Unhelpful

To call the Mystere stories “child pornography” isn’t just inaccurate, it’s potentially dangerous, whether you agree with Mystere, Verant, or somewhere in between.

But don’t take my word for it, because I’m not a judge or a lawyer…

Justice Byron White is, however.

Writing for the court’s opinion in New York v. Ferber, 458 U.S. 747 (1982), he noted:

There are, of course, limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age. The category of “sexual conduct” proscribed must also be suitably limited and described.

The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: a trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.
We note that the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection.

So to summarize, the story about the “elf of 14 seasons” - regardless of of whether you think this means “14th level”, or “14 years”, or “14 quarter years”, regardless of who wrote it or if it’s the real reason Verant banned this account - is not child pornography. It may be obscenity, but that involves getting knee deep into a “community standards” debate, and I don’t think there’s any precedence yet for “virtual community standards”, though I’m sure there soon will be.

The rape story is, sadly, a common theme of fanfic. Part of the appeal of fanfic is putting characters in situations that they wouldn’t otherwise get into, and rape is one of the most extreme forms of these “taboo” situations. It’s probably encouraging that this is the case, because it confirms that this sort of behavior is beyond the pale. The discouraging thing about this archetype of story is its seemingly wide appeal to such a significant portion of the videogaming demographic.

Calling this “child pornography”, though, brings to mind echoes of the Red Scare. It reminds me of the last several decades of presidential administrations who supported the export ban on cryptography software under the “justification” that this was to protect us against vague, undefined threats of “terrorism” and “child pornography”. It’s a canard, and a dangerous one at that.

This sort of knee-jerk reaction is not only damaging to dialog about discussion of “virtual community standards” and an affront to reasoned dialog, but it is, quite frankly, an invitation to a witch hunt.

This medium is young, precedents are being set, and will continue to be set in the upcoming decades. Step back and carefully consider if you’re trading in your First Amendment rights for moral expedience. Popular speech doesn’t need First Amendment protection to continue to exist. Unpopular speech does.

Discuss: Thoughtful comments? No knee-jerking, please. [dead link]