Thursday, December 28, 2006

Dreamcatching -- horror fiction can provide a useful legal analogy


I coined this term, somewhat as a loose analogy to the knitted object in Stephen King’s horror novel “Dreamcatcher” (and associated movie), along with the process of “possession” of the Maine woods campers by alien spirits, with the idea that a website visitor or moviegoer for that matter can be “possessed” by experiencing the writer’s or filmmaker’s emotions in a piece when the artist portrays himself. (The film is indeed memorable also for the graphic "turd weasels".) I am digressing here somewhat the way Clive Barker does in the first paragraph of his epic 1991 fantasy novel "Imajica", when he postulates that any “fiction” has room for only three players at a time. Else, let there be contention, the dread of any database designer.

Seriously, there has been a lot of concern about the way people present themselves online. The most common remark in the media has been about teenagers and college students showing their rebellion in videos that the post on social networking sites (like Myspace) or on Youtube, and then employers check these for antisocial or illegal behavior (like underage drinking or drug use) and refuse to hire them, or fire them after the fact. This gets to expand to other forms of expression the web. In the past eighteen months, this has become a serious problem. Companies are popping up to offer the ability to monitor and fix online “reputations” like they could be cleaned like computers are cleaned from viruses.

This sounds far and away from COPA, but maybe not so far. Remember the problem posed by the military “don’t ask don’t tell” policy: a statement anywhere (President Bill Clinton had first, in 1993, proposed the wording “an open statement” – which would certainly include a statement on a blog or social networking profile) of a soldier’s homosexuality would create the “rebuttable presumption” that the soldier has a “propensity” to engage in (for the military) illegal homosexual acts. It is true that the consequences of this policy are civil only, and don't by themselves lead to UCMJ prosecutions or bad discharges (they can lead to discharge SPIN codes). There is the concept that in the environment of forced intimacy in the military, some kinds of personal statements and evocations will invade on the emotional space, socialization (and "unit cohesion") of other soldiers.

The analogy carries over into other areas, and some of the appellate court rulings on DADT so far could actually set legal precedents. It is important to note that for the military, the "presumption" is created by U.S. statute (passed in 1993), whereas in these other areas the presumption is more of a common law issue. For teachers, and for employees in other sensitive fields, there are other behaviors that are particularly problematic – teachers, after all, usually work with minors. So let’s say that one wants to make some political points about age of consent laws, and places online a fictitious script that makes the points, but uses himself (perhaps with a different name to escape the search engines, but still identifiable form the content of the story) as a character for demonstration purposes. It’s a convoluted subject, but the visitor (or principal or even a minor student) probably has the legal warrant to assume that the writer, if a teacher, has an unusual propensity to engage in some prohibited behavior. That’s because libel law in publishing (the “Bell Jar” and “Touching” cases) means that any identifiable person can be defamed even in fiction. Can a person defame himself? Maybe not in an intellectual narrative that disclaims any misinterpretation, but fiction, drama, screenplays, or film are supposed to “possess” the visitor and cause the visitor to apperceive the writer’s emotion. The speaker, legally, could be said to be trying to have it both ways.

If the visitor is a minor, you get back into COPA territory. The mapping is a bit complicated, with “implicit content” -- serious value, the whole, and the minor’s less mature idea of “prurience.” There could (because of “elimination reasoning”) also occur legal questions about enticement, although court opinions in some of the (such as NBC Dateline) chat room cases do seem to say that there has to be clear intention to start a contact with a specific minor. But it has gotten to become scary stuff in the past year or so.

I can envision that content labeling (as developed by ICRA and maybe augmented by other concepts in the semantic Web) could be developed (in conjunction with browsers) to the point that when one of these potentially “incriminating” content items is opened, the visitor is first served with a disclaimer that clear states that the content is for demonstration only. Of course, that won’t help with a video clearly showing the subject engaging in an illegal act like underage drinking.

The whole question, arising in the major media since about the middle of 2005 or so, of viewing content according to the motives of the speaker (instead of just its objective content) is quite disturbing and can chill speech on the web, if we start using it as a test of social conformity. When is speech “literature” and when is it “dress”?

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