Child pornography is strictly prohibited under the U.S. law, and its legal rights are limited even compared to obscenity. For example, the material is not necessary considered as a whole, unlike pornography. Also, SLAP value does not apply to child pornography. Although protecting minors from harmful sexual materials and the production process, these laws may suppress freedom of expression of artists as well. Sally Mann, who is a professional and award winning photographer suffered from this child pornography issue. Her art work titled, “Immediate Family” had been accused of being “child pornography,” and it became a controversial issue in 1992. The photo book was created with pictures of her own children. In some of these pictures, her children are naked, and a few of the pictures were focused on their genital areas. The relatively recent cases of child pornography such as Osborne v. Ohio, in which the U.S. Supreme Court ruled the case of child pornography with rather vague definitions, and some of Mann’s pictures could fall into the category of child pornography under the definition of the case. However, professional artworks should not be suppressed under the first amendment.
In the Osborne case, the Ohio court defined nudity as a “lewd exhibition of nudity” or “graphic focus on the minor’s genitals.” Under these vague definitions of nudity, many artistic expressions may be suppressed, and Mann’s pictures are not immune to it. The picture of her son’s genital area could fall into the second of “graphic focus on the minor’s genitals” category under the Ohio definition. The picture is clearly focused on his genital area, and other parts of his body were barely captured. Although the expression itself is not especially obscene, the picture could be a form of child pornography under the definition used by Osborne case. However, if the material were an obscenity, it would not be a problem because the artistic value would be considered according to the Miller v. California case.
However, the art value of child pornography is often not considered. I think that such a broad definition of child pornography is likely to suppress artistic expressions. I believe that SLAPs value should be applied to child pornography as well, and the material should be taken as whole. In this way, Mann could reasonably argue the material is art. The example is “The Tin Drum”, in which is an award winning movie in Germany. The movie also has sexual scenes with a 11 year-old boy and an adult woman, and these scenes became a controversy in the U.S. Although the movie was once banned in Oklahoma City, its artistic value was eventually recognized. My point is that material with an exhibition of children or focus on their genital area may not be child pornography as whole. Also, in child pornography cases, the compelling government interests are including 1) Protecting actual minors from physical and psychological harm 2) disrupting the market of child porn. According to National Center of Missing Exploited Children, “It is important to realize that these images are crime scene photos – they are a permanent record of the abuse of a child. The lives of the children featured in these illegal images and videos are forever altered.” Therefore, artistic materials that do not fulfill these two categories (in other words, artistic materials do not involve any forms of child abuse) should be protected under the first amendment. For example, in Mann’s artwork, these children were not forced to contribute to her artwork and the material does not contribute to the child pornography market. I believe that the definition of child pornography should be narrowly considered, so it does not suppress artistic expressions. The courts could focus on how the material is created. For example, the court should restrict Mann’s picture if Mann forced her children to be in her artwork. Also, instead of simply restricting the material, the court could focus on restricting the pandering of the material in the child porn market in order to protect these children.
The Osborne case expanded the restrictions on child pornography further than the New York v. Ferber case in that there are two added conditions. The two conditions are that “the material or performance is presented for a bona fide purpose by or to a person having a proper interest therein” or “the minor’s parents or guardians have consented in writing to such photographing or use of the minor.” If the artistic value of Mann’s work would be considered, her artwork would be protected. In this case, the pictures are taken for a proper reason (as art work) by a professional photographer (by the person having a proper interest). In addition, Mann is the parent of these three children, so it fulfills the second condition. Therefore, Mann’s expression should be protected. Also, in both the Ferber and Osborne case of child pornography, compelling state interests are mainly protecting actual minors or/and disrupting the market for child porn. If the material does not fall into these two categories, the expression should be protected. For example, although children under 18 are in the artwork of Mann, her expression should be protected because she is a professional photographer, and these pictures are her artworks.
I employ the philosophical stand point of Emerson and his Expression-Action theory to support my argument. He claims that the expression of all medium including art and music should be protected under the first amendment (438). According to Emerson, freedom of expression is for “achieving” a more adaptable and hence a more stable community. His Expression-Action theory broadly protects various kinds of expression including obscenities including “books, films, theatrical presentations, sculpture, paintings etc (439).” However, he strictly restricts action “consisting of live conduct (439).”
Although child pornography should be restricted in order to protect children, the definition of it should be carefully considered because it may suppress the expression of artists like Sally Mann. I believe that child pornography deserves SLAPs value, and the material should be taken as whole.
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I would also protect Sally Mann’s photographs and consider them art, rather than child pornography. Under Osborne v Ohio, as you describe, it is easy to see how some of her pictures would be classified as child pornography. The photo you mention, “Popsicle Drops” clearly fits the definition under Ohio’s statue of a “graphic focus on the minor’s genitals”. Although this photograph captures quite a bit of his body, the emphasis is on the genital area, especially when evaluating the lighting of the photograph. I also think that some photographs from Mann’s “Immediate Family” collection could be considered just art under the same statute. One image that seems to balance between the two is the “Rodney Plogger” image, which features a naked little girl and a man who also appears to be nude. However, the image is beautifully done and focuses more on the hands of the two rather than focusing on the minor’s genitals. I also agree with your assessment that “such a broad definition of child pornography is likely to suppress artistic expressions.” I do not consider Sally Mann’s Photographs or the film The Tin Drum to be pornography. Although I personally would believe the First Amendment protects such expression, I do believe that when it comes to child pornography laws should be in place. I do not uphold the current definition, however, and think the definition needs to be changed. The Ohio law considers something child pornography if it has “lewd exhibition of nudity” or “graphic focus on the minor’s genitals.” I would specify that the work also depict the children in such a way that is intended to arouse sexual excitement in its audience, which at that point is inappropriate and no longer deserves first amendment protection. Realistically, I think your idea to apply SLAPS value and take the material as a whole will likely be the first step to protecting artists like Mann or art like the film we watched.
ReplyDeleteI also liked the application of Emerson’s Expression Action Theory. I agree that freedom of expression is for achieving a community that is more adaptable and stable and believe he would protect Mann. I think you give a great first part of your/his quote that his theory “protects various kinds of expression including obscenities including ‘books, films, theatrical presentations, sculpture, paintings etc (439).’”. You seem to lose your case a bit in pointing out that Emerson strictly restricts action to be live conduct. While The Tin Drum would be protected, you would need to pull in another theorist to protect Mann at this point, as she is not depicting “live conduct”. Chafee’s definition of worthwhile speech may work here because Chafee finds speech that serves the public interest to be worthwhile. Mann’s photographs express basic human emotions (vulnerability, fear) and desires (freedom, expression) so I believe that in applying Chafee, you strengthen your argument of protecting these works.
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ReplyDeleteIki, I think you have done a great job analyzing this difficult case. Like you, I also believe that child pornography laws may be too broadly defined and therefor harmful to certain forms of artistic expression. As I understand, you would strongly defend the addition of a SLAPS clause that would protect artistic expression like that of Sally Mann. On one hand I agree with you because I think that artistic expression is a very valuable aspect of our society and something that should recieve the utmost protection. But on the other hand, I am very curious to know more about the artsitic process Mann adheres to. Although the artistic value of many of her shots cannot be denied, I find myself wondering how those frames came about. I find it very hard to believe that they are all natural occurrences in her family's day to day life. I would have to assume that these are arranged shots and that her children are basically being used as props. To me, this seems as though the child's well-being is being sacrificed in order to pursue art. This is something I strongly disagree with, afterall the purpous of pornography laws are to protect the actual child and in this case, I find it hard to believe that they are not being affected in some way by their mother's artistic expression. Do they understand that their photos will be seen by strangers all around the world or that they may stumble across them later on in life? If they did not wish to participate in the process, would they be brave enough to say no to their mother?
ReplyDeleteThrough all of these considerations, I must still remember that the material being judged is the actual speech, that is, the actual photos. I don't feel as though the pictures alone are harmful, but I still feel like the obligation of protecting a child makes it necessary to examine the conditions behind the production of the message. This strong belief of mine would lead me to disagree with your application of the expression-action theory. I feel that in cases like child pornography, action and expression intricately intertwine and cannot be separated for the sake of protecting art or benefitial expression. In the end, it is the actual child we are protecting.
In the end, I am still not sure whether I would protect Sally Mann's photos of her children. Although I am not rejecting the artistic value of her work, I do worry about the conditions under which they were created. I think because of the fragility of the subject, child pornography laws should examine the effects on the child. In the end, the most important part of the child pornography law was established in New York v Ferber when it was argued that the speech should be punished if the child is exploited during the making of the image and shamed by its continuing presence. From the information I have concerning Sally Mann's artistic process, I do not know if this was the case, but if the children were in any way exploited or shameful of the pictures, I would not protect her speech.
Iki- Your argument to protect Sally Mann's photos as art and look at them as a whole was very strongly grounded, but like Jamie, I am having trouble finding a balance between the Mann's photos and child pornography. Although the pictures are artistically done, I find myself feeling like Mann is in some way exploiting her own children, and that she is not looking out for their well-being by portraying them in these types of photographs. It seems like Mann isn't looking out for her children, who, from the images, look like they are too young to make an actual decision for themselves on whether they'd like to pose nude or not. I get the feeling like they are used to doing such photoshoots because Mann has been having them pose nude since they were very young, so they think it's "normal". Although I think the pictures hold artistic value, I don't think it's worth the effect that it will likely have on Mann's children as they grow older and begin to possibly experience shame or embarrassment as a result of some of their mother's photographs.
ReplyDeleteAlthough I see where you are going with the idea of child pornography having SLAPS value, I don't think that I would protect Mann's speech. There is a very fine line between this type of art and child porn, and I think in this case I would apply New York v. Ferber. It seems to me that due to the young age of the child, they could be being exploited by their mother for the pursuit of art, and although art is a wonderful and valuable part of a society, I don't believe that it is worth sacrificing the well-being of children who haven't yet developed the capacity to fully think for themselves, especially when being influenced by a close family member (mother, Sally Mann).