The Comstock Test: A means to determine if a photograph is not a crime

I first made this proposal during a heated debate with Alison Crogon about Bill Hensen’s photographs of naked children wherein she likened my films to women being raped by dogs. (If you think that’s bad, wait till you read what I wrote about her.)

I’m moved to repost it here at the Koan of Silence 1) because it’s a good idea that,  due to how NSFW websites are treated in search, has become virtually lost to the debate of ideas; and 2) because the abuse over the past several days of Justice Potter Stewart’s “I know it when I see it” in the press and the blogosphere has become to much to bear.

As noted in James Fallows’ introduction to my “guest post” on his blog at TheAtlantic.com, no society allows absolute freedom of speech; and different countries draw the line in different places for different reasons. In the US, Obscentity is just one example of constitutionally unprotected speech, and the current law of the land is the Miller Test.

One of the criticisms of the Miller Test is that it is vague/subjective/regional, but these are not unique qualities in the law. (This is explored in greater depth at TheIntentToArouse.com) and in any event, the court made it’s intentions in Miller quite clear in Jerkins v Georgia:

Appellant’s showing of the film “Carnal Knowledge” is simply not the “public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain” which we said was punishable in Miller.

To me it’s clear what the court is getting at — they have no interest in extending constitutional protection to what they regard as techologically intermediated prostitution, and give that prostitution is illegal in nearly every juristiction in the US, there’s a logical consistency to that position.

The trouble with this position is it creates uncertainty about what is and is not a criminal photograph; and this uncertainty is a drain of resources on all of the various stakeholders. Producers of sexually explicit photographic images must measure their efforts against uncertain outcomes; and the impact on law enforcement is similarly confusing. Time, effort and money that could be used to make movies or catch criminals is drained off into uncertainty.

To clear away some of this ambiguity, I would like to propose The Comstock Test. But first, a couple of provisos:

The Comstock Test is for photographic reproductions only. Photography is a specially case in reproducable art, because unlike writing or painting, it involves depictions of actual persons and actual events.

Like Justice Stewart’s “I know it when I see it”, the Comstock Test is an exclusionary test. The Comstock Test can only tell you if the making and distributing of a photograph is not a crime. In that respect, the Comstock Test is not intended to do away with the idea of Obscenity, but only to refine and make more workable our conception of what it is not:

When contemplating whether or not the making of a photograph constitutes a criminal act, let us conduct a thought experiment. Let us imagine all the circumstances of the creation of the photograph: where, when, who, how.

Now let us imagine that there is no film in the camera.

Get it? Everyone is there, everyone’s been informed, consented, tricked, bribed, lied to, flattered, compensated. Strobes pop, motors whir. But there is no film in the camera.

If absent the creation of the latent image, there is no crime, then the creation of the latent image is not a crime.

If, absent the creation of the latent image, the circumstances – the where, the when, the who, the how — constitute a criminal act, then let’s prosecute the criminality, and let’s not entertain any foolish notions that including a camera in the undertakings (with or without film) changes the circumstances in a meaningful way.

A few days after first proposing the Comstock Test, I proposed a negative correlary thought experiment on the idea of Art:

I’m calling bullshit on the silly idea that art is a justification.

Art is vocation. Art is avocation.  As entertainment, or hobby,  or even  mere whimsy, art is important. But in an era when everything from toilet bowls to bags of trash are called art, if you want to defend a grown man spending his time with naked 12 year-olds and taking pictures, you’re going to have come up with a better reason than art.

Tell me you just don’t think it’s a big deal; that we are entirely too hysterical about all this stuff.  I’ll listen. I may or many not agree, but I’ll listen.

Tell me you’re not sure how you feel about Mr. Henson and the parents who provide him with his “vehicles”, but you feel cautious about handing the decision about what a parent should or should not do over to the state. I’m all ears; and once we’ve hashed that out we can discuss parental notification laws.

But do not tell me it’s okay because Bill Henson was making art; I’m no more ready to accept that than to accept that Ed Gien’s art making excuses, justifies, or even mitigates what he did. You do something criminal, you get punished. You do something reprehensible, you get shunned. You make some art along the way, that’s a footnote.

Do not tell me it’s okay for a middle-aged man to spend his time taking naked photographs of 12 year old girls, so long as he’s making art. My family and I live every day of our lives on the wrong side of this unanswerable and meaningless question about what is and what is not art. We know what happens when the state says “No, that’s not art.” We live every day with the possibility that we will be deprived of our livelihood, our property, our freedom because somewhere someone in a position of power might ask this question about our films, and then answer as they see fit.

Lastly, I’ve seen in the last few days that some of the photos in question are now available to be seen online, but with the naughty bits covered by black bars. This is quiet possibly the low point in this whole farcical episode, and to illustrate my point, I would propose that we conduct another thought experiment:

Let us suppose that a photographer were to create photographs of children that even the most liberal of minds would readily recognize as evidence of child abuse. Now let us suppose that she were to display these photographs with the naughty bits covered with black bars so as to render the photos devoid of the sort of details that are commonly use by art critics and censors to distinguish between what is art and what is not; the sort of details the Australian Office of Film and Literature insisted that I remove from DAMON AND HUNTER before they would declare it to be art, and allow it to be screened at the Sydney International Gay & Lesbian Documentary Film Festival.

Would these photographs be provocative? No doubt. Challenging to our sensibilities? I’d hope so. Would they be art? Maybe, but it doesn’t matter. The photos would be evidence of a crime and the people who made them would be criminals.

By either test, and on the basis of the facts as they’ve been reported, I’d be inclined to leave both Bill Henson and John Stagliano free to pursue their respective hobbies, and not get state involved in distinguishing which of them is producing Art, and which is producing Obscenity.