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New York Net-porn law upheld on appeal

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A New York State appellate court ruled unanimously yesterday that the state's Internet porn law passes constitutional muster because it addresses luring a child into sex or sexual performances. The appellate hearing sprang from one of the first Internet pedo stings, in which one Thomas Foley attempted to seduce someone he thought was a 15-year-old girl, but who was in reality a New York State Police officer. Foley's lawyers argued that the New York porn law is a restriction on the content of speech which violates the First Amendment to the US Constitution. The court was not sympathetic. "An invitation or enticement is distinguishable from pure speech," Judge Richard Wesley wrote. What a load of bollocks. All speech is distinguishable from 'pure speech'. All speech is rhetorical by nature. Or is the Trivium of communicative arts no longer composed of grammar, logic and rhetoric? Come to think of it, in America it might be composed solely of fluff.... And does this mean that the rhetoric of erotic speech clearly intended to entice a child to engage in sex with an adult should be seen as essentially different from the rhetoric of a rational argument clearly in favour of pederasty? We think not, though we imagine the judge would think so. He has to construct an arbitrary boundary between the two in order to avoid having to prosecute the publishers of Plato's Symposium on grounds that it might persuade children to embrace sexual relationships with adults. Which, if you read it closely, it just might do.... If we look rigorously at this portion of the court's finding, and reject any artificial distinctions between the rhetoric of eroticism and the rhetoric of argumentation, then we find the judges sliding down a very slippery slope towards censorship of all speech persuasive of deviation from Bourgeois Christian values. Which would be fine if the United States wishes to limit itself to being a bastion of Protestant right-thinking and Bourgeois high-mindedness (and Heaven knows there are enough Americans in favour of that). The problem, however, is the Bill of Rights, which declines to distinguish speech along any such lines. The Court also said the law specifically targets communicative acts rather than content by outlawing "the intentional dissemination of this type of material to a minor in conjunction with the sender's enticement or invitation to the child to engage in sexual activity." This is another arbitrary distinction, here between (presumably 'pure') communication, and communicative acts, which would mean that writing, publishing, reading or possessing the Symposium would not be illegal; but if an adult should give the book to a child in hopes that they might take from it a more liberal view of inter-generational sex, that would be a crime. This seems pretty shaky too. So the two key issues for the New York appellate court are, first, a difference between 'pure speech' on the one hand and what we can only call 'rhetorical speech', or speech intended to affect the inclinations of whoever reads or hears it, on the other - a distinction which we believe is purely imaginary since all speech has that property in varying degrees; and, second, a difference between communication and a 'communicative act', which apparently means that if you say something naughty for no reason it's all right, but if you say it for a naughty reason it's very bad. It's the sort of hair splitting that lawyers and judges live for, but in the realm of common sense it leaves a great deal to be desired. Nevertheless, the judge predicted that the New York law should be narrow enough not to share the fate of the federal Communications Decency Act, which was struck down in part by the US Supreme Court in 1997. We were unable to determine by press time whether or not the Foley team intends to bring the case before the US Supreme Court. But we can say that we're not as confident as Judge Wesley that the Rehnquist Court, which has repeatedly demonstrated a fundamentalist bias in matters touching on the First Amendment, will see things his way if the case should go forward. ®

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