Sunday, November 26, 2006

COPA: Serious Value (Third) Prong

Patricia Nell Warren's post last week (see a couple entries down) got me thinking also about the "serious value" prong. If there were a prosecution, and a website were found to have violated the first two prongs (discussed in other postings and often mentioned in the testimony), the publisher would have to show that the offening material "taken as a whole" has serious "literary, political, scientific or artistic value for minors."

Elsewhere I've mentioned the "Clark Kent Problem" where some government postings in the past suggest that it would sufficient if a reasonable minority of older minors could find value in the material. (Maybe this is the "Lana" or "Chloe" problem, for affaciandos of high school life in Smallville during the first three seasons). A lexical parsing of the sentence might suggest the idea that an "average minor" capable of some comprehension of the website would have to find "value" in the site, a very subjective idea.

On Oct 30, 2006, when I was present in the 17th floor courtroom as a viewer, I heard expert witnesses mention the standards of public school systems. I believe that the suggestion was that in a "serious value" analysis, public school curricula could provide a practical guide.

Of course, many of us (the plaintiffs) have material that public school boards, given political pressures from voting parents, could not approve for being part of normal curricula. There is a "heckler's veto" like problem, too, in that a large conservative block affects what is available to the public as a whole. The state of Texas, with normally more conservative social values, has a big influence on what textbook publishers normally include on more touchy subjects in social studies, health/PE, and perhaps biology.

Would public schools be viewed as arbiters of what is "valuable" to minors? I don't see that in the statute, but I fear that this could be a practical result. If a defendant could find material similar to his or hers in a public school course, that would probably add to the claim of serious value.

We have indeed had contentious debates, related to "abstinence education" promoted by the Bush administration, over whether certain kinds of information should be made available in school to teens, in the interest of pregnancy and STD (especially HIV) prevention. Logic tells me that such information is inherently valuable to minors, but it must always be applied with good judgment. Religious and cultural values of some people do not agree with that point of view. But compare this to curricula we normally consider relatively non-controversial. The contents of a chemistry course normally contain some information that is harmful if misused, but chemistry is taught in a supervised manner and usually to students who have proven that they have reached a certain level of intellectual and judgmental maturity.

Another question that might affect a "serious value" determination could be the reputation of the speaker. A well-established insitution or company might have more standing than a newbie like me. (This is the old "pay your dues" problem.) The "bricks and mortar" behavior of the speaker could affect his or her credibility to a jury. So the serious value question has the potential to raise deeper philosophical question about the "free entry" model so far promoted by ISPs and search engines.

An article by Paul Tough in The New York Times Magazine, Sunday, Nov 26, 2006, "What Ot Takes to Make a Student: Can teaching poor children to act more like middle-class children help close the education gap," p. 44, seems relevant to what has "serious value." Besides talking about the successful teaching methods of schools like KIPP, the author points out that middle and upper class kids are more likely to be encouraged by their parents to learn to think in abstraction, and like "apprentice adults." A minor who gets abstraction (as opposed to socialization and "fitting in") is less likely to find edgy material prurient, and more likely to get the intended purpose of "implicit content."

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