“Protect the Children” Hysteria and Injustice

22:41 Mon 18 Apr 2011
[, , , , , ]

This is the summary:

  • Local comic/musician goes to elementary school, plays song for kids.
  • A friend of his videotapes this, both the performance and the kids’ (positive) reactions.
  • Musician and friend later come back to empty classroom and record him performing a song with graphically sexual lyrics.
  • Musician edits two sets of footage together to make it appear as if he sang the sexually-explicit song to the kids.
  • Musician then puts edited version on YouTube and plays it at a local club’s comedy night.

Clearly the title of the post gives it away somewhat, but what do you think happened next?

If you guessed “parents go apeshit”, very good. The parents of the children did indeed go nuts. I have some sympathy with this, and in my opinion they have a case regarding illegal use of the children’s images. That would have been a very interesting case, actually, given that some release forms were signed but may have been misleading (they referred to videorecording by news organizations, I think), given that classrooms may be considered public spaces, and so on. I’m not sure where that would have ended up, but I certainly would have been fascinated by it.

That, however, isn’t what happened next. I know there are some staunch advocates of draconian “child pornography” laws (by which I mean laws restricting content in which no children were abused, or even present, such as drawn art, 3D modeling, etc.) among my readers, and I wonder how you’ll react to this case; among other things, it’s a clear reminder that “Prohibition Implies Definition”.

So, what happened next was this: local prosecutors charged the musician, Evan Emory, with “manufacturing child sexual abusive material”. That’s a felony with a possible 20-year sentence, plus a possibly-mandatory 25 years on a “sex offender” registry.

I happen to think the video (which I haven’t seen and which has been removed from YouTube) was probably funny; incongruity and inappropriate juxtaposition are two mainstays of humor. Would I have been pissed if I had a kid who’d been on the video? Quite possibly. And if my kid’s face showed up on YouTube apparently reacting in delight to some explicit sexual statement, with the video going viral and boosting Emory’s career? Almost definitely. I’m quite sure, however, that my response would have been a civil suit based on image rights, and that I absolutely would not have supported horrific prosecutorial overreach in trying to hit Emory with a child porn charge.

But hey, maybe it’s not prosecutorial overreach—after all, while the authors of the relevant laws clearly didn’t have this kind of thing in mind, the laws might be broad enough to cover it. I mean, children are present in the work, and sexual material is present in the work—maybe that’s enough! I am going to assume, however, that none of my readers actually believe that Emory’s work constituted child pornography, or “child sexual abusive material”. In fact, I doubt that even any of the outraged parents believed that; I suspect they were just outraged and “knew” that Emory’s actions were “wrong”, and so wanted him to be punished in some way and weren’t too concerned with whether his actions were strictly speaking covered by this specific law. So the work in question clearly isn’t “child porn” but the laws covering the subject can be interpreted to make it seem covered.

Quoting myself:

Anytime you find yourself in a position where you think you support government suppression of some type of speech, remember that you’re not really ceding to the government the right to suppress your conception of what that type of speech is, but rather the right for agents of the government to suppress what their conception of that speech is. They don’t merely get the ability to ban it, they get the ability to ban what they define as it. A good exercise (which probably works well with most laws) is to think about worst-case scenarios in which zealous prosecutors could abuse that law, in this case how they could twist it to cover all kinds of things you might think wouldn’t be covered by it.

—Tadhg O’Higgins. “Prohibition Implies Definition”. tadhg.com, 09 May 2007.

And this is a classic example: the “speech” is hugely unpopular (especially locally), a prosecutor saw a chance for a lot of publicity by pandering to that unpopularity, and boom, let’s twist a law to cover something it was never intended for so that we can threaten someone with 20 years in jail and 25 years of “sex offender”[*] status.

Faced with that threat, Evan Emory made a plea deal, and will escape the “sex offender” registry—but has to serve 60 days in jail. 60 days in jail for making a dumb and offensive (and quite possibly funny) video. That is some serious bullshit right there, and yes I do absolutely think that the First Amendment should protect him from such a punishment (even if, again, there were issues over image rights, which might have somewhat-legitimately constrained his free speech). The fact that “child abuse” (and there was none whatsoever in this case) hysteria could force him to accept that punishment is gross injustice, and merely underscores how little protection the First Amendment actually provides.

US-specific constitutional issues aside, I believe in free speech as a fundamental human right, and I believe that this right must include deeply offending and pissing off your community; free speech protection for uncontroversial and inoffensive material is useless. Overly-broad laws, particularly those written in the grip of whatever hysteria is currently running free, are a threat to that right, and I once again implore everyone to consider the immense power you give to the state by supporting laws that prohibit expression: it’s not your, but their conception of that expression that will be banned.

[*] The scare quotes are justified by the fact that Emory clearly wasn’t a sex offender but could have ended up on the registry anyway, demonstrating that it’s entirely possible for non-sex-offenders to be on it.

One Response to ““Protect the Children” Hysteria and Injustice”

  1. Ann Says:

    Yeah, I heard about this a few weeks ago from the Freerange kids blog/twitter feed. It’s completely ridiculous and my sympathies are with the guy. 60 days in jail is a long time for something that wasn’t even in the same ballpark as child sex abuse.

    On a slightly related tangent, we had to fill out the form to enroll Liam in the creche. One of the waivers was regarding the photographing and videoing of children. Because I got confused (we’d looked at two creches and one’s waiver included the use of photos in advertising and the local paper, the other was just to cover the creche’s CCTV and in-room art projects), we didn’t sign that waiver since we don’t want Liam’s image used in advertising.

    When I handed in the form, the owner of the creche went over it with me. She explained the waiver to me (it was just for the CCTV and art projects, etc) and said “Absolutely, I understand your concerns and you’re not the first parent to have them. I don’t want you to think we’re going to be taking his picture and just posting it out there on the Internet or something, that would be just dreadful.”

    Um, yes, it would. Because I would NEVER post pictures of Liam on the Internet. ;)

Leave a Reply