned.
The only rationale for the outright ban on child pornography is that a child was necessarily abused to create the image. It should be recognized that this is also a problematic piece of reasoning; technically, it could equally well be used to ban pictures of terrorist attacks. Even if we accept the ban on child pornography, we can't extend it to fictional child pornography using the same rationale, because no children were necessarily abused for its creation. We don't ban other fictional depictions of crime, even other fictional depictions of sex crime, so why should the sexual abuse of children be treated differently?
Any ban of fictional child pornography necessarily creates one of two disturbing precedents: either that expression can be regulated according to its harmfulness, or that when it comes to child pornography, a different standard of civil rights prevails. Finland is currently pursuing the latter policy. Neither should be chosen by a free country.
