According to Tedford and Herbeck, in "Freedom of Speech in the United States," there have been many recent developments in relation to laws concerning child pornography, none of which have clearly defined the wide variety of concerns that build up, including punishment as well as protection of sexual images of youth under the age of 16. Punishable images can include a mother taking photos of her children while they run naked through the sprinklers, or a teen “sexting” their boyfriend/girlfriend a provocative picture of them self. Taking the observations and remarks of Tedford and Herbeck, in addition to this week’s online readings and viewings, I believe the current definition of child pornography should be adapted, mainly by adding a SLAPs clause. The current definition and application of the child pornography laws are not fitting for contemporary society. One example of the inadequacies surrounding issues of child pornography is within the foreign film The Tin Drum won the Palme d’Or and the 1979 Academy Award for Best Foreign Language Film. The film is known for its weighty insights into art, war, and the terror of the Nazi movement. The Tin Drum parallels Oscar’s music against World War II. The implied message is that art, (goodness) has the ability to overcome war (evil.) Another intentional use of symbolism is highlighted in Oscar’s powerful scream, a symbol of Kristallnacht, the night of broken glass which represents the exposed violence of the Nazi party. The film was created with a powerful antiwar message exhibiting a number or influential themes along the way.
Baker uses a number of specific situations to illustrate how the liberty theory would work when applied in reality. His first example concerns the use of sexual materials that some would describe as obscene. Baker maintains the liberty theory “means that the First Amendment should protect the right of individuals to make their own choices about creating or receiving sexual materials. As for regulations of time, place, and manner, he believes that society is much too restrictive” (Tedford & herbeck, 442). Baker dismisses all controls over speech unless is it to restrict conduct of violence, coercive activity, or the violation of the rights of others (442). Therefore, if the youth consents to creating material with scenes or images of sexual substance, it is within their First Amendment right to do so.
Generally, pornography can only be banned if it is proven obscene under three a three prong analysis according to New York v. Ferber upheld the constitutionality of anyone knowingly producing, promoting, directing, exhibiting, or selling any material showing a “sexual performance” by a child under the age of 16. The case defined sexual performance as any action that included “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.” Ferber established there were no First Amendment protections for child pornography.
I would like to argue that the definition of child pornography be reexamined in relation to The Tin Drum may be shocking and somewhat provocative to a large number of individuals, but just like in Cohen v. California even shocking language is protected under the First Amendment for its significance to the individual expression of emotion and thought. I understand that with any sexual image of an adolescent, whether done with the intent of creating art or not, can be manipulated for negative and unhealthy habits. Yet the body, whether a child’s or an adult’s, is a sacred entity and should be allowed to be exposed in a public sphere especially when being portrayed through fine art. Therefore, I believe with a foundation in Baker’s liberty theory and The Tin Drum would be protected, not only as a film that represents fundamental political examination, but also offers a literary value for its deeply rooted symbolism.
Larkin did a nice job explaining about Child pornography, which is the central discussion. I do agree that the definition of Child pornography should be adapted. Nowadays, with a change in our social media, it leads pornography to another level. We can access pornography fast and easy from the internet, and we start to lose the boundary of pornography. However, from my opinion, child pornography should be protected as long as it is not cause obscene and/or harm to anyone.
ReplyDeleteI do agree with Larkin in using Edwin Baker’s Liberty theory for her philosophical grounding. It is true that the “First Amendment should protect the right of individuals to make their own choices about creating or receiving sexual materials” (Tedford & Herbeck, 422). On the other hand, from our last class discussion, we know from 1969 case of Stanley v. Georgia that the states cannot punished someone of obscenity in the privacy of their own homes. And I think when people watch or do things related to porn (“sexting”), they will do it privately in their own time. Moreover, bringing the topic of adapting the definition and add the SLAPs clause is one major aspect that should be add to protect pornography. Not all images or paintings that contain nudity are called porn, yet they might have artistic background.
Overall, I do agree with Larkin’s statement that the definition of child pornography should be changed or adapted with the situation. People cannot judge photos or paintings from their nudity, yet try to find out what is the purpose and background from it.
Larkin does a very good job of defining child pornography in relation to The Tin Drum as well as illustrating what punishable images entail. I also appreciate the example she provided, contrasting the Oscar films, which concern the inadequacies surrounding issues of child pornography to better illustrate her argument about the definition she is tackling. She also does a good job in supporting her argument with the philosophical grounding of Edwin Baker. I agree with Larkin for basing her argument on Baker because as she stated, “Baker dismisses all controls over speech unless is it to restrict conduct of violence, coercive activity, or the violation of the rights of others.” I think that everyone has a right on what they receive as well produce if it's in their own privacy and as long as they don't do anything bad with it. When parents take pictures of their children naked, I don't think that it has any harm or will be ill-used in any way. The same with “sexting”, when couples engage in it, it would just be between the couple. However, when the images are distributed and used in a malicious way, then it is a different story.
ReplyDeleteI also agree with Larkin when she used Cohen v. California as a precedent to prove her point what the First Amendment has protected in the past. Lastly, Larkin's comparison between the usage of sexual images-- fine art versus bad intentions-- is a good support in her argument and draws the line on what should be protected. I agree with her that the human body should not only be looked at as if being used for sexual purposes but also consider that it is part of fine arts.
I really like the way Larkin starts out her argument. She begins with some background into what is and is not punishable, such as a mom taking pictures of her kids running naked in the sprinkler, or a teenage girl sexting messages to her boyfriend of her naked body. It is important for her to bring this up at the beginning of her argument because she goes on to say that she believes a SLAPS clause should be adopted when deciding on whether or not something should be deemed and punished as child porn. Larkin continues her argument by using the film the Tin Drum as her centerpiece. She argues that this film should not be deemed pornography. Rather she argues that if there were a SLAPS clause it would be protected. She points out that the film won an Academy Award for best foreign film, and sends the message that art can prevail over war. I really find her argument to be compelling, especially since she lays out in a very straightforward manor reasons why a SLAPS clause would protect this film. Larkin goes on to use the case law from New York v. Ferber to point out that porn or obscene material can only be banned if it passes the three porn analysis. She also uses the case of Cohen v. California to argue that simply because a word or situation might be found shocking or even offensive to some people does not mean it should be banned. I really like the way in which Larkin constructed her argument for the protection of the Tin Drum. She used case law and her view of SLAPS protection to make a very strong case.
ReplyDeleteLarkin does a great job overall of arguing why the definition of Child pornography needs to be modified, so that it can reach out to many situations and cover things like this that are questionable, and that may or may not pass certain tests that determine it porn or not.
ReplyDeleteOn another note, using Stanley v. Georgia and the right established in that case to not be punished for obscenity in one's own home, it goes along with the Liberty Theory of Edwin Baker that people can choose to view whatever they want, so long as they knowingly and willingly view it. This whole notion of doing obscene things in your private time complicates things, though, as it makes it more difficult to punish people who are obtaining and viewing things that should seriously be banned.
Additionally, applying the SLAPS clause and arguing from the points of New York v. Ferber and Cohen v. California, it seems as though this film can clearly be established as art, and should not be punished for the small amount of mild obscenity seen in the film. First of all, pointing out all the positive in the film, with its antiwar messages and the fact that it has won awards, makes it clearly art and therefore passes the SLAPS clause. From New York v. Ferber, it does not meet the three prong analysis that determines something child porn or not. When examining, all are questionable: "Was that simulated sexual contact?" Either way, it is in too grey of an area to say that it meets all of the three prongs of analysis. And finally from Cohen v. California, there were a few scenes that were shocking and possibly offensive to some people but that doesn't necessarily mean it should be banned--and this point connects it all back to the fact that it passes SLAPS, is art, and should be considered harmless as an overall piece of artwork.