Parts from

Boy-lovers, Crush Videos, and That Heinous First Amendment 

Califia-Rice, Patrick; The Loyal Opposition Archive, 2008

Part One

The American Civil Liberties Union (ACLU -- or, more specifically, their affiliate in Massachusetts, ACLUM) has been getting some bad press lately for their involvement in a case that pits the North American Boy-Love Association (NAMBLA) against the parents of a boy who was murdered in the commission of a sex crime. Editorials condemning this decision are springing up like mushrooms. One which appeared in the Portland, Maine Press Herald said the ACLUM decision to defend NAMBLA "trespassed over the bounds of decency." Furthermore:

Perhaps people do have the right to promote such heinous acts as sex between men and boys. That does not mean, however, that other Americans have to support such speech in any way, shape or form. The ACLU, in its misplaced zeal, has linked itself to a very slimy cause. 
Its backers should be concerned that some of that slime might now become attached to them. [*1]

This has, of course, to do with the fact that NAMBLA has been a very unpopular organization ever since it was founded on December 2, 1978 in the Boston area by David Thorstad, Tom Reeves, and a group of about 30 
people, most of whom were radical gay activists. [*2] 

Despite FBI harassment, police entrapment of their leaders, rejection from other gay organizations and gay media, dwindling membership, and calumny all 
'round, NAMBLA continues to agitate for the repeal of age-of-consent laws and the civil rights of young people. 

Its publications contain some of the most intelligent discussions to be found anywhere on the complex topics of what constitutes informed consent, the development of the sexuality of young people, the meaning and effects of erotic material, the history of homosexuality, and the nature of equal relationships. 

But very few people who are not boy-lovers bother to read any NAMBLA literature before condemning it as worthless smut. This self-righteousness is at least partly a mask for fear, because simply possessing  NAMBLA literature is often enough to make you look like a 
criminal in the eyes of the media or the cops.

Gay organizations in several European countries and in England have lobbied for decades to bring down the age of consent or at least make it equal to the age at which heterosexual activity becomes legal. But NAMBLA has always refused to specify an age (however low) at which they believe sexual activity is appropriate for children or teens, and between those young people and adults. 

This has made them persona beyond non grata, leading to events like the 1994 debacle when U.S. Sen. Jesse Helms (R-North Carolina) caused the International Lesbian and Gay Association (ILGA) to lose its status as a consultant to the United Nations (UN) after he learned that NAMBLA was one of their subscribing organizations. ILGA expelled NAMBLA and declared pedophilia was inconsistent with its aims to no avail; the U.S. government demanded an 
assurance that none of the member organizations condoned such behavior. Of course, ILGA was unable to provide such a blanket guarantee, and the UN sacked the only organization representing the interests of lesbians and gay men worldwide, rather than jeopardize their U.S. funding. [*3]

The latest controversy centers around a $200 million lawsuit filed in mid-May with the stated intention of destroying NAMBLA. It was filed by the family of Jeffrey Curley, who was abducted by his neighbors Charles 
Jaynes, 25, and Salvatore Sicari, 24, on October 1, 1997, when he was 10 years old. The men got him into their car with the promise of a new bicycle, then tried to involve him in sexual activity. When he resisted, they smothered him with a gasoline-soaked rag. His body was molested and found days later in concrete in a container in a Maine river. 

Both Sicari and Jaynes are serving life sentences for kidnapping and murder. Sicari has no possibility of parole, and Jaynes will only become eligible for parole after serving 23 years. The Curleys won a $328 million judgment against them in a wrongful death lawsuit on August 23. Their lawyer, Lawrence Frisoli, says that victory will bolster his clients' case against NAMBLA. [*4]

Frisoli accuses the organization of teaching sexual predators how to find youthful victims, approach them, gain their trust, and avoid law enforcement. The first thing he wants is the membership list, so he can publicize the identity of NAMBLA's leaders and rank-and-file. 

Citing two 1960s U.S. Supreme Court cases that allowed the National Association for the Advancement of Colored People (NAACP) to keep its membership lists 
confidential, ACLUM has so far been successful in persuading the court to allow them to accept service of legal documents on behalf of their client. ACLUM believes that revealing the identities of NAMBLA members would interfere with their constitutionally-guaranteed right to freedom of assembly. [*5]

A statement by the ACLUM outlines the critical issues in this case.

...we believe NAMBLA has been sued for its advocacy, not of crimes, but for a change in the laws and in society's attitudes about sexual 
relationships between adults and minors... Regardless of whether people agree with or abhor NAMBLA's views, holding the organization responsible for the crimes committed by others who read their material would gravely endanger our important First Amendment freedoms. We join with all others in deploring the heinous crimes committed against Jeffrey Curley... Under the First Amendment, there are no illegal ideas. Those who commit illegal acts can be punished for wrongful conduct. But the expression of even offensive ideas is protected by the Constitution. [*6]

[...]

But, as ACLUM states, 

"There was nothing in those NAMBLA publications or Web site which advocated or incited the commission of any illegal acts, including murder or rape." [*7] 

NAMBLA's magazine does not contain any erotic material, in fact. It is all polemics, not pornography.

The parent organization of ACLUM has chimed in with their own position statement, which says in part:

In the United States Supreme Court over the past few years, the American Civil Liberties Union has taken the side of a fundamentalist 
Christian church, a Santerian church, and the International Society for Krishna Consciousness. In celebrated cases, the ACLU has stood up for 
everyone from Oliver North to the National Socialist Party. In spite of all that, the ACLU has never advocated Christianity, ritual animal 
sacrifice, trading arms for hostages or genocide. In representing NAMBLA today, our Massachusetts affiliate does not advocate sexual 
relationships between adults and children.

What the ACLU does advocate is robust freedom of speech for everyone. The lawsuit involved here, were it to succeed, would strike at the heart of freedom of speech... the lawsuit says the crime is the responsibility not of those who committed the murder, but of someone who posted vile material on the Internet...

It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive. That was true when the Nazis marched in Skokie. It remains true today. [* 8]

Ironically, Jeffrey Curley's father Robert was defended by ACLUM when he wanted to be exempted from a four-hour diversity training that was mandatory for employees of the city of Cambridge. (Curley is a fireman.) His ACLUM attorney, Harvey Silverglate, told a local paper, 

"That is the flip side to free speech, freedom of conscience. Robert Curley can't be forced to mouth beliefs he doesn't hold." [*9]

It seems very clear that legal precedent is on the side of NAMBLA. If the usual rules of constitutional law are followed, the Curleys' lawsuit will fail. But the expensive and emotionally trying process of mounting a defense against this legal challenge will probably spell the end of 
this organization, which, if nothing else, has kept a controversial issue in the discourse of sexual politics for more than two decades. 

The Curleys and Frisoli are perfectly aware of the punitive potential of the legal system. They did not file their lawsuit against Sicari and Jaynes expecting to receive $328 million; it was about publicizing their cause 
and punishing wrong-doers.

Given the current social climate, in which known or suspected sex offenders have been assaulted by mobs when their residences are advertised, such an outing would put known NAMBLA members (including a 
handful of women) in grave danger. This danger can be inferred from the treatment meted out to others who are perceived by the public to be a menace to children. 

Since Megan's Law (named after a New Jersey rape and 
murder victim, seven-year-old Megan Kanka, whose assailant was a twice-convicted sex offender) was passed in 1996, states have been required to make information about the identity and whereabouts of sex offenders available to concerned members of the public. 

California was the first state to comply with this requirement, and did so by producing CD-ROMs of personal information about 64,000 registered rapists, child molesters, and sex offenders (including gay men convicted of consensual public sex). Some estimates show that the database was up to 40% inaccurate. These inaccuracies included names of dead or incarcerated 
offenders. [*10]

There have been numerous incidents of neighbors picketing the residences of men who thought they had paid the penalty for their crimes, threatening them, and even assaulting them. 

Most people will not be moved by the plight of NAMBLA's officers as they scramble to keep the names of their members confidential and defend themselves against the charge that they are culpable for the death and violation of this child. 

The parents of a murdered child have sympathy on their side. Of course they want to go after anyone who might be responsible for this terrible crime, and prevent anything like this from happening to other families. 

It is very difficult to draw a line here between ideas and action; between speech and criminal conduct. When a bomb has gone off, any peace-loving person is infuriated not only with the person who made the bomb, but with the place where the information and materials came that allowed it to be created. But the plans for a bomb are not the same thing as the weapon itself, and cannot receive the same treatment under the law.

Our entire legal system, if not our entire way of life, is founded on the assumption that we are ruled by laws, not by lynch mobs or vigilantes, no matter how popular their ideology might be. 

Any legal decision in the area of civil rights has to be viewed not only for its effect upon the defendants and plaintiffs, but for the way it can be used as a logical argument in related cases. 

If any part of this lawsuit should succeed, it would become a precedent for further legal action against groups that espouse unpopular opinions or ask questions that make people angry. Right-wing Christian organizations and other law-and-order conservatives are always looking for new tactics to use in their determination to turn the clock back to 1950. Liberals and leftists are also pretty quick to seize upon any opportunity to quash the activities of people that they believe are wrong and dangerous. One of the most difficult things about the Bill of Rights is that it cuts 
both ways. If the Nazis can't march down Main Street, neither can a gay freedom day parade.

Next to cross-generational sex, the most taboo form of erotic relationship or pleasure-seeking behavior is S/M. 

Any group of people who advocated any political position could be crucified for the illegal actions of people who choose to damage themselves or others. 

Manufacturers of sex toys could be sued if any of their merchandise was used in the commission of a crime. The National Rifle Association could be sued by the parents of the dead students in Columbine, Colorado. 

I suppose outraged authors whose work was censored by Canadian customs could even sue antiporn activist and legal fantasist -- uh, theorist -- Catherine MacKinnon, who practically wrote the laws on which such seizures are based, and the members of women's organizations that gave her a platform, for lost income and other damages.

Elsewhere, I've written about the dangers of our vague and broad child pornography laws, which have resulted in parents and grandparents being charged for trying to develop nude snapshots of their children or grandchildren, [*15] and ludicrous laws against computer-generated porn that doesn't even use live models. [*16] 

People have been convicted of child pornography offenses for producing, distributing, or possessing material in which the minors did not even appear unclothed, much less involved in any sexual activity. [*17]  

These laws have normalized the concept that material which is not obscene per se can be banned if there is a great enough threat of social harm. They have also criminalized the very state of being a pedophile, because it is the erotic response of the person who holds such matter, rather than the content of the matter, that 
determines whether or not it is contraband.

Setting aside the question of when it ought to be legal for someone to give their consent to sex, I think we could all agree that we hate and are afraid of people who might hurt or exploit children or teenagers. 

The temptation to try to exile or eliminate anyone who has an erotic response to young people is very great, even though the advertising industry and mass entertainment are constantly encouraging us to find 
youth (and only youth) alluring and sexy. But once you start banning material essentially because of the intentions or state of mind of the people who are creating or collecting it, what sort of action does that 
allow the state to take, and where will it end?

Of course, as always with censorship cases, the key question is, who  gets to make that call? 

Next month [in Part Two], we will examine a category of erotic material which has caused as much, if not more, opprobrium than child pornography.

Part Two

Few people realize that we now have a new federal obscenity law which applies the same reasoning behind broad and vague child pornography laws to an obscure branch of fetish porn. Crush videos usually depict a woman stepping on an insect, snail, or worm. Occasionally, baby mice or rats and (rarely) larger animals have also been featured. 

[...] 

Jeff Vilencia, a 39-year-old Southern Californian, [...] estimates that his fetish is shared by perhaps a couple of thousand men in the entire world -- very specific masochists and foot fetishists who usually identify with the creature that's being tortured and killed. [* 1]

[... ... ... ... ...]

[ A bill, HR 1887, was made to forbid such kinds of pornography] 

[...] 

Lawmakers apparently [...] did not dare vote against such an inflammatory and popular bill. Conviction for breaking this new porn law will result in a hefty fine and a five-year prison sentence.

Witnesses who testified on the bill's behalf before a subcommittee of the House Judiciary Committee argued that studies have shown that rapists and child molesters committed acts of cruelty against animals, as did aggressive criminals. They cited studies of battered women who said their partners had threatened to kill or actually did kill their pets. 

[...] 

Only Robert C. Scott (D-Virginia) tried to slow down the train. 

"I think we can all acknowledge this is sick," he said, "but the selling of depictions of illegal activity is not illegal." 

He also raised the fact that the U.S. Supreme Court had struck down an animal cruelty ordinance that targeted animal sacrifice performed by followers of Santeria. 

Connors came back with, guess what, child pornography laws. He argued that the protection of an animal was a compelling state interest just like the protection of children. [* 5] The need to protect children from 
crush videos was also frequently cited as another reason why the bill was needed. [* 6] 

[...] 

The House passed HR 1887 by a vote of 372 to 42; the Senate was unanimous. One legislator who dared cast a "nay" vote was castigated in the press and his vote called "beyond human decency." [* 7] 

[...] 

President Clinton signed it into law on December 9, 1999. 

[... ...] 

A similar bill (which also criminalizes possession of material depicting cruelty to animals) was proposed in California. 

[...] 

Despite this lurid introduction and a pitiful claim that "it's almost impossible to prosecute" [* 10] crush videos despite the fact that cruelty to animals is already illegal, AB 1853 bogged down in the Appropriations Committee. 

Members of both parties had expressed misgivings about its constitutionality, probably because of the possession clause. One legislative analyst pointed out that it would be legal to film chickens being slaughtered if your purpose was to show that it was an inhumane 
process, but might be illegal to do so if it was presented as amusing entertainment, with music and pre-recorded laughter.

[... ... ...] 

This wave of negative publicity and legislative fervor has had the desired effect. A lengthy and detailed Internet search for crush videos netted only pictures of women sitting or stepping on stuffed animals and 
melons. The "real thing" may still be available, but it's been driven even further underground than it was when a district attorney's office had to spend $150,000 to find two people they could prosecute for catering to this fetish. 

Once again, a group of people who are generally considered to be indefensible are being exploited to push back the penumbra of protection offered by the First Amendment. 

Given the cruel treatment that people routinely dish out to animals they consider vermin or pests, the hypocrisy in this case seems very plain. All of the legislators who voted for HR 1887 would not think twice about having an exterminator spray their house to kill cockroaches and termites, or flinch at setting out mouse traps or poison. And the president who signed it sure does like his cheeseburgers.

Whether it's morally acceptable or mentally healthy to eroticize crush videos are topics that should be left up to experts in matters spiritual and psychiatric. But we know very little about why any sexual preference, whether "normal" or "deviant," develops, and we aren't making much of an effort to find out more. We have few resources, little help or hope to offer those whose pleasures exceed the tolerance of the majority. 

Changing the object of a human being's desire is a perilous and far from straightforward undertaking, even by professionals who are experienced in the treatment of sex offenders. But we do know how to lock people up, and that gratifies most of us so much, we don't wish to 
consider any alternatives. Indeed, this compulsion to expose, upbraid, exile and incarcerate those whose erotic natures are repugnant or violent corresponds rather neatly with the sexual response cycle. 

Righteous indignation is a form of self-excitement, and we all know how satisfying some of us find it to punish the wrongdoer. With the shadow held at bay behind iron bars, the rest of us can sleep more soundly, until the next time -- until our anxiety about our own worth or rightness reaches the point where we must find another scapegoat for our self-hatred and shortcomings. Sex humbles, makes fools and sometimes criminals, of us all, and the jailer is affected by the act of imprisonment just as much as the victim of such bondage.

There are certain things many of us simply don't want to look at or think about. Cruelty toward animals is even more common than cruelty toward children in this sad world. Outlawing crush videos will do nothing to eliminate the most common forms of animal maltreatment. 

If anything, the deaths that are documented in crush videos have more meaning than the hundreds of gallons of pig, sheep, and cattle blood that soils the floors of slaughterhouses nationwide. By using the death of an insect or rodent for sexual purposes, crush fetishists briefly highlighted an area of human behavior that engenders enormous (and severely repressed) guilt. 

They were punished with all the rage of a child, weeping at the death of Bambi's mother, then connecting for the first time the lamp chop dinner with death. It's hard to imagine what our lives would look like if we did not take our right to kill animals for granted. If the rest of us are going to eat lunch at McDonald's, crush fetishists have to be put in their place, insulted, belittled, and, well, squashed.

Aside from these psychological and spiritual concerns, more pragmatic consequences loom. The criminalization of one type of admittedly nauseating and extremely offensive fetish porn raises several problematic possibilities for law and public policy. 

If the material is shocking enough, it seems that lawmakers and even the courts require very little substantial social-science data to prove a claim of 
compelling state interest to prevent harm. There will be probably be no attempt to ban heterosexual vanilla porn, despite the fact that most sex crimes are committed by fairly unimaginative straight men upon heterosexual female victims. 

But the pornography of minority sexualities, especially those which scare the majority, can now be more easily targeted. In the majority of cases, fetish porn does not entail any sort of cruelty or violence, and serves mostly as an aide to masturbation for people who tend to be isolated and secretive about their preferences. 

[...]