Monthly Archives: February 2012

Challenging the Moral Compass for Fair Law: Child Pornography

One of the more widely debated topics among communication law is that of sexual speech.  These laws implement age limits on what is considered “adult material” and put a specific emphasis on the danger of exposure of these adult materials to children.  With just a mention of the words “child porn”, the most instant connotation the term is with pedophiles, jail time and a sickness to do things to children that are uncomfortable to fathom.  According to the Federal Child Pornography Laws, child pornography is defined as “the visual depiction of a person under the age of 18 engaged in sexually explicit conduct”.  However, child sexuality laws exist in much broader terms.  Many Americans, especially parents, want their children to grow up in a safe environment where they aren’t continually bombarded by sexual messages or run the risk of becoming sexual at a young adolescent age.  The Supreme Court has encountered a number of cases in which the “safety” of children in terms of sexuality is shown to be at risk; issues of messages mentioning sexual innuendos when minors are present, the simulated sexual acts of children in TV and cinema, and also one of the most recent highly debated topics among parents and educators: teenage sexting.  However,United States laws concerning child sexuality are oftentimes more strict that other countries; theUS generally has a higher law of consent than the rest of the globe and much stricter laws on obscene speech and sexuality in the media.  The question to ask now is where is the possibility to find an international medium for laws concerning children and sex/profanity?  Do children have rights to free speech?  Who is a child and when do they become an adult?  How can there be laws created which do not condemn art or materials without intent to harm children as legal?  It is much simpler to attempt to create laws with a moral compass in mind, but free speech laws and morality oftentimes conflict.  The purpose of this blog post will be to explore past Supreme Court decisions concerning child sexuality and attempt to define an international law standard in which messages with non-harmful intentions (such as art, film, etc) can be protected through free speech and which level of free speech philosophy (Baker, Chafee, etc) is most effective in building this law. It will also delve into free speech rights of students and current issues such as sexting and how these situations can be dealt with in terms of child speech laws.


Many would agree with the statement that “young children are innocent”.  Most parents strive to raise their children in an environment where they will be protected from vulgar, sexual messages that they most likely would not understand at a young age.  Americans in particular have a strong intent to keep sexual messages away from adolescents until “they are ready” to learn about sex, but when is ready?  The average age of consent worldwide is 16;  many states in the US require 17 or even 18 to consent for sex.  Sexual materials are also not available toUnited States teens until they are 18 years old (regardless of the state consent age) whereas teens in countries such asPoland, with a consent age of 15, are able to buy sexual materials including pornography at their age of consent.  It is also important to compare the difference in age among minors.  Children and young adults can be categorized into the Greek suffixes –pedic (0-11 years old), -hebic (12-14) and –ephebic (15-21).  The average age that children go through puberty is at the ages of the hebic stage and many countries particularly inAfrica consider children passing into adulthood when they reach puberty.  Puberty is, after all, the point in time when children start changing sexually; females are able to bear children and males go through significant physical changes.  Others would argue that children need this time to transition into adulthood and since most children have hit puberty by age 14, it would seem that 15 would be an appropriate age to allow them access to sexual materials if they so desire.  However, the moral compass generally leaves many uncomfortable with the thought of giving a 15 year old sexual freedom so I believe the age of 16 is an appropriate age for international standards.


Now that an international adult age has been set, I must now review past Supreme Court cases in comparison with free speech philosophies.  One of the most important aspects to review these cases in is whether or not the accused admitted that they intended to use sexual language or share other forms of sexual messages with a minor present.  An example such as Bethel v. Fraser where Matthew Fraser’s speech supporting a classmate’s campaign for high school government was considered obscene and the court supported the school’s suspension of Fraser.  Fraser never blatantly used profanity, but by noting that his classmate was “firm in his pants…firm in his shirt” and “will go to the very end — even the climax, for each and every one of you”.  Upon being confronted by his principal after the speech was made in front of the entire student body, Fraser confessed that he did intend to present his speech as sexual innuendo and several teachers in the school complained of the speech disrupting normal learning hours.  Considering that Fraser’s high school consisted of students from the ages of around 14-18, he did in fact speak sexually in a government-funded institution in the presence of minors.  The verdict of the case was delivered under minimal scrutiny as the court notes “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”  This decision represents Zechariah Chafee’s view of “worthwhile” and “worthless” speech.  Fraser’s speech was considered obscene and therefore worthless which allowed the school district to punish Fraser.


Alternatively, minors should be allowed the right to free speech in public schools as long as their speech that may offend someone or disturb learning is worthwhile.  The well-known case of Tinker v. Des Moines School District highlights the importance of student free speech through silent protest.  The arm bands worn by the students facing punishment from their school were not disturbing classes; they were simply stating their opinion to oppose the Vietnam War.  Though some claimed to be offended by the arm bands, there was no intent on the students’ part to harm anyone and there was no physical or verbal fighting on part of the students.  In terms of Chafee’s “worthwhile” and “worthless” speech, the philosopher would consider the arm bands as worthwhile because they had the potential to create discussion on behalf of social interests.  The bands would also pass Chafee’s clear and present danger test; Justice Fortas notes that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression” and that the school must revoke the students’ suspensions.  In schools, students have the responsibility to respect their peers by avoiding hateful and obscene speech and schools have the ability to take action if this type of speech occurs or significantly disturbs the learning process.  Now it is necessary for me to examine the more serious and ambiguous side of speech laws concerning minors: sexuality.


Increases in technology have led to a new medium in which minors can share pictures with each other via their cell phones, unbeknownst to their parents.  This technological freedom has led to an increase in a new trend called “sexting” when a nude or semi nude photo is sent to another via pictures messages.  The issue of this problem lies deeper than within minors expressing their sexuality, but that these photos can be easily exploited to hundreds and thousands of other people, including those over the age of 18.  The adult receiver of a picture message of a minor instantly becomes a receiver of child porn.  Those who exploit these sexting photos also are punished with great consequence.  Philip Alpert, 18 at the time, sent a “sexted” photo of his 16 year old ex girlfriend to hundreds of people to seek revenge after they separated.  As Alpert was sending an obscene picture of a minor to others, he was found guilty of distributing child porn.  Alpert is now a registered sex offender and has had problems getting a job or getting into college ever since the conviction.  Sexting is becoming a large problem but is it necessary for lawmakers to implement such extreme sentences?  Thus returns the issue of intent.  It can be proven that Alpert’s intent was indeed malicious when he sent out his 16 year old ex-girlfriend’s racy photo; what he did can be defined in the court as distribution of child porn.  It’s safe to say that the photo was meant for private use and as unfortunate as Alpert’s decision was, his punishment is warranted.  Then again, what kind of decisions should the court make in terms of nude or suggestive pictures of children that were not intended to be harmful?


In the realm of the arts (including visual depictions, film, etc), works that have been seen as offensive to some have been saved for the sake of the material being of artistic value.  In New York v. Ferber  a movie store owner was convicted of selling movies to an undercover cop that depicted two 14 year old boys masturbating.  The issue with the film was that though the boys were in no way being physically abused or in pain, they were under the general consent age of 16.  Does consent apply to participating in film?  Or should we value this film as something of artistic value?  This sex act in particular actually happened;  it was not simulated and therefore it does run along the lines of child pornography because the boys are underage.  At first instinct I want to go with the notion that this is what boys this age do; however, making it public and whether or not they consented to masturbate in the movie, they are still young and Ferber has the intent to distribute the movie.  If we return back to Chafee’s theories, this speech would be worthless and considered punishable according to him, but what about artistic value?  One important thing to remember is that the work can be taken as a whole, as did in this case, certain scenes may be punishable.  If the plot of the movie can effectively progress without these sexual scenes in it, I believe they have the opportunity to be omitted if the filmmaker agrees.


But what about simulated sex acts with children in film?  A German film The Tin Drum depicts a young boy, Oskar, who is supposed to be 16 but is actually played by an 11 year old boy who is in love with his 16 year old caretaker, Maria.  The movie is extremely sexualized in multiple scenes but nudity only occurs when Oskar and Maria are changing at the beach and the young actor playing Oskar simulates the act of performing cunnilingus of Maria.  The movie has created much uproar inAmericabut is more widely accepted in its home country ofGermany.  Though the act is simulated and it does lead audiences to understand what is being acted out, the act never actually happened.  Is it necessary to punish things that did not actually happen, especially when they occur in film?  This is one of the cases where I have not been able to make a decision.  I also struggle with the issue of Japanese “Hentai” comics as though they are not real people in the comics; the pictures portray underage minors having blatant sexual experiences.  Are we to judge them as “worthless” speech or do we look at them as art?  Do we look at Oskar’s simulated performance as being harmful to a child, even though there was no sexual contact among the two actors?  The lines become blurred in art, especially if no sexual act occurred.


One area where I believe we must draw the line is with photos of our children.  Most parents love to take photos of their children whenever possible which includes times where they would be nude.  These images are not intended to be sexual; many young children spend much of their time naked and are born naked and most of us do believe that photos like this are “cute”.  A great example of photos such as these is with Sally Mann’s photography book Immediate Family.  In this collection, Mann photographs her children around their house playing with toys, reading books, lying down on their beds, etc.  In many of the photos, her children are nude.  They show no signs of doing sex acts to themselves or each other, real or simulated.  There is no sign of arousal or pain.  If Mann would like to share her photos with the world, who are we to stop her?  Are we to condemn every parent who takes a picture of their child taking a bath and sends it to relatives?  Merriam-Webster Dictionary defines pornography as “the depiction of erotic behavior (as in pictures or writing) intended to cause sexual excitement”  but makes no mention of “simulating”.  Why do we add simulated sex acts to child pornography?  I say we change the law to omit “simulated” as a crime has actually not been committed.  By reviewing these cases in terms of Chafee’s worthwhile and worthless speech, I believe that Chafee would recognize Mann’s photos as worthwhile; they are mementos and a work of art.  We must use both a moral compass and our notions of free speech to understand what should be considered right and wrong; I am sure that many of us would agree that sending out sexting photos of anyone to hundreds of people is wrong, as is distributing a video of minors masturbating.  By using this morality in conjunction with a solid law, I believe that art that depicts a simulation of sex acts or art that includes nude children in a non-sexual setting should be covered.