I have discussed the idea of Freedom of Speech in here before, and it would seem that it is high time to do so yet again (although for a different reason this time). On June 30 this year in Uppsala District Court, Sweden, a man was found guilty of possessing child pornography. The man in question is a Japanese translator, and the images for which he was prosecuted and sentenced were manga, that is, Japanese comics. A combination of things that well and truly brings a lot of Freedom of Speech issues to the fore, no doubt; yet interestingly enough, it took more than a while for the Swedish media to react, and even when they finally did (and there have been many interesting defences of Freedom of Speech from those quarters since), the blogosphere has been surprisingly quiet – a blogosphere which was in a furious uproar earlier this year during the Lars Vilks debacle. It is obviously much easier to shout oneself hoarse for the right to offend some people on religious basis than to enter a discussion on the subject of child pornography. At least if the discussion is not altogether a condemnation of the phenomenon, and even something in any way related to the phenomenon.
The two preceding sentences can easily be read as a critique of some people that did not want a balanced discussion in the previous case, but while it is indeed in part intended as such, it is also honestly meant, in a nigh despairing fashion. For I would be a hypocrite not to note that the sentence was pronounced on June 30 and that it is now August 16, that is, some one and a half month later.
The reason for my own procrastination is quite simple: I spent a few years in my youth in Swedish Save the Children, actively propagating the Children’s Convention and working against child pornography. I am a huge fan of author, lawyer and children’s activist Andrew Vachss, and in particular of his brilliant little book Another Chance to Get It Right: A Children's Book for Adults, which has helped shaped a lot of the ideas on the importance of children’s rights in my mind. In short, I too cannot help to question the “need” for pornographic illustration of children to be made in the first place. And nevertheless...
I am certainly not naive enough to think Freedom of Speech absolute in any practical sense. Most judicial systems, even (dare I say it) the American, where Freedom of Speech is pretty high on the agenda, have (and quite rightly so) laws against libel and threatening people. But there is certainly something to be said for a Freedom of Speech that is much freer than it is shackled.
Do not get me wrong. Child pornography is wrong; it is vile; and it constitutes a crime. But exactly what is that crime? Many a year ago now, I read an article by Vachss (translated into Swedish, albeit specifically written for that occasion), where the sound argument was made that child pornography is photographic, or filmic, evidence of the sexual abuse of a child. As such, this evidence is an extension of that abuse, in fact, constituting a continued abuse of that specific child, in some sense. Similarly, I would argue that nude pictures of children (obviously not necessitating the same levels of abuse to exist) still falls within these parameters as they exploit these children’s nudity, and granted that the children themselves in the eyes of the law can hardly be deemed fit to make a decision about “willingly” being part of such pictures, nor necessarily agree with such pictures’ existence when they are old enough to understand that better.
(It is, I feel, at this point worth noting that the Swedish law has been very carefully formulated not to criminalise A) teenage couples photographing themselves and sharing those pictures with _each other_ (as long as the age difference is not substantial or the photographs taken against either party’s will), or B) people owning nude or sexual photographs (or films, I assume) of themselves (alone) even when adults. Basically this states that the presumed injured party cannot be found guilty of such possession. Although spreading such photos would obviously fall within the rules of distributing illegal material, and it would equally obviously be illegal for other parties to view them. Still, the detailed thinking vis-a-vis these questions are well worth noting, especially when we head into the topic at hand.)
In all cases I have brought up, the issue is not only that the images or films are offensive. The point is that they document and extend sexual abuse, that watching them makes any viewer guilty of furthering that abuse. And against this, hard laws are required. But, can a drawn image truly be said to do this? Can it be included in this argument? What I have just outlined above clearly does not apply. A drawn image does not require an act of abuse to exist in the real world. Nor does it depict a specific nude (or even fictionally abused) child. We might find these images offensive. We may well argue against such things being produced. But it is almost frightening how many times I have read comments on on-line articles where the commenters are arguing against child pornography itself on the basis that it is offensive. To me, this seems like pulling the teeth out of the proper definitions of child pornography, that is, as something a hundred times worse than merely being found offensive, simply by the fact that it is both a document and form of abuse.
If drawn images do not constitute such abuse, and granting that we do not easily legislate in matters of taste (and let us be honest, matters of offense are clearly linked to matters of taste), why should drawn images of nude children, or even children in sexually explicit acts, be deemed illegal? Now, here the reason cited is that such images may well incite paedophiles to commit sexual acts, or even (if we are to believe some assumptions) cause people to become paedophiles themselves. Surely, it is better to be overly cautious in such circumstances? Surely it is, as the saying goes, better to be safe than sorry? Or is it?
Now bear with me and please remember that I am by no means arguing in favour of such images, but as Neil Gaiman has pointed out, defending Freedom of Speech, also means defending such speech with which one does not necessarily agree oneself. I would in connection with this also like to bring up Peter Jones’s point that "[w]e may even fight shy of curtailing our conception of the non-legal rights of authors; we can criticise the use that people make of their rights without implying that they have no right to do what we criticise" (in Reading Rushdie: Perspectives on the Fiction of Salman Rushdie 321), which I have already drawn upon before. Following Jones’ judicial reasoning, we must be allowed to debate the usages of Freedom of Speech, to make moral and even aesthetic judgements about any and all utterances, without impeding the Freedom of Speech itself.
My main objection to the current Swedish law on the issue of these types of drawn images (and to laws formulated along those lines in other countries), is that is an arbitrary law. If we fear that such images may incite paedophiles to commit sexual acts (or even, though I honestly find this less likely, generate more paedophiles), why do we stop at images? If it is better to be safe than sorry, why should fictional texts be any different than drawn images? Surely they too must entail the same possibilities of incitement, must they not? And if explicit images (or texts) can do so much damage, surely the seeds of our destruction must also reside in any and all texts or images that even implicitly deal with paedophiles or children in sexual situations (without openly condemning these things three times over and every time they are mentioned, lest someone only reads selected passages). Along these lines, ought not Nabokov’s Lolita, where the narrator Humbert Humbert is trying to seduce the reader into sympathising with his own paedophiliac desires, also be deemed illegal? And before someone suddenly twists my words into being pro-censorship extraordinary: my point here is, of course, where do we stop? Where do we draw the lines in such an arbitrary quagmire?
The problem with this arbitrariness is that it allows us to feel good about ourselves, to feel vindicated for a moment or two. We have found something offensive and that which was found offensive has been punished accordingly. While I will certainly hold on to my right to vocally oppose things I find offensive, I also find this judicial arbitrariness unsettling, and cannot help but remember that old adage, “the road to hell is paved with good intentions.” For there are many levels to this quagmire. If we are truly worried about the sexualisation of children, why do we not attack (vocally if not legally) cultural phenomena like Britney Spears and Christina Aguilera, who in their wake have children dressing in an explicitly “sexy” fashion and dancing around in manners it would only be ludicrous to argue do not evoke sexual acts (whether or not the children themselves are aware of it)? These things are situated right in the pop cultural mainstream. Yet in a time, when we are so afraid of the possibility that drawn images might incite a paedophile to commit a crime, we do not even have a large on-going mainstream debate on this problem. Because if these things are not ways of sexualising children, and if such sexualisation is not a way of allowing children to be viewed as sexual objects, then in all honesty, I have no clue what would be.
In this sense, we need to legislate less against fictions and worry more about continually debating that which we find deplorable (we do have that option). Because at the end of the day, fictions do not constitute abuse, but that which could incite such abuse certainly does not, nor will it ever, be confined within the arbitrariness of our laws.
The two preceding sentences can easily be read as a critique of some people that did not want a balanced discussion in the previous case, but while it is indeed in part intended as such, it is also honestly meant, in a nigh despairing fashion. For I would be a hypocrite not to note that the sentence was pronounced on June 30 and that it is now August 16, that is, some one and a half month later.
The reason for my own procrastination is quite simple: I spent a few years in my youth in Swedish Save the Children, actively propagating the Children’s Convention and working against child pornography. I am a huge fan of author, lawyer and children’s activist Andrew Vachss, and in particular of his brilliant little book Another Chance to Get It Right: A Children's Book for Adults, which has helped shaped a lot of the ideas on the importance of children’s rights in my mind. In short, I too cannot help to question the “need” for pornographic illustration of children to be made in the first place. And nevertheless...
I am certainly not naive enough to think Freedom of Speech absolute in any practical sense. Most judicial systems, even (dare I say it) the American, where Freedom of Speech is pretty high on the agenda, have (and quite rightly so) laws against libel and threatening people. But there is certainly something to be said for a Freedom of Speech that is much freer than it is shackled.
Do not get me wrong. Child pornography is wrong; it is vile; and it constitutes a crime. But exactly what is that crime? Many a year ago now, I read an article by Vachss (translated into Swedish, albeit specifically written for that occasion), where the sound argument was made that child pornography is photographic, or filmic, evidence of the sexual abuse of a child. As such, this evidence is an extension of that abuse, in fact, constituting a continued abuse of that specific child, in some sense. Similarly, I would argue that nude pictures of children (obviously not necessitating the same levels of abuse to exist) still falls within these parameters as they exploit these children’s nudity, and granted that the children themselves in the eyes of the law can hardly be deemed fit to make a decision about “willingly” being part of such pictures, nor necessarily agree with such pictures’ existence when they are old enough to understand that better.
(It is, I feel, at this point worth noting that the Swedish law has been very carefully formulated not to criminalise A) teenage couples photographing themselves and sharing those pictures with _each other_ (as long as the age difference is not substantial or the photographs taken against either party’s will), or B) people owning nude or sexual photographs (or films, I assume) of themselves (alone) even when adults. Basically this states that the presumed injured party cannot be found guilty of such possession. Although spreading such photos would obviously fall within the rules of distributing illegal material, and it would equally obviously be illegal for other parties to view them. Still, the detailed thinking vis-a-vis these questions are well worth noting, especially when we head into the topic at hand.)
In all cases I have brought up, the issue is not only that the images or films are offensive. The point is that they document and extend sexual abuse, that watching them makes any viewer guilty of furthering that abuse. And against this, hard laws are required. But, can a drawn image truly be said to do this? Can it be included in this argument? What I have just outlined above clearly does not apply. A drawn image does not require an act of abuse to exist in the real world. Nor does it depict a specific nude (or even fictionally abused) child. We might find these images offensive. We may well argue against such things being produced. But it is almost frightening how many times I have read comments on on-line articles where the commenters are arguing against child pornography itself on the basis that it is offensive. To me, this seems like pulling the teeth out of the proper definitions of child pornography, that is, as something a hundred times worse than merely being found offensive, simply by the fact that it is both a document and form of abuse.
If drawn images do not constitute such abuse, and granting that we do not easily legislate in matters of taste (and let us be honest, matters of offense are clearly linked to matters of taste), why should drawn images of nude children, or even children in sexually explicit acts, be deemed illegal? Now, here the reason cited is that such images may well incite paedophiles to commit sexual acts, or even (if we are to believe some assumptions) cause people to become paedophiles themselves. Surely, it is better to be overly cautious in such circumstances? Surely it is, as the saying goes, better to be safe than sorry? Or is it?
Now bear with me and please remember that I am by no means arguing in favour of such images, but as Neil Gaiman has pointed out, defending Freedom of Speech, also means defending such speech with which one does not necessarily agree oneself. I would in connection with this also like to bring up Peter Jones’s point that "[w]e may even fight shy of curtailing our conception of the non-legal rights of authors; we can criticise the use that people make of their rights without implying that they have no right to do what we criticise" (in Reading Rushdie: Perspectives on the Fiction of Salman Rushdie 321), which I have already drawn upon before. Following Jones’ judicial reasoning, we must be allowed to debate the usages of Freedom of Speech, to make moral and even aesthetic judgements about any and all utterances, without impeding the Freedom of Speech itself.
My main objection to the current Swedish law on the issue of these types of drawn images (and to laws formulated along those lines in other countries), is that is an arbitrary law. If we fear that such images may incite paedophiles to commit sexual acts (or even, though I honestly find this less likely, generate more paedophiles), why do we stop at images? If it is better to be safe than sorry, why should fictional texts be any different than drawn images? Surely they too must entail the same possibilities of incitement, must they not? And if explicit images (or texts) can do so much damage, surely the seeds of our destruction must also reside in any and all texts or images that even implicitly deal with paedophiles or children in sexual situations (without openly condemning these things three times over and every time they are mentioned, lest someone only reads selected passages). Along these lines, ought not Nabokov’s Lolita, where the narrator Humbert Humbert is trying to seduce the reader into sympathising with his own paedophiliac desires, also be deemed illegal? And before someone suddenly twists my words into being pro-censorship extraordinary: my point here is, of course, where do we stop? Where do we draw the lines in such an arbitrary quagmire?
The problem with this arbitrariness is that it allows us to feel good about ourselves, to feel vindicated for a moment or two. We have found something offensive and that which was found offensive has been punished accordingly. While I will certainly hold on to my right to vocally oppose things I find offensive, I also find this judicial arbitrariness unsettling, and cannot help but remember that old adage, “the road to hell is paved with good intentions.” For there are many levels to this quagmire. If we are truly worried about the sexualisation of children, why do we not attack (vocally if not legally) cultural phenomena like Britney Spears and Christina Aguilera, who in their wake have children dressing in an explicitly “sexy” fashion and dancing around in manners it would only be ludicrous to argue do not evoke sexual acts (whether or not the children themselves are aware of it)? These things are situated right in the pop cultural mainstream. Yet in a time, when we are so afraid of the possibility that drawn images might incite a paedophile to commit a crime, we do not even have a large on-going mainstream debate on this problem. Because if these things are not ways of sexualising children, and if such sexualisation is not a way of allowing children to be viewed as sexual objects, then in all honesty, I have no clue what would be.
In this sense, we need to legislate less against fictions and worry more about continually debating that which we find deplorable (we do have that option). Because at the end of the day, fictions do not constitute abuse, but that which could incite such abuse certainly does not, nor will it ever, be confined within the arbitrariness of our laws.
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