Searching for the Middle Ground: Liberty, Criminality, and Responsibilty

I was just listening to Felix Salmon guest host a special edition of the Slate’s podcast The Gist.

The firs segment of the gist is an interview with New York University Law Professor Amy Adler about the intersections and distinctions between art, pornography, and the law. They end up talking about Richard Price, an artist who is controversial for both his subject matter and his propensity to potential copyright infringement lawsuits.

The discussion involved whether possession Richard Price artwork from 1983 called Spiritual America could land a museum or person in criminal trouble for violating child pornography laws. Richard Price’s artwork is an appropriation of a 1975 photograph by Garry Gross. The Garry Gross photograph featured a nude 10-year old Brooke Shields standing in a bathtub. The photo was done with the permission of her Shield’s mom and the mom was present at the photo session. The photos were done for a no-longer existing Playboy publication called Sugar n’ Spice. Brooke Shields is covered in oil in the photograph.

Let me just repeat that for emphasis. In 1975, Playboy had a publication called “Sugar n’ Spice” which was either child pornography or skirted very close to being child pornography without being judged criminally obscene. I am not fully up on the history but if I recall correctly, there were a few small years in the 1970s between Miller v. California and New York v. Ferber where child pornography existed in a weird gray area of legality. The fact that Playboy thought it was a good idea to publish something called Sugar n’ Spice is evidence for that. As far as I can tell the 1970s were a kind of special time when it came to libertine issues. Iggy Pop remembered the time in a 1996 song with these lyrics: “I slept with Sable when she was 13, her parents were too rich to do anything. She rocked her way around L.A., ‘Till a New York Doll carried her away.” This is the Sable in question.

The podcast made me think of today’s discussion on whether social justice warriors were being ignorant by protesting an MFA exhibit. The podcast also made me think of the recent story about a 19-year old who was put on the sex offender list because he had sex with a 14 year old girl who lied about her age.

We like to scold the judges and prosecutors in these cases for being uptight moral scolds but the 1970s were not too long ago and the more I’ve heard about the time, the more libertine the time sounds. There is a story I heard that Martin Scorsese made Goodfellas because he felt movies like the Godfather glamorized mobsters too much. Now I wonder if he made Taxi Driver in response to stuff like the Brooke Shields photograph from 1975 and stories about girls like Sable Starr? Could the prosecutor and judges be working with a living memory of a time when things were that bad? The social justice warriors are young but they are old enough to have heard about the bad old days from old-timers. They are also old enough to remember when media was much more insensitive and would freely make broad stereotypes of minorities. The media still does that. Or they see white Americans constantly appropriating their cultures and getting it wrong.

This is not excusing the over use of the sex offender lists. According to the Reason article, around 250,000 people were put on sex offender lists as minors and they almost certainly don’t belong on those lists. What I am really struck by is how seemingly impossible it is for people and society to find a proper middle ground between liberty and protection. Based on the stories I hear, I can see why people went towards conservatism during the 1980s and 90s even if it ended up being overreaction. Now we are in an age where people are wondering “maybe we went too far” and are trying to scale things back. I wonder if this is going to result in another 70s type of era that produces a conservative-reactionary pushback instead of just leading to sensible levels of liberty where we say no people shouldn’t be jailed for decades for non-violent drug crimes or not fully thought out teenage acts of consensual sex. But maybe we can debate about whether there is a difference between legalizing marijuana and molly and legalizing Meth and Heroin. What is the cut-off date when “he/she said she was 17-18” is no longer a good excuse? How do we decide the difference between valid criticism and overkill?