dksm: (Default)
Wow, I really don't know if I should even say anything about all this stuff going down at LJ because a) I'm not really a part of the fandoms that are affected on LJ and so some of the facts are a little hazy for me and b) I really don't have a clear cut position on the matter, I can see both sides of the issue.  But I couldn't resist because I'm a big constitutional/civil rights geek. 

I guess the biggest problem with the whole thing that I see is that both sides are looking at the issue in a very black and white manner when this issue is anything but black and white.  Ask any member of Congress who has tried to legislate on the matter, ask any member of the Supreme Court who has issued a ruling on the matter, ask constitutional scholars and lawyers.....no one can give you an exact set rule on what is and is not.  This becomes an even bigger issue when talking about art and fiction.. And then there is the whole debate on private vs. public domains when you are talking about the internet.  It is one fat big mess.  When Congress has tried to tackle this issue all these same problems cropped up for them as well.  And EVERYONE needs to acknowledge that (especially LJ) before proceeding.  You can't be all like "anything illegal under US law" without acknowleging that US law is very very vague and self-contradictory on the matter.  Plus, hey maybe you should cite what US and California law you are talking about when dealing with an issue. 

The vague thing comes into play with the most recent issues with LJ. Because what is and is not consider child pornography is an issue and what is and is not considered an adult having sex with a minor is an issue.  Because where do you draw the line. IS the line drawn based upon fandom or is it based upon real life?  If is is against LJ TOS and therefore, according to LJ, US law to publish art depicting fandom characters in a sexual act because it may be construed as child pornography well then what about the nude pictures that were publicly released of said real life actor from a play when he was underage?  Does LJ consider those pictures to be child pornography as well?  And also, now that both real life people depicted in the fandom graphic art are legal adults, do you base the whole "adult having sex with a minor" off of real life (both adults) or off of fthe ages they depict in that fandom (not)?  And no I do not advocate for child pornography in any way.  Neither did the Supreme Court justices who struck down indecency and pornography laws.  It is when you get into vague areas (like the one above) that questions arise. 

I'm not even going to attempt to talk about all the other issues that have been brought to the forefront by this whole thing because frankly I'm not sure who's side I stand on in some issues, even the one above I see merits to both sides of the arguement.  I think the biggest thing for a lot of people is that as much as something may squick us out does that mean that we shouldn't try to protect it because if we don't something may infringe upon our rights and things that don't squick us out?  Yes, there are clear cut areas that should definitely be banned.  I do not think that anyone standing up against LJ in this matter would have a problem with LJ banning real depictions of rape or of child pedphilia.  But when you have vague areas of law, that is where at the very least the vagueness of those laws should be acknowledged. 

The one thing that irks me and this is totally politically snobby of me is the whole "I have the right to free speech and expression" argument.  Because hey you do have the right to say thing or draw things or write things.  It is when you publish them that those rights change.  They change based upon where you are and in what manner you publish them. Your intentions  come into play.  Whether you are in a public or a private forum (and no I do not mean forum as in message board) come into play.  The first amendment is NOT a free pass to do what ever you want where ever you want.  Google free speech and supreme court to learn a little bit about that. 

Okay yeah, legal rant finished. 

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dksm

July 2012

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