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Obama's First Amendment Challenge?

Sexting: the Latest Innovation in Porn

by DAVID ROSEN

Two teens in Mason, OH, were recently charged with first-degree misdemeanors after police found nude photos of classmates on their cellphones. Last fall, two teenage female cheerleaders from a suburban Seattle high school were suspended from the team after nude photos of them circulated throughout the student body via cellphone messages. In Falmouth, MA, six middle school teen boys, along with three teenagers from Mansfield, MA, were caught sending sexually explicit material via their cellphones. A similar episode involving six students, three girls and three boys, recently took place in the Pittsburgh suburb of Greensburg-Salem.

These are but a few examples of a new and growing social phenomenon known as sexting. Adolescents are sending and receiving explicit snapshots or video clips of themselves or other teens from their cellphones or handheld PDAs like a Blackberry. The original image is then often resent to an ever-expanding universe of viewers.

Sexting is a post-modern form of flirting, a game of sexual show-&-tell; so far, it hasn’t involved sexual predators. A recent study indicates that one in five teens have either sent or received such images. [see “Nails in the Coffin: Last Gasps of the Culture Wars?,” CounterPunch, January 30-February 1, 2009]

What makes these incidents most troubling, especially the ones on the Cape and in Greenburg-Salem, is that the participants can face felony child pornography charges. The Greenburg girls, who are 14- and 15-years and allegedly took nude or semi-nude photos of themselves, face charges of manufacturing, disseminating or possessing child pornography; and the boys, who are 16- and 17-years and distributed the images, have been charged with possession.

Each generation re-imagines the erotic. In this process, notions of the pornographic or the obscene are challenged and changed. And in the process, the generation is changed, its erotic sensibility remade, thus shifting the sexual landscape. The eroticism of today’s teens is not that of their grandparents, let alone their parents.

Today’s popular culture is based on aesthetically rich, Web 2.0 digital connectivity. This digital culture engenders a new erotic sensibility. CDs and streaming video extend traditional forms of erotic representation of a book or a film-TV program. Web 2.0 social networking opens communications to two-way exchanges, group associations and shared experiences. Sexting extends the functionality of mobile communications by adding images and, in the process, expands popular erotic sensibility.

* * *

Sexting is the first innovative form of pornography to organically emerge in the 21st century. Those who first plugged a camera into a cellphone or PDA probably never imaged they would create a new form of pornography. Sexting not only subverts corporate technology, but democratizes it. 21st century media technology makes everyone a moviemaker, distributor and presenter. Sexting makes everyone, including teenagers, pornographers.

Modern pornography begins with the photography. Paintings, drawings, engravings, sculptures and books long offered erotic and pornographic representations. Photography, however, is the first mechanical means of image capture and display applied to the erotic.

The first pornographic photos were displayed in the 1830s and engendered the aesthetic sensibility of the modern age. Photography fashioned a new way of seeing and a new form of erotic expression. By the late-19th century, the relatively inexpensive Kodak camera created a new class of art (and artist), user generated content (UGC).

Early photographers borrowed from still earlier painterly and lithographic visual styles when they approached the portraiture of the nude, particularly the female nude. However, as the art historian Abigail Solomon-Godeau observes, the creative breakthrough that distinguishes the photography from earlier art forms of erotic depiction is the invention of the "beaver shot," the complete exposure of the female genitalia. (The “creative breakthrough” of moving image technology is the cum or money shot, male ejaculation onto a woman or into her mouth.)

The beaver shot, a captivating, if humiliating, form of representation, initially acknowledged the shame experienced by both the subject and the viewer; this shame is the bad taste that underlies what is “pornographic.” Many of the surviving early beaver shots show the female subject with her face covered, be it by a petticoat or a veil. There was no eye contact, no recognition, between the subject and her anonymous audience. Unfortunately, modesty is one of the casualties of technological development.

Nevertheless, unless one was technically competent, the photograph, like the later 8mm film, suffered from one fundamental drawback. While it freed the user to create an original (and perhaps pornographic) work, it did not empower him/her to freely reproduce and distribute the work. Duplication required a commercial service provider who, if disturbed by what was processed, could inform the police.

The next phase in the development of UGC came with the introduction of instant photography in the late-1940. Homevido and the prerecorded cassette followed in the late-70s, extending UGC into full-motion imaging. The 21st century is further extending UGC with digital video production, streaming and downloads.

Web 2.0 creates Internet-based social networking combined with wireless mobile communications. Web 2.0 media culture merges the personal, intimate experience of “friendship” with the social, anonymous experience of instantaneous global connectivity. The old Web 1.0 world was based on one-to-one connectivity; the new Web 2.0 world is one-to-many mashup networking.

This change is reflected in the mass adoption of Facebook and MySpace; with, respectively, 136 million and 116 million active users. It is expressed in the phenomenal appeal of YouTube videos, especially its UGC; at yearend ’07, YouTube had 9.5 billion online videos viewed by 138 million people. It is also expressed in peer-to-peer (P2P) file sharing; the appeal of virtual worlds like Second Life; and the playing of “pornographic” videogames like Red Light Center, Virtual Hottie and Cherry Doll. This is a powerful technological and social development as well as a further transformation of erotic culture.

User generated content is the art form of the 21st century. YouTube fulfills the original promise of photography: Everyone can be a producer as well as a distributor and, hopefully, a celebrity with their own audience. Everyone gets their 15 minutes of fame. With sexting, however, the 15 minutes of fame shrinks to 15 seconds of exposure.

* * *

The Obama administration has been silent on the issue of “pornography.” Against the background of a global economic crisis and a stalled foreign policy mired in two wars, such silence should not be unexpected.

Each administration confronts critical First Amendment issues in its own way. The shift from a Christian conservative Bush administration to a secular technocratic Obama administration may usher in a different legal and aesthetic “value” system, particularly with regard to what is considered pornographic.

Obama’s moderate or pragmatic outlook is particularly evident in his stance on the First Amendment. During the presidential campaign, he spoke out eloquently for free speech:

We know that with the pervasiveness of mass media today — the existence of so many means of communication that are so easily accessible all over the world — it’s very difficult to regulate our way out of this problem. And for those of us who value our First Amendment freedoms — who value artistic expression — we wouldn’t want to.

However, in 2005, Senator Obama came out in favor of legislation proposed by Senators Ted Stevens (R-AL) and Daniel Inouye (D-HI) to impose greater “indecency” regulation on broadcasters and cable television. As he said,

It’s one thing to discuss sex and violence on television within the larger context of the culture wars — as a values debate between First Amendment crusaders and those who believe government should decide what we can and cannot watch — but it’s another thing altogether to be faced with these issues while you’re sitting in front of the TV with your child.

Employing a false dichotomy, Obama effectively reframed the debate so that the single most important mediating factor, age-appropriate programming and scheduling, is removed from the discussion. Such reframing of the debate only serves to promote more repression. Sexting might force Obama to define his commitment to First Amendment principles.

An insight into Obama’s possible stand is reflected in his appointment of David Ogden as the Justice Department’s deputy attorney general, second to Attorney General Eric Holder. Ogden was a former Clinton Justice Dept. player, a subsequent partner at a prestigious DC law firm, WilmerHale, and served as head of the Obama’s Justice transition review team.

His appointment raised the ire of the religious right. Anticipating the coming of Sodom, the conservative group, Fidelis, condemned Ogden:

Ogden is an absolutist on pornography and obscenity. He opposes common sense restrictions on the ability of pornography peddlers to sell their products. He believes pornography users have a constitutional right to view pornography at a public library.

Like Obama, Ogden is more complex.

In the Clinton DoJ, Ogden was not only the point-man defending COPA against the ACLU, but defended Federal copyright protection cases against hackers, serving (as some critics say) as a front for the record industry. However, in private practice he has represented Playboy Enterprises, Penthouse Magazine, the ACLU and adult video distributors. He also successfully fought efforts to regulate Internet use in public libraries. A lawyer’s pedigree.

The Obama administration’s stance on sexting and other Internet obscenity issues will surely be influenced by January’s Supreme Court rejection of a last-minute effort by the Bush Justice Department to enforce the Child Online Protection Act (COPA). The Act, originally signed by Clinton in October 1998, attempted to restrict Web sites from posting "material that is harmful to minors" and providing for up to 6 months in jail and a $50,000 fine.

Due to repeated challenges by civil liberties group, the Act was never implemented and, for all purposes, is finally dead. The Court’s action speaks directly to the shift from a Web 1.0 to a Web 2.0 world and points out the profound challenges facing Obama’s Justice Department over the future of freedom of speech.

* * *

The first battle over sexting emerged in early March when Ohio prosecutors and legislators began to update state pornography laws. Under current state law, the teens arrested for sexting in Mason, OH, should have been charged with felonies and labeled sex offenders. The local prosecutor, however, opted for a less severe charge. Nevertheless, the prosecutor, Rachel Hutze, pointed out the inherent contradiction she faced: “I don’t believe that these teenagers are felons or sex offenders, but these are illegal and dangerous actions and must be stopped."

Unfortunately, others in Ohio and throughout the country do not share Hutze’s apparent sensitivity to the complex challenge sexting represents. In Ohio, the current effort to revise state laws comes less than a year after a teenager hung herself after being taunted by classmates over a nude photo she’d sent to her boyfriend. Like so much of post-modern flirting, whey the relationship ended, the photo circulated widely. The Ohio attorney general, Richard Cordray, took advantage of this sad story to push for the updating of state laws regarding teen dating violence to cover sexting.

The traditional battle over “adult” pornography has been lost; adults, in the privacy of their homes, are free to watch any “appropriate” material; “appropriate” is all that but “child” pornography. A huge $10-plus billion porn industry exist to address adult erotic desire. In the face of the commercial marketplace’s triumph over moralistic censorship, the battle over acceptable sexuality has shifted to what is (intentionally imprecisely) identified as “child” pornography.

This category is very flexible, determined not only by the actual age of the “child” but by the political purpose it serves. There is nearly universal agreement that the depiction (and, thus, exploitation) of a real child, those from the age of birth through their early adolescence, should be prohibited; those who get sexually turned on by a child suffer a profound paraphelia.

However, “children” who are young adults, adolescent teenager, represent a very different population. They are in the flush of their earliest erotic experience, often overwhelmed as much by the wildness of hormones, a greater sense of personal power and the titillation of commodity culture. Over the last decade, moralists have attempted to contain this powerful force through a combination of abstinence-only sex education and technological interventions that have included filtering devices, password-enabled blockers and V-chip-style parental controls to thwart teens from accessing “adult” content.

These interventions have failed. No one was prepared for sexting and teenage sexual self-realization through mobile Web 2.0 connectivity. The telephone has long been a medium for the sex trade. In the 1920s, it transformed prostitution from street trade to the “call house.” Today, phone hookups remain a principal means of commercial sexual encounters and 976 porn lines still draw millions of users. Sexting transforms pornography into a 21st century art form.

DAVID ROSEN is the author of the forthcoming, “Sex Scandal America: Politics & the Ritual of Public Shaming” (Key, 2009); he can be reached at drosen@ix.netcom.com.