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Is this Pornography?
(06/20/2011) by Mitchell S. Tepper, PhD, MPH
Some people may think a picture of two nude men enbracing in a sitting down hug is pornography and that it lacks serious value for minors. I do not. If the proposed Child Online Protection Act (COPA) that seeks to put sexually explicit content behind an adult verification screen is upheld as constitutional, you would not even have a chance to decide this question for yourself.
COPA prohibits any communication for commercial purposes by means of the World Wide Web that is available to any minor and that includes any material that is "harmful to minors." Violation of the COPA carries a fine up to $50,000 and imprisonment up to 6 months or both. As with the Communication Decency Act, already ruled as unconstitutional, COPA is unconstitutionally vague and essentially limits free speech over the Internet to that which is suitable to children.
The photo is part of a landmark photographic essay, 'Intimate ENCOUNTERS," created by renowned photographer Belinda Mason-Lovering. The photos explore the myriad connections between disability and sexuality. This essay challenges the hidden myth in our society that only the most glamorous, attractive and successful among us lead active, healthy and imaginative sexual lives. 'Intimate ENCOUNTERS' creates new visual messages about sexuality and disability with a basis in the lived realities of individuals with disability.
The question at stake with COPA is whether the average person, applying contemporary community standards, would find that this photo of two men embracing has serious artistic and scientific value for minors. This picture would be considered "harmful to minors" under the law if not found to have value for minors, and I would be subject to prosecution.
While I do not believe this photo or any content on my SexualHealth.com web site is "harmful to minors," I fear those who believe children and young adults should be shielded from exposure to any explicit discussion of sexuality beyond "just say no" would lobby for action against my site or likeminded companies.
The deposing attorney at the Department of Justice assures me that I have nothing to worry about under the intended legislation, as my site is one of educational value. He also assures me that individuals are unable to bring action against me under this law; only the government is able to bring suit. I am not assured
Educational value has not been effective in protecting sexuality educators from being targets of prosecution in the past. While a DOJ attorney may not think my site "pander to the prurient interest of minors," a prosecutor in another US community may.
As a parent, why should you care? You might argue that protecting children from harm has a greater social value than helping people with disability or illness take pleasure in their sexuality, or even protecting this "lower level" of free speech. Even my mother asked me why am I fighting this law? Don't I want to protect Jeremy, my son, from being harmed when he is using the Internet? My response is that the law does not protect children from anything. The concepts "obscenity" and "patently offensive," like beauty, are in the eye of the beholder. While explicit sexual images and words may potentially shock, embarrass, offend, they are not likely to be harmful. Poverty is harmful to children; lack of access to health care is harmful to children; access to guns is harmful to children; and setting up barriers to reproductive health care and comprehensive sexuality education is harmful to children.
If you would like to protect children then you should, indeed, pander to their natural curiosity and interest. Their interest in sexuality is normal. Parents should act as a source for reliable sexual information. Parents should provide frank discussion about sexuality. Parents should not encourage adolescent ignorance by legislating out their child's access to potentially lifesaving sexuality information. Parents should relay affirming information about their children's bodies; model respectful relationships; and discuss sexual behaviors and desires in a positive, responsible manor.
Parents should let their children know how to protect themselves. If parents believe that surfing the net will cause their child harm, then parents should be there for their children when they are online. Now is the time to stop exploiting our children with ideologies that erode our freedom to gain knowledge.
Mitchell S. Tepper, PhD, MPH
President, The Sexual Health Network, INC This article appears in the following topics:
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