Can it properly be illegal to DEPICT something you are allowed to DO?

[cthulu2016]

Last edited Thu Jun 21, 2012, 04:42 PM - Edit history (1)

Can it be illegal to make a photograph of a legal act that you are permitted to perform for real?

For instance... you are allowed to burn a flag.

But maybe if there were a lot of videos of people burning flags it would make society at large less patriotic. Perhaps the videos would be extravagantly unpatriotic in a way that offends people who burn flags in a more respectful manner. Perhaps seeing flag burning videos will get some people so excited that they will burn other people's flags... a crime.

So, though God knows only a backward authoritarian would actually outlaw burning a flag, there is a strong case to be made for banning the production and sale of pictures of burning flags.

Discuss.

[TBMASE]

1. And when RWers start murdering people for burning the flag

like they do when people burn the Quran, what then?

[cthulu2016]

2. Then we say...

"Our rights are not calibrated to the standards of the most corruptible mind in the community. The fact that harm may arise from the expression of a right is, and has always been, well understood. We have rights because that is our philosophy of what a person is, not because individual rights lead to the most placid, controversy-free possible community."

[TBMASE]

3. Is that what we said when that nut was going to burn the Quran in Florida

I'm pretty sure it wasn't

[Doc_Technical]

5. Perhaps not murder you, but they will kick your butt.

http://chadhastyshow.podomatic.com/entry/2009-06-15T09_19_38-07_00

Twenty years later and I'm still not sure if this is "for real",
or if it's satire.

[EOTE]

35. I've totally got a new ringtone!

Thanks! And for the record, I tend to think it's satire. If not, it's some incredible, unintentional hilarity.

[GeorgeGist]

4. So far your case is less than weak.

Wanna try again?

[cthulu2016]

8. No, because the OP is not in favor of banning flag-burning videos

The OP is a reduction of the arguments for banning videos of people doing legal sexual things that the adult viewers of the videos are themselves legally free to do.

(Lest anyone misunderstand what legal means here... a viewer of a pretend rape is not free to commit a real rape, any more than a viewer of a Bruce Willis movie is allowed to shoot people, but the viewer of a pretend rape is free to role-play a rape with a consenting partner, which is what the video is actually a record of.)

When the argument is stripped of the word "porn" it is easy to see how weird it is.

[Tierra_y_Libertad]

6. "Patriotism is the most foolish of passions, and the passion of fools." Schopenhauer

I, for one, would welcome anything that makes the population less "patriotic", and hence, less foolish.

[dawg]

7. Please, no more porn threads.

I think all flags should be made of asbestos!

[cthulu2016]

10. All least someone understood it's a porn thread

[Nuclear Unicorn]

12. To wit I would reply

Just because you can doesn't mean you should because behind them both are pettiness and objectifying. You don't need laws to ban either, you just need to aspire to higher things.

[cthulu2016]

15. Something that is not generally understood is that the Govt. effectively requires

that porn be horrible.

The existence of obscenity laws on the books is what keeps Time Warner and Universal from making classy wide-audience porn.

The law makes the industry quasi-legal and always under attack, and the product is degraded.

It's like the quality of liquor during prohibition.

Eliminate all remnant obscenity laws (for adult stuff) and porn will, on average, get less nasty overnight.

This is easy to see in 1960s adult films. Pubic hair was forbidden, but violence was allowed. So the 1960s theatrical |adults only" movie tended to feature topless women being beaten with belts. Circa 1970 movies started being allowed to show female genitalia and most of the violence vanished. Most men preferred close-up pussy to topless beatings.

As XXX became the norm (circa 1972) there was a porno chic phenomenon where daring but ordinary folks went to see XXX movies in nice theaters. The movies made for that mainstream crowd featured almost no violence at all.

Porn took a real nose-dive in quality after Ed Meese came along. And so on.

Japan is a great example. Genitalia is forbidden... it is blured. By American standards it isn't real XXX porn, but the stuff is incredibly nasty. The most mysogynistic porn imaginable. Mostly men raping school-girls on subways, women being violated by octapuses, etc.

Our obscenity laws today do nothing to make porn less nasty. They do, however, keep porn from being mainstream... which I think is the real intention. Time Warner could have the entire corporation seized in some bogus RICO action.

If you require sticking something in the back room where perverts go it will change to match the audience it is allowed.

[Nuclear Unicorn]

18. Dude

No amount of rationalization will convince me that we aren't objectifying each other. And since we are objectifying each other we need to do better. Not with laws -- because laws can't make people better -- but simply because we want to be better people.

[cthulu2016]

20. Dude... I don't recall saying I favor an uglier society

The OP is about law. It is an analogy about porn.

If someone does not want any legal action against porn then they probably agree with the OP.

So why read the OP as an accusation against you? The OP is as operative against Mitt Romney's stated position in a political campaign as it is about what anyone on DU happens to think.

The OP is about law, not about whether burning flags makes society better. It is valid as a discussion of law, even if no person on DU favors anti-porn laws. James Dobson is definitely in favor of anti-porn laws, and Romney has given his general support, so it isn't like this topic is outside the realm of reasonable discussion here.

[Nuclear Unicorn]

22. Since I'm not voting for either one of those gentlemen

I don't require such long posts of convoluted rationalizations.

Near as I can tell my personal position addresses those who demand porn be outlawed and those who demand porn be held sacrosanct. I'll tell both sides that neither one of them needs what they think they need.

[CTyankee]

25. I have seen some nicely done female erotica (video).

I would be great if the women's erotica industry was as big as the generalized one. I am wondering how that strikes you. To me, it is a reaffirmation of sexuality when it is made for and by women (I'm not just talking about same sex erotica here).

[Nuclear Unicorn]

27. I'm not against different facets of sensuality

My Lover Boy is, after all, my lover boy. I'll wind him up like a top and set him to spinning. And sometimes that night up in the cabin in the mountains is just as good on the instant replay ifyouknowwhatimeanandithinkyoudo. But that has a different quality because we're deeply, madly, passionately in love with each other. We don't have love each other because we have great sex, we have great sex because we love each other. We're *people* too each other first.

I don't believe in taking anything away from anyone I would only say how much better it can be when they realize how much *people* as *people* really matter. Imagine finding someone who is fixated on the graceful lines and edges of the shadow of a flower but they had never looked up to see the colors of the flower itself or smelled its fragrance. You wouldn't be mad at that person so much as you would feel sad about what they had missed.

I don't know if that makes any sense but thanks for reading along anyway.

[CTyankee]

30. I recently saw a book for teen girls that talked about masturbation and gave them a "how to."

It was very positive and at the same time very honest about how to maximize pleasuring themselves. Of course, this book was in the Yale B & N, so there were no outraged parents storming the doors.

When my kids were young I had a copy of "Our Bodies, Ourselves" which I left "lying around." That book got well read, I can tell you. I casually mentioned that it had some good stuff in it and evidently they found it did too. I thought it might give rise to some discussion but it was probably not something they wanted to chat about....

[cthulu2016]

34. The kids book "Show Me" no longer exists

It was a popular Swedish sex education book among trendy parents in the late1960s-early1970s that would now be a jail sentence.

It is weird to remember looking at something in a bookstore as a kid that no longer exists.

Channel4 in Britain has a health education website called "embarrassing bodies" with 100s of photos of penises and vulvae and a forum for teenagers to talk about their own parts in terms of what is normal, etc..

Would probably (okay, certainly) be shut down here.

[CTyankee]

36. women have to reclaim their sexuality on their own terms. That is why this debate over porn is

not too helpful, at least to this feminist. I have 3 granddaughters and I want to see them grow up as healthily sexual because I know that is going to be good for them in so many ways.

But as long as we're stuck in this porn debate, I can't see much progress happening on the healthy sexual for girls front...

[Nuclear Unicorn]

11. You took the words right out of my fingertips.

[dawg]

14. I read all those threads the last two days ...

well, except for the last posts on that big one that got too big to load quickly. They made my brain hurt. I kept looking for a spot to jump in and say something useful, but no one would have listened anyway. My position is too nuanced.

[Nuclear Unicorn]

16. I'm kind of over all the threads as well. I wanted to make a snark post

but I'm pretty sure I'd get a 6-0 beatdown for it.

[sinkingfeeling]

9. No, there's no strong case to be made for banning pictures of

burning flags nor any for banning flag burning.

[Javaman]

13. this thread is a perfect example of the wonderful

option of "hide a thread"

I'm employing it right now.

cheers!

[gregoire]

17. It's often illegal to sell things that are legal to give away

.

[cthulu2016]

19. A Stevens noted in my favorite Dissent...

The court has today found that a person is free to possess something that he may not acquire.

The OP is about porn, of course, as was Stevens' dissent.

Stevens was objecting to the court saying that a person has an absolute right to possess dirty pictures, but that the state could outlaw their sale, which made the freedom to possess no freedom whatsoever.

Also, in what you are describing it is apples to apples. For instance, in a place where you can possess up to one ounce of pot but may not sell it, the possessor and the seller are dealing with the same thing.

The analog would be if smoking pot was entirely legal, but videos of people smoking pot were illegal.

[LanternWaste]

21. Research and let us know what you find out,

Research and let us know what you find out, Professor.

[lumberjack_jeff]

23. I prefer the reverse.

Although it'd technically be illegal (I suppose) to beat the poster of the next porn thread senseless with a bicycle tire, I'd definitely download the video.

[muriel_volestrangler]

24. Illegal to see? Probably not. Illegal to show to someone? Perhaps.

You might, for instance, want rules that forbid swearing in children's TV shows (and if it's frequently broken by someone, you might want a legal sanction against them), even though you don't have a law that says children aren't allowed to swear.

[cthulu2016]

28. The act of showing a child

is an act, separate from doing, filming or adult-viewing.

But in light of your reasonable reply, I edited the OP to focus on producing the image, rather than "seeing," since I don't know that seeing anything is criminalized. (For instance, prosecutions of people looking at an image on the internet without saving it or printing it are possession charges, claiming that the existence of the image in one's browser cache is possession.)

If it were illegal to show a child a flag-burning video it would, presumably, also be illegal to show a child a real burning flag. It would be illegal to admit a child to a flag-burning live-show or movie. It would be illegal for flag-burning to be on TV where children might see it.

And it would be illegal to lure a neighborhood child into your garage to watch you burn a flag.


I will grant that it is legal for a minor to have sex with an adult, but not legal for the adult. The minor will not face statutory rape charges.

But that quibble aside, a film of a child rape cannot be legally possessed by an adult or by a minor, so there is no great difference regarding things the minor can do versus see. (Though the minor would not face a criminal charge.)

[BadgerKid]

26. Don't some other countries follow this rationale?

China and North Korea come to mind as not wanting to give the people any funny ideas (read: harmful to the regime). Welcome to thought-crime, a la _1984_.

[hifiguy]

29. Excellent post

and worthy of some of my better law school profs.

And no, there os no logic whatsoever in banning depictions of something it is legal to actually do.

[cthulu2016]

31. If you're a lawyer, check out

Stevens dissent in the case where the supreme court ruled that personal possession of obscene materials cannot be a crime.

(The original on that involved somebody v. Georgia in around 1968, but the court reaffirmed it with minor modification in the 70s when Stevens was there.)

Not blanket legalization of personal possession of pornographic materials... of obscene material. Since obscenity is an exception to the First Amendment the ruling makes no sense, but the court finessed it by saying this isn't a country where the cops can come in your house and arrest you for your book collection.

Fair enough... but why not? If your book collection isn't protected by the First Amendment than why can Congress not make any law criminalizing your book collection?

In the same decision, the court specified that the new protection did not apply to making, or selling, or re-selling obscene material.

Stevens called bullshit on the whole thing, saying that the right to possess includes the right to acquire. And how can a person have property that is legally his, but that me is forbidden to sell? (Or even give away!) And that the court was merely playing politics.

[hifiguy]

32. I'll dig out my edition of Larry Tribe's Con Law treatise

from my law school days. It's probably in there. Tribe required the book for the advanced con law class I took with him.

Justice Stevens was a great one for calling bullshit on illogic. He will go down as one of the great Justices.