Yup, the law (in Massachusetts) would make it a very serious crime — tantamount to child pornography — to make, and distribute "with lascivious intent," "any visual material that contains a representation or reproduction of any posture or exhibition in a state of nudity" involving anyone age 60 or over, or anyone who has "a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection."
The law is not limited to people who are mentally handicapped and thus unable to consent, or who are photographed against their will by their caretakers (the justification discussed in this story). The operative provisions cover people over 60 and the disabled whether or not they are incompetent. One provision, relating to people's being "deemed incapable of consenting," would cover only "an elder or a person with a disability adjudicated as incompetent by a court of the commonwealth," but I don't see how this would stop liability under the other provisions, since consent is no defense under the other provisions in any event. (Plus if they just wanted to bar exploitation of the incompetent, why not simply say "anyone adjudicated as incompetent by a court of the commonwealth," with no limitation to elders or persons with disabilities?)
Likewise, the law is not limited to hard-core pornography that would constitute unprotected "obscenity." It would apply to any pictures of nudes, so long as the defendant is acting with lascivious intent." Hard to see how this would be constitutional, or why it would make much sense.
The bill text is here; the provisions that would be amended are here and here; and the definitions of "elder" (anyone age 60 or older) and "person with a disability" ("a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection") are here. If anyone can point me to a version that merges the existing text with the changes, I'd love to link to it.
UPDATE: Note that the law isn't limited to making pornography for commercial purposes (since the child pornography law that it builds on covers noncommercial child pornography, too). That means that if 60-year-old spouses or lovers — or spouses or lovers of someone who is disabled — decide to photograph each other naked with "lascivious intent," they would be committing a crime (inserted text underlined, especially relevant text italicized):
Whoever, either with knowledge that a person is a child under eighteen years of age, an elder or a person with a disability, or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, an elder or a person with a disability and with lascivious intent, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child, elder or person with a disability to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.
(Note: I originally misread this as requiring a mandatory minimum sentence of 10 years, but a commenter correctly pointed out that a court could in the alternative impose a fine of at least $10,000 — much better than a 10-year sentence, but still entirely improper.)
Can BBW porn be next?
Isn't this age discrimination -- are the elderly a protected class in Mass?
I guess that might force Ron Jeremy into retirement soon.
ArthurKirkland makes a good point. One can understand a law protecting children and the mentally handicapped from exploitation, but what basis is there to keep a consenting 61-year-old from taking nude pics?
Nuisance law?
/runs
In general: things must be slow in Mass., or some legislator's elderly mother's sleazy gold-digging gigolo boyfriend must have posted nude pics of Mom on the 'net, and the legislator got a Google alert, and clicked through, early one morning while he had a mouthful of hot coffee...
Not only that, but alas, Helen Mirren (scroll down on this Daily Mail column) is 63
Yes! That's right, let's kick all the 60+ members off the Supreme Court!
See this is the funny thing. It may well be that the Supreme Court will be asked to agree whether folks over 60 are sufficiently vulnerable to exploitation as to allow such a free speech exception.
If they rule "no" some folks on the loony right will be offended. If they rule "yes" they have just destroyed their own credibility (how many Supreme Court justices are currently UNDER 60?) and that would be funny.
Such a ban has absolutely zero chance of withstanding a challenge. I am not even sure that child pornography laws regarding self-photographing and distributing images to boyfriend/girlfriend would past Constitutional muster and might fail an as-applied challenge.
There really ought to be some penalty on law-makers who vote for laws that are patently unconstitutional. Sure, there are vague spots in the law (what, by the way, is the difference between "privileges and immunities" and "privileges or immunities") but past some point, anybody who just does "get" this country just shouldn't be in the legislature.
Of course, don't get me started on McCain/Feingold.
This proposal might constitute such a meeting of the minds.
What part of Massachusetts do you not understand?
[Looks angelic]
But no, despite my initial reaction, it seems to be serious. (I was skipping to the end for the "now, substitute X for the above" part.)
People are crazy.
Luckily, you don't have to guess. All of the bill's sponsors are Democrats.
theobromophile — it depends on whether a shirtless male at a concert counts as being "exhibited in a state of nudity."
McCain/Feingold Nude? I don't want to go there either.
Irrelevant quibble, I know, in the context of such farce, but pedants must be pedants.
If it was limited to obscenity, it would also be unenforcible regarding photographs of consenting lovers solely for their own private viewing enjoyment.
BTW, there is a recent ACLU lawsuit involving a case where a teenage girl photographed herself nude and sent the photo to her boyfriend, and was arrested under child pornography laws. My own personal thought in that case is that an as-applied challenge to the law ought to be sustained, and such a case ought to fall outside the child pornography exception to the first amendment.
At least this proposal would make that illegal ;-)
Not all of this nanny-statism is bad.
If one doesn't like their standards, vote them out.
They are all Democrats.
As pointed out above, this is Masachusetts, the most
left wingliberal state in the US and all the sponsors are Democrats.But don't let facts stop you from anti-conservative comments.
You're damn right there ought to be a penalty for that. Remember, they tell us incessantly that "ignorance of the law is no excuse."
So I'm responsible for knowing and observing every law, rule and regulation in the local, state and federal jurisdictions--with the possibility of fine and/or imprisonment (or death, in some cases) if I fail to abide by them. But our legislators can't be expected to know when a law they've written or voted for is clearly a violation of the Constitution, which is (if I remember correctly) the highest law of the land?
Sorry, Rep. X, but your bill is unconstitutional. You've committed a felony by attempting to exceed your authority. Go directly to jail. Do not pass Go. Do not collect $200.
Conservatism is a methodology not a political agenda.
Einhverfr: Bans on distribution of obscenity are constitutional, even if it's distributed -- or even carried by the owner outside the house -- noncommercially. Bans on creating obscenity, even entirely for home use in the same home in which it's manufactured, might be constitutional as well. It's only pure possession that's clearly constitutionally protected, but this bill wouldn't ban pure possession. I'm not praising obscenity doctrine, just reporting on it. For more, see this post.
I guess a new movie containing a butt shot of any of those actors/actresses could be "banned in Boston".
Nick
One of Barney Frank's ex-boytoys got caught in Frank's camera, and now the ex wants Frank to pay.
It makes a certain amount of sense.
"...to pose or be exhibited in a state of nudity..."
Malvolio,I take it you're with me on the above, right? McCain/Feingold, Raich...
However, if you were looking at material that might otherwise be seen as obscene, and it was produced IN THE HOME and never transported out of the home (for example, photos by consenting spouses, and the photos were never moved elsewhere), then wouldn't this be simply possession and not distribution?
I guess what I am getting at is that everything which might be banned must be manufactured or brought in somehow. To have any teeth whatsoever, a pure possession exception to obscenity would have to cover material which was manufactured in the private home and never left it. Otherwise, you run into the problem that there is no such thing as pure possession.
So this is where I would expect the line to be drawn: depictions that might be seen as obscene produced in a private home for private viewing only and never distributed outside the home would be protected under existing precedent, but any exchange or transfer beyond those physical boundaries might be unprotected. This would also seem to me to be consistent with past precedent. Otherwise you end up with inconsistent precedent and the one protecting possession would have to be overruled fully.
1) Manufactured, composed, or otherwise created
or
2) Obtained from somewhere else.
These depictions don't just appear from nowhere. Now, either the above are sometimes protected or they are never protected. I would argue that composition would be generally protected under the obscenity exception, commercial transactions would not, other matters might be somewhere in between. However, if they are not protected, then mere possession of obscenity in the private home could never be protected either. So one could be prosecuted for obscene text-only depictions written in a diary never intended for anyone else to read.
If, however, composition of such representations is protected for private purposes at least, then we have problems. For this reason, I think that it would be beyond traditional bounds of obscenity law to the extent it would involve private composition of such material in a private manner. Of course this might be the proper subject of an as-applied rather than a facial challenge, so this does not necessarily mean the law would be struck down by the courts as such.
No sir, it come from people with taste
Would anyone have bet the rent money on the direction (left/right) from which the bill's sponsors were approaching this "problem?"
Other than, "Shut up and obey your betters," of course.
The supposed rationale for banning child pornography is the presumed incompetence of the subjects to give informed consent. Why not use that reasoning, and only that reasoning, to extend the ban to mentally incompetent persons of any age?
I'd have no problem with the bill if the proposed additions of “, an elder or a person with a disability” were everywhere changed to “or a person adjudicated as incompetent by a court of the commonwealth” ...
What do physical disabilities or "senior" status per se have to do with mental competence?
The supposed rationale for banning child pornography is the presumed incompetence of the subjects to give informed consent. Why not use that reasoning, and only that reasoning, to extend the ban to mentally incompetent persons of any age?
I'd have no problem with the bill if the proposed additions of “, an elder or a person with a disability” were everywhere changed to “or a person adjudicated as incompetent by a court of the commonwealth” ...
What do physical disabilities or "senior" status per se have to do with mental competence?
In both cases, there's zero medical evidence to justify the age limit, but plenty of "common sense" justification (we all "know" the elderly are easily victimized due to senility, just like we all "know" teenagers are easily victimized due to immaturity).
Age discrimination is wrong whether the victims are young or old. If stunts like this are what it takes for people to see the parallels, then I say bring on the stunts.
Which is to say that they are so ill-advised that they need to worry about loosing what small amount of gray matter that they do have in a most embarrassing (and hopefully) most public accidental discharge.
Roci
The big difference is that I find it rather unlikely that a Supreme Court consisting of people between the ages of 54 and 88 will agree that the elderly as a class are easily victimized due to senility. After all, what would happen if we declared 7 of the 9 justices incompetent by reason of age?
Please, can we make THEM defend these laws before the Supreme Court?
Can the rest of us have tickets to watch?
Of course it's a terrible idea and should be opposed. Most 60 year olds are quite capable of giving informed consent, no matter what the law says; and even if a few of them are incapable, it's unjust to restrict the capable majority for the sake of those few. But that argument -- indeed, every rational argument against this proposal -- could be employed, just as truthfully, to argue against the existing age restrictions. The irony of seeing people oppose this age restriction while defending the other one is delicious.
You're apparently quite easily entertained. I have somewhat higher standards, but I do think it might be amusing to watch you trying to defend where you appear to be going (any age of majority is arbitrary, thus we must have none?)
There is no such thing as pure possession.
Ths U.S. Supreme Court rejected precisely this argument in
U.S. v. 12 200 foot Reels of Super 8 MM Film.. In an era before the home video camera, the defendants had argued that because the possession in the home is permitted, there must be some license to bring material into the home from outside. The Supreme Court said no, the license for home possession is narrow and in no way implies permission to create or transport the material, and it doesn't matter that this means a state can eliminate obscenity so long as it catches it at the right moment.
There is no such thing as pure possession.
Ths U.S. Supreme Court rejected precisely this argument in
U.S. v. 12 200 foot Reels of Super 8 MM Film.. In an era before the home video camera, the defendants had argued that because the possession in the home is permitted, there must be some license to bring material into the home from outside. The Supreme Court said no, the license for home possession is narrow and in no way implies permission to create or transport the material, and it doesn't matter that this means a state can eliminate obscenity so long as it catches it at the right moment.
There is no such thing as pure possession.
Ths U.S. Supreme Court rejected precisely this argument in
U.S. v. 12 200 foot Reels of Super 8 MM Film.. In an era before the home video camera, the defendants had argued that because the possession in the home is permitted, there must be some license to bring material into the home from outside. The Supreme Court said no, the license for home possession is narrow and in no way implies permission to create or transport the material, and it doesn't matter that this means a state can eliminate obscenity so long as it catches it at the right moment.
I suspect that President Obama would arrange suitable replacements.
As someone observed earlier, it's a matter of "taste."
Sure, but in this case, possession in the home could ALSO be evidence for bringing it into the home. This is not what I am arguing against here.
Suppose I write in my diary, not intended for anyone else to read, various short stories that would be clearly obscene by community standards. Is this protected by the First Amendment or not? Can one be prosecuted under the obscenity exception for content which was never brought into the home and which solely possessed in the home?
In this case, and in the case of consenting lovers/spouses, it may be the case that creating the photograph would take place in the home and would never be distributed outside it. This is a fundamentally different case than U.S. v. 12 200 foot Reels of Super 8 MM Film. IF there is a private home possession exception to the obscenity 1A exception, then even if you can't purchase and bring INTO the home (via downloading or other means), there must STILL be an implicit license to manufacture IN the private home for private viewing only. If there is no implied protection for manufacture in the private home regarding obscenity law, then there is no protection for private possession in the home either since such possession implies either bringing it into the home (unprotected) or manufacturing it there (questionable status).
1) Are private diaries, never intended for anyone else to read, and properly protected inside the home subject to the obscenity exception to the first amendment?
2) If not, would nude photographs taken between loving spouses inside the home, properly protected in the home, etc. fall under the same protection?
I am not talking about implied distribution exceptions, as one could argue that the obscenity exception to the first amendment is an exception regarding distribution.
but only if this bill passes, which i would think unlikely.
You got it. Age restrictions are arbitrary and unjust, and we ought to have none of them. Numeric age isn't a valid indicator of anything except how many times a person has orbited the sun. The best you can do with a numeric age is make broad, inaccurate generalizations, but frankly you could do that with gender, race, religion, and plenty of other factors too, as long as you didn't care about accuracy. When we're talking about locking people up, though, accuracy is important.
Of course, it should be illegal to make porn featuring someone who is incapable of consenting to it, no matter whether their incompetence is due to immaturity, senility, disability, intoxication, or anything else.
But we don't need to mention age in such a law. We can mention competence instead, and then let prosecutors show in court that the victims actually are incompetent.
If a group of legislators can decide that every 17 year old is incompetent by default, based on nothing but their own gut feelings, then surely a prosecutor with expert witnesses can show that one particular 17 year old is incompetent -- unless, of course, s/he isn't incompetent and no crime has actually taken place.
Started drinking and doing drugs at 14, as well as participating in violent acts.
I joined the military, went through basic and advanced training, and was assigned to the 101st Airborne at 17.
If by the time I was 17 I had engaged in countless sex, drugs, booze, rock and roll, violence, and was in the active service of my country, who the hell is anyone to say I wasn't also competent to take a picture of myself in the buff and give it to my teenage girlfriend, or she to me?
By the same reasoning, who is to say my 71 year old mother, herself a retired lawyer, can't snap a flash of herself in the altogether and give it to her current lover if she damn well wants to?
This law is a joke, unconstitutional as applied on both ends.
We are consenting adults for catssake. MYOB and leave us alone.
I personally don't think minors should ever be subject to being punished under child pornography laws. I think that the child pornography exception is sufficiently narrow that prosecutions of children for engaging in child pornography ought to fail as-applied challenges. The same would apply for "sexting" pics between teens. Unfortunately, prosecutions of teens for such behavior is becoming more commonplace.
IANAL, though.
I would expect material packed up and transported into/in/from a moving van to be similarly protected.
As for the rest, that starts moving into more questionable territory, but I would come back to the diary test. Are diaries never intended for others to read subject to the obscenity laws? If not, then things would have to be more or less directly analogous to that diary to be fully exempted.
As for the soft-core sexy-photo example, this is all assuming that one was actually to go as far as deeming material "obscene" which this would not do anyway. My main point was to suggest that this might even be stretching obscenity law as I understand it (IANAL though) beyond subject matter issues.
Even Ron Jeremy is 56 now. Just a few years shy of the big six ohhh.
People seem to like to watch older men like this in porn. And these guys seem to be quite happy with what they are doing.
See this NYTimes article from 2006 on "the graying of porn".
There are good reasons for treating the age of majority as a white line. Basically it leads to predictability of the law.
However, what is noteworthy is that this is the first time I have ever seen a proposed law so blatantly unconstitutional that the Supreme Court would have to declare themselves legally incompetent not to throw it out......
The same argument can be made for all other sorts of discrimination too, of course.
By "predictability" what you really mean is convenience: we don't have to spend all day finding out whether someone really is as incompetent as we say he is; we can just look at the date on his ID and break for lunch.
Likewise, it might be convenient if we didn't have to bother with the whole probable cause, trial, guilty beyond a reasonable doubt thing when one of Those People (you know, the ones who aren't like Us Folks) were suspected of a crime. Statistics show that they're more likely than Us Folks to have committed the crime anyway, so why waste resources weeding out the few innocent ones? We can all go home that much sooner if we just assume that Those People are guilty. As a bonus, Those People won't have to worry about whether they're doing something that might look suspicious: they'll be able to predict quite well whether or not they'll be found guilty, and so they'll learn to stay far, far away from anything that's even remotely shady.
Which is more important, justice or convenience? Being right or saving time?
Also, I'm curious as to why you think this law is unconstitutional. Which part of the Constitution forbids discriminating against 60 year olds but allows discriminating against 17 year olds?
(The Supreme Court wouldn't have to "declare themselves legally incompetent" in order to uphold the law; they'd just declare themselves incompetent to appear in porn. It's not all-or-nothing: look at minors, who are deemed incompetent to appear in porn but are still legally responsible for their actions, including being tried as adults in many cases.)