Tuesday, March 05, 2013
I wanted to make another statement about the “implicit content” problem as I have come to understand it. The reader may wish to view the account of the issue I had when I was substitute teaching as described on the “BillBoushka” blog July 27, 2007.
In that incident, the school system (or at least the high school principal) used a “chilling effect” technique, hinting that, while I had a First Amendment right to post non-obscene content on my own website provocative to others, I might be vulnerable to prosecution under Virginia or other state laws for using an electronic communication for the “purpose” of providing enticement or temptation to minors.
In other words, a screenplay in which a character like me was shown as vulnerable to temptation to an unusually precocious minor (the “ephebophilia problem”) had no apparent “purpose” for its being posted (such as actual compensation from some other party or potential commercial profitability, ironically speaking). Therefore, someone could reason that it had been posted for the “purpose” of tempting someone to make an approach, and that would be a criminally illegal “purpose”.
However, the First Amendment, as normally implies, that someone can make a public posting about something for “no reason” (although not an "illegal reason"). This is a bit analogous to the “employment at will” doctrine that says an employee can be dismissed for “no reason” but not for an “illegal reason”.
The illegal purpose concept comes into play only when there is a separate primary precipitating event. That is, the author of the questionable web posting (me) actually tries to contact a specific (or believed but possibly fictitious) minor directly, possibly now by Facebook or Twitter (although some of these tools did not exist in late 2005 when this incident happened), email, or even a phone text message. It could be a normally simple and innocuous message, but inappropriate on its face because of the ages involved or a teacher-student relation. But once such contact occurs, then the presence of such a posting becomes legally significant and possibly illegal on its own; and I believe Virginia’s statute presuming “purpose” could apply and add to a prosecution’s case. But I in fact never initiated any such primary contact of any kind.
I was present at the COPA trial in Philadelphia in October 2006 when the judge made a verbal comment about the hidden dangers of “implicit content”.