July 4, 2001

10:30 AM

Can your own private written journal be considered obscene? A guy in Ohio is given 10 years in prison for writing fictitious tales in a 14-page journal.
posted by gluechunk (50 comments total)

I recall that former pres. Jimmie Peanusts Carter said once that he had sinned in his heart. Nobody clapped into jail. Clearly no crime has been donein this man's case. Why not jail those who write novels for many to see (not a private journal) whose works violate some imagined code of conduct?
posted by Postroad at 10:33 AM on July 4, 2001

Good...it's about time we start locking away these sick pieces of shit BEFORE they graduate from fantasy to reality.
posted by plaino at 10:47 AM on July 4, 2001

Good...it's about time we start locking away these sick pieces of shit BEFORE they graduate from fantasy to reality.

Or..."Everything I need to know I learned from Oprah Winfrey."

Personally, I think Thought Police like you are the sick ones. I don't think this guy committed a crime. Are you coming after me next?
posted by jpoulos at 10:56 AM on July 4, 2001

[sarcasm]
You're absolutely right, Plaino. It's high time we start doing the whole ThoughtCrimes thing on people - insisting that no one even think a thought that might be considered unacceptable, not to mention actually writing it down! What an evil private journal writing guy!

I mean George Orwell called his book 1984, not 2004! We're almost twenty years behind schedule! Quick! Practice GoodSpeak! Two Plus Two Equals Five! The computer is your friend! Get with the program!
[/sarcasm]

I still get to masterbate right? So long as it's only to socially acceptable cheesy supermodels wearing tasteful lingerie and bathing suits?
posted by ZachsMind at 11:00 AM on July 4, 2001

I guess they should go arrest Nabokov while they had the chance, huh?
And plaino, you're probably trolling, but he was arrested for obscenity, not for molesting children. So ultimately, what you're saying is that he should be stopped from writing things you find disgusting. Now, if that's the case, why do you get to decide what is disgusting enough to be written, and not this man?
We don't throw the makers of violent movies in jail, just in case they go out and commit those crimes. Should we?
posted by Doug at 11:12 AM on July 4, 2001

I never correct myself, and almost always have insane typos, but that first line is pretty much unreadable...should HAVE arrested...
posted by Doug at 11:14 AM on July 4, 2001

i don't feel bad for this guy at all. i feel that there's a difference between having a disturbing thought, which anyone can do, versus developing in detail disturbing fantasies--made worse by the fact that this guy had been arrested in the past for owning photographs of what he had been writing in his journal. am i really in the minority on this subject? this doesn't feel like the "Thought Police" at all to me.
posted by moz at 11:24 AM on July 4, 2001

Scary, scary precedent. And it can't even be appealed because he plead guilty in a plea bargain. Laws against obscenity are bad enough when supported by claims that such materials are offensive or dangerous to "public morals," but in this case there's not even a pretense at showing there was any victim. Happy July 4th, America. Let's hope this is an aberration.
posted by mw at 11:29 AM on July 4, 2001

see i understand the reason why you object to policing thought. and maybe because it's too difficult to know where to draw the line, we shouldn't arrest people for it.. but.

ask any paedophile who is in a recovery program, and they will tell you that this kind of thing came before any offences, and it is still a trigger for them. infact, sailor moon apparently is a huge button for these offenders. we DO know that it's a major major warning flag. perhaps not worthy of jail itme, but it's certainly worth making a note to WATCH this guy like a hawk. over and over again, this does lead to offences.
posted by raedyn at 11:33 AM on July 4, 2001

they did it to deSade.
posted by clavdivs at 11:44 AM on July 4, 2001

I must be arrested immediately, because I have, in my heart, planned the murder of three billion people. You cannot allow people like me to think freely, lest we graduate to actually murdering three billion people.

You know what you have to do, for the Good of the Country, and the safety of our Precious Precious Pure White Children.
posted by aramaic at 11:58 AM on July 4, 2001

Only three billion? Don't go all soft on me, a-man....
posted by Optamystic at 12:16 PM on July 4, 2001

moz, plaino and raedyn's thoughts disturb me more than some guy writing sick fantasies in his private journal. Thank God we still have a Constitution; I'd hate to have you {expletive deleted}s in charge.

Shades of the Mike Diana case. Several years ago this Florida comic-book artist was convicted of obscenity for his surreal ink art, most of it published in an adults-only comic book called Boiled Angel. As part of his conviction, he was ordered not to draw until his probation expired.

I recently uncovered a collection called The Worst of Boiled Angel, which was published to raise money for his legal defense fund, from my boxed library; I'd forgotten I had it. Turns out it may be worth three times what I paid for it. Also turns out that someone I didn't know then wrote the introduction, the publisher of the zine Obscure ... none other than Jim Romenesko. Diana's work doesn't really do much for me; he makes decent use of sharp black-and-white contrast, and such, but his figures are stylized in a folk style, and there isn't much narrative. They're strange one-off panels or short multi-page pieces involving anonymous characters, religious figures, sado-masochism, pedophilia, and cannibalism (e.g. making points about communion, this is my body, this is my blood, etc.). They're guaranteed to eventually gross out probably 9 out of 10 people. But I think censoring this work is a horrific miscarriage of the power of the state to enforce a particular view of morality. Nobody saw Diana's artwork who didn't want to. It wasn't available to children (though some bluenoses have always gotten up in arms about anything more complicated than, well, Sailor Moon appearing in comics shops, behind the counter be damned). In the end, the US Supreme Court turned down his appeal.

It has to be pretty serious to put me on the same side of any argument as John "porn star mustache" Stossel.
posted by dhartung at 12:16 PM on July 4, 2001

ACLU rocks.
posted by stbalbach at 12:26 PM on July 4, 2001

We sure as hell ought to lock up Bret Easton Ellis.
posted by dfowler at 12:26 PM on July 4, 2001

infact, sailor moon apparently is a huge button for these offenders.

So why aren't we locking up the people who make Sailor Moon? Yeah, they didn't commit any crimes, but they should have known what they made could have triggered people to commit some, eh?

Or heck. Let's lock up people who compare MetaFilter threads to The Onion, because they can obviously trigger a multi-state killing spree.
posted by kindall at 12:31 PM on July 4, 2001

i would have figured these guys would be much more into pokemon porn, seeing as how sailor moon actually has like, breasts and all that. doesn't make much sense to me.
posted by moz at 12:46 PM on July 4, 2001

infact, sailor moon apparently is a huge button for these offenders

so what if it is a button for the offenders? honest to god pedophiles are responsible for not exploiting children, and getting the help they need if they accidentally see a kmart ad featuring a little kid and decide that they need to attack a child.

that being said, this ruling is bullshit. you have the right to think anything you want to. maybe you (general you, not anyone specific) think toe sucking fantasies are the most disgusting thing ever, but that guy over there has a foot fetish. different defintions of what's obscene. this guy did not commit a crime. he did not victimize children, he did not solicit them, and he didn't try to send his PRIVATE words to anyone. he wrote that for himself.

happy birthday america, indeed. i wonder if he was in view of the telescreens when he wrote it, or if he had a little nook to hide in?
posted by sugarfish at 1:15 PM on July 4, 2001

i NEVER said we should lock the guy up. please read - and attempt to understand - an entire post before you start attacking and swearing at the author.

i know that we can't police thoughts. nor should we try, it is a dangerous road to try and go down. 10 years in prison for this is ridiculous. people have got less than that for murder. BUT it is worth keeping an eye on someone who is showing warning signs. this gentleman has been caught with pictures of small children involved in sexual acts, and has been found to have detailed fantasies of raping and torturing 10 and 11 year old children. he is as a significantly higher risk to follow through on these fantasies than people who are not having the fantasies. thus why the guy was on probation after his first pandering offence: to watch that he doesn't recommit or to progress to carrying them out. jailtime is unreasonable. concern is not.
posted by raedyn at 1:33 PM on July 4, 2001

Disturbing no matter how you look at this...I understand that this guy was LIKELY to "graduate" to reality, and as the father of two children, I'm quite happy that he will be locked up. And let's not forget - this guy was already on probation - another indication that he is more than willing to disregard society's rules.

However...as a staunch supporter of free speech and freedom in general, this worries me. Hell, even some Lawrence Sanders novels could conceivably be worthy of time in the pokey, according to the *logic* of this case. Uh, oh...I used the word "hell." [knock, knock @ the door..."We're from the government, and we're here to help you.]

On balance, I'm more relieved than worried, but that is the "Dad" in me, more than the "American" in me. Don't hate me because I'm dichotomous.
posted by davidmsc at 1:38 PM on July 4, 2001

I'm still trying to figure out how this violates even the broadly-written Ohio pandering statute, which specifically refers to "commercial exploitation" and "publicly disseminated" material. The "pandering involving a minor" law uses the weasel phrase "any material that shows a minor". Nobody has presented evidence that there were any actual minors, let alone that they were "shown".

When the Supreme Court ruled on the CPPA, they were following a long line of case law that predicated the censorship of child pornography solely on the basis of actual harm to real children, but even CPPA is alleged to be treading on thin ice with banning "visual depictions" (i.e. drawings). This case will be argued when the Court resumes in October (brief).

raedyn, any concern must be mediated by the law. We could have a wonderfully safe society if we just put everybody we think might commit a crime under the watchful eye of the police, but it wouldn't be a free society. Why is child molestation a crime where the rights of the accused seem not to apply? In the past such societal anger was directed at, for example, blacks accused of raping whites on the flimsiest of excuses. Society then was completely at ease with exacting a vigilante death penalty without benefit of trial, simply to keep order, to mollify white "concern".

If we ease up on the rights of one single class of criminal for which we have contempt, we erode the rights of everyone else by implication.
posted by dhartung at 1:51 PM on July 4, 2001

Uh, that paragraph got messed up. It started out being about the COPA and ended up being about the CPPA, so ignore the first participial phrase, okay?

raedyn, I understand you perfectly. (I infer that you're British, and I know that Britain has very restrictive laws on child pornography writings. I submit that I'm glad we have a First Amendment over here.) Your logic, however, is the exact same logic that was used by the infamous 1980s American Meese commission (Meese, at the time, being attorny general) to argue that all pornography should be tightly controlled, simply on the risk that it might incite rapists or serial killers (some of whom were called to testify before the commission that they had been so "incited"), never mind that people who weren't rapists or serial killers had viewed pornography and hadn't gone on to commit crimes. In American jurisprudence this type of censorship is labeled prior restraint and there are very high bars to the state's use of it; national security is generally the only consensus item, and even there one finds enormous areas of difference on what constitutes grounds of national security. Your assumption (and davidmsc's) that this individual was "likely" to go on to commit actual molestation is not supported by the evidence. Similar to the old chestnut about "gateway drugs", it is easy to show that hard drug users previously used mild drugs like marijuana (and alcohol or tobacco before that), but statistically preposterous to argue that a majority of marijuana users then proceed to hard drugs. There is also very little in the way of demonstrable causality.
posted by dhartung at 2:06 PM on July 4, 2001

i don't feel bad for this guy at all.

That argument shows up over and over in cases like this--and in death penalty arguments too--that somehow we're "feeling bad" for the accused. That's not it at all. I don't "feel bad" for this guy. I think he's a sick fuck, and I can't imagine the mind that comes up with child-torture fantasies. I just don't think it should be illegal to think certain thoughts--ANY thoughts--or to write them down.
posted by jpoulos at 2:21 PM on July 4, 2001

I don't think you should give raedyn a break for being British (if they are). I'm English and I'd be disgusted if someone was locked up over here for what they wrote in private. I wasn't aware that our laws were any less tolerant than American ones, and while we don't have a written consitution we do have support for Human Rights in law (at last).
posted by andrew cooke at 2:46 PM on July 4, 2001

Well, we're (we U.S. citizens) all in jail, and as such I suppose the authorities have a right to keep certain materials from us.

Or am I misunderstanding the status quo?

A useful term to consider is victimless crime. (This page looked good on brief inspection). A journal containing fantasy, or fiction, not meant for public consumption -- where is a victim who needs redress of grievances.

Down the road of prosecuting people for their journals - we could just easily prosecute people for reading Bret Easton Ellis' American Psycho, for expressing admiration for Johnny Cash (songs about killing wives), not to mention the more controversial Eminem, or Marilyn Manson -- bands whose subject matter runs to the morbid, the scatalogical. I'd say if this holds up we're going to see more prosecutions for obscenity, more censorship, and more restrictions on civil liberties - all in the name of protecting children. Protecting children is a great value. However, protecting individual liberty is also a great value.

Those are my thoughts on this U.S. Independence Day.
posted by artlung at 3:05 PM on July 4, 2001

dhartung, correct me if I'm wrong, but regardless of meese's imagined link between all pornography and rape, isn't it true that serial killers and pedophiles go through a strong fantasy phase that precedes the actual act? when finally the fantasy itself isn't satisfyng enough, and they're moved to act? that such acts are typically rehearsed over and over again before they actuate? I had read that in the case of serial killers, often the actual crime has a flaw in it, something that wasn't exactly perfect, and that impels them to do it again, and then again.

I don't suppose anyone will ever know how many people have similar fantasies and never act on them: these particular crimes are too prohibited in our society for people to admit to "thinking about that all the time."

still, I think it's important to be clear about what these thoughts mean in the context of his particular psychology.

having said that, I don't see how he committed a crime. I would agree that, as a parole officer, I'd be inclined to want to step up the guy's counseling, given that it would seem that he *may* be entering the cycle that precedes a criminal action.

yeah, I know, this may be something of an infringement of his civil rights - on the other hand, why is it okay for a parole officer to search his belongings if he can't point the guy to appropriate treatment in response to what he finds?

and I can see that applying the same logic to everyone who ever thought about committing a crime would be absurd and unsustainable.

but we have different punishments for different crimes, I would think that in the case of someone who appears to be in danger of committing what we would all agree is a heinous offense, appropriate intervention would be a good thing, not an evil. - rcb
posted by rebeccablood at 3:32 PM on July 4, 2001

Scary, scary precedent?

Does no one remember 'Jake Baker'?
posted by DBAPaul at 4:45 PM on July 4, 2001

Does no one remember 'Jake Baker'?

Jake Baker published his violent sexual fantasies on alt.sex.stories and used the real names of people he knew as victims. He also wrote things like this to a person he was planning to meet:

One of the things I've started doing is going back and re-reading earlier messages of yours. Each time I do. they turn me on more and more. I can't wait to see you in person. I've been trying to think of secluded spots. but my knowledge of Ann Arbor is mostly limited to the campus. I don't want any blood in my room, though I have come upon an excellent method to abduct a bitch ---

As I said before, my room is right across from the girl's bathroom. Wiat until late at night. grab her when she goes to unlock the dorr. Knock her unconscious. and put her into one of those portable lockers (forget the word for it). or even a duffle bag. Then hurry her out to the car and take her away ... What do you think?

(Source). Baker's a sick fuck, and his actions were regarded as free expression rather than a crime. I can't see how this guy's private journal could have been considered a crime if it had come under appellate review.
posted by rcade at 4:57 PM on July 4, 2001

I have had sexual thoughts about other human beings, who may not have reciprocated those thoughts, nor even have been aware of them, regardless of whether or not those fantasies involve me buying flowers first....

I *demand* to be arrested immediately, lest I force my dark throbbing flesh against an unwilling participant! Stop me, before I fantasize again!

Meese! Meese! Save me from myself! Help me find my way back to the King James Edition! (except for the Song of Solomon bits, and a few other distasteful, probably Semitic if-you-know-what-I-mean-wink-wink, Old Testament bits that just don't mesh with golf, shopping malls and soccer after school)

*cough*
posted by aramaic at 4:59 PM on July 4, 2001

What a dumbass ruling. Even sickos should have freedom of speech.
posted by owillis at 6:03 PM on July 4, 2001

[quote from article]
"Even without passing it on to anyone else, he committed a felony.''

The Feb. 23 indictment alleges that Dalton "did create, reproduce or publish any obscene material that has a minor as one of its participants or portrayed observers.''
[/quote]

Ummm, doesn't that pretty much cover the Old Testament?
posted by Spanktacular at 7:59 PM on July 4, 2001

Scary, scary precedent. And it can't even be appealed because he plead guilty in a plea bargain.

Please be aware that there is no legal precedent here and no "dumbass ruling" (dumbass prosecution, perhaps, but no ruling). The guy plead guilty, meaning that the law was not in any way challenged and no judicial decisions or opinions about this man's actions w/r/t to existing law were made in any way shape or form. As such, there is nothing here that could be used for argument in any other court case (indeed, precedent, in terms of "here's the precedent, your honor" doesn't really get set until the appellate level where judicial decisions are affirmed or rejected by other judges).
posted by dchase at 8:32 PM on July 4, 2001

i appreciate thoughtful and intelligent deabte like this.

british? good guess, but the wrong one. i'm canadian.

the gateway drugs arguement makes sense to me. just because we can trace the triggers back one way doesn't mean it applies to everyone. point taken.

so then why was he on probation, if not to monitor his behaviour? [i don't intend to say that we neccesarily /should/ do that. but we do.] why give his parole officer the power to search his home and no power to act on what he finds? but perhaps, as rebeccablood suggests, there is something between doing nothing and incarcerating him. i agree that no thoughts should be a crime to have, or to write down in a private journal that you don't intend to let anyone read. but certainly this merits a reaction of some sort?

[of course, part of the problem with this whole debate is the different legal systems of the various countries we come from and the different cultures that we live in.]
posted by raedyn at 9:29 PM on July 4, 2001

Problematic as this case is for anyone who staunchly supports free speech for all and who is also entirely in favor of shipping all pedophiles off to foreign parts (like the moon or a different solar system or someplace) what I marvel at is that this fellow was dippy enough to write what he did at all.

He was on probation for pandering when this journal was found, right, which means he should have been painfully aware that those in authority would be looking for any excuse to lock him away. Why in the world would he think that they would not at least try to find a way to use his journal against him? The attorney who prosecuted, the jury who convicted, and the judge who sentenced all knew about the first amendment, I'll betcha, and what's more, they probably also knew there was something fishy about putting a guy away for writing down his fantasies in a private journal. This was about getting the baddie--and they got him, boy howdy. Rights, be damned. At least in Ohio, I guess...

Does anybody get why the prosecutors went ahead and read to the jury from his journal even though he plead guilty? Hmmm...somebody else into kiddie porn in Ohio, methinks.
posted by Bixby23 at 10:08 PM on July 4, 2001

Bixby: the journal was read to a grand jury. A grand jury decides whether there is sufficient evidence against the accused to merit a trial.
posted by swerve at 10:37 PM on July 4, 2001

Oops. Should probably read more carefully before opening my big yap. Thanks for the correction, Swerve.
posted by Bixby23 at 11:11 PM on July 4, 2001

I'm just as disturbed by the "all these guys are sickos" thing, the knee-jerk disclaimer that people seem to feel compelled to insert into their posts. It's kind of Orwellian in itself, the way everyone is quick to note "Well, I don't condone this, of course" in regards to pedophiles. As if questioning the very demonization of pedophilia is unacceptable- a taboo!

Tell me: is our fear of pedophiles like those frigid housewives who look in their kids text books and see 'subliminal' images of sex and Satanism? Is it like the way, a la the McMartin trial or Washington state's Wenatchee witch hunt, in which a single allegation can so quickly mutate into allegations of a full scale sex ring? Ever notice how those child sex rings always end up the same- not just isolated molestation, but accusations of (say it with me) "Satan-worshipping animal-sacrificing baby-molesting groups in the church basement"? I mean, isn't it weird how those sex ring witch hunts usually end up being so predictable in their development and themes, as if they were tapping into some kind of mythic archetype? I guess my question is whether our hysteria about pedophiles isn't in part related to the fact that we have a lot of unconfronted issues with our own maturing sexual nature, and this knee jerk reaction as well as the almost comical (were it not so tragic) way these fears become projected outward into hysterical fantasy scenarios is our sad little way of dealing with that?

Predators of all stripes are a danger to society- hence 'predator', after all- and there are certainly real pedophiles out there. But it seems to me we have this particularly unhealthy paranoia about pedophiles, imagining they are everywhere (not helped by those hysteria-laden news reports... "Danger lurks... something every parent needs to watch to protect YOUR kids... at 11!"), that pedophiles number in the tens of millions, that they are abducting your children by luring them into their white windowless vans with razor-blade tainted apples. I guess I'm playing devil's advocate, asking if maybe we have that knee-jerk "they're all sickos" thing, because we're terrified of having to ask uncomfortable questions about our own sexual desires.

Just for the record, I'm in my mid-20s and have always preferred older women- when I was 20 I preferred a woman nearing her 30's, now I prefer a woman in her early 30's. But I have noticed that there is in our media a definite fascination with the power of youth sexuality- from images of the blossoming of youth in advertising to our unseemly determination to strictly regulate and legislate the bodies of teens- and haven't missed the fact that most of my guy friends, in particular the ones over 30, seem to have an inordinate fascination with wispy, doe-eyed 19-year-old coeds. And what do we say about a society that thinks 75-year-old Hugh Hefner is a stud because he surrounds himself with women that are Barely Legal?

From a Salon article:

No one would argue that we should ignore threats to our children or that any child's right to happiness (and safety) is trivial. This is not an issue of mathematics but of the motivations and good sense of the adult population. We don't do ourselves or our children any favors by focusing relentlessly on problems that serve mostly to keep us from worrying about what's inside our favored institutions, institutions like the family. By casting the problem in Gothic terms -- "Kill the beast" -- we do not encourage careful or even compassionate thinking.

Children have real problems in our culture, problems less spectacular but just as crippling as any Internet abduction. We need always to have them in mind, the children who are beaten, ignored, neglected and shut out, denied decent education, hope and love. We must answer to them as well, and right now our loud protestations of virtue, our declarations of willingness to protect, must ring hollow.

Who is being served by our willingness to rush headlong after problems, even before we know the problems exist? All it takes to get our undivided attention, it seems, is a problem that is spectacular, sexualized and far from home.

posted by hincandenza at 2:33 AM on July 5, 2001

I guess I'm playing devil's advocate, asking if maybe we have that knee-jerk "they're all sickos" thing, because we're terrified of having to ask uncomfortable questions about our own sexual desires.

There are 32 released sex offenders living in my ZIP code, according to the Florida Department of Law Enforcement. Yet demonizing pedophiles is the problem we should be concerned with?
posted by rcade at 6:18 AM on July 5, 2001

While hincandenza goes a little overboard, if you ask me, I think he has a valid point (while fully aware that I refer to Dalton as a "sick fuck" in my post above). I think that there is a difference between our culture's obsession with and fantasization of young women, and a pedophile's lust for children. Biology and evolution has predisposed men to seek young (read: more likely to be fertile) women to mate with. But a pedophile's attraction to a pre-pubescent child makes no evolutionary sense at all.

There are 32 released sex offenders living in my ZIP code...Yet demonizing pedophiles is the problem we should be concerned with?

The problems are related, IMO. We demonize pedophiles, call them "animals", "monsters" etc. They're not people like you and me, we claim. Their brains don't work like ours, we believe. Well, that's just wrong, and it keeps us from understanding the problem and from doing anything to fix it.

We're so scared of the concept of pedophilia that we won't even try to understand why it happens, for fear of somehow appearing to condone it. Instead, we mark them with a scarlet "P" and put their names in a big registry, and whisper behind their backs when they walk down the street (or, worse, scream for them to be run out of town during Town Meetings).

I want the sex offenders out of your zip code, too, rcade. But I want them out of all zip codes. I want us to get to a point where we understand that pedophiles are people--people with very serious problems--but people worthy of help.
posted by jpoulos at 7:30 AM on July 5, 2001

If this were an ordinary citizen, and the police wandered in, dug through his things, and found the diary, I'd be outraged. That wasn't the case, however- he was on probation. Probation, contrary to popular belief, is not a full, free return to society. It is the mitigation of a prison sentence allowed to be served, with supervision, outside the prison. For all intents and purposes, this man was still a ward of the correctional system, and he knew that he was subject to being searched, having his whereabouts accounted for, and various other restrictions on his person that an ordinary citizen would never and should never tolerate. Prisoners are not privvy to the same rights as ordinary citizens while incarcerated, whether they are incarcerated in a facility or under the watchful eye of a probation officer.
posted by headspace at 7:39 AM on July 5, 2001

If only he could have repressed his urges instead of releasing them in this private, harmless fashion.
posted by Skot at 9:54 AM on July 5, 2001

a pedophile's attraction to a pre-pubescent child makes no evolutionary sense at all

but if it did make evolutionary sense, it'd be ok? much human behavior has no evolutionary sensible purpose.

There are 32 released sex offenders living in my ZIP code

there are 25 living in mine, including several who were convicted of indecent exposure or for doing naughty things in a public place. sex offender does not mean pedophile or other 'sicko', necessarily.

the guy in the article was not on probation for molestation or lewd acts with a child. it was for pandering. does pandering mean he was doing something with a child? or did he just possess kiddie porn?

Prisoners are not privvy to the same rights as ordinary citizens

they may not have all the same rights, but prisoners do still have rights.
posted by tolkhan at 10:45 AM on July 5, 2001

Yes, they do have rights. However, it is my understanding that he was on probation for a conviction on pandering of child pornography charges. People on probation for alcohol related offenses are not allowed to drink alcohol, for example. Even if child pornography -were- legal to ordinary citizens, it would not be to someone who was on probation for charges related to child pornography.

By accepting probation, he entered into a legal contract (as is his right as an American citizen) agreeing to be visited by a parole officer, agreeing to be searched without a warrant or probable cause, and agreeing not to do certain things which would violate his parole. He could have chosen to remain in prison, if he did not care to adhere to the supervision of a parole officer.

I doubt anyone would be arguing this if his parole officer fired up his computer and had him arrested when he found a folder full of child pornography in a private directory. Just because he created the pornography himself doesn't make it any less a violation of his parole.
posted by headspace at 11:03 AM on July 5, 2001

there is a distinction between real and created child pornography. the intent of making photographs of children involved in sexual acts illegal is to protect children from exploitation and molestation and such. a drawing or cg image of a nonexistent child engaged in sexual acts has no child victim to protect, nor does a set-to-paper fantasy. i think i read recently of that matter being considered by some governmental authority somewhere, though i can't be sure because i've been heavily medicated for the last week.

he entered into a legal contract... agreeing to be searched without a warrant

it wasn't my intent dispute that. i wasn't questioning whether it was just and fair that he was stripped of his right to privacy, just pointing out that, despite being a convict, he still has rights. the question now is whether a right to free expression is among them.
posted by tolkhan at 12:12 PM on July 5, 2001

Rx induced hazes be damned. i was right about the governmental authority. i just didn't realize it was the Supreme Court.
posted by tolkhan at 12:19 PM on July 5, 2001

All I'm saying is that right now even if it were legal, even virtual pornography could still be banned by virtue of his probation agreement (just like Kevin Mitnik wasn't allowed to play with computers, just like alcohol offenders aren't allowed to drink,) and that's an agreement he chose to make accepting probation. This is not a freedom of speech issue, this is a correctional issue, despite the fact that it was essentially speech and expression that landed him back in jail. He's allowed to write all the Rainbow Brite stories in the world, but until his probation is up, he's not allowed to let Rainbow Brite get her nasty on with Strawberry Shortcake.

I think the Supreme Court has a chance to make good law here- I don't think that "evil" speech should be banned, in fact, I encourage people who say things I disagree with, or say things I find downright nauseating, to say what they want. From a strictly first amendment point of view, I find this guys' pornography predilictions disgusting, but as long as there are no real children involved whatsoever, he can write whatever nasty stories he likes, and he should be protected by the first amendment.

But not until he's no longer a ward of the courts and state as a probationer.
posted by headspace at 1:11 PM on July 5, 2001

heh. you and i are in agreement on that the matter of his rights under the probation agreement, and he received 3 years for the violation of probation. no one, i think, is arguing that he shouldn't be punished for his probation violation. he agreed to do/not do something, and he violated it. he goes to jail. no big deal.

but 7 of the 10 year sentence has nothing to do with his probation, and that's what makes this a MeFi-worthy news story. he's going to spend 7 years in jail for his fantasy, and that's what i'm trying to distinguish.
posted by tolkhan at 2:37 PM on July 5, 2001

For that, I'm glad there's going to be redressment at the Supreme Court level, and I really hope they make good law here. I don't think anybody should be punished for thinking or writing something that involves no other non-consenting real people (or animals, don't want PETA to jump down my throat.)
This guy got caught too early, thought, I doubt this is a law that- if it is changed- they will grandfather like they did the peal-and-repeal of the death penalty. I wonder if he was "encouraged" to plead out- seems like the kind of case a defense attorney would enjoy pushing, everything being on the cusp of new law and interpretation of old.
posted by headspace at 3:51 PM on July 5, 2001