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Proposed Ban on Making and Distributing Pornography Involving >60-Year-Olds and the Disabled (Including Spouses or Lovers Consensually Photographing Each Other):

Yup, the law (in Massachusetts) would make it a very serious crime — tantamount to child pornography — to make, and distribute "with lascivious intent," "any visual material that contains a representation or reproduction of any posture or exhibition in a state of nudity" involving anyone age 60 or over, or anyone who has "a permanent or long-term physical or mental impairment that prevents or restricts the individual's ability to provide for his or her own care or protection."

The law is not limited to people who are mentally handicapped and thus unable to consent, or who are photographed against their will by their caretakers (the justification discussed in this story). The operative provisions cover people over 60 and the disabled whether or not they are incompetent. One provision, relating to people's being "deemed incapable of consenting," would cover only "an elder or a person with a disability adjudicated as incompetent by a court of the commonwealth," but I don't see how this would stop liability under the other provisions, since consent is no defense under the other provisions in any event. (Plus if they just wanted to bar exploitation of the incompetent, why not simply say "anyone adjudicated as incompetent by a court of the commonwealth," with no limitation to elders or persons with disabilities?)

Likewise, the law is not limited to hard-core pornography that would constitute unprotected "obscenity." It would apply to any pictures of nudes, so long as the defendant is acting with lascivious intent." Hard to see how this would be constitutional, or why it would make much sense.

The bill text is here; the provisions that would be amended are here and here; and the definitions of "elder" (anyone age 60 or older) and "person with a disability" ("a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual's ability to provide for his or her own care or protection") are here. If anyone can point me to a version that merges the existing text with the changes, I'd love to link to it.

UPDATE: Note that the law isn't limited to making pornography for commercial purposes (since the child pornography law that it builds on covers noncommercial child pornography, too). That means that if 60-year-old spouses or lovers — or spouses or lovers of someone who is disabled — decide to photograph each other naked with "lascivious intent," they would be committing a crime (inserted text underlined, especially relevant text italicized):

Whoever, either with knowledge that a person is a child under eighteen years of age, an elder or a person with a disability, or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, an elder or a person with a disability and with lascivious intent, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child, elder or person with a disability to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.

(Note: I originally misread this as requiring a mandatory minimum sentence of 10 years, but a commenter correctly pointed out that a court could in the alternative impose a fine of at least $10,000 — much better than a 10-year sentence, but still entirely improper.)

Tony Tutins (mail):
The whole genre of "granny porn" will disappear.

Can BBW porn be next?

Isn't this age discrimination -- are the elderly a protected class in Mass?
3.30.2009 12:14pm
Monty:
I bet some poor state legislator was tricked into oppening one of the 'shock' images contaning an elderly person and is upset about it...
3.30.2009 12:20pm
Dreadnaught (www):
It may be that any picture of a person over 60 without clothing is per se obscenity. Looks like they will not be seeing any nude pics of Judi Dench in Mass.
3.30.2009 12:27pm
ArthurKirkland:
I do not understand this, from several directions.
3.30.2009 12:30pm
A Law Dawg:
Alas, no new nude material from Sophia Loren!
3.30.2009 12:31pm
Jon Rowe (mail) (www):
Heh.

I guess that might force Ron Jeremy into retirement soon.
3.30.2009 12:32pm
Dreadnaught (www):
Blue Iris is going to be pissed.

ArthurKirkland makes a good point. One can understand a law protecting children and the mentally handicapped from exploitation, but what basis is there to keep a consenting 61-year-old from taking nude pics?
3.30.2009 12:35pm
Michael J Pruitt (mail) (www):
If we *encouraged* our elders to engage in sexting, perhaps it would dissuade our teenagers from posting self-nudes....
3.30.2009 12:39pm
A Law Dawg:
what basis is there to keep a consenting 61-year-old from taking nude pics?


Nuisance law?

/runs
3.30.2009 12:39pm
R Gould-Saltman (mail):
Dreadnaught: That's a pretty evil trick to play on people who might be reading blog-posts early in the morning, possibly with a mouthful of hot coffee.

In general: things must be slow in Mass., or some legislator's elderly mother's sleazy gold-digging gigolo boyfriend must have posted nude pics of Mom on the 'net, and the legislator got a Google alert, and clicked through, early one morning while he had a mouthful of hot coffee...
3.30.2009 12:45pm
Dreadnaught (www):
Sorry R Gould-Saltman, I should have mentioned that you may not want to click on the link. Send me your dry-cleaning bill.
3.30.2009 12:47pm
PLR:
This is what happens when Grandma gets a cell phone that takes pictures.
3.30.2009 12:49pm
A. Zarkov (mail):
By implication this bill equates people over sixty with children. They must lack something that makes them especially vulnerable to exploitation, and thus need extra protection not needed for people 18-59. Well if people over sixty are so infirm then we should eliminate them from the judiciary and the other branches of government as we do with children.
3.30.2009 12:56pm
Smooth, Like a Rhapsody (mail):
Six months work getting "RBGone Wild!!!" up and running, all for nought....
3.30.2009 1:03pm
Tony Tutins (mail):

Alas, no new nude material from Sophia Loren!

Not only that, but alas, Helen Mirren (scroll down on this Daily Mail column) is 63
3.30.2009 1:03pm
Aultimer:
This was obviously cooked up by the National Association of Figure Models to stop the erosion of wages caused by retirees posing for community college art classes.
3.30.2009 1:04pm
arthur:
A statute defining anyone over 60 as incapable of making decisions will lose at the Supreme Court, 7-2.
3.30.2009 1:06pm
martinned (mail) (www):

By implication this bill equates people over sixty with children. They must lack something that makes them especially vulnerable to exploitation, and thus need extra protection not needed for people 18-59. Well if people over sixty are so infirm then we should eliminate them from the judiciary and the other branches of government as we do with children.

Yes! That's right, let's kick all the 60+ members off the Supreme Court!
3.30.2009 1:07pm
ObeliskToucher:
The act's title should be "Photoprocessor Employee Protection Act of 2009"..
3.30.2009 1:19pm
einhverfr (mail) (www):

Well if people over sixty are so infirm then we should eliminate them from the judiciary and the other branches of government as we do with children.


See this is the funny thing. It may well be that the Supreme Court will be asked to agree whether folks over 60 are sufficiently vulnerable to exploitation as to allow such a free speech exception.

If they rule "no" some folks on the loony right will be offended. If they rule "yes" they have just destroyed their own credibility (how many Supreme Court justices are currently UNDER 60?) and that would be funny.

Such a ban has absolutely zero chance of withstanding a challenge. I am not even sure that child pornography laws regarding self-photographing and distributing images to boyfriend/girlfriend would past Constitutional muster and might fail an as-applied challenge.
3.30.2009 1:29pm
Malvolio:
So hypothetically, if a deaf guy snaps a picture of himself in the nude to send to his girlfriend, ten years in the pokey?

There really ought to be some penalty on law-makers who vote for laws that are patently unconstitutional. Sure, there are vague spots in the law (what, by the way, is the difference between "privileges and immunities" and "privileges or immunities") but past some point, anybody who just does "get" this country just shouldn't be in the legislature.

Of course, don't get me started on McCain/Feingold.
3.30.2009 1:40pm
Houston Lawyer:
Would pre-existing granny porn by grandfathered by this law?
3.30.2009 1:42pm
ArthurKirkland:
I do not know from which side of the ideological spectrum -- authoritarian on the right, or authoritarian on the left -- this proposal originates. I can not even guess. Which means this episode might be an illustration of the point someone prominent (Clint Eastwood, for some reason, keeps coming to mind, but I may simply be recalling the Milton Berle story) once made about extremists: 'if you go too far to either side, eventually you circle back and meet the nuts coming from the other side.'

This proposal might constitute such a meeting of the minds.
3.30.2009 1:42pm
Gino:
"I do not know from which side of the ideological spectrum -- authoritarian on the right, or authoritarian on the left -- this proposal originates."

What part of Massachusetts do you not understand?
3.30.2009 1:49pm
theobromophile (www):
WTF? So I can't film myself with my lover?

[Looks angelic]
3.30.2009 1:50pm
martinned (mail) (www):
@ArthurKirkland: That point was made in slightly less quotable form by Hayek in the Road to Serfdom.
3.30.2009 1:52pm
theobromophile (www):
To be slightly more serious: does this mean that when Roger Daltrey plays at Great Woods, he can be thrown in jail for taking his shirt off? Or does it just mean that it's now a felony to use one's camera phone if he does?
3.30.2009 2:06pm
Anderson (mail):
Surely this post was meant for April 1?

But no, despite my initial reaction, it seems to be serious. (I was skipping to the end for the "now, substitute X for the above" part.)

People are crazy.
3.30.2009 2:15pm
Steve P. (mail):
I do not know from which side of the ideological spectrum -- authoritarian on the right, or authoritarian on the left -- this proposal originates. I can not even guess.

Luckily, you don't have to guess. All of the bill's sponsors are Democrats.

theobromophile — it depends on whether a shirtless male at a concert counts as being "exhibited in a state of nudity."
3.30.2009 2:21pm
ChrisIowa (mail):

Of course, don't get me started on McCain/Feingold.

McCain/Feingold Nude? I don't want to go there either.
3.30.2009 2:22pm
Patrick this site has too many registered users (mail):
Isn't there a mandatory minimium $10k fine, not a mandatory minimum jail term?

Irrelevant quibble, I know, in the context of such farce, but pedants must be pedants.
3.30.2009 2:24pm
grackle (mail):
Does this mean no more Harvey Keitel movies in MA?
3.30.2009 2:26pm
einhverfr (mail) (www):
Also, one point to EV:

Likewise, the law is not limited to hard-core pornography that would constitute unprotected "obscenity." It would apply to any pictures of nudes, so long as the defendant is acting with lascivious intent." Hard to see how this would be constitutional, or why it would make much sense.


If it was limited to obscenity, it would also be unenforcible regarding photographs of consenting lovers solely for their own private viewing enjoyment.

BTW, there is a recent ACLU lawsuit involving a case where a teenage girl photographed herself nude and sent the photo to her boyfriend, and was arrested under child pornography laws. My own personal thought in that case is that an as-applied challenge to the law ought to be sustained, and such a case ought to fall outside the child pornography exception to the first amendment.
3.30.2009 2:26pm
einhverfr (mail) (www):

McCain/Feingold Nude? I don't want to go there either.


At least this proposal would make that illegal ;-)
3.30.2009 2:27pm
Kazinski:
Finally an anti-porn law we can all support.

Not all of this nanny-statism is bad.
3.30.2009 2:33pm
ReaderY:
Given that states can proscribe obscenity, why isn't the state's legislature the appropriate body define what the state's contemporary community standards are?

If one doesn't like their standards, vote them out.
3.30.2009 2:47pm
Shelby (mail):
I tried to post links to the sponsors' official websites, but for some reason that's hanging. None of the sponsors seems to be over 60 (one graduated from college in 2003, but two others are likely mid-fifties), and none of them list law school under "Education".

They are all Democrats.
3.30.2009 2:48pm
Bob from Ohio (mail):

If they rule "no" some folks on the loony right will be offended.


As pointed out above, this is Masachusetts, the most left wing liberal state in the US and all the sponsors are Democrats.

But don't let facts stop you from anti-conservative comments.
3.30.2009 2:53pm
Mark Jones (mail):
There really ought to be some penalty on law-makers who vote for laws that are patently unconstitutional. Sure, there are vague spots in the law ...but past some point, anybody who just does "get" this country just shouldn't be in the legislature.


You're damn right there ought to be a penalty for that. Remember, they tell us incessantly that "ignorance of the law is no excuse."

So I'm responsible for knowing and observing every law, rule and regulation in the local, state and federal jurisdictions--with the possibility of fine and/or imprisonment (or death, in some cases) if I fail to abide by them. But our legislators can't be expected to know when a law they've written or voted for is clearly a violation of the Constitution, which is (if I remember correctly) the highest law of the land?

Sorry, Rep. X, but your bill is unconstitutional. You've committed a felony by attempting to exceed your authority. Go directly to jail. Do not pass Go. Do not collect $200.
3.30.2009 3:13pm
SeaDrive:
Disrespect for seniors continues. I understand that some nursing homes have rules against sex between spouses.
3.30.2009 3:17pm
Xenocles:
I wonder if AARP is supporting this one. It would be quite ironic if in trying to prevent nursing home abuse they equated their membership to children (and thus unworthy of the group's primary instrument of power, the franchise).
3.30.2009 3:19pm
einhverfr (mail) (www):
I don't see the far-right as conservative. Rather, they, like the far left, want to make very very deep changes to our system of laws.

Conservatism is a methodology not a political agenda.
3.30.2009 3:22pm
the_pathogen (mail) (www):
On a somewhat similar note, a 14-year old girl had been charged for child pornography of herself, according to this AP Article. Apparently, she could become a sex offender if convicted.
3.30.2009 3:23pm
Eugene Volokh (www):
Patrick ...: Uh-oh, thanks, fixed!

Einhverfr: Bans on distribution of obscenity are constitutional, even if it's distributed -- or even carried by the owner outside the house -- noncommercially. Bans on creating obscenity, even entirely for home use in the same home in which it's manufactured, might be constitutional as well. It's only pure possession that's clearly constitutionally protected, but this bill wouldn't ban pure possession. I'm not praising obscenity doctrine, just reporting on it. For more, see this post.
3.30.2009 3:27pm
NickM (mail) (www):
Harrison Ford is 66. Glenn Close just turned 62. Michael Douglas is 64. Sylvester Stallone is 62. Lauren Hutton is 65, and posed nude for a magazine at 61. Arnold Schwarzenegger is 61.

I guess a new movie containing a butt shot of any of those actors/actresses could be "banned in Boston".

Nick
3.30.2009 3:27pm
Fub:
SeaDrive wrote at 3.30.2009 3:17pm:
Disrespect for seniors continues.
This should encourage Raging Grannies (worksafe) to start something in Massachusetts.
3.30.2009 3:27pm
ASlyJD (mail):
I've got it!

One of Barney Frank's ex-boytoys got caught in Frank's camera, and now the ex wants Frank to pay.

It makes a certain amount of sense.
3.30.2009 3:35pm
Xenocles:
Would this prohibit pictures of people who were 21 at the time of filming but are now 60? You don't run into this sort of problem with child porn laws, obviously, but the language points that way:

"...to pose or be exhibited in a state of nudity..."
3.30.2009 3:45pm
Kirk:
If they rule "yes" they have just destroyed their own credibility
At least half the credibility they have left isn't really credibility at all, just default respect because the consequences of not having respect for our nation's highest court would be even worse.

Malvolio,
Of course, don't get me started on McCain/Feingold.
I take it you're with me on the above, right? McCain/Feingold, Raich...
3.30.2009 3:54pm
ArthurKirkland:
The reports that the sponsors are Democrats doesn't change a letter of my response: It could just as easily have been the kooks on the other side. As I viewed (before those reports) it was a toss-up.
3.30.2009 4:03pm
L Nettles (mail):
There goes the sequel to Calendar Girls
3.30.2009 4:06pm
einhverfr (mail) (www):
EV:

However, if you were looking at material that might otherwise be seen as obscene, and it was produced IN THE HOME and never transported out of the home (for example, photos by consenting spouses, and the photos were never moved elsewhere), then wouldn't this be simply possession and not distribution?

I guess what I am getting at is that everything which might be banned must be manufactured or brought in somehow. To have any teeth whatsoever, a pure possession exception to obscenity would have to cover material which was manufactured in the private home and never left it. Otherwise, you run into the problem that there is no such thing as pure possession.

So this is where I would expect the line to be drawn: depictions that might be seen as obscene produced in a private home for private viewing only and never distributed outside the home would be protected under existing precedent, but any exchange or transfer beyond those physical boundaries might be unprotected. This would also seem to me to be consistent with past precedent. Otherwise you end up with inconsistent precedent and the one protecting possession would have to be overruled fully.
3.30.2009 4:12pm
einhverfr (mail) (www):
I guess what I am getting at is that every obscene depiction must be either:

1) Manufactured, composed, or otherwise created

or

2) Obtained from somewhere else.

These depictions don't just appear from nowhere. Now, either the above are sometimes protected or they are never protected. I would argue that composition would be generally protected under the obscenity exception, commercial transactions would not, other matters might be somewhere in between. However, if they are not protected, then mere possession of obscenity in the private home could never be protected either. So one could be prosecuted for obscene text-only depictions written in a diary never intended for anyone else to read.

If, however, composition of such representations is protected for private purposes at least, then we have problems. For this reason, I think that it would be beyond traditional bounds of obscenity law to the extent it would involve private composition of such material in a private manner. Of course this might be the proper subject of an as-applied rather than a facial challenge, so this does not necessarily mean the law would be struck down by the courts as such.
3.30.2009 4:28pm
Dave N (mail):
I am in complete agreement with Arthur Kirkland (a rare event, indeed). Whoever proposes this kind of legislation deserves to be mocked and then mocked some more--and I don't care whether they are Democrats or Republicans (having lived for a decade in Utah, I know this is the type of legislation that ocassionally gets introduced by crazy Republicans there).
3.30.2009 4:50pm
karl m (mail):
"do not know from which side of the ideological spectrum -- authoritarian on the right, or authoritarian on the left "
No sir, it come from people with taste
3.30.2009 5:42pm
ArthurKirkland:
Welcome, Dave. I decided early that I was outnumbered and concluded that I would be most effective attempting to pick people off one a time. Your defection vindicates my theory.

Would anyone have bet the rent money on the direction (left/right) from which the bill's sponsors were approaching this "problem?"
3.30.2009 6:34pm
Mike G in Corvallis (mail):
I've never understood the rationale for banning the depiction, description, or advocacy of any act that is legal for one or more consenting adults to perform.

Other than, "Shut up and obey your betters," of course.
3.30.2009 7:18pm
Mike G in Corvallis (mail):
Hmmm. So the movie "Children of a Lesser God" would be Banned in Boston because of Marlee Matlin's nude scene? Their loss!

The supposed rationale for banning child pornography is the presumed incompetence of the subjects to give informed consent. Why not use that reasoning, and only that reasoning, to extend the ban to mentally incompetent persons of any age?

I'd have no problem with the bill if the proposed additions of ", an elder or a person with a disability" were everywhere changed to "or a person adjudicated as incompetent by a court of the commonwealth" ...

What do physical disabilities or "senior" status per se have to do with mental competence?
3.30.2009 7:50pm
Mike G in Corvallis (mail):
Hmmm. So the movie "Children of a Lesser God" would be Banned in Boston because of Marlee Matlin's nude scene? Their loss!

The supposed rationale for banning child pornography is the presumed incompetence of the subjects to give informed consent. Why not use that reasoning, and only that reasoning, to extend the ban to mentally incompetent persons of any age?

I'd have no problem with the bill if the proposed additions of ", an elder or a person with a disability" were everywhere changed to "or a person adjudicated as incompetent by a court of the commonwealth" ...

What do physical disabilities or "senior" status per se have to do with mental competence?
3.30.2009 7:50pm
Mike G in Corvallis (mail):
Hm. How did THAT happen?
3.30.2009 7:51pm
Jesse M:
This is fantastic. We've already arbitrarily defined 17-year-olds as incompetent when it comes to deciding whether or not they want to appear in porn, so why not do the same for 60-year-olds?

In both cases, there's zero medical evidence to justify the age limit, but plenty of "common sense" justification (we all "know" the elderly are easily victimized due to senility, just like we all "know" teenagers are easily victimized due to immaturity).

Age discrimination is wrong whether the victims are young or old. If stunts like this are what it takes for people to see the parallels, then I say bring on the stunts.
3.30.2009 9:38pm
Roci (mail):
I think the brain dead prudes who put this bill together need to worry more about incontinence more than incompetence.
Which is to say that they are so ill-advised that they need to worry about loosing what small amount of gray matter that they do have in a most embarrassing (and hopefully) most public accidental discharge.

Roci
3.30.2009 10:22pm
einhverfr (mail) (www):
Jesse:

In both cases, there's zero medical evidence to justify the age limit, but plenty of "common sense" justification (we all "know" the elderly are easily victimized due to senility, just like we all "know" teenagers are easily victimized due to immaturity).


The big difference is that I find it rather unlikely that a Supreme Court consisting of people between the ages of 54 and 88 will agree that the elderly as a class are easily victimized due to senility. After all, what would happen if we declared 7 of the 9 justices incompetent by reason of age?
3.31.2009 12:32am
einhverfr (mail) (www):
Roci:

I think the brain dead prudes who put this bill together need to worry more about incontinence more than incompetence.
Which is to say that they are so ill-advised that they need to worry about loosing what small amount of gray matter that they do have in a most embarrassing (and hopefully) most public accidental discharge.


Please, can we make THEM defend these laws before the Supreme Court?

Can the rest of us have tickets to watch?
3.31.2009 12:33am
Jesse M:
einhverfr, I agree that it's unlikely that the Supreme Court would go along with the idea that people 60 and up are generally incompetent due to their age, even though they surely believe the same about teenagers. That's why I love this proposal: because almost all opposition to it is grounded in blatant hypocrisy.

Of course it's a terrible idea and should be opposed. Most 60 year olds are quite capable of giving informed consent, no matter what the law says; and even if a few of them are incapable, it's unjust to restrict the capable majority for the sake of those few. But that argument -- indeed, every rational argument against this proposal -- could be employed, just as truthfully, to argue against the existing age restrictions. The irony of seeing people oppose this age restriction while defending the other one is delicious.
3.31.2009 12:55am
Kirk:
Jesse M.,

You're apparently quite easily entertained. I have somewhat higher standards, but I do think it might be amusing to watch you trying to defend where you appear to be going (any age of majority is arbitrary, thus we must have none?)
3.31.2009 3:27am
ReaderY:

I guess what I am getting at is that everything which might be banned must be manufactured or brought in somehow. To have any teeth whatsoever, a pure possession exception to obscenity would have to cover material which was manufactured in the private home and never left it. Otherwise, you run into the problem that there is no such thing as pure possession.


There is no such thing as pure possession.

Ths U.S. Supreme Court rejected precisely this argument in
U.S. v. 12 200 foot Reels of Super 8 MM Film.. In an era before the home video camera, the defendants had argued that because the possession in the home is permitted, there must be some license to bring material into the home from outside. The Supreme Court said no, the license for home possession is narrow and in no way implies permission to create or transport the material, and it doesn't matter that this means a state can eliminate obscenity so long as it catches it at the right moment.
3.31.2009 10:05am
ReaderY:

I guess what I am getting at is that everything which might be banned must be manufactured or brought in somehow. To have any teeth whatsoever, a pure possession exception to obscenity would have to cover material which was manufactured in the private home and never left it. Otherwise, you run into the problem that there is no such thing as pure possession.


There is no such thing as pure possession.

Ths U.S. Supreme Court rejected precisely this argument in
U.S. v. 12 200 foot Reels of Super 8 MM Film.. In an era before the home video camera, the defendants had argued that because the possession in the home is permitted, there must be some license to bring material into the home from outside. The Supreme Court said no, the license for home possession is narrow and in no way implies permission to create or transport the material, and it doesn't matter that this means a state can eliminate obscenity so long as it catches it at the right moment.
3.31.2009 10:05am
ReaderY:

I guess what I am getting at is that everything which might be banned must be manufactured or brought in somehow. To have any teeth whatsoever, a pure possession exception to obscenity would have to cover material which was manufactured in the private home and never left it. Otherwise, you run into the problem that there is no such thing as pure possession.


There is no such thing as pure possession.

Ths U.S. Supreme Court rejected precisely this argument in
U.S. v. 12 200 foot Reels of Super 8 MM Film.. In an era before the home video camera, the defendants had argued that because the possession in the home is permitted, there must be some license to bring material into the home from outside. The Supreme Court said no, the license for home possession is narrow and in no way implies permission to create or transport the material, and it doesn't matter that this means a state can eliminate obscenity so long as it catches it at the right moment.
3.31.2009 10:05am
ArthurKirkland:
What would happen if 7 of 9 justices were to be declared incompetent by reason of age?

I suspect that President Obama would arrange suitable replacements.

As someone observed earlier, it's a matter of "taste."
3.31.2009 11:52am
einhverfr (mail) (www):

The Supreme Court said no, the license for home possession is narrow and in no way implies permission to create or transport the material, and it doesn't matter that this means a state can eliminate obscenity so long as it catches it at the right moment.


Sure, but in this case, possession in the home could ALSO be evidence for bringing it into the home. This is not what I am arguing against here.

Suppose I write in my diary, not intended for anyone else to read, various short stories that would be clearly obscene by community standards. Is this protected by the First Amendment or not? Can one be prosecuted under the obscenity exception for content which was never brought into the home and which solely possessed in the home?

In this case, and in the case of consenting lovers/spouses, it may be the case that creating the photograph would take place in the home and would never be distributed outside it. This is a fundamentally different case than U.S. v. 12 200 foot Reels of Super 8 MM Film. IF there is a private home possession exception to the obscenity 1A exception, then even if you can't purchase and bring INTO the home (via downloading or other means), there must STILL be an implicit license to manufacture IN the private home for private viewing only. If there is no implied protection for manufacture in the private home regarding obscenity law, then there is no protection for private possession in the home either since such possession implies either bringing it into the home (unprotected) or manufacturing it there (questionable status).
3.31.2009 12:46pm
einhverfr (mail) (www):
To put it another way:

1) Are private diaries, never intended for anyone else to read, and properly protected inside the home subject to the obscenity exception to the first amendment?

2) If not, would nude photographs taken between loving spouses inside the home, properly protected in the home, etc. fall under the same protection?

I am not talking about implied distribution exceptions, as one could argue that the obscenity exception to the first amendment is an exception regarding distribution.
3.31.2009 12:56pm
arbitraryaardvark (mail) (www):
This might be a useful test case for the mass. constitution's free speech clauses,
but only if this bill passes, which i would think unlikely.
3.31.2009 8:18pm
Jesse M:
Kirk,

You got it. Age restrictions are arbitrary and unjust, and we ought to have none of them. Numeric age isn't a valid indicator of anything except how many times a person has orbited the sun. The best you can do with a numeric age is make broad, inaccurate generalizations, but frankly you could do that with gender, race, religion, and plenty of other factors too, as long as you didn't care about accuracy. When we're talking about locking people up, though, accuracy is important.

Of course, it should be illegal to make porn featuring someone who is incapable of consenting to it, no matter whether their incompetence is due to immaturity, senility, disability, intoxication, or anything else.

But we don't need to mention age in such a law. We can mention competence instead, and then let prosecutors show in court that the victims actually are incompetent.

If a group of legislators can decide that every 17 year old is incompetent by default, based on nothing but their own gut feelings, then surely a prosecutor with expert witnesses can show that one particular 17 year old is incompetent -- unless, of course, s/he isn't incompetent and no crime has actually taken place.
3.31.2009 9:15pm
Jesse Wendel:
I started having sex at 12.

Started drinking and doing drugs at 14, as well as participating in violent acts.

I joined the military, went through basic and advanced training, and was assigned to the 101st Airborne at 17.

If by the time I was 17 I had engaged in countless sex, drugs, booze, rock and roll, violence, and was in the active service of my country, who the hell is anyone to say I wasn't also competent to take a picture of myself in the buff and give it to my teenage girlfriend, or she to me?

By the same reasoning, who is to say my 71 year old mother, herself a retired lawyer, can't snap a flash of herself in the altogether and give it to her current lover if she damn well wants to?

This law is a joke, unconstitutional as applied on both ends.
3.31.2009 10:21pm
Larrya (mail) (www):
Given that states can proscribe obscenity, why isn't the state's legislature the appropriate body define what the state's contemporary community standards are?
Are you referring to what politicians say community standards are, or what their behavior illustrates? If it's the latter, a whole bunch of laws will be invalidated.
So this is where I would expect the line to be drawn: depictions that might be seen as obscene produced in a private home for private viewing only and never distributed outside the home would be protected under existing precedent, but any exchange or transfer beyond those physical boundaries might be unprotected.
So once you make such a photo/video, you can never change residences? You can't take them in your private automobile and enjoy them in the privacy of your lodging on vacation? What about a motor home? What about the softcore "I want a sexy professional portrait to give to my spouse" business?

We are consenting adults for catssake. MYOB and leave us alone.
3.31.2009 10:48pm
einhverfr (mail) (www):

who the hell is anyone to say I wasn't [when I was 17] also competent to take a picture of myself in the buff and give it to my teenage girlfriend, or she to me?


I personally don't think minors should ever be subject to being punished under child pornography laws. I think that the child pornography exception is sufficiently narrow that prosecutions of children for engaging in child pornography ought to fail as-applied challenges. The same would apply for "sexting" pics between teens. Unfortunately, prosecutions of teens for such behavior is becoming more commonplace.

IANAL, though.
4.1.2009 12:35am
einhverfr (mail) (www):

So once you make such a photo/video, you can never change residences?


I would expect material packed up and transported into/in/from a moving van to be similarly protected.

As for the rest, that starts moving into more questionable territory, but I would come back to the diary test. Are diaries never intended for others to read subject to the obscenity laws? If not, then things would have to be more or less directly analogous to that diary to be fully exempted.

As for the soft-core sexy-photo example, this is all assuming that one was actually to go as far as deeming material "obscene" which this would not do anyway. My main point was to suggest that this might even be stretching obscenity law as I understand it (IANAL though) beyond subject matter issues.
4.1.2009 12:39am
Kirk:
Cool, we've got Jesse M. vs. the entire common-law tradition of age of majority. Gentlemen, place your bets!
4.1.2009 2:33am
J. Riordan (www):
Well-known porn star Dave Cummings is 69 years old. He started in the business when he was 55.

Even Ron Jeremy is 56 now. Just a few years shy of the big six ohhh.

People seem to like to watch older men like this in porn. And these guys seem to be quite happy with what they are doing.

See this NYTimes article from 2006 on "the graying of porn".
4.1.2009 4:31pm
Jesse M:
Kirk, if you'd been posting 150 years ago, would you be as enthusiastic about the "traditions" of oppressing blacks and women? Unfair discrimination doesn't become any less reprehensible just because it has a history behind it.
4.1.2009 6:41pm
einhverfr (mail) (www):
Jesse M:

There are good reasons for treating the age of majority as a white line. Basically it leads to predictability of the law.

However, what is noteworthy is that this is the first time I have ever seen a proposed law so blatantly unconstitutional that the Supreme Court would have to declare themselves legally incompetent not to throw it out......
4.1.2009 9:11pm
aaron tieger (mail):
As a future sex therapist - and as a citizen - I find this appalling. So far that Herald article is the only mention I've found of this. I wrote to the National Coalition for Sexual Freedom but have not heard back. Does anyone know if anything's being done about this?
4.2.2009 2:50pm
Jesse M:
einhverfr:

The same argument can be made for all other sorts of discrimination too, of course.

By "predictability" what you really mean is convenience: we don't have to spend all day finding out whether someone really is as incompetent as we say he is; we can just look at the date on his ID and break for lunch.

Likewise, it might be convenient if we didn't have to bother with the whole probable cause, trial, guilty beyond a reasonable doubt thing when one of Those People (you know, the ones who aren't like Us Folks) were suspected of a crime. Statistics show that they're more likely than Us Folks to have committed the crime anyway, so why waste resources weeding out the few innocent ones? We can all go home that much sooner if we just assume that Those People are guilty. As a bonus, Those People won't have to worry about whether they're doing something that might look suspicious: they'll be able to predict quite well whether or not they'll be found guilty, and so they'll learn to stay far, far away from anything that's even remotely shady.

Which is more important, justice or convenience? Being right or saving time?

Also, I'm curious as to why you think this law is unconstitutional. Which part of the Constitution forbids discriminating against 60 year olds but allows discriminating against 17 year olds?

(The Supreme Court wouldn't have to "declare themselves legally incompetent" in order to uphold the law; they'd just declare themselves incompetent to appear in porn. It's not all-or-nothing: look at minors, who are deemed incompetent to appear in porn but are still legally responsible for their actions, including being tried as adults in many cases.)
4.2.2009 7:40pm