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Thursday, April 18, 2002  permanent URL for this entry

On the subject of Ashcroft v. Free Speech, reader John Todd Larason taps us gently with the Truth Stick:

Every time this comes up, I can't believe I actually find myself defending John Ashcroft. To get it up front: I'm a civil libertarian bordering on minarchist, and no fan of either Ashcroft or this administration. I was delighted the court decided the way they did, and flabbergasted it was 6-3.

That said -- as fitting as the name "Ashcroft vs. Free Speech" is in so many ways, it isn't really very fitting in *this* case. The case started as "Reno vs. Free Speech", and Ashcroft just inherited it. The CPPA was passed in 1996, signed by Bill Clinton, and initially defended by Reno's justice department. Ashcroft, in fact, voted against at least once:

Which is entirely correct. On the other hand, Ashcroft for whatever reason is not now acting like a reluctant plaintiff in the case he inherited. He seems displeased by the verdict, and he's said (quoted in the Nina Totenberg piece I wrote about yesterday) that he intends to "work with Congress" to craft a modified CPPA that'll pass Constitutional muster.

(So why is it "{Reno|Ashcroft} v. Free Speech", anyway? It's not Ashcroft qua Ashcroft bringing the suit, it's Ashcroft qua Att'y Gen'l. So why isn't it "U.S. v. Free Speech", or "Department of Justice v. Free Speech"? Any legal beagles out there know?)

Another reader comments on yesterday's piece:

We like to imagine which syllable, or perhaps which phoneme or dipthong, of yours might have amplified effect on the American Literate Culture. We're thinking of something with an "L", Bob.

Yes, I'm definitely getting a name starting with "L", someone important in your life. Linda? No, wait, Laura? Yes, definitely Laura. And she has blonde, no brown, yes brown hair, and she's going through a hard time in her life right now, is that right? Yes, yes, I thought so. I'm seeing water, a river, no the sea? Yes, the sea. I see her traveling by boat, or, no, wait, I see Laura becoming something, becoming... Queen of the Merpeople!

And you must be sure to be there for her.

Readers were variously inspired by Once upon a time...

Once open a time, an angry wooly mammoth played his clarinet (backwards) in front of 14 pregnant kangaroos.

I fell in love with the movie, "The Princess Bride." Years later, I made the mistake of reading the original book. Now my memories of the original, wonderful film, are tainted by the bitter taste of the self indulgent, solipsistic book.

The open question is whether one can encode enough electricity over XML to PARSE the ^&*((% XML

I write because I like how it makes me feel. It reminds me of floating in a big black lake, looking down into the water and the infinity of it all.

Not happy with tribbles?

for ever after.

The end.

'once upon a time' was a good way to start a story. Today, it has become excruciatingly banal, and solely the province of Maureen Dowd and her ilk.

'Various speed tests say that were getting like 450Mbps down' -- I think that's highly unlikely!


Yeah, yeah, yeah, I meant to say "450 Kbps". Not that 450 Mbps would be bad.

Did the "Princess Bride" book come before the movie, or only pretend to? I've never been clear on that.

Why does everyone hate the poor XML so? I admit I used to think it was pretty dumb (an ASCII data format that could have been designed by your average bright fifteen year old, a horribly verbose way of encoding simple data, etc, etc), but I've rather Come Around. XML isn't that hard to parse; they simplified it down from SGML just to make it easier. And in fact, in the sense that you can just call someone else's XML parser, it's in fact easier to parse than some ad hoc data format that you'd have to write (and debug) new code for.

Who's Maureen Dowd?

From a reader: Thinking Cap or Dunce's Hat? Can you make yourself smarter by electrically suppressing the conscious side of the brain, thereby freeing the other part to do partial differential equations in an unconscious automatic sort of way? Temporarily reputable scientists think you can!

Huge long lists of those silly "What kind of frotz are you?" quizzes: the Test Archive of Death (over in the sidebar), and (linked to from that same weblog) this big list (which includes a number of amusing false positives).

And from that same weblog, more support for my theory about why people learn to draw. (I am, of course, just jealous that I can't draw myself. Not that I'd ever draw lascivious pictures of naked people or anything like that. Honest, Mr. Ashcroft.)


Give Scarleteen some money, they're good people.

And then go look at Nigel Campbell's pictures (and words) in their new home.

Did I forget anything?

Wednesday, April 17, 2002  permanent URL for this entry

Yep, the telephone line is working fine again; thanks for asking. But the technical foreman person who was supposed to call so I could ask him what was actually wrong, never called back.

To: morning@npr.org,atc@npr.org
Subject: Nina Totenberg on Ashcroft v. Free Speech
Date: Wed, 17 Apr 2002 14:02:58 GMT

I'm a WNYC member and generally a big fan of Nina Totenberg's law reporting. I was distressed, though, by this morning's story on the decision in Ashcroft v. Free Speech Coalition. Every bit of public reaction cited or quoted in the story was negative; all the air time was given to people who thought the decision was a bad one.

Was the ACLU not available for comment? Did no one anywhere have a good word for the First Amendment? Was no one willing to say that Ashcroft already has strong (and Constitutional) laws against child abuse, and that maybe he should be spending his energy on enforcing those, rather than on trying to outlaw things that harm no one, but offend his Puritan sensibilities?

Next time there's a free speech story, can Nina please talk to at least one person who believes in free speech?

David M. Chess

I highly recommend reading the decision itself; it's quite comprehensible, and has lots of intelligent and thoughtful words.

It gets off to a great start, with the title: "Ashcroft v. Free Speech Coalition". Talk about a Sign of the Times. It'd be fun to put together a group called "Right Thinking People Everywhere", and then challenge some Federal Law, and take it to the Supreme Court, so you could have "Ashcroft v. Right Thinking People Everywhere".

The case is about the constitutional status of pornography and things near it, something we've talked about various times before. The decision doesn't bear on the definition of obscenity, of stuff that the Court has long ago decided (rationally or not) is outside the protection of the First Amendment. Instead it bears on a different Exception, this one having to do with stuff that isn't obscene, but involves children in such an icky way that it falls outside the First Amendment anyway.

This second Exception was carved out in New York v. Ferber (which I ought to read thoroughly), which found Constitutional a New York law banning even non-obscene child porn involving actual children, on the grounds that (basically) preventing the damage to those actual children was worth the damage to freedom of speech.

The law contested in Ashcroft v. Free Speech, the CPPA ("Child Pornography Prevention Act of 1996"), attempted to widen this second exception, by outlawing even non-obscene stuff not involving actual children:

..."any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct"...


The statute defines "sexually explicit conduct" as "actual or simulated ...sexual intercourse ...; ...bestiality; ...masturbation; ...sadistic or masochistic abuse; or ...lascivious exhibition of the genitals or pubic area of any person."

And the penalties are very heavy. So make a movie in which an officially fifteen year old character appears to be masturbating, or even appears to be pretending to masturbate, and it's the slammer for you for a good long time. Erotic animé drawings, with their big-eyed smooth-skinned characters of uncertain age, would probably also be a bad idea; who knows how old some jury in Alabama would decide the characters "appear"?

The decision was six to three against, which is a pretty big majority for the Court. The government had argued that this expansion of the child porn laws was permissible, and necessary, for a number of reasons, and the Court rejected them all.

The CPPA also prohibits speech having serious redeeming value, proscribing the visual depiction of an idea -- that of teenagers engaging in sexual activity -- that is a fact of modern society and has been a theme in art and literature for centuries. A number of acclaimed movies, filmed without any child actors, explore themes within the wide sweep of the statute's prohibitions. If those movies contain a single graphic depiction of sexual activity within the statutory definition, their possessor would be subject to severe punishment without inquiry into the literary value of the work. This is inconsistent with an essential First Amendment rule: A work's artistic merit does not depend on the presence of a single explicit scene.

I won't go into every government argument and every court rebuttal (you should read it yourself, really; it's not all that long, and not very hard). One particularly slimy one was this: the government argued that child pornography isn't protected speech because of Ferber (cited above), and that therefore even child pornography not involving actual children could be forbidden. But part of the rationale in Ferber was that if someone wanted to express an idea about young people and sex, they could always do it by using young looking adults or simulation; from the Ferber decision:

As a state judge in this case observed, if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative. Nor is there any question here of censoring a particular literary theme or portrayal of sexual activity.

The CPPA sought to ban exactly what the Ferber decision suggested as permissible alternative means of expression, and to do exactly what Ferber found the earlier law acceptable because it did not do: censoring a particular portrayal. For the government to cite Ferber in support of the CPPA is just slimy.

(Here's a slippery slope conspiracy theory for you: the government bans child pornography involving children in Ferber; then, since child pornography is known to be unprotected, it bans even child pornography not involving children in the CPPA. Then, since the CPPA shows that it's okay to ban portrayals as such, the next law bans even written portrayls of underage sexual activity. And then, since that law shows that it's okay to ban written portrayals of things society doesn't like, the government can ban just about anything it wants, and the First Amendment becomes effectively content-free under the slow grinding of the precedents.)

Justice Kennedy wrote the decision in Ashcroft v. Free Speech (gad, what a great name), and Stevens, Souter, Ginsberg, and Breyer joined it. Justice Thomas wrote his own concurring opinion; he would overturn the CPPA on somewhat narrower grounds, and leave the door open for a later law that prohibited a narrower range of virtual child porn, and allowed for a wider affirmative defense (although it's not clear to me what he has in mind beyond "hey, look, no children were involved!"). He's concerned about future technology that might make it essentially impossible to tell a real image from a simulation.

[Here's a thing to think about: it's already possible to create written accounts of fictional crimes that are essentially indistinguishable from genuine accounts of actual crimes. Why is there not a problem with "virtual" murder, or rape, or bank robbery, or underage sex, when it's written down? Is it just that we're used to not being able to tell if written words are true or false? How long will it be until we're used to not being able to tell if photographs or movies are real or simulated? How will the world be different?]

Justice O'Connor writes a rather odd partial dissent; she thinks that it's Constitutional to ban virtual child pornography (involving no actors at all), but unconstitutional to ban "youthful adult" pornography (involving actors who may look underage, but are not). So it's okay to use adults, but not okay to use just computers. This somewhat baffles me; why would removing the adult actors make the expression less protected? What if you use a computer to process the image of a youthful adult? What if you make a movie in which a scene appears to involve underage sex, but actually involves one youthful looking adult and one virtual character (think Gene Kelly dancing with the mouse, the X-rated version)? Is that okay or not, and why? O'Connor doesn't really give us enough rationale to say.

And finally Rehnquist, with Scalia nodding dutifully along for all but one paragraph of technicality, puts in a "the government is your friend" dissent. Sure, the law as written appears to impose severe penalties on innocent and even valuable expression that harms no one, but the government would never enforce it that way. It would only be used against the "hard core of child pornography". (Of course since the "hard core of child pornography" is certainly obscene, there are already laws against that; this seems like a serious problem with the argument.)

Rehnquist also claims that since the movies "Traffic" and "American Beauty" were in fact made, there must not be any chilling effect. If anyone has dared get anywhere near the area that the law seems to forbid, then it must be okay. When Rehnquist says:

I also agree with JUSTICE O'CONNOR that serious First Amendment concerns would arise were the Government ever to prosecute someone for simple distribution or possession of a film with literary or artistic value,such as "Traffic" or "American Beauty."

one wonders what cave he's been living in. Hello, Mr. Chief Justice? Do the words "Tin Drum" mean anything to you?


Anyway, this was a good decision (did I mention I think you should read it?), and I'm pleased to see that at least six members of the Court are still seriously concerned about freedom of expression.

Lots of other sites are of course covering this decision. See the ACLU for predictable glee, and Nicholas Urfé for more mordant analysis.

My penpal, Nina

News Flash: Nina Totenberg wrote me back! I'll never wash that email address again.

What she wrote was sort of sketchy and hurried:

in a story like this, the decision speaks for itself. the critics are the story. the defenders only say what is in the deicision, which they like.

but still, she actually wrote back! I replied in fawning gratitude:

From: chess@theogeny.com
To: (Nina Totenberg)
Subject: Story on Ashcroft v. Free Speech
Date: Wed, 17 Apr 2002 21:15:43 GMT

> in a story like this, the decision speaks for itself.
> the critics are the story. the defenders only say what
> is in the deicision, which they like.

(First I'd like to express fawning abject gratitude for your having replied at all; you must be busy!)

I take your point. On the other hand, it would be all too easy for a listener to come away from your story thinking that all real people think the decision was a bad thing, and those ivory tower supreme court types are just somewhere off the deep end. I think the real-person supporters ought ideally to be part of the story, too.

Thanks for listening!

Isn't that cool? Maybe next time Ms. Totenberg is deciding how to cover a story, my words will have some tiny influence on how she does it, and maybe a gazillion NPR listeners will hear a few extra words because of me.

Or not.   *8)

Tuesday, April 16, 2002  permanent URL for this entry

So the phone line (voice and DSL and all) went out sometime on Sunday, and we called Verizon repair and they said that someone would look at it on Monday. Sometime on Monday, they didn't know when, whenever they got around to it.

I called them on Monday to try to find out what was going on. I tried their Website, but it's impossible to interact with them there unless you "register", which (a) I hate doing, and (b) requires you to have various Magic Numbers from your phone bill, and I was at work.

So I called them, and when the Call Director asked if I wanted to use the Automatic System I pressed "sure", and it said I should wait and then said the Automatic System couldn't help me right now, please call back later, good-bye.

So I called them, and when the Call Director asked if I wanted to use the Automatic System I pressed "how stupid do I look to you", and it said I should stay on the line for the next representative, and then said that all the representatives were too busy, please call back later, good-bye.

Eventually I did get a human, who said that yes someone would be looking at our line sometime today. And who was completely incapable of telling me any more than that.

Sometime on Monday afternoon the line started working again.

Sometime this afternoon it stopped working again.

When we called them, they said someone would look into it tomorrow.

Several more phone calls, a couple layers of "Supervisor", and my best "polite but firm annoyed customer voice", got me a promise that they'd "try really hard" to get someone to look at it today.

Idiot monopolies...

"But the people?" gasped Digory.

"What people, boy?" asked the Queen.

"All the ordinary people," said Polly, "who'd never done you any harm. And the women, and the children, and the animals."

"Don't you understand?" said the Queen (still speaking to Digory). "I was the Queen. They were all my people. What else were they there for but to do my will."

"It was rather hard luck on them, all the same," said he.

This is another of Lewis' Evil Queens; but I thought the passage was noteworthy for how much it sounds like a reproach of the God who caused the Flood. Lewis doesn't usually slip up like this. *8)

"The Horse and His Boy" wasn't especially noteworthy, except for the obvious relevance of Lewis' Orientalism (the moral, upright, Aslan-believing English-looking people to the north, versus the nasty, decadent, Aslan-disbelieving swarthy-skinned bad guys to the south) to today's Troubles.

"The Magician's Nephew" is considerably more interesting, both because it's an origin story (I've always loved origin stories, especially when they come in the middle of a series and the things whose origins you're seeing are things you already (think you) know), and because of the extremely neat Wood Between the Worlds, which gives me the same fantastical peaceful shivery feeling as that field of lillies in "Dawn Treader"s strange still sea.

Write a brief essay on C. S. Lewis' use of bodies of water to set the mood and character of places, with special reference to still water.

A reader makes an excellent point:

Your get is up. I see craw nuncle (now you know what fashion this is in). "+brintey +Spearns +Node +Naenked +NO +CLOThse" on the American Tongue. Movies must show crushed foil gunwrapper mashed up by discarded straws on the sidewalk. Must SHOW them, so they won't be stepped on. Nobody in the movies wants to be seen in messy shoes.

So I will go home and examine my shoes, and see if the &expletive; telephone line is working again...

Monday, April 15, 2002  permanent URL for this entry

Have you paid your taxes? Remember, if you don't pay your taxes, large people with guns come and throw you in prison.

"You set us up."

-- All too many characters

We saw two movies over the weekend. Now I'm thinking about formulas. (I'm also thinking about short sentences.)

M and I took the little boy to see Ice Age. It was pretty silly. Think of a Bugs Bunny cartoon with a mammoth (hahahaha) budget and delusions of profundity. The formula here was "cast of misfits, one of whom is secretly planning to betray them, but turns into a good guy at the last minute." One of the characters actually says "You set us up". (I guess someone's got to keep the traditions going.)

That formula I more or less understand: lots of opportunity for tension and character development, and the socially useful moral that you shouldn't betray people.

Then M and I rented Moulin Rouge. It was opulent and wild and fun. It was also pretty silly, in the "room full of nineteenth-centurty Parisian servants doing an all-male version of Madonna's 'Like a Virgin'" sense, and the "entire first half strongly reminds one of a Monkees movie" sense.

It had the "hooker (prostitute (courtesan)) with a Heart of Gold" formula. It also had the "you must make him believe you do not love him; it is the only way to save him" formula.

I don't really Get that latter formula. I mean, how often does anything remotely like that happen in real life? Roughly zero times a decade? So why does it crop up in the movies alla time?

I guess it offers opportunities for character development and tension and Truths about Love. But it's also painful in the "phht" sort of way, and (well) formulaic.

So people should stop making that movie for awhile.

From Ian:

The user may even choose to produce a Tarzan-type yell while swinging in the manner described, which more accurately replicates swinging on vines in a dense jungle forest. Actual jungle forestry is not required.

Licenses are available from the inventor upon request.

Contrabulator, the blue Wocky

Neopets! A friend of the little daughter's was playing this obsessively, so the little daughter tried it and now she's been playing it obsessively, and she talked me into trying it, and I've been playing it obsessively. But only for very short intervals, and only parts of it. The "chatting obsessively with other eleven year olds" part, fortunately, doesn't particularly appeal to me.

(The little daughter points out that she doesn't do the obsessive chatting thing either.)

Here are two articles about the Whole Neopets Thing. It's pretty cool: started by two college kids, now a privately-held company, word-of-mouth marketing, third largest whatever site on the Web, concerns about subtlty of embedded advertising, etc, etc.

As a user, I have to say that some of them Flash games are as fun as anything similar I've seen, even in grown-up places. (And it's even got its own stock market.) The whole site has an aura of clue; I'm currently undecided whether it's clue that's gone over to, or at least skimmed kinda close to the edge of, The Dark Side. It'll be interesting to see what it's like in a year, in five years.

Friday, April 12, 2002  permanent URL for this entry

In local news, the little girl found two 1943 steel pennies while we were sorting through the Big Jar o' Change looking for things that shouldn't be dumped into the change-eating machine down at the grocery. M also balanced the checkbook for the first time in like five months, and we found that due to an arithmetic error back in December we have a little chunk of money more than we thought we had. (Which is some tiny comfort in the face of the recent behavior of a certain stock price.)

What was wrong with the old ones?

Labia: we have a clear winner among the submissions to last week's input box:


Is that lovely, or what? Eat your heart out, COPA.

And of course a whole host of co-Winners and/or Honorable Mentions. Some of these may have been typos, or attempted searches, or something; not knowing for sure is half the fun:

Pink and delicate, or fleshy and coral, an infinite variety of petals, all beautiful, shy then welcoming, like curtains opening, like something precious unfolding for you.

majora. Gosh, that was rather, trite, wasn't it?

No, this is an input box. Oh, I see!



are sometimes uneven.


Life us unfair, and labia.






I, Baal

I have the best readers...


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