Recently, I posted on the Kiwi Farms about how there is a difference between the legal and moral and when you cross lines from opinion and facts you can prove, which are protected speech, and when you cross the line into libel.
I'd like to elaborate further because I feel the distinctions are those many, on that site and elsewhere, need further elaboration because the finer details are often lost and thus many foolish assumptions are made.
For example, let's say I call someone a scammer. Under US law, if I can point to evidence for my claims and/or assert this is an opinion (and I make clear I do not assert it as legally provable fact), then I have not committed an act of slander (if spoken) or libel (if written).
However, things get hazier when we add morals to the picture, how the law sees things, and how fact and opinion on a topic can be one or the other without necessarily being both,
For instance, someone is accused of being a pedophile for looking at drawn images of naked kids (like lolicon/shotacon doujinshi). In the US, this is not a crime. However, since the party in question is still looking at sexualized depictions of naked fictional kids, even if they are committing no legal offense by doing so, it would be reasonable to assert that it still makes them a pedophile in a moral sense.
Further, that would be a protected opinion and thus not libel, but it would cross into libel if you say they harmed a real child without evidence.
Making moral assertions is fundamentally considered protected speech because they are opinions, which enjoy legal protection so long as they not asserted as legally actionable facts. They may not be nice in the slightest regard, but you can, as the above example cites, say anyone who looks at lolicon/shotacon is a pedophile and that would be a moral judgment protected under US law at least, but the legal protection ends when you assert they committed an actual crime without proof they actually did so.
As a firm believer in free speech and expression, if someone wants to peruse pornographic, racist, or otherwise morally objectionable materials, I'm free to make any moral judgments I please about the parties who do so and vice versa, but so long as it's LEGAL to peruse those materials, I cannot call them legally proven criminals and vice versa.
For example, I have read several racist tracts like "The Turner Diaries" despite not subscribing to them in the slightest (and in fact I consider them abhorrent and detest their bigoted messages), but if someone were to call me a racist simply for the act of looking at it regardless of my motives, that would be a protected moral judgment. It would be ignorant of them to do so even if my actual motives for doing so were at their disposal (in my case, I had to see just how terrible said racist literature was), but they are free to make any moral judgments about my character they please, even if they come off as utter assholes in the process, since opinions are protected and simply being an ignorant asshole is not a crime.
In essence, moral judgments can be made against anyone for anything and it's just opinion, it has no legal standing nor violates laws unless you assert things that can't be legally provable as fact, and even if you consider the people who do so ignorant assholes willing to ignore any context to make the moral judgments in question, it's protected speech and deserves to be protected, no matter how offensive it's found to be.
However, small caveat. If someone purposely calls you a racist for reading Mein Kampf even if you did so just to see what Adolf Hitler wrote and was thinking at the time of publication, and it's done to purposely cost you financial or legal harm, you would have an actionable legal basis for defamation, which may be true in a general sense (you read the literature in question), but the exact motive was maliciously construed for the purposes of causing civil injury regardless of the actual facts.
Libel is similar but it's more along the line of saying the following examples:
1. "Person X looked at shota porn and is a pedophile"
Acceptable, it's a moral opinion that does not assert a legally actionable offense without proof.
2. "Person X looked at shota porn and is a pedophile and definitely raped a little boy".
This would be unacceptable and grounds for libel. You can allege because they look at those materials, they may have raped a little boy, but if you have no legal proof they did so, all they did was something morally objectionable to you, but not something that is a legal crime, and to claim they are guilty of a legal crime without any proof of that is definite libel. You can say you believe they did so as much as you want, but you CANNOT claim they ACTUALLY did so unless you can prove it.
>someone is accused of being a pedophile for looking at drawn images of naked kids (like lolicon/shotacon doujinshi).
ReplyDelete>In the US, this is not a crime.
I don't think anyone has been convicted of doing this yet, but I don't think that necessarily means that it isn't a crime.
If someone was called a necrophile for looking at a picture of a dead body, would that be libel? I think this is a fair comparison to make: why should it be okay to assert that someone is aroused by something merely for having looked at it?
>However, since the party in question is still looking at sexualized depictions of naked fictional kids, even if they are committing no legal offense by doing so, it would be reasonable to assert that it still makes them a pedophile in a moral sense.
I think this image is muddied by pedophilia having very specific parameters used in medicine/psychiatry as per the DSM, so its use implies someone conforms to those parameters.
The parameters of evaluating paraphilias require more than merely witnessing a subject matter, but also how they react to that subject matter. If someone was browsing various pornsites and happened to witness an instance of "erotic lactation", I think it would be wrong to immediately condemn them as a "lactophila" for example. Even in the case of someone responding to that by seeking out more instances of it, that might be for academic/casual study of the subculture, or to gauge how others respond to members of that subculture, rather than necessarily being aroused by it, especially since to qualify as a paraphilia (fetishism) I think it requires more than ephemeral arousal, but more like a predominant one which overshadows other things. Ie if someone had something like 1000 fetishes, one would begin to question if anything stands out enough to be a fetish at all.
>Further, that would be a protected opinion and thus not libel, but it would cross into libel if you say they harmed a real child without evidence.
I don't know that libel only covers declarations of specific actions others have done. Impugning character even regarding intentions/thoughts of others might also do so. If you went and said "Donald Trump intends to rape over nine thousand children" I think he could in theory sue you for it, for example.
In practice you'd have to show how this would actually damage his reputation though, so when it comes to absurd versions of accusations like the above (to the point of parody) it likely would not pass muster.
It is entirely possible for people who condemn hentai to still actually READ hentai to understand what it is that they condemn, so I think it is false to accuse people of fixating on a work of fiction merely on the basis of "looking at" it, as you described above.
On the other hand, if someone wrote about their opinions of a specific work and said something like "I found this arousing" or "I fapped", etc. then that would be stronger grounds for constructing descriptions to approximate their thinking process.
I still think it is false to jump immediately from that to diagnosing paraphilias though. If someone who mostly fapped to same-race porn happened to fap to a couple instances of interracial porn, that wouldn't be grounds for saying they had an interracial fetish, as an example. Just like someone approving of a couple instances of netorare/cuckold themed manga wouldn't mean they had an actual fetish for that.
To actually describe someone as having a fetish/preference for particular tropes I think would be more of establishing not just a pattern, but a predominant pattern which overwhelms others.
One problem I think with doing that online could be cherrypicking evidence: someone might not actually look at 1 thing more than other things, but might be compelled to comment on it more often due to enjoying arguments and knowing that controversial subjects usually invite more provoking conversations.
>If someone purposely calls you a racist for reading Mein Kampf even if you did so just to see what Adolf Hitler wrote and was thinking at the time of publication, and it's done to purposely cost you financial or legal harm, you would have an actionable legal basis for defamation
ReplyDeleteSo are you saying that if someone calls another a pedophile for reading a book (whether by Vladimir Nabokov or Kaworu Watashiya) that this could be defamation, but not libel?
One thing that I think muddies the waters here is how people use terms. Pedophilia isn't just used to described mental attitudes, but also actual behaviors like the IRL molestation/rape of children.
For example at https://www.desmoinesregister.com/story/news/world/2014/02/22/croatia-pedophilia/5723755/
>Croatia Church finds priest guilty of pedophilia
>The Croatian Catholic Church has found one of its priests guilty of sexually abusing minors
If someone intends to describe someone's mental fixations, I think there are ways to do so without using a term that is also used to describe actual physical actions. I think that reasonable people are aware of this overlap in usage, and so the choice to use a vague term like that would be evidence of intent to mislead less reasonable members of the public into thinking that someone had committed physical offenses, thus impugning their reputation.