The Limits to Free Expression and the Problem of Child Pornography

by Bob Chatelle

Past Political Issues Chair, The National Writers Union.

[This is an unpublished, and probably unpublishable, article that began as a rewrite of an article that I'd written for The PIC Newsletter. The opinions expressed are my own, and do not necessarily represent the views of either the National Writers Union or the Boston Coalition for Freedom of Expression.

 For having the audacity to make an earlier version of this article available on the internet, I was smeared on May 6, 1997 in a front-page article in New England's newspaper of record, The Boston Globe. (Owned by the New York Times.) Sound unbelievable? Read this for the gory details.

 I mention in the following article that parents are frequently arrested for taking innocent photographs of their own children. I urge you to read this horrifying account of a young mother who was beat up by police, in the presence of her little boy, for photographing him for a Harvard photography class. This took place where I no longer live, the infamous People's Republic of Cambridge, where all are free to think politically correct thoughts -- or else.]
 

Non-Consensual Speech: Lying
Non-Consensual Speech: Captive Audiences
Non-Consensual Speech: Theft

Elites, Social Control, and the Media
Witch Hunts and Sexphobia
Recovered Memories
The Day-Care Witch Hunts
The Complicity of Gay Leadership and the Failure of Identity Politics
Pedophilia and the Question of Consent

The Problem of Child Pornography: Legal Definitions
The Problem of Child Pornography: Emotional and Rational Approaches

Why Bother?

Overview of a Rational Theory

To call a form of speech Constitutionally unprotected simply because the Supreme Court has so ruled is not argument but appeal to authority. The Supreme Court is a fallible institution that makes a great many mistakes and has historically reversed itself many times. Because of the Supreme Court, "separate but equal" was once the law of the land. Because of Bowers v. Hardwick, states are free to jail sexually active gay and lesbian people, thus effectively denying them their rights altogether. As a civil libertarian I agree with the Declaration of Independence that certain rights are inalienable, and among these are "life, liberty, and the pursuit of happiness." An inalienable right can not be legitimately denied by any agency of any government, including the U.S. Supreme Court.

The aim of censorship is to restrict thought -- that is, to prevent people from thinking "bad" thoughts. The censors' basic premise is: Some ideas are so dangerous they must be suppressed. Material is censored because, "it might give people ideas" -- ideas that the censors wish to eradicate. Some censors believe that "bad" thoughts cause direct harm to the person who entertains them. Some Christians, for example, consider "impure" thoughts mortal sins that doom a soul to suffer in Hell for eternity. Others simply hold that bad thoughts "corrupt" the thinker. For many years, this direct-harm argument was used to suppress sexual material. According to the Hicklin doctrine, formulated in England in 1868, the state had the right to suppress obscene material, which had a "tendency" to "deprave and corrupt those whose minds are open to such immoral influences."

This justification still has its fervent adherents. On 8 August 1995, for example, right-wing activist Terry Rakolta (best known for her campaign against the TV show Married With Children) spoke in favor of cyberspace censorship on the talk show CNN and Company. In her words, "There are people online that are in your children's bedrooms that are giving them ideas." Rakolta was quoted in an article by Bruce Mirken in the November 1995 issues of The Guide. Mirken comments: "What scares conservatives to death about online communication is that it can give their kids a glimpse of the world outside the barbed wire and guard towers of the right-wing Christian Thought Police. Once they've peered beyond the gates, they might not want to come back."

Modern censors on the left more often argue that "bad" thoughts compel people to commit "bad" actions, actions that harm others. Thus soi disant liberals -- such as Congressman Ed Markey -- crusade to cleanse the media of fictional depictions of violence. Anti-pornography activists -- such as Catharine MacKinnon, Andrea Dworkin, John Stoltenberg, and their followers -- claim that pornography "drives" men to rape and murder defenseless women and children. For example, Barry Crimmins on 24 July 1995 testified before a Congressional committee arguing that Congress should outlaw discussions of pedophilia (which Crimmins erroneously identifies with child sexual abuse) on computer networks such as America OnLine. In his words, "People, who may have never acted on such impulses before, are emboldened when they see that there are so many other individuals who have similar interests..." (In other words: some ideas are so dangerous they must be suppressed. Religious fundamentalists make the identical argument for the elimination of forums that permit discussions of homosexuality.)

Catharine MacKinnon, who is the chief contemporary theorist for this line of argument, says in Only Words:

Sooner or later, in one way or another, the consumers [of pornography] want to live out the pornography further in three dimensions. Sooner or later, in one way or another, they do. It makes them want to; when they believe they can, when they feel they can get away with it, they do." (In other words, pornography "gives people ideas," ideas that must be suppressed.)

For most people, however, fantasy does not compel reality but rather provides a satisfying alternative to it. Men do not use pornography to build sexual pressure so that they can commit rape. Men use pornography to masturbate -- a pleasant, harmless, and time-proven way of relieving sexual pressure. I admit that the notion of an adult masturbating before, for example, an image of a child makes me uncomfortable. But I'm much more uncomfortable with the notion of an adult doing the same thing in the presence of an actual child. In countries where pornography is more accessible and where there's less social stigma attached to enjoying it, rape is not more common but less.

Barry Crimmins is a stand-up comic and freelance journalist who calls himself a radical. (Crimmins also claims to have "recovered" the memory of being repeatedly anally raped over a period of months by an unknown man, brought to his home by a 13-15 year-old baby sitter, when Crimmins was two. These brutal and life-threatening assaults supposedly raised no suspicions on the part of either of Crimmins' parents.) Catharine MacKinnon is a law professor who identifies as a Marxist. Both claim to be "on the left" and belie the popular notion that censorship is only advocated from the right. A free and democratic society is founded on the premise that its citizens have free will and are responsible before the law for their own actions. If individual freedom is impossible so is the goal of a free society. But most who now identify as "liberal" or on the left have discarded the belief in both individual freedom and a free society and have instead embraced social determinism, psychological determinism, or both.

Determinism solves for liberals the problem of evil. Liberals believe that people are basically good. Thus bad actions must have social and/or psychological "causes" and the elimination of evil is attainable through correct social engineering. People who do bad things are "victims" of bad ideas that they acquired through exposure to bad speech. If we can just suppress bad speech, people won't get bad ideas, and we will all live peaceably together in utopia, happily ever after. Since ordinary people are too dumb to monitor their own speech, such monitoring must of course be left to moral experts -- i.e., the liberals.

Censorship is the attempt to limit what can be seen or heard for one of three reasons:

• The censors find the material in question offensive.
• The censors believe that it may have a bad "effect" on the "vulnerable" (e.g., minors, the lower classes, women).
• The censors believe that it may have a bad "effect" on the "dangerous" (e.g., criminals, bigots, "perverts," subversives, the lower classes, men).

This was clearly understood by the late David Wojnarowicz. In his essay "X-Rays From Hell," he wrote:

At least in my ungoverned imagination I can fuck somebody without a rubber or I can, in the privacy of my own skull, douse [Jesse] Helms with a bucket of gasoline and set his putrid ass on fire or throw rep. William Dannemeyer off the empire state building. These fantasies give me distance from my outrage for a few seconds.

Freedom of thought is meaningless without the freedom to communicate one's thoughts to others. Thus if freedom of thought is an absolute right, it would seem to follow that freedom of speech must also be absolute. But speech is a transaction between two (or more) parties: one conveying information and one or more receiving. All parties have the equal right to freedom of thought, and freedom of thought entails the right not to listen, not to read, not to view, etc. In other words, by the principle of equality, no one has the unlimited right to impose unwanted speech upon another.

Finally, the distinction must always be recognized between freedom of speech and freedom of action. That is, adding a speech element to a criminal act cannot legitimize it. Catharine MacKinnon has argued that speech is just another form of action and that if the state may regulate action it may regulate speech. But speech differs from all other forms of action in that it conveys information and is therefore privileged.

I'd like to summarize this introduction by stating three principles relevant to limiting expression:
 

• Freedom of speech is not freedom of action.
• In consensual situations, neither the government nor any private individual or group has the right to limit the content of speech in any way whatsoever.
• In non-consensual situations the rights of all parties must be weighed.

Free Speech and Free Action

You can not decriminalize an act by adding a speech element to it. Sexually coercing a child, for example, is a crime. Photographing the act does not make it less of a crime. The child-pornography analogy, of course, is misleading. When most people imagine child pornography they visualize pictures of children being raped. According to Congress, the Justice Department, and the Courts, however, any depiction of any person apparently under 18, clothed or unclothed, can be prosecuted as child pornography if the government decides to harass you. It is not even necessary for any minor to have been involved in any way in the production of the material. The legal definition is now so broad (and it will become even broader) that people are prosecuted under child pornography laws for possessing material even when no laws whatsoever were violated in producing it. In other words, a legal activity can now become criminalized merely by adding a speech element to it. A now common example is the case of parents who are arrested for taking non-sexual but nude photographs of their own children.

Linked speech and action are not always concurrent. Consider, for example, conspiracies, bribes, or threats. (I'm talking about true conspiracies, bribes, or threats. I'm not talking about a parent who says, "Stop making that racket or I'm going to wring your neck.") In these cases, the criminal act occurs later in time than the associated speech.

 Speech inextricably linked to illegal conduct is called a "verbal act," a category that many people misunderstand, including First Amendment attorneys. For example, in the case of Aguilar v. Avis, (Supreme Court of California, case No. A069353), the ACLU of Northern California argued that the use of certain words and phrases should constitute not speech, but verbal acts. Bruce Adelstein, who wrote an amicus brief (S054561) filed by the National Writers Union (and others), effectively counters this argument:

This argument misrepresents the nature of "verbal acts." Speech constituting a verbal act is limited to speech closely associated with illegal conduct, like inchoate crimes. Such speech is exempt from First Amendment analysis because the emotive or persuasive impact of the speech is not at issue. This type of speech merely enables parties to commit a subsequent criminal act, and the harm from that criminal act has nothing to do with the harmful emotive or persuasive impact of the speech. [p.29]

The message `Fire!' is directed not to the mind and conscience of the listener but, rather, to his adrenaline and his feet. It is a stimulus to immediate action .. the shout of "Fire!" is not even speech, in any meaningful sense of that term. It is a clang sound, the equivalent of setting off a nonverbal alarm. Had Justice Holmes been more honest about his example, he would have said that freedom of speech does not protect a kid who pulls a fire alarm in the absence of a fire.

Limiting freedom of action is clearly not an exception to the First Amendment. Endless debate is possible, of course, over what constitutes speech. Some conservatives, for example, believe that images have no First Amendment protection. I personally believe that individual freedom should be maximized and that speech must be interpreted as broadly as possible.

Non-Consensual Speech: Lying

The relation between information and action must be clearly understood. Information never "causes" action. Information belongs to a different realm of discourse than matter and energy. Information cannot be measured in units of mass, energy, force, etc. Information thus has no direct physical effect. Censors of left and right continually equate the obvious indirect effects of speech upon thought with direct causes of action, and rely upon this equation to justify censorship.

Our brains process information. We evaluate information and make decisions, and these decisions lead to action. The process, of course, can be short circuited. When we respond instantly to someone shouting "Fire!" we have not processed fire as information. We've responded to a stimulus, using primitive parts of our nervous systems. Information processing, like stimulus-response reactions, evolved because it helps us survive.

Give people false information and they may make terrible decisions and do terrible things. People, of course, have a responsibility to be skeptical. People should be very wary, for example, about not only believing anything they read in the Weekly World News but also The New York Times. But sometimes reasonable people believe lies and innocent people are injured as a result. In such cases, it is just to grant people a legal cause of action. Both civil and criminal penalties may be appropriate. That's why we have laws against libel, slander, fraud, false advertising, and falsely shouting "Fire!".

I don't, however, under any circumstances support laws against "dangerous" books, regardless of the amount of misinformation they contain. For example, an unsuccessful attempt was made to sue the authors of a book called The Courage to Heal. Many people believe (I am one of them) that this particular book abounds in false information that has caused, and will continue to cause, immeasurable harm. (I don't believe, however, that the authors' intent was malicious: I presume that they believe what they've written and that their hope was to help people, not to hurt them.) Although I disagree vigorously with its content, I believe absolutely that The Courage to Heal is protected by the First Amendment.

The limits-to-lying argument, of course, can be taken to absurd extremes. Examples of this are attempts to ban speech that "libels" groups, not individuals. If you permit this, it could become illegal to criticize any group whatsoever -- even (or especially) Republicans. Another absurdity is the claim of anti-pornography activists that pornography should be banned because it "defames" women or tells men that women want to be raped. (Some pornography, of course, asserts that women enjoy sex and some censorship advocates -- such as Andrea Dworkin -- believe that intercourse and rape are equivalent.) But pornography is fantasy and is not taken literally by reasonable people. As for unreasonable people, who knows what can set them off?

I'm unsure whether permitting victims of malicious lies legal redress is an "exception that proves the rule" or a true First Amendment exception. I don't support any form of prior restraint. And sanctions against lying are not content based. That is, truth or falsehood is not a form of "content" but rather a relationship between speech and reality. Nevertheless, permitting legal redress for lying certainly has a "chilling" effect, and this chilling effect can in some instances constitute censorship. In Britain, for example, it is much easier to sue for libel than it is in the US. I much prefer the more stringent libel requirements that exist in America. This is why, for example, I chose not to sue when I was smeared by the Boston Globe.

Non-Consensual Speech: Captive Audiences

Some people in our society are without doubt unfairly privileged. The wealthy of course. Others are privileged by their sheer numbers. Parents, for example, are always treated as a privileged class by politicians, leading to the frequent infringement of the rights of non-parents. But a free-speech advocate must hold to the principle that no one should be privileged under the First Amendment. No one, for example, can properly use their free-speech rights to silence another. A simple example of this is that shouting down a speaker is not legitimate free speech. (Falsely shouting "Fire!" in a crowded theater abridges the First Amendment rights of both the actors and the rest of the audience. Unless it's in the script.) Free speech is a right, not a privilege: it belongs to all of us equally.

The right of choice belongs to both producers and consumers of speech. I have the right to choose what I read, what I listen to, what I watch. I also have the right to choose not to read, not to listen, not to watch. Again, no one has the unlimited right to impose unwanted speech upon another. The key question is to what extent does the unwanted speech intrude upon the right of others to be left alone.

For example, When I lived in Cambridge, I had noisy upstairs neighbors who sometimes played their music so loudly that my apartment literally shook. At times like that, even though I'm a First Amendment absolutist, I went upstairs and asked them to turn it down. They had no right to intrude -- to invade my personal space and force me to listen to their awful music. As another example, I have joined with several others and am suing the Massachusetts Bay Transit Authority to try to stop them from permeating the entire subway system with TV monitors blaring commercial messages. If a billboard in a station offends me, I simply walk away. But you can't move away from one of those monitors without encountering another one. They are intrusive.

In our suit against the MBTA, we're using a principle enunciated by no less a First Amendment absolutist than the late Justice William O. Douglas in the 1949 case of Public Utilities Commission v. Pollack. In his opinion, Douglas states "The right to be let alone is indeed the beginning of all freedom." (Douglas was echoing Louis Brandeis, who said in Olmstead v. United States [1928], "...the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men.") Pollack involved an attempt to impose audio messages upon a streetcar audience. Douglas argued that a "streetcar audience is a captive audience ... there as a matter of necessity and not by choice." Douglas also said: "One who enters any public place sacrifices some of his privacy. My protest is against the invasion of his privacy over and beyond the risks of travel."

In applying the captive-audience principle, several relevant questions suggest themselves: Has the unwanted speech invaded personal space? Can one move away from the offending speech without incurring an unacceptable cost for doing so? Does one have the opportunity to respond to the offending speech without risking unfair retribution?

Clear examples of unwanted speech imposed upon an unwilling audience are verbal abuse and sexually harassing speech. If either of these, of course, are accompanied by actions (usually the case), we are no longer dealing with instances of pure speech. But the captive-audience principle is relevant if the unwanted speech intrudes -- invades personal boundaries (especially the sanctity of the home) or permeates an environment (such as the workplace) where one is by necessity and not by choice. Unfortunately, the captive-audience doctrine is seldom employed in cases of harassment, and, when it is, it's often employed inappropriately.

For example, here in Massachusetts the Supreme Court found for the plaintiff, Patricia Bowman, in a harassment suit brought against a co-worker. Bowman was running for president of her union. David Heller -- a long-time political enemy and supporter of Bowman's opponent -- satirized her campaign literature by making tasteless collages that appended Bowman's head to nudes found in Penthouse and Hustler. Heller made seven copies, which he showed to allies. After the election, a Bowman supporter obtained copies of the collages and showed them to Bowman, who sued Heller two years later, just under the statute-of-limitations deadline, claiming to be suffering from post traumatic stress disorder. Part of Bowman's case was the fact that the collage were shown to people in the workplace and that the workplace is a captive environment. But there was no intrusion -- no imposition of the collages upon anyone who chose not to view them, no permeation. Also, although Heller had battled Bowman for years, this was the only time he'd ridiculed her with sexually explicit images. Thus I believe the Massachusetts Court erred. Heller appealed the decision to the US Supreme Court, but they unfortunately declined to hear him.

Rather than use the captive-audience doctrine, courts have unfortunately relied upon the vague and dangerous hostile-environment principle, originally stated in Title VII of the Civil Rights Act of 1964, upheld by the Supreme Court in the 1986 case of Meritor Savings Bank v. Vinson, and reaffirmed in 1993 in the case of Harris v. Forklift. According to this principle, harassment includes anything that creates a discriminatorily hostile or abusive working environment. The problem with the "hostile environment" principle is that people apply it to anything they see or hear that they don't happen to agree with or to like. In November of 1991, for example, Professor Nancy Stumhofer of Penn State University complained that a reproduction of Goya's Naked Maja hanging on a wall of the Schuylkill campus music room constituted sexual harassment. She was vigorously supported in this absurd claim by a Penn State Commission for Women committee and the director of the university's Affirmative Action Office. The painting came down.

Although the Harris decision was unanimous, Justice Antonin Scalia voiced a cautionary comment in his concurring opinion:

Abusive (or hostile, which in this context I take to mean the same thing) does not seem to me a very clear standard -- and I do not think clarity is at all increased by adding the adverb objectively or appealing to a reasonable person's motion of what the vague word means.

Non-Consensual Speech: Theft

Although I've some sympathy for the notion that "property is theft," I don't believe that this in any way applies to intellectual property. That which I create -- especially that which I create entirely within the realm of imagination and information -- belongs to me, unless I contractually transfer ownership to another. The right to own your own words and ideas, and to be paid for what you create, is as fundamental as the right to express yourself.

At times, freedom of expression and intellectual-property rights come into apparent conflict. A recent example was the LaMacchia case. A then 20-year-old MIT junior, David LaMacchia, was indicted on one count of conspiracy to commit wire fraud because he ran a computer bulletin board, Cynosure, and it was alleged that Cynosure users used the BBS to exchange copyrighted software. The case was thrown out of Court by the judge who stated that what had happened was not covered by existing law. Although I don't support copyright violation, I believe that charges should be brought directly against the perpetrators and that computer communication systems are "common carriers" and their operators should be indemnified against criminal activity by users. As LaMacchia's attorney, Harvey Silverglate, said in the response to the indictment, "this case raises the hotly disputed question of whether the operator of a `common carrier' may be held criminally responsible for the manner in which others use his communication system."

As a writer, I'm allowed to use words belonging to another if I do so according to "fair use" guidelines. For example, in this article I've so far quoted Barry Crimmins, Catharine MacKinnon, Alan Dershowitz, William O. Douglas, Louis Brandeis, Antonin Scalia, Samuel Johnson, and Harvey Silverglate. I attributed each quote to the appropriate author. Furthermore, the quotes from Crimmins, Scalia, Douglas, Johnson, and Silverglate are in the public domain. Brief quotes, such as the ones by MacKinnon and Dershowitz, qualify as fair use. Rich and powerful people can use copyright law to harass writers even when there's no violation of the principles of fair use.

Recently, there have been some outrageous examples of this kind of censorship. The Church of Scientology, through its attorneys, has been threatening systems administrators with lawsuits for carrying internet newsgroups that discuss (and criticize) Scientology. The lawyers are alleging that some messages posted in these newsgroups infringe Church of Scientology copyrights or intellectual property rights.

Another particularly outrageous instance was recently perpetrated by media mega-mogul, Ted Turner, and reported in the 6 February 1995, edition of Newsweek. Turner, it seems, demanded that Salman Rushdie remove two lines from his most recent collection of short stories, East, West. The lines?

Flintstones! Meet the Flintstones!
They're the modern stone age family.

Private citizens not only own any intellectual property that they create, they also own their own names, their images, and the details of their private lives. (Courts have held, and I think legitimately, that only very limited rights are retained by those who choose to become public figures or limited public figures.) Thus it is a violation of privacy and property rights to use for commercial purposes a person's name, image, or personal life without that person's knowledge and legal consent. In some cases, individual rights can be violated even when no financial transactions are involved.

On 9 January 1995, for example, a University of Michigan student named Jake Baker posted on the internet a crude, talentless, and distasteful story depicting the rape and murder of a young woman. Since Baker evidently lacks sufficient creative ability to even invent names for characters, he gave his fictional victim the name of one of his actual classmates. Needless to say, Baker did not inform his classmate or obtain her consent.

Rightly or wrongly, the woman named decided to take no legal action against Baker. The U.S. government then foolishly decided to prosecute Baker on its own. The government first indicted Baker on transmitting threats, based on unspecified computer communications that presumably included the posted story. When the final indictment was submitted, however, no mention was made of the story and the indictment instead focused on several private email conversations Baker had with someone in Toronto named Arthur Gonda. The indictment was dismissed when Judge Avern Cohen ruled that the communications did not constitute a true threat.

The issues in the Baker case would have been quite different had Baker used the name of a public figure, such as Catharine MacKinnon. Courts have held that those who voluntarily enter public life sacrifice much of their right to privacy. In a functioning democracy, public figures must be subject to scrutiny and criticism, including criticism by satire, no matter how crude and tasteless. The most important relevant Supreme Court ruling was Falwell v. Hustler, which upheld the right of Hustler magazine to publish a crude and offensive satire attacking the Reverend Jerry Falwell.

Falwell, unfortunately, is in peril because of the aforementioned Bowman case. Heller justified his unauthorized use of Bowman's image with the fact that he was satirizing her campaign literature at a time when she was running for the presidency of a very large and important union, and therefore (at least within the limited context of that union) she was certainly a public figure.

Elites, Social Control, and the Media

Nothing appears more surprising to those who consider human affairs with a philosophical eye than the easiness with which the many are governed by the few, and the implicit submission with which men resign their own sentiments and passions to those of their rulers. When we inquire by what means this wonder is effected, we shall find that, as force is always on the side of the governed, the governors have nothing to support them except opinion. It is, therefore, on opinion only that government is founded, and this maxim extends to the most despotic and most military governments as well as to the most free and most popular.

David Hume, Of the First Principles of Government [1758]

Thanks also to Gore Vidal for including this wonderful quote in his essay, "Cue the Green God, Ted." [The Nation, August 7/14 1989]

An absolutely equal division of wealth and power is not possible and probably not desirable. If the wealth and power of elites remains within reasonable limits, and if people outside of the ranks of the elite are permitted to advance economically and politically, a measure of social justice can be achieved. The problem is that inequity usually causes more inequity, eventually resulting in gross injustices. Often nothing can check this process short of total societal collapse.

The position of elites is slightly precarious because non-elites do have one advantage: the advantage of numbers. Stability requires general consent. Stability is maintained by mechanisms of social control, which serve not only to protect all from lawlessness but also to preserve the primacy of elites. Economic rewards and punishments are most effective. Those most useful to the elites will be relatively well-paid. Those who give them grief find themselves unemployed. A stabilizing myth holds that anyone, through diligence and hard work, can move up and join the ranks of the elite. No one undermines the power of a group he or she hopes someday to join.

The more powerful members of governments constitute an elite in themselves, and government in general serves elite interests. This is true even for democracies. Democracies purport to serve popular interests and represent "the will of the people." (And democracy does work very well for voluntary organizations and small communities.) But in large and complex societies, few citizens have any understanding of or interest in government -- except for members of the elites and their agents.

To control behavior you must control thought. And to control thought you must control access to information and discourage critical thinking. Most citizens rely upon major media -- radio, television, daily newspapers, etc. -- for information, and these media are owned by elites. But the general belief that both representative government and a free press exist discourages dissent. The most effective way of stopping people from fighting for freedom is to convince them that they already have it.

Elites don't rule via conspiracy. Conspiracies, for most intents and purposes, do not exist. Handfuls of people, of course, do meet and plan behind closed doors. But as the number of people involved increases, the possibility of maintaining secrecy falls off exponentially. Secrecy and conspiracies simply aren't necessary to maintain power. When large groups of people apparently act in concert the most likely explanation is simple pursuit of self-interest. Similar people with similar beliefs and similar interests, given access to the same information, behave in similar ways.

Media slant is not the result of conspiracy. Publishers pursue their own interests and the interests of stockholders and advertisers. Editors strive to please publishers; reporters, editors. There's rarely a need to write up guidelines about how to frame and present "facts" or what is and what is not "news." (An excellent censorship mechanism is simply to declare that something "is no longer news.") News consumers readily believe things that are not true because they are not trained in evaluating evidence or critical thinking. Few ever question authority. Most fear any idea that is not comfortably familiar or expounded by a trusted authority figure. Ill-equipped to refute bad ideas, people readily endorse the notion that the best way to deal with dangerous ideas is simply to suppress them through censorship. The propaganda system thus works most efficiently.

By presenting "both sides" of an issue, the media define the boundaries of the permitted spectrum of opinion on any given issue. The truth, we are told, must lie somewhere "in the middle." Opinions outside the acceptable spectrum are marginal, extreme, crackpot, not to be taken seriously. The acceptable spectrum is also represented by the beliefs of the two major political parties. The dominance of these two parties is further secured by unfair voting laws. For example, If a political party to the left of the acceptable spectrum gathered strength it would split the liberal vote and aid the right. All third-party efforts are thus either ineffective or counter-productive. Neither of the two parties will ever support electoral reform, simply because it is not in their interest to do so. 

Witch Hunts and Sexphobia

This is so for a number of reasons. First of all, we live in an intensely sexphobic society. Americans have a bizarre horror of (and fascination with) sex, especially "unorthodox" sex. The media and criminal justice system routinely equate the consensual giving of pleasure with violent rape and no one blinks an eye. Of course the legal system has been trying to eradicate "unorthodox" sex for thousands of years. It always has, and always will, fail. Any form of consensual sex is extremely pleasurable, and orthodoxy should be simply a matter of personal taste. One person's perversion is another's ecstasy. Sexphobia, however, provides a powerful mechanism of social control to the elites who own and run things. There can be no liberation without sexual liberation. As long as we fear sex, those with power will use that fear to control us.

The best Monsters are those that most citizens know little about, either because they live far away and are products of unfamiliar cultures, or exist as shadowy and hidden minorities within our own. Monsters supposedly participate in secret international conspiracies. Monsters, of course, have no real power -- they don't even have rights. Monsters cannot speak openly and when Monsters dare congregate they must, for their own safety, meet privately. Monsters are driven underground, and then their underground existence is presented as proof of shadowy Monstrous conspiracies. It's easy to build a cultural consensus that Monsters constitute an extra legal class devoid of the rights of "normal" citizens. Monsters may be imprisoned at the state's will -- although this sometimes requires the testimony of a certifying "expert." (And there is never a shortage of "experts" eager to be of usually well-paid service.) Members of almost any minority group are candidates for Monsterhood. Historically, Monsters have been witches, Jews, Catholics, Mormons, Freemasons, blacks, Asians, Hispanics, foreigners, Communists, pedophiles, homosexuals. (This list is far from exhaustive.) Any dissenter risks certification, followed by imprisonment or death.

During the 50s, Communists (both foreign and domestic) made excellent Monsters. The media demonized Communists as unfeeling and "godless." Most Americans believed that the threat of Communism was so terrible that they were more than willing to "give up a few rights" to fight it. When the populace is scared, it is easy to persuade it that their protection is dependent on the sacrifice of basic human rights. The elites (who don't need rights because they have ample privileges) generally view the Bill of Rights as little more than an impediment to effective law enforcement.

But witch hunts always expand their scope beyond their original target. The witch hunt becomes an industry -- usually with infusions of federal, state, and local funding -- and vigilante groups spring up and do massive fundraising to help the Gestapo hunt down the Monsters. But a witch hunt can only be sustained by finding some witches. Since the Monsters being hunted are usually few in number (provided they exist at all) and difficult to catch, other victims must be found to make up the witch hunters' quotas. If you can't find Monsters, you can find Monster sympathizers or supporters. Or you can frame a few innocent and powerless people. This is what happened in the 50s during Joe McCarthy's reign of terror. And it's been happening non-stop over the last twenty years -- the daycare panics, the "recovered memory" movement, and the continuing hysteria over adults (usually men) who have sex with teenagers (usually boys).

As previously stated, social control is not effected through conspiracy. Witch hunts are not the result of conspiracies, but rather the result of many people making individual decisions in pursuit of their own self-interest -- legislators, prosecutors, judges, police, reporters, editors, moral crusaders, concerned citizens, and others. No one is in charge of a society-wide witch hunt and no one can call it off. Witch hunts eventually rage out of control, and affect not only people useful to the elites, but members of the elites themselves. As more and more people see that continuing the witch hunt is not in their best interest, the hysteria eventually dies down. But not before a great many lives and reputations are destroyed. And few, if any, real Monsters are ever vanquished.

Monsters, of course, are with us. They always have been and always will be. A natural consequence of the statistical diversity of large human populations is extreme forms of behavior. Although the American Communist Party was a tiny organization, it did exist and it is possible that some of its members committed criminal acts during the 50s. And there's no question that some adults do abuse children.

During an era of witch hunts, the civil libertarian is presented with two challenges. The first is to come to the aid of the falsely accused. The second is courageously to defend the principle that all citizens have the right of freedom of speech, press, and assembly, and that anyone accused of a crime -- regardless how heinous that crime might be -- has the right to due process. This is not a simple task.

Those who promote witch hunts tend to believe all accusations, and thus have no concern about the rights of the falsely accused -- a class they believe doesn't even exist. As a result, some of the falsely accused (and those who support them) may endorse the notion that the "real" Monsters should be considered extra-legal and not deserving Constitutional protection. Few people falsely accused of being Communists during the 50s, for example, were eager to defend the rights of "real" Communists. It is certainly reasonable and appropriate for those falsely accused of sexual crimes to condemn sexual aggression, especially sexual aggression against children. But if they further endorse the notion that some people are so evil that they don't deserve Constitutional protection, then they contribute to the general erosion of rights that occurs in times of sexual panic.

Cultural phobias constitute self-fulfilling prophecies. In a culture terrified of witchcraft, for example, few things can torment one as much as the belief that he or she is the victim of a spell. And those in such a society who maliciously cast such spells cause real, intense pain and suffering. It's irrelevant to ask whether spells "really" work. They work because people believe they work. "Reality" is structurally complex. It's elements are not merely "facts" and "laws of nature." The only "reality" any of us will ever know is experienced reality. And experienced reality is shaped and colored by our personal and cultural belief systems. In a sexphobic society, therefore, coerced sex is one of the worst things that can happen to anyone. And children absorb cultural beliefs and fears very early in life.

Sexphobia is potentated when it is coupled with parents' legitimate wish to protect their children from harm. If unwanted sex is the worst thing that can happen to an adult, it must be infinitely worse for a child. In a sexphobic society, parents believe that all sex indulged in by children is unwanted. Children are "innocent" -- i.e., asexual. If a child engages in sex play -- alone or with others -- such play must be interpreted as abuse or as the result of prior abuse. If the child denies abuse or coercion, the denial must not be believed.

But all of us, including children, are sexual beings. Children, of course, are not sexual in the same way that adults and adolescents are sexual -- powerful changes occur at puberty. Even in sexphobic cultures, most adults recognize adolescents as sexual beings. Most adults, in fact, find adolescents sexually attractive -- but not exclusively so. As Gore Vidal says in Palimpsest, "Naturally, like most men, I am attracted to adolescent males -- this is, by the way, one of the best kept secrets of the male lodge." But excepting times of panic, few adults have a sexual interest in prepubescents. Some percentage of these will actually take advantage of kids, or even physically coerce them. I suspect the percentage is low for two reasons. First of all, I've seen no evidence of a correlation between sexual orientation and ethics/morality. Thus most (but by no means all) who are sexually attracted to prepubescents would be restrained from exploiting children by their own moral/ethical beliefs. Second, even in times of calm, the reprisals against anyone known to exploit children sexually are very severe and would discourage most (but, again, by no means all). As a result, when child abuse does occur it can be truly terrible because the perpetrator may be someone restrained neither by morals nor fear of reprisal.

But during periods of sexual hysteria, adolescents are redefined as children. Sex with one is considered as heinous as sex with the other. And desire is seen as equivalent to the act. A result of this blurring is the erotization of the child. If children are equivalent to adolescents, and adolescents are sexually attractive, then children are also sexually attractive. Moreover, the erotic appeal of children is intensified by the strength of the taboo. The allure of the forbidden eroticizes a class of people (prepubescents) that otherwise would be dismissed by most as sexually uninteresting. Intense sexphobia endangers children by simultaneously eroticizing them and blocking more appropriate avenues of sexual outlet.

Parents have entirely legitimate reasons for not wanting their children -- including their adolescent children -- having sex. Two such reasons are a rational fear of unwanted pregnancy and a rational fear of disease, including AIDS. These risks can be significantly lessened (but not eliminated) by good sex education. The emotionally immature, however, may underestimate risks -- the young often behave as if they think they are immortal. And youthful experimentation with drugs and alcohol causes many kids to be reckless.

...there is no such thing as a homosexual or heterosexual person. There are only homo- or heterosexual acts. Most people are a mixture of impulses if not practices, and what anyone does with a willing partner is of no social or cosmic significance.

So why all the fuss? In order for a ruling class to rule, there must be arbitrary prohibitions. Of all prohibitions, sexual taboo is the most useful because sex involves everyone. To be able to lock someone up or deprive him of employment because of his sex life is a very great power indeed...

Gore Vidal, "Tennessee Williams: Someone to Laugh at the Squares With"
The New York Review of Books, June 13, 1985.

If we accept Vidal's analysis -- and I, for one, think it on the mark -- then homophobia is not the fear of a kind of person but the fear of an act.  Homophobia is disgust (or fear) of sex acts between men.  Analogously, lesbiphobia is disgust (or fear) of  sex acts between women.  Homophobia and lesbiphobia may result in discrimination against (or even violence towards) person who would commit such acts, or are at least perceived as being willing to commit such acts.

One of the things that makes humans unique is our sexual versatility -- our ability to experience sexual pleasure through not only penis-in-vagina intercourse but also through non-procreative practices as well: masturbation, oral sex, and anal sex, to name just a few of the more popular variations. Not only can men and women enjoy these forms of sex with one other, but men can share sexual pleasure with men and women with women. Sex can be enjoyed solo, in pairs, in threes, or in groups. Cultures differ greatly in what, if any, forms of non-procreative sex are sanctioned. In ancient Greece, for example, it was considered perfectly normal for a man to be attracted to an adolescent boy (and vice versa) and no one believed that such an attraction branded one a special kind of person having a special kind of "identity."   Pederasty was considered a hallmark of a free society.  Consider this quote from Plato's dialogue, The Symposium:

In countries which are subject to the barbarians, the custom is held to be dishonorable; loves of youth share the evil repute of philosophy and gymnastics, because they are inimical to tyranny; for the interests of rulers require that their subjects should be poor in spirit...

Given current cultural expectations, it's not surprising that a great many of us who break the homosexual taboo become exclusively homosexual and live our lives within the homosexual subculture, or "the gay community." Those who do not -- with the possible exception of those who publicly proclaim themselves as possessing the bisexual "identity" -- are viewed with suspicion by the "community" as "not really gay." (Consider the usual callous reaction by the gay press when some unfortunate married man is arrested at a rest stop or in a washroom.)

I'm a gay man myself, and I'm familiar with the sexual history of a number of other gay men. Most of us became sexually active in our early teens -- some even younger. Our partners were both our peers and older, more experienced boys and men. We valued our relationship with older and more experienced guys not just because of what we learned about how to be sexual and loving people, but also because we were being introduced to a supportive community that would enable us to survive in a hostile wider society. I believe that if you surveyed men over 35 who've had sexual relations with other males, and they responded honestly, most would report instances of willingly participating in man-boy sex, provided one defines man as any male over the legal age of consent and boy as any male under. (Granted most would disclose experiences they had as boys, not as men.) I specify over 35 because, during the past 20 years, the legal penalties for man-boy sex have become so Draconian that very few men would be so reckless. And few of these would be even more reckless and disclose such instances, even anonymously, to a researcher. Some of us, unfortunately, were abused as boys -- coerced or pressured into having sex before we were ready for it. But most of us viewed our experiences as "coming out" and accepting ourselves for who we were. Most parents, however, take a different view.

Some parents, for example, may consider themselves "liberal" because they oppose job and housing discrimination against homosexuals. But if these same parents subscribe to the "born that way" theory, they may be extremely homophobic when it comes to their own adolescent children. If only those "born that way" willingly have homosex, and a parent discovers that his son or daughter has had homosex, then only two unattractive conclusions are possible: (1) the child was "born that way" and will be kicked out of the gene pool or (2) the child was coerced (molested, raped, etc.). Given this unappetizing choice, most parents will opt for the second, and most terrified kids will tell their parents (and authorities) what they want to hear. Whenever a man is discovered to have been blowing a teenager, consensually and for an extended period, he is arrested for rape and promptly branded a rapist by the media. A great many parents view someone who'd introduce their kids to homosex as worse than a murderer, and some would even rather their child died than become gay. As Philip Jenkins notes in his excellent book, Moral Panic, "to protect is also to assert control .... Preventing sexual acts against the young can be a way of regulating sexual acts by that population." (p.225).

Ironically, I believe there was less tension about adolescent homosexual behavior during the 50s and 60s. Many then considered a homosexual stage to be a normal phase of adolescent sexual development. The parent of a child discovered in same-sex play could console him or herself that "it's just a phase." Kids too took a more relaxed attitude toward "just fooling around." And most of the kids who "fooled around" became predominantly, if not exclusively, heterosexual as adults. But now (partly as the result of gay activists who insist on fixed sexual identity) pubescents are expected to declare their lifelong allegiance to one of the official sexual tribes -- a grave matter that certainly takes most of the fun out of sex. No wonder that so many kids now refuse to shower with their peers after gym class.

I've witnessed what has happened to a number of friends who enjoyed much sexual freedom when young and then subsequently became parents. The desire for genetic immortality emerges. They want their own children to learn about sex -- at least in any practical sense -- only after they have been safely married to a suitable virgin of the opposite gender. (How many parents, if asked about what they want for their children, would put sexual freedom on the list?) Even parents who believe that homosexuals are "born that way" may harbor fears that their "not born that way" children will be "recruited." Parents believe that the "dangerous" homosexuals are the ones that might "recruit" -- that is, have sex with their sons or daughters. Many parents fear that most homosexuals would "recruit" if given the chance. (Gay people are probably less likely than exclusive heterosexuals to have sex with teenagers, given the much greater risks that we face.) And given the blurring of the distinctions between adolescents and children that occurs during sex panics, a great many parents consider homosexuals a threat to pre-pubescent children as well. The homosexual thus becomes the scariest Monster of them all. And the scariest homosexuals are the ones attracted to (or -- even worse -- attractive to) the young.

No civil libertarian supports any form of coerced sexual activity. Sexual coercion is the precise opposite of sexual freedom. Brandeis and Douglas's "right to be let alone" certainly encompasses the right not to be sexually coerced, pressured, or exploited. This right belongs to all, but children -- because of their lesser physical strength, because of their lesser sexual knowledge, because of their training to obey adults (especially parents and other relatives, and parent surrogates such as teachers, members of the clergy, coaches, etc.) -- are particularly vulnerable to coercion. Parents have every right to be concerned that no harm, sexual or otherwise, come to their offspring. Problems occur, however, when these legitimate concerns dovetail with irrational fears that evil queers will "recruit" children into sexual unorthodoxy. The reasonable fear that one's kids might be molested gives way to the unreasonable fear that these kids might be "turned queer."

Actual sexual coercion of children is dreadful -- one of the most dreadful and frightening things that can happen to a child. The horror is compounded by the fact that our society is sexphobic and most children absorb this at a very early age. A child sexually coerced thus experiences that which he or she has been trained most to fear. In a less phobic society, there would be less sexual coercion, because all forms of consensual sex would be acceptable. And sexual coercion, when it did occur, would be less traumatic to the victim. Unfortunately, sexual coercion (like other forms of physical assault, including murder) will occur to some degree in any society. No amount of social engineering will ever solve the problem of evil.

Sexual pleasure is a glorious thing. Tragically, some people never outgrow the cruel lies that they are taught and thus deny themselves sexual pleasure. More tragically, many of these same people, not content with impoverishing their own lives, tirelessly campaign to deny sexual pleasure to others as well. Coerced sex is wrong because it is coerced: no one who believes in freedom supports the right of anyone to take freedom from another. And uninformed consensual sex has its own dangers: unwanted pregnancy and sexually transmitted diseases. These dangers can be eliminated, or at least drastically minimized, by adequate sex education. Informed consensual sex harms no one and is of great benefit to the participants. Recreational and procreational sex can and must peacefully coexist. Both are essential to the sanity and survival of a civilized society. 

Recovered Memories

Users of this argument claim that documented instances of some phenomena are "the tip of the iceberg" and argue that the overwhelming majority of instances are unreported and undocumented. This may of course be absolutely true. Because of the historical stigma attached to rape, a great many rapes go unreported. Because of the stigma attached to homosexuality, any census will record a smaller number of gay and lesbian people than actually exist. If accurate information is to be obtained, barriers to reporting must be removed.

But the "tip of the iceberg" argument can lead to fallacies. First of all, something invisible can be estimated to be of any size whatsoever. Thus statistics can be conveniently inflated by assuming that only one in X instances is reported, where X is the number that gives a sufficiently alarming result. After all, one can't prove that X has been overestimated, since one guess about the size of an invisible population is as good as another.

Second, removing barriers to reporting can cause the recording of a lot of false instances. Definitions may be broadened and made so vague that all sorts of events are counted that should not be. Also, people interviewed for social-science studies want to please their interviewers and tell them what they want to hear. Interviewers who think they are merely making the subjects comfortable may be leading them instead. And, of course, even the most "objective" researcher is not immune to the fallacy of confirmation bias. These problems, for example, have flawed rape studies, producing alarming (and false) statistics, such as that one in three women will be raped.

In the case of childhood sexual abuse, many therapists claim that the phenomenon is under reported not just because victims are reluctant, but also because most have forgotten their abuse -- that is, they have "repressed" the memory, even in cases where the abuse supposedly occurred repeatedly over many years. Some therapists even argue that the perpetrators (or "perps," in Recovery Movement jargon) themselves repress memories. Thus the Incest Survivors club becomes one that anyone can join. Everyone is a probable victim, a probable perpetrator, or both. (Part of the dogma is that abuse victims are doomed to become "perps" without the benefit of extensive and expensive memory "therapy.") Not remembering abuse is even taken as evidence that abuse has occurred! (The abuse must have been really bad if you had to repress it.)

"Recovering" memories has proved a most lucrative pursuit for many therapists. The theory of "recovered" memory has created a nationwide cult of abuse "survivors," many of whom belong to Incest Survivors Anonymous or similar groups, and the true believers are as dogmatic as the followers of L. Ron Hubbard or the Reverend Moon. Because of the well-known power of suggestion, patients are easily persuaded that their "recovered" memories are true. For one thing, it provides the patient with a simple explanation for everything wrong with his or her life, and it is an explanation that relieves the patient of all moral responsibility. If the recovered-memory movement had a slogan, it would be "I am not responsible." We unfortunately have little sympathy for "ordinary" people, oppressed by "ordinary" discrimination and "ordinary" injustice. But if you claim to be an incest survivor, you become an extraordinary person who can demand unstinting sympathy. The more horrible your "memories," the more attention and adulation you can expect.

Barry Crimmins, for example, was a little-known Boston comic when he recovered his "memories." After broadcasting his tale of mind boggling abuse far and wide, he not only revived his flagging career, he also received a Humanitarian award from a prestigious educational institution, Wellesley College. I don't believe, however, that Barry Crimmins is a dishonest person who consciously invented his memories for personal gain. Having read his account, I'm convinced that he absolutely believes that he was horribly abused. I'm just saying that our well-meaning desire to offer comfort and sympathy to victims can have the unintended consequence of encouraging and rewarding irresponsibility and irrationality.

There is no good evidence supporting recovered memories. For events that happen before the age of about three, no one has reliable memories because the nervous system -- specifically the hippocampus -- is not sufficiently developed to store them. This is the well known phenomenon, childhood amnesia. Barry Crimmins, for example, claims to have recovered "memories" of abuse that occurred at the age of two. But these memories are most certainly confabulations. In an article he wrote for The Boston Phoenix, he described how he and his sister, in a classic folie a deux "recovered" (i.e., created) his "memories." Before the ages of five or six, memory is notoriously undependable. If abuse occurs beyond that age, the memories of it remain all too clear. Some believe that the memory of a single traumatic event can be lost and later retrieved, but no solid evidence supports this hypothesis.

Recovered-memory therapists posit something quite different than ordinary forgetting and remembering, or the conscious suppression of memories of unpleasant events. They believe in an unconscious mechanism that causes traumatic memories, even of frequently recurring traumas, to vanish without a trace (often leaving no holes in the memory) and remain perfectly intact, invulnerable to normal decay or distortion, until they are miraculously "recovered" years later through Recovered Memory Therapy -- which involves such discredited "techniques" as hypnosis, guided imagery, and interrogation under the influence of Sodium Amytal.

Recovered Memory Therapy has achieved undeserved credibility through confusion with established and documented manifestations of both normal memory and memory dysfunction -- such as ordinary forgetting and remembering, sudden and radical reinterpretation of past events, psychogenic amnesia (temporary trauma-induced near total memory loss, which may or may not be a valid phenomenon), and unstored memories (e.g., childhood amnesia, alcoholic and drug-induced amnesia, and memories never stored -- as opposed to "repressed" -- due to trauma).

Perhaps the most alarming aspect of the recovered-memory cult is their believe that repressed memories of childhood sexual abuse -- especially "Satanic Ritual Abuse" -- lead to the development of Multiple Personality Disorder (MPD), now often called Dissociative Identity Disorder. Beliefs in multiple personalities goes back to the late eighteenth century, when it began displacing earlier beliefs in demonic possession. While some attributed MPD to childhood trauma, only since the early 1970s (spurred in part by the popularity of the book Sybil, which later became a widely viewed television movie), did people start tying MPD specifically to childhood sexual abuse.

The main problem with this theory is that there is no such mental illness as MPD and there is no such phenomenon as "dissociation." This case is made most persuasively in the book, Multiple Personalities & False memories (1996), by the late psychologist Dr. Nicholas Spanos. According to Spanos:

Multiple identity enactments occur in most human societies. Nevertheless, the frequency of these enactments, their behavioral components, the conditions under which they occur, and the characteristics of those who display them differ dramatically among cultures and sometimes within cultures as well. When examined across cultures and historical eras, the rule-governed nature of multiple identity enactments and their embeddedness within a legitimatizing social matrix become clear. [p. 301]

The British psychiatrist, M.A. Simpson, had this to say in an article (1989) in the British Journal of Psychiatry:

My hypothesis is that MPD is an iatrogenic [therapy-induced], largely culture-bound disorder, with some resemblance to folie a deux, arising when a bright, suggestible patient meets a bright, suggestible physician convinced that MPD is an important diagnosis. Selective reinforcement of symptoms, unconscious and conscious, progressively shapes the symptoms and behavior of the patient, and the depiction of MPD is elaborated and reinforced.

There is no convincing evidence that MPD is a naturally occurring condition, let alone a distinct diagnosis. It is a symptom complex that may be superimposed on other psychopathologies, consequent upon the unfortunate matching of a susceptible patient with a susceptible therapist and trainer. The diagnosis is dysfunctional, focusing attention selectively in a way that will almost invariably worsen the condition, rather than improving it. It occurs in the context of the availability of lengthy psychotherapy. Where the health system of health insurance does not sponsor this indulgence, the condition simply does not occur.

The American therapy industry is almost completely unregulated, and it is a very big and very powerful business. It is a business that has grown phenomenally since the early 1960s. Between 1959 and 1989, membership in the American Psychiatric Association grew by a factor of 3.4 and membership in the American Psychological Association grew by a factor of 16. Since 1959, the number of clinical psychologists in the US had doubled every ten years. (During the same period, the cost of insurance premiums skyrocketed and, as a result, many individuals and families were forced to go without health insurance altogether. Thus many needy people with genuine health problems are not receiving the medical care that they need.) The therapy industry has a vested economic interest in expanding their client base as much as possible. The promotion of "recovered" memories is an ingenious scheme that potentially expands the client base to include everyone. But the social costs are much more than we can tolerate. The time is long past due to put a final end to this pernicious baloney.

The recovered-memory movement has destroyed countless lives and families and will no doubt destroy countless more. The therapists who promote this idiocy, and the authors of books such as The Courage to Heal, do far more harm to far more people than so called pedophiles and child pornographers. The writings and teachings of the recovered-memory cult "give people ideas" -- terrible ideas that cause them to make dreadful accusations. Many innocent people are now in prison because of these accusations. 

The Day-Care Witch Hunts

The first and best known case began in August of 1983, in Los Angeles, when an alcoholic woman (later diagnosed as a paranoid schizophrenic) named Judy Johnson decided (on the basis of no physical evidence other than she thought his bottom was red) that her pre-verbal two-year-old son had been sodomized by Ray Buckey, a 25-year-old man who was a day-care worker at the McMartin preschool. The police -- always eager to believe such accusations -- without bothering to investigate sent a letter to over 200 McMartin parents, warning them of "possible criminal acts" such as "oral sex, fondling of genitals, buttocks or chest area, and sodomy." The children -- most of them three and four -- were anxiously questioned by their parents and, not surprisingly, told their parents what they thought they wanted to hear.

By this time, the multi-billion dollar sex-abuse industry was already well-established, largely through the infusion of federal money mandated by the Mondale act of 1974, providing matching funds to states that passed their own laws establishing mechanisms for investigating and prosecuting abuse. The Mondale Act also removed disincentives for false accusations, by requiring that states, to qualify for funding, must guarantee both anonymity and absolute immunity from prosecution for anyone alleging abuse. Moreover, by the Mondale act, states had to mandate that certain professionals -- such as therapists and educators -- had to report to the state all allegations of child sexual abuse, regardless how baseless and ridiculous they might be, and regardless whether the false charges were transparently being made for vindictive and hostile motives.

Agencies sprouted up such as the Children's Institute International (CII), where many of the McMartin parents took their children for questioning. Under the coercive and leading prodding of therapists, especially a zealot named Kee MacFarlane, the children soon created bizarre tales of being forced to drink blood and urine, animal sacrifices, and Satanic rituals conducted in tunnels underneath the preschool. (Gloria Steinem eventually provided public support and donated money to finance an expedition in search of these non-existent tunnels. The expedition was led by Ted Gunderson, a former FBI agent with ties to the right-wing militia movement and to Lyndon Larouche.) Those accused soon included both Ray Buckey's mother and sister (both named Peggy), and Virginia McMartin, Ray's grandmother and the preschool's founder, who was at the time a septuagenarian in a wheelchair. Judy Johnson, the original accuser, claimed that Ray Buckey had sodomized her two-year-old while sticking his head in a toilet, had forced him to ride naked on a horse, and had molested him while Buckey dressed as a policeman, a fireman, a clown, and Santa Claus. Other teachers supposedly jabbed scissors in his eyes, shot staples in his ears, nipples and tongue, and killed a baby and made him drink the blood.

A further allegation in the McMartin case was that "pornographic" films and photos were taken of the children being abused. These accusations provided a convenient answer to a mystery: if a child-pornography industry existed, how were the materials produced, given that law-enforcement had failed to find any evidence of a commercial child-porn-producing industry? Child porn has carried draconian legal penalties since 1978, and the Supreme Court ruled in 1982 (New York v. Ferber) ruled that serious artistic, scientific, or social merit is not a defense. Since the market was very small and the penalties extremely high, commercial production of materials vulnerable to kiddie-porn prosecution ceased immediately. Since the existence of an abundant supply of kiddie-porn is a basic tenet of the new sexphobia, the notion that day-care centers were kiddie-porn factories fit nicely with the ideology.

Most child "pornography" is just pictures of naked children indulging in non-sexual activities. When children are portrayed as sexually aroused, or engaged in sexual play, they are clearly presented as enjoying themselves. Adults are almost never portrayed. The central "idea" of child pornography -- the idea that makes it appealing to some and so appalling to many more that they believe it must at all costs be suppressed -- is that adolescents and children are sexual beings who can freely and willingly engage in sexual activity. Nothing could be more antithetical to this idea than a picture of a toddler being raped by an adult. Yet it is precisely this sort of child "pornography" that was supposedly manufactured at the McMartin Preschool. No actual films or photographs, of course, were ever found. This did not prevent Kee MacFarlane from testifying before Congress in 1984 that "We're dealing with an organized operation of child predators" and that the McMartin Preschool was a "ruse for a larger, unthinkable network of crimes against children."

The media gave full credit to the bizarre McMartin accusations, assuring a nationwide panic and the duplication of similar charges at other day-care centers. (This campaign dovetailed nicely with rightwing opposition to day-care centers, based on the notion that a mother's place is in the home.) The Buckeys were jailed for two years before their case ever came to trial. They were eventually exonerated (in 1990) but their lives had been destroyed. They tried to sue, but were unable to because of Walter Mondale's bright idea of granting accusers, prosecutors, and those who assisted them, absolute immunity. Robert Kelly -- an accused worker at the Little Rascals Day Care in Edenton, North Carolina, was sentenced to twelve consecutive life terms and his wife Betsey (while maintaining her innocence) pled "no contest" to avoid a trial. (In this case, the allegations included being thrown into shark-infested waters, trips to outer space, and devil worship. Kelly's conviction was overturned in the summer of 1996, but the state may retry him.) Kelly Michaels in New Jersey was jailed for five years before an appeals court overturned her conviction, but the state attempted to retry her.

Homophobia played a major role in one of the earliest dubious conviction, which was of Bernie Baran, of Pittsfield, Massachusetts. Bernie was a 19-year-old openly gay aide at the Early Childhood Development Center in Pittsfield. When one homophobe discovered that a queer was teaching his four-year-old nephew, he went ballistic. Soon afterwards he and the boy's mother accused Bernie of molesting the child. While no credible physical evidence was found, and the boy refused to testify against Bernie, he is now serving three concurrent life terms.

Some of the zealous prosecutors made political capital of their "successes" in destroying and jailing innocent people. Two well-known examples are Massachusetts Attorney General Scott Harshbarger and US Attorney General Janet Reno.

Harshbarger was the Middlesex County District Attorney during the infamous Fells Acre Case, which bears a strong resemblance to the McMartin case -- not surprisingly, because chief prosecutor Larry Hardoon flew to California at taxpayers' expense to consult with the McMartin prosecution team. The case began on September 2, 1984, when Denise Caissie -- in the middle of a breakup of a troubled marriage -- phoned the Massachusetts Department of Social Services and accused 25-year-old Gerald Amirault of taking her son (just shy of five years old) Murray to a "secret room" at the Fells Acre School and molesting him. Three days later Gerald was arrested for rape, and the police summoned the Fells Acre parents to a meeting at the police station, where social workers panicked them into believing that their children too had been abused. As a result, 40 cases surfaced and the accusations spread to include Gerald's sister Cheryl LeFave and their mother and the school's founder, Violet Amirault. The outlandish charges included molestations by clowns, robots, and a lobster. Violet supposedly fed a child a frog that quacked like a duck; Cheryl killed animals and buried their blood in the sandbox; someone tied a naked boy to a tree in front of all the pupils and teachers. (Miraculously, none of the neighbors or passersby witnessed this.) Gerald's case was assigned to an outrageously biased judge named Elizabeth Dolan, who disregarded all normal rules that protect the rights of the accused. Testifying children did not have to look at the accused, and prosecutors were given a free hand to lead the witnesses. If a "wrong" answer was given, the prosecutor simply badgered the child until the "right" answer was given. All three Amiraults were convicted and sent to prison. Late in 1995, the two women were finally awarded new trials, but Gerald Amirault remains in prison where he may stay for the rest of his life. The state appealed the decision to grant new trials. Violet Amirault -- a good and most courageous woman -- died of stomach cancer in August of 1997, and has thus been spared further Massachusetts injustice. But Cheryl may still be sent back to prison. Although Harshbarger didn't try the case himself, he has always vigorously defended its prosecution, and used it to his political advantage when running for re-election. Now he has ambitions to become Governor.

Reno actively prosecuted three highly dubious as Dade County Florida state attorney. Grant Snowden, a south Miami police officer whose wife ran a baby-sitting service, is serving five life sentences in prison, partly through testimony contrived by a Ms. Laurie Braga, a therapist that Reno hired to create "evidence" in such cases. Better known was the Country Walk Case, in which a 36-year-old Cuban immigrant, Francisco Fuster-Escalona, and his 17-year-old Honduran wife, Ileana, were accused of molesting children in their home-based baby-sitting service. Ileana, a frightened teenage immigrant, maintained their innocence for nearly a year, despite being held naked in solitary confinement. Reno hired another quack, Miami psychologist Michael Rappaport, and he and Reno visited her cell at least 34 times. Rappaport led her in guided imagery and visualization while Reno held her hand and offered encouragement. The poor kid finally cracked and "confessed" and made the asked-for accusations against her husband -- such as that he'd sodomized her with a cross while he forced her to give oral sex to a child. In return for her testimony, Ileana was finally released from prison and allowed to return to Honduras. Her husband was sentenced to six life terms plus 165 years in prison. Reno fortunately failed to get a conviction in the equally outrageous case a 14-year-old diabetic boy named Bobby Fijnje who had an after-school job working in day care at Old Cutler Presbyterian. Reno and her accomplices extracted the usual outlandish claims from the children: Bobby had raped them, eaten a new-born baby, danced nude on the roof, dug up a grave, and turned a woman into a witch. Soon there were rumors that the entire Fijnje family (Bobby's father was a retired Dutch diplomat) were trafficking in international pornography. The father himself was accused of sodomizing a boy. Reno tried the boy as an adult and mounted, according to defense psychologist David Raskin, "the most inhumane and despicable case" he'd ever seen in 23 years. Bobby was held in custody for over 20 months, but to Reno's chagrin he was acquitted on all counts after a three-and-a-half month trial. The Fijnje family moved back to Holland after Bobby's release.

Reno, of course, never repented her actions, which have had no political costs and so earned her the admiration of Hillary Rodham Clinton that she's now US Attorney General. She remains as psychotically sexphobic as ever. One of her first acts as Attorney General was the Waco Massacre, prompted in part because of unfounded allegations of the sexual abuse of children. More recently, Reno refused to intervene in Wenatchee, Washington, where dozens of law-abiding citizens -- at least 30 of them mentally retarded -- have been sent to prison on the basis of manufactured evidence of a Satanic Sex Abuse ring.

While the day-care accusations have somewhat abated, another alarming phenomenon has grown in recent years: false accusations of child sex abuse in custody cases. While some women have been accused by husbands, most of the accusations have been made against fathers. Over the past twenty years, as women entered traditional male preserves professionally, resentment against them resulted in some very odious and discriminatory cases of sexual harassment in the workplace. As a corollary, resentments arose against men who started taking a more active role in the traditionally feminine preserve of child care. At present, any father who physically expresses love and affection to his own children runs the very real risk of being falsely accused as an abuser should the marriage ever end in divorce. 

The Complicity of Gay Leadership and the Failure of Identity Politics

Because gay people have for so long been falsely (and effectively) labeled child molesters, we've been too frightened to speak out against false and unfounded accusations. Gay leaders -- emulating "liberals" (such as Hubert Humphrey) who abandoned their commitment to civil liberties in order to become rabid anti-Communists in the 40s and 50s -- rushed to take the strongest possible stand against child "abuse," even when there was no credible evidence that abuse had occurred. It is no coincidence that most of the day-care cases began with a man being accused of abusing a little boy. This is precisely what we should have expected in a society as homophobic as ours. Because we were making some small gains, people were easily panicked into believing that tolerance for sexual-minority people would put children at risk. Also, there was general cultural anxiety over the breakdown of traditional gender roles: women were leaving the home and pursuing careers, and men were becoming involved in child care. Male workers at day-care centers -- who not only had abandoned their traditional role but were enabling women to abandon theirs -- thus became a most vulnerable target. The day-care hysteria was a natural expression of anti-feminist and homophobic panic. But instead of fighting it, we encouraged it.

We made a Faustian bargain with the powers-that-rule: occasionally "give" us a few of our rights (based, of course, on our "orientation" not our behavior), and we will abandon our demands for sexual freedom. Rather than speak out in defense of the falsely accused, we will waste our time insuring that the very few members of the North American man Boy Love Association (NAMBLA) will not be allowed to march in "our" parades. We will fight homophobia by promoting sexphobia -- which makes about as much sense as the Anti-Defamation League trying to fight anti-Semitism by promoting racism. Homophobia is just the most common manifestation of sexphobia, and it will plague us until sexphobia has been eradicated.

To complicate matters further, the most influential and destructive book promoting "recovered" memory and sex hysteria in general, The Courage to Heal, was written by two lesbians: Ellen Bass and Laura Davis. Bass even has another book out, Free Your Mind that was written especially for gay and lesbian youth. Bass and Davis have done deep and lasting damage to the movement for the rights of sexual minorities -- certainly far more damage than could ever be done by a tiny and despised group such as NAMBLA.

Janet Reno remains unaccountably popular with most of the so called gay community. Many even like to think that she herself is a lesbian -- as if her inclusion within our ranks would somehow do us honor. In April of 1995, at it's annual Dinner Party, Boston's Fenway Community Health Center, whose mission is "to provide compassionate, affordable, quality health care to the gay and lesbian community of New England" presented the Dr. Susan M. Love Humanitarian award to Ellen Bass. This is roughly equivalent to the NAACP giving a humanitarian award to David Duke. And in June of 1996, when a rally was held in Boston to celebrate the overturning of Colorado's Amendment Two by the US Supreme Court, the honored speaker was none other than Scott Harshbarger.

Even more alarming, on 5 August 1998, the Lesbian and Gay Political Alliance of Massachusetts endorsed (with 75% support) Harshbarger for Governor. They also endorsed Martha Coakley (who prosecuted the Souzas and Louise Woodward) for Middlesex County District Attorney, and the Congressional bid of Marjorie Claprood, a former state Representative and radio talk-show host, who, like Harshbarger, has never heard an accusation of sexual abuse that she hasn't believed. (I'm indebted here to author Wendy Kaminer who made the same remark about child-saver Boston Globe columnist, Eileen McNamara.)

Massachusetts, where I live, has a long and appalling history of anti-sex witch hunting. The first day-care conviction -- that of Bernie Baran, a 19-year-old gay man and victim of anti-gay hysteria -- occurred in Pittsfield, Massachusetts in January, 1985. Today he is in Bridgewater Treatment Center and may remain there the rest of his life. While in prison, he has suffered intense physical, verbal, emotional, and sexual abuse. Thus far he has received no help and support from the "leaders" of the gay "community," who instead are supporting the candidacies of prosecutors who made their careers imprisoning other innocent people accused of non-existent sexual crimes: Scott Harshbarger, Martha Coakley, Tom Reilly. These prosecutors pay lip service to opposing discrimination based on sexual "orientation." But Reilly, who was elected Attorney General in 1998, even opposes the repeal of the state's sodomy laws. He had a lesbian campaign manager! One wonders if his first official act will be to arrest her.

The failure of queer politics here in Massachusetts -- where gay "leaders" shun and scorn the victims of homophobia and campaign for the oppressors -- illustrates the fallacies inherent in "identity" politics. Contemporary gay and lesbian political movements are not based on ideas or a commitment to principles of individual freedom. Freedom, especially sexual freedom, is in fact now denounced because it might embarrass the "community." Instead our politics are now based on the dubious genetic notion that we are born that way, can't help it, and therefore must beg the state for protection from discrimination based on our unchosen "orientation." (No one, of course, should be discriminated against because of his or her private consensual sexual behavior. "Orientation" is not the point.) Rights now belong not to individuals but to the "community," and those who do not conform to the values and beliefs of the community -- as defined by self-anointed "leaders" -- find that they have no rights at all. 

Pedophilia and the Question of Consent

A well-known historical child lover is the Reverend Charles Dodgson, better known as Lewis Carroll, the author of children's' classics such as Alice in Wonderland and Through the Looking Class. (Another is James M. Barrie, the author of Peter Pan.) Dodgson constantly sought out the company of little girls, and took beautiful photographs of them, including photos of them nude. It's very possible, even likely, that Dodgson never acknowledged his physical attraction to pre-pubescent girls. And if he did, there's no evidence that he ever acted improperly with a child. Most child lovers likely never do. Nevertheless, if Dodgson were living today he would be more than out of a job -- he'd be in jail.

Some child lovers argue that children are capable of consenting to other forms of activity and thus can consent to sex as well. Sexually mature young people, of course, almost universally consensually engage in sex, masturbation being the most prevalent activity. And immature children often engage in sex play, both by themselves and with their peers. Every one of us reaches the "age of consent" at some stage in our sexual and social development, and the variation in chronological age when this miracle occurs is enormous. (I believe a more useful concept than age of consent is age of sexual agency: that point in one's development where one has achieved sufficient maturity to be a sexual free agent.)

Current age-of-consent laws are seriously flawed. For one thing, the legal age varies wildly from one state to another. Many states set the age at 18, and anyone who believes that 17-year-olds never freely consent to sex has forgotten what it is like to be 17. Consensual sex is not rape, no matter what the law decrees. (The law might as well declare the value of pi to be 3.) The motives behind age-of-consent laws, however, are meritorious. Although consent should ideally be determined on a case-by-case basis, the testimony of child victims of actual abuse should also be kept to a rational minimum. So perhaps the solution is not to abolish age-of-consent laws but to reform them. No matter what age is specified, there will be people below it capable of meaningful consent and/or people above it who are not. So if an arbitrary age is statutorily specified, perhaps it should demarcate the shifting of the burden of proof: below the specified age, non-consent will be assumed unless proven otherwise.

Although my mind is not completely closed, I am skeptical about claims that the sexually immature freely and meaningfully consent to sex with adults. While children are sexual, they are not sexual in quite the same way as adults. The sex drive, while lifelong, definitely intensifies as one passes the great divide of puberty. A pre-pubescent and a post-pubescent are hardly sexual equals. (Testosterone levels in the male, for example, increase twenty-fold at puberty.) Moreover, adults take advantage of children in all sorts of ways. The difficulty of distinguishing cases of "consent" from those in which a child was taken advantage of by an adult seems insurmountable. The question of whether or not children can consent to sex with adults is not beyond debate -- nothing is. But unless compelling evidence is presented for thinking otherwise, I believe that the immature should be off limits sexually.

I have examined some of the literature of a boy-lover organization, the constantly demonized NAMBLA. Much of their literature is thoughtful, clearly reasoned, and provocative -- at least if you limit the scope of their arguments to adolescents as opposed to children. While I disagree with NAMBLA on significant points (primarily their refusal to disavow categorically sexual activity between adults and prepubescents), most NAMBLA members are most certainly not the Monsters claimed by politicians and the media. Because NAMBLA emphasizes the necessity of consent, because it constantly warns of the dire consequences of violating age-of-consent laws, and because it provides a forum for discussion among boy lovers, I believe that NAMBLA has prevented far more instances of child abuse than it may have "caused."

Nevertheless, NAMBLA's insistence that at least some children (i.e., prepubescents) can give meaningful consent to sex with adults has caused no end of trouble not only to NAMBLA but to all concerned with freedom and the safety of children. Pedophiles and child-molesters have joined NAMBLA and have interpreted NAMBLA literature as validating their desires and behavior. NAMBLA's refusal to distinguish between children and adolescents has made rational discussion of age-of-consent almost impossible. They discredit their own arguments for adolescent sexual freedom by insisting upon applying them to preadolescents as well. As a result, anyone arguing for changes in age-of-consent law is now immediately labeled a NAMBLA sympathizer. Indeed, anyone who even makes the modest assertion that American citizens who are NAMBLA members are still protected by the Bill of Rights (which guarantees all of us freedom of belief, press, speech and association) will most probably be smeared as an advocate of baby rape.

Framing the issue of adult-child sex in terms of consent is in fact confusing and misleading. We all recognize that children give and withhold consent (in non-sexual matters, that is). And we all recognize that at times a child's consent must be violated "for the child's own good" -- forced attendance at school, for example. If sex -- or cigarette smoking, swimming in dangerous waters, playing with cherry bombs, or any other activity -- is harmful to a child, it's not all that relevant whether the child consents. Children consent to all sorts of dangerous behaviors. In cases where a child apparently consents to sex, we should ask not whether the child really consented but whether and how the child was harmed or exploited. Granted, we shouldn't consider sexual exploitation as equivalent to rape. (Sexual exploitation raises very serious moral and ethical questions, but not the identical questions that are raised by rape.) But when an adult exploits a child, the punishment should be commensurate with the harm done, and precautions should be taken to minimize additional trauma to the child. 

The Problem of Child Pornography: Legal Definitions

Child pornography, according to the US Comprehensive Crime Act, is the visual depiction of persons under 18 engaging in sexually explicit conduct, real or simulated, including lascivious exhibition of the genitals or pubic areas. Lascivious is a subjective pejorative term. At one time, courts interpreted the term lascivious exhibition to refer to the behavior of the model. But they now apply the term in cases where there is no intent whatsoever on the part of the model to sexually arouse the viewer. Lasciviousness is now legally in the eye of the beholder, and if any person might conceivably look upon a picture of someone under 18 with lust in his or her heart, then that picture is potentially child pornography. Nudity is not necessary, nor is it even necessary that genitals be discernible beneath opaque clothing -- according to the ruling in The United States v. Knox. Child pornography is illegal not because it harms children, but rather because "it might give people ideas."

The main idea present in child pornography, however, is not that it's morally permissible to coerce children. The main idea is rather that children (and I mean the pre-pubescent) are free sexual agents. In child pornography, children are portrayed as willing and eager. This is the idea that people find threatening and wish to suppress. Any parent discovering that his or her child has engaged in sexual activity with an older person (including an older child) would much prefer to believe that the child had been coerced or seduced, and had not been a willing participant in the act.

As if the laws weren't ridiculous enough, Senators Orrin Hatch (R-UT) and Diane Feinstein (D-CA) co-sponsored a bill (S.1237) that expanded the law to include in the definition of child pornography visual images for which no minor posed. (The bill was enthusiastically signed into law by Bill Clinton in the summer of 1996.) The legal definition now includes "any visual depiction, including any photograph, film, video, picture or computer-generated image or picture" if that "visual depiction is, or appears to be [my emphasis], of a minor engaging in sexually explicit conduct." (Remember, sexually explicit conduct includes "lascivious exhibition of the genitals" which, according to Knox, can include depictions where the genitals are totally hidden under opaque clothing, or where the "lasciviousness" exists solely and allegedly in the mind of the creator or the viewer.) Also banned are depictions "created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct" as well as material depicting adults but advertised or promoted to give the impression that it depicts minors. (The second case would involve the unauthorized use of a private citizen's image, a form of intellectual-property theft. And the third case would be consumer fraud. But preventing intellectual-property theft or consumer fraud are the last things Senators Hatch and Feinstein care about.)

The "findings" section of the bill argues that "child pornography can desensitize the viewer to the pathology of sexual abuse or exploitation of children so that it can become acceptable or even preferred by the viewer," "encourag[es] a societal perception of children as sexual objects" and "creates an unwholesome environment." In short, some ideas are so dangerous they must be suppressed. Law makers, such as Hatch and Feinstein, believe that child pornography is bad not because actual children can be exploited in its production, but rather because it might give people bad ideas. The claim is not that child pornography is a verbal act linked to child abuse. What is explicitly at issue is the persuasive and emotive impact of speech. Hatch and Feinstein even make the (unfounded) claim that child-pornography can be used to seduce children. And they further believe that viewing such images can "convert" a viewer into a pedophile or even an abuser. S.1237 was not a serious attempt to prevent crime; it was an unvarnished attempt to legislate and control thought. The ACLU, most unfortunately, initially decided not to mount a facial challenge, but rather wait until the law is applied. The law, however, was challenged and the ACLU has joined the fight to strike it down. If S.1237 is upheld, nothing will prevent Congress from taking the next logical step of banning writing, which has already happened in Canada. 

The Problem of Child Pornography: Emotional and Rational Approaches

To get a sense of the emotional pitch of the anti-porn crusaders, consider this sentence from Barry Crimmins' aforementioned testimony: "People need to see their neighbors (who have participated in these criminal acts) taken away, jailed, and stigmatized as `perverts.'" Substitute traitors for perverts and this same statement could have been made by an anti-Communist witch hunter during the 50s.

Child pornography is evil if and only if children are exploited or harmed -- physically or emotionally -- in its production or if their privacy rights are violated by its distribution. (And I think it appropriate to define harm in very broad terms when children are involved. Invasion of a child's privacy, for example, most definitely counts as harm.) Thus the primary interest of law enforcement should be tracking down those who actually exploit or harm children and preventing abusers from doing further damage.

For example, there is no law against possessing photographs or videos of children being physically abused. Suppose, however, that a company begin publishing a magazine showing small children being beaten, children with black eyes, bloody noses, bruises, etc. Would politicians rush to enact laws against possession? Would the FBI begin entrapping people by attempting to sell them copies of this magazine? Of course not. The police would simply track down the abusers and traffickers and arrest them.

A photo or video can be evidence of a crime. If I came across photos of my next door neighbor beating up his or her child, I would turn them over to the police. To do otherwise would be suppressing crime evidence. Thus someone should be prosecuted for possession of images if and only if it's reasonable to hold that these images constitute evidence of crime.

It's not always apparent to the viewer whether coercion was employed to produce a photo or video. Until recently, people did not assume coercion in the case of a photo of a child who is simply nude. People have been taking pictures of naked children, usually their own, since photography was invented. Pictures of nude children can be very beautiful, and it's absurd to label anyone who finds them so a pedophile. But the hysteria over child pornography has gotten so out of hand, and the confusion between simple nudity and sexuality has become so general, that many people are now arrested for innocently photographing their own children.

The most clear-cut cases would be photos showing sexual activity between a child (i.e., a prepubescent) and an adult. More ambiguous are photos of little boys with erections (which can be as innocent as any nude child photo) and pictures of children masturbating or indulging in sex play with peers. In these cases, no abuse would be taking place if the children were alone. But if the act is photographed (presumably by an adult), this is no longer the case and it is legitimate to ask if the photographer coerced, pressured or exploited the children.

Even in cases where there is no probable abuse, one must protect the privacy of the child and his or her parents. Private citizens own their own images and it is illegal to use a private person's image for commercial purposes without the person's knowledge and consent. Moreover, children can not sign legal contracts, and consent in these cases would have to be given by the parent or legal guardian. (No parent or guardian, of course, can legally give consent for a child to be abused.)

Until recently, wide-spread distribution of photographs and text was possible only through commercial channels. This has changed with the evolution of huge private computer networks and the immense public network known as the internet. Any subscriber to one of these services can post a digitally-encoded photograph and make it available to millions of people all over the world. Private citizens' rights of privacy can thus be invaded in a way never before imaginable.

Suppose some friends gave you a beautiful and innocent photo of their three-year-old daughter climbing out of the bathtub. You could scan that image and post it on the internet. Such an image is not (at least in my mind) child pornography, and no one was harmed in its production. But by posting it in such a public forum, without the knowledge or consent of your friends, you have abused their rights to privacy and the rights of their infant daughter as well. They may have a cause of legal action against you, even though you have profited in no way from what you had done.

Current legal approaches to the "problem" of child pornography err fundamentally in treating it not as the result of child abuse, but rather as a "cause." Law enforcement therefore ignores production and concentrates on possession, often resorting to entrapment. But materials must never be banned for "giving people ideas," no matter how heinous those ideas might be. A reasonable approach to the problem of child pornography would not involve the surrender of the fundamental rights of freedom of thought or freedom of expression. A rational approach would punish those who harm children, would limit restrictions on possession to cases of crime evidence, and would protect everyone's right to privacy -- "the right to be let alone," which "is indeed the beginning of all freedom." 

Why Bother?

Civil-liberties curtailment has successfully been promoted as necessary to protect children, especially from sexual harm. The attack on free expression has been two-pronged. One, sexually explicit material is being suppressed because children might be "harmed" by exposure to it. Two, material is being suppressed because it depicts minors as potentially free sexual agents, or because lasciviousness towards minors is attributed to the creators and/or the consumers of the material, even when no minors are sexually depicted.

All censorship is based on the premise that some ideas are so dangerous (or so "offensive") they must be suppressed. People do evil things -- terrible, horrible things. Whenever we confront these horrors -- such as the brutal murder of a ten-year-old boy in Cambridge, Massachusetts, in October of 1997 -- we naturally search for "causes." At such times, all are tempted to blame violence upon speech. A book made them do it. A video. A movie. A rap song. Pornography. TV violence. Demands for censorship follow violent crimes. People wish to stop bad actions by stopping bad thoughts and bad expression.

While civil libertarians concede that speech is powerful, we hold to the principle underlying the First Amendment: laws should sanction bad actions, not speech that either depicts bad actions or is deemed to "cause" them. We don't, for example, try to prevent homicide by banning crime fiction.

But because any issue involving children is so emotionally charged, we civil libertarians lost our nerve when it came to speech (including writings) that either depicted sexual behavior involving minors or speech that could be deemed to promote such behavior. The "protect kids from sex" argument is the nuclear weapon of the pro-censorship movement. Civil-libertarians considered the weapon too potent to counter, and we devoted our energies to defending against the equivalent of the catapult instead. Pro-censorship activists quite naturally continue to exploit their thus far invincible weapon.

As a result, over the past twenty years, elected officials, judges, law-enforcement agents and journalists have successfully created a new monster devoid of Constitutional rights -- the pedophile (as opposed to the child abuser) -- and a new category of monstrous speech devoid of Constitutional protection -- child pornography. These categories are now so broad and ill defined (and becoming progressively more so) that all Constitutional rights are now endangered. A similar situation existed in the 1950s when the monsters were "subversives" and "subversive" material. The current situation is graver, however, because of the combined weight of several Court decisions and laws that have so far withstood legal challenge. For example, the award-winning movie The Tin Drum is child pornography under current legal definitions. If you possess a video copy of this movie, you could be classified a pedophile and stripped of your rights.

Abusing or exploiting a child -- sexually or otherwise -- is and should be a crime. Using someone's image for commercial purposes without their contractually granted permission is and should be a crime. Trafficking in illegally produced goods is and should be a crime. Concealing evidence of a crime is and should be a crime. If a child pornography industry had ever existed, these legal approaches would have been sufficient to contain it without compromising the First Amendment. But the fear of being labeled soft on child abuse was so great that few civil libertarians were brave enough to support rational alternatives to censorship.

These rational alternatives are currently extremely politically unpopular. The media and politicians cry for more repressive censorship laws "to protect the children" and a scared populace rallies behind them. (Can you blame them?) Anyone who opposes this trend is clearly swimming against an incoming tide and fighting a losing battle. We are moving right now to a more, not less, repressive society. Given this situation, how can one justify holding an absolutist or near-absolutist position on freedom of speech? Aren't these ideas far too "radical" ever to gain widespread popular support? Wouldn't it be better to compromise our principles in order to cut our losses?

In the short run, perhaps yes. And there never will be a shortage of civil libertarians willing to make these kind of compromises. What concerns me is the prospect of all civil libertarians abandoning basic principles and thus discrediting these principles permanently. I think it vital that ideas be kept alive.

In some ways, a culture's "idea pool" is like a population's gene pool. If the culture or population is robust, these pools will exhibit enormous diversity and enable it to adapt and survive even in rapidly changing circumstances. "Radical" ideas may be a little like "recessive" genes. At most times, they are nearly hidden, and their manifestations appear dysfunctional. But the day may come when these hidden ideas (or traits) are just what is needed for the culture (or population) to survive. Times change. Civil libertarian ideas are now considered radical and "dangerous." But they were explicitly expressed in two of America's most revered historical documents -- the Declaration of Independence and the Bill of Rights. Although these ideas are not now generally respected, the time will come when once again they shall be.

"Radicals" are not dangerous people -- radicals have no appreciable political power. But radical ideas can be dangerous to some. If they are taken seriously by too many people, elites may lose some of their wealth and power, resulting in a more just society. Cultural evolution, like genetic evolution, is a very slow process. While most take the short-run view, we must remember that creating a better world and a better society may take years, centuries, even millennia. The battle essentially is between those who respect ideas -- even bad ideas -- and those who fear them. While we currently live in an increasingly repressive phase of history, I still believe that in the long run we shall evolve to a fairer and freer society. We owe it to future generations to keep ideas -- especially radical ideas -- alive.

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kyp@ultranet.com