CMJR 494 Blog Post #5 (Perverse Child)

CMJR 494 Blog #5 Question #3

Sally Mann's photos from Immediate Family are absolutely right on the line between pornographic and semi-innocent. I am confident in saying that there is a sort of beauty to them, but at the same time they illustrate a sort of violation. Ah yes, this may sound exactly like what a true artist attempts to create in all of their works, a little controversy in their summarization of the world around them. However, I do believe Sally Mann crosses the line. An artist, yes. A mother, yes. An enabler, yes. Sally Mann's Immediate Family collection holds some truly gorgeous, captivating images, but just because some of those photos are beautiful, it does not mean that we should throw out rational moral standards and include the whole collection under the same description.

I do believe that some of the photos in the Immediate Family collection are pornographic. I also agree that some of the photos contain "child pornography" under the definition by Osborne v. Ohio: any "graphic focus on the minor's genitals" and that child does NOT have to be engaged in sexual conduct. Where I disagree with Osborne v. Ohio is when an exception to child pornography is given to "the minor's parents or guardians [that] have consented in writing to such photographing or use of the minor." This exception opens the door to horrific possibilities, namely, the sex trade, where consenting parents can pimp out their children to the highest bidder. This is a whole different topic though.

Back to Osborne, the Court determined that neither public dissemination nor private possession of child pornography is protected by the Constitution (same with Ferber). That would mean that if it is agreed that content in Sally Mann's collection Immediate Family is indeed pornographic, she would not be allowed to put the photos into a book and sell them to the world, which was the final outcome of her project.

So, is the content of SOME of the photographs in Sally Mann's collection pornographic. Yes, and according to both the Harm theory AND the Offense theory. In New York v. Ferber, the material need not be found to appeal to prurient interest of the average person (although I would argue some of the photographs COULD qualify as appealing to the average person) and that the sexual conduct need not be portrayed in a patently offensive way. Therefore, I would protect some of Sally Mann's photos, but not all.

Three of the photos I would not protect:

I find the content of these three photos able to be prosecuted under both Osborne and Ferber, (if parental consent was not applicable in Osborne).

I believe that these are all "graphic focus on the minor's genitals" and even more than that, represent some offensive themes: torture, incest, and death, respectively. I am not saying that those themes should not be protected in various works, because they are broad and have different contexts, but in the sense of using those themes with child nudity, it creates very fetish-esque pornographic images.

I would not change the definition of child pornography to protect photos such as these by Sally Mann. I do believe some of her photos (even from the same collection) are truly art and deserve a place in the art world, such as:

There are a few different issues that I think are relevant to discuss after these statements.

First, Sally Mann's defense of: "I didn't pry these pictures from them -- they gave them to me" -http://www.blogger.com/post-create.g?blogID=7579427485267241731

This is completely irrelevant for the fact that they are CHILDREN, not adults, and therefore any consent on their part is not applicable. This is where student waiver forms come in, and parent/guardian signatures! Society believes that children are incapable of making their own decisions before they are declared adults and are not considered responsible for the majority of their actions (however, the recent sexting cases may set a different standard).

Second, I do not agree with Tedford and Herbeck's statement that: in the United States, obscenity is the last religio-moral heresy to be suppressed by government authority on behalf of the nation's majority religion (p. 163). If this is true, where do the laws for not killing, not stealing, etc, come in? Because, technically wouldn't those be the basis of the United State's majority religion as well? Aren't those principles grounded in by religion? If we didn't have religions "enforcing" peoples' moral grounding, is that supposed to mean that the government would be depraved of morality?

A third issue that makes the Sally Mann photographs even more controversial is the continued support and consent of the children in the photos. Her children to this day are standing behind her photographs with complete consent. This brings a very tricky issue up. As adults, they are consenting for the release of photos of themselves as minors that may be considered pornographic. That would seem to justify their publication, but I would argue that just because a 16 year old today consents to have sex with an adult and release it on film, it does not mean that that material is legal. If the photos are proven to be pornographic than the 1977 legislature of New York should apply to both cases making it a crime to use a juvenile in sexual performance and even convict those distributing material that is "nonobscene child pornography" (p. 150).

To tie in philosophical doctrine with the argument of the consent of the children, I would apply John Stuart Mill's Harm principle. Because society does not allow for children to speak as adults or carry the rights of adults, their consent to such photos is not considered. Without that consent, it is unethical to photograph children as was mentioned above. Because the child's best interest cannot be decided by the child, it would be wrong to try to exercise what the parent (in this case) believes to be best if that best is taking pornographic pictures of the child.

As stated before, both the Harm and Offense principles should be applied in the evaluation of these photographs. With these doctrines and definitions, I believe Sally Mann's explicitly pornographic photographs of "graphic focus on a minor's genitals", "lewd exhibition of nudity" should not be protected.

Furthermore, I would stick with Ferber in saying that "material at issue need not be considered as a whole" meaning that neither one photo as a whole, or a collection as a whole is enough to justify the "graphic focus on a minor's genitals." If Sally Mann removed the photos in question, I would protect the rest of the photographs in Immediate Family as art.