2. Construct an argument in which you either protect or punish The Tin Drum. Do you consider its scenes to be “child pornography?” (Be specific about which scenes). Will you change the definition of “child pornography” so that someone can defend themselves by arguing that the movie is “art” or that the movie should be “taken as a whole” rather than punishing its objectionable parts or that the movie as a whole be “patently offensive.” Use both philosophical and doctrinal lines of reasoning.
The Tin Drum is a film about the life of Oskar Matzerath, with the capacity to think like an adult, but remains in the physical stature of a child. We view the film at the stage where Oskar is a stunted 16 year old and has a love affair with his 16 year old nanny/babysitter, played by a 24 year old actress.
Overall, I would punish The Tin Drum as child pornography, as I think that although one could consider the film as "art", that when it comes to something like child pornography, that the most extreme scene should be what is analyzed, and not necessarily the film as a whole. I think it is completely acceptable to punish the objectionable parts of the film or as a whole to be "patently offensive."
In the scene where Maria is first introduced with the cabbages, the scene where Maria is seen tucking Oskar in, praying with him, and playing the harmonica, and the scene on the beach (albeit uncomfortable) I think are all completely acceptable scenes and shouldn't be punished. I don't necessarily see anything particularly lewd or obscene in them. Although the beach scene with the fizzy candy powder is uncomfortable to sit through, I don't see it crossing the line into child pornography. Even the scene where Maria undresses Oskar in the changing room at the beach I find to be acceptable, as she takes on an authoritative, motherly role and isn't undressing him indecently or inappropriately -- in other words, not sexually. However, the scene quickly changes to what I would punish as child pornography, when suddenly Maria displays herself suggestively and Oskar buries his head in her crotch. This, along with the bed scene where Oskar goes down on Maria and eventually have intercourse together, I would deem as child pornography and and that the film as sexual speech should be punished.
In punishing this film as child pornography, I would apply the definition of the Child Pornography Prevention Act of 1996 which struck down some precedents set in Ashcroft v. Free Speech Coalition (2002) in that a visual depiction of sexually explicit conduct is prohibited. In The Tin Drum, a minor, or the 11 year old child actor, engages in sexually explicit conduct as it is simulated in the film. The film should also be punished when considering the precedents set in New York v. Ferber (1982) in which the obscenity definition changes from Miller v. California (1973) so that under New York v. Ferber, (1) material need not be found to appeal to prurient interest of the average person, (2) sexual conduct need not be portrayed in a patently offensive way, and (3) material at issue need not be considered as a whole. In this precedent, The Tin Drum would be punished as it would not need to be considered as a whole and could be considered and analyzed scene-by-scene, and so SLAPS wouldn't necessarily apply here.
I would also apply Chaplinsky v. New Hampshire and, thus, Zechariah Chafee, in the philosophical notion of "worthwhile" v. "worthless" speech. Because under New York v. Ferber we can analyze scene by scene, under Chaplinsky v. New Hampshire the two scenes which I referenced as punishable would be seen as "lewd and obscene", and thus under Chafee, would be seen as worthless speech and would receive no free speech protection under Chaplinsky v. New Hampshire. I would also say that under Chafee, that to punish The Tin Drum would also be seen as a matter of public safety, rather than the search for truth, and that the great interest in free speech would be sacrificed as the matter is within the interest of public safety and its impairment.
Thus, I would punish The Tin Drum because under the precedents stated, the film would not need to be taken as a whole and could in fact be analyzed scene-by-scene, thus under the precedents stated, The Tin Drum would fall under the category of being lewd and obscene, and goes against the Child Pornography Prevention Act of 1996 as a child is seen to be simulating sexual conduct. Under Chaplinsky, it would be seen as worthless speech. And under the definition of child pornography, since The Tin Drum shows a visual depiction of a person under the age of 18 engaging in sexually explicit conduct, simulated or real, and that the child does not have to be naked, the film would be considered child pornography.
Although I realize that the film is a coming-of-age film and somewhat of a bad twist on Peter Pan and that it could have some SLAPS value, I think that SLAPS mostly applies to sexually explicit material in general. However, in the case of child pornography, the situation needs to be analyzed a bit more carefully and that the more strict precedents against child pornography should be considered. Consider the way children and violence portrayal used to be treated -- as outrageous and obscene. However, the more depictions of it that came out, the more comfortable we all became with seeing it, until it has become what it is today -- completely acceptable, barely even thought of as negative. This is something we don't want to see happen to children and sexually explicit and exploitative acts. It's not something that I think should only occur with children, but that any intensely graphic and/or violent sexual act, including scenes of rape, should be unprotected and punished forms of speech. Although the characters of the film were supposed to be of the same age, I think that the most extreme age difference should be applied in these cases. For example, if the actor was 16 but played and passed as an 11 year old, and the actress was 16 playing a 16 year old, I would still consider this as child pornography as even though the actor was 16, the visual depiction would have been of an 11 year old. I would also punish the speech as it is -- with an 11 year old playing a 16 year old, and a 24 year old playing a 16 year old.
Thus, I would punish The Tin Drum and categorize it as child pornography because of the lewd and obscene scenes in it, that can be viewed and analyzed in terms of child pornography scene by scene, and does not need to be taken as a whole when considering the precedents stated above, because there are scenes of simulated sexual conduct with a child. I think that the more extreme or strict precedents should be considered in cases of child pornography and that it is not something that we want to take lightly, as letting one depiction of this go will lead to it being more viewed, more common, more comfortable and more accepted, which is a slippery slope that we do not want to go down.
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Although I am inclined to protect all forms of speech under the First Amendment, your post made me consider the film in a slightly different way. I think you make a well-reasoned and valid argument for defining The Tin Drum as child pornography per the Child Pornography Prevention Act of 1996. I did not see the entirety of The Tin Drum, only what was shown in class, but your argument for looking at the work scene by scene is well articulated and supported by New York v Ferber. It makes sense that if scenes in the work are patently offensive, the whole movie is rated that way so there are no surprises when viewing it. The film does “visually depict a person under the age of 18 engaging in sexually explicit conduct, simulated or real” which takes away (at least in part) the innocence behind an adolescents right to expression, even if it is sexual.
ReplyDeleteI also agree with you concerning what scenes were uncomfortable to watch. At least in part, the knowledge the 16 year olds on screen are played by an 11 year old and a 24-year-old are really, what made these scenes difficult to see. If they were actually 16 year olds, I would find that the piece fits under Chafee’s worthwhile expression. Older teenagers, like 15, 16 and up are searching for truth and understanding of their desires. By punishing all films that depict 18 and younger in this sort of behavior, I think it would confuse older teens and stifle some potentially worthwhile messages concerning acceptable sexual expression. I think that when you clarify that either the depiction of or by an 11 year old in the scene described is punishable, you seem to hint that what is truly apprehensible about that is the age of the 11 year old, either real or fictional. I completely agree with you and would propose a modification to the definition of Child pornography in a few ways. One is that any child age 14 years or younger (real or simulated) being depicted in sexual conduct, a sexual, lewd, or obscene manner, etc. is child pornography and is prohibited. I would suggest introducing a clause that specified that children aged 15 to 18 who are depicted in a sexual way must meet the clauses of artistic expression so as not to be defined as child pornography. While I do not know the exact legal language, my point is that in looking at The Tin Drum, the 1996 act, and the numerous scenes on TV and in Movies today the definition of child pornography is too broad. Films like Juno, Superbad, and Mean Girls all depict sexually explicit conduct from kids who are 18 or younger in the film. And though I don’t know the actors actual ages, the acts are still be committed by characters who are depicted as 18 or younger, therefore losing artistic protection due to the simulated sexual conduct that they produce on screen. If the definitions were modified, these films would have artistic protection, which I feel they deserve.
Kim, I completely agree with your opinion that in dealing with child pornography, it is acceptable and necessary to apply stricter regulations. In studying this particular category of free speech, I have definitely found my overall theory tightening. I was willing to give utmost protection to blasphemy, defamation and obscenity, but this is where I draw the line. I like your analysis of this issue as a "slippery slope" when you compare its evolution to that of violence on television. I think we definitely need to be careful with the sensitivity of this topic and be certain that it does not become a regular part of our lives.
ReplyDeleteIn your analysis, I particularly like the distinction between evaluating a work in its entirety versus evaluating any particular part of it. Works like the Tin Drum should not be protected on the basis that it is artistically valuable as a whole. The particular scenes you describe make it obvious that in order to be child pornography, the work should be considered in pieces, not collectively.
In reading the response above mine, I found it very interesting to consider movies like Mean Girls, Juno and Superbad in relation to child pornography laws. In my opinion, it is not the age of the character being portrayed in the fictional world of the film that should matter. Rather, I think the actual age is what should be considered. Afterall, child pornography laws are not out to protect fictional children, but rather to protect real children. In the case of the Tin Drum, the ages of 11 and 24 are just too much too ignore. In real life, the child actor is engaging in these acts and even though it is argued that he has chosen to be an actor and has chosen to be in this film, it is still questionable whether or not he had the mental capacity to fully understand the implications of doing so. Like the previous poster argued however, I do think that a specific age should be added to the clause. To me, 14 or 15 is an appropriate age to apply to child pornography cases. It is about that time that females begin to develop and come to terms with sexual expression. As it stands right now, 16 and in some cases 18 is too restrictive of an age range in relation to sexual expression. And to make it clear, I would require that in order to protect this form of speech, the actual achild would need to be at least 14 or 15; I would not find it necessary to examine the age being portrayed in the film.
In the end, I too would punish the Tin Drum because of the actual age of the young actor and his on-screen relationship with the 24 year-old actress. At the ripe age of 11, I find it hard to believe that the young actor was not in some way coerced into participating in the making of the film and that he perhaps did not comprehend the implications of his involvement.
Kim-- Great post, really made me stop and think about this film. Although when I watched the Tin Drum, I found that some scenes made me uncomfortable, I was inclined to protect the movie as art with a SLAPS clause. I think it is great coming-of-age story, albeit a little less typical than some, but still interesting to watch and beautifully filmed. However, I agree with you that the ages of this actors in this film should classify it as child porn. The fact that the stunted boy is actually an 11-year-old actor makes me feel like he must have been compromised or coerced in some way to participate on the major sexual scenes of the movie. This, combined with age of his nanny, who is in reality 24 years old, makes me very squeamish, and caused me to rethink my initial reaction when watching the film. In this case, I thought you did a great job applying the Child Pornography Prevention Act of 1996 definition. I agree that due to the ages of the actors in the film, it should be analyzed on a scene-by-scene basis, and perhaps if some of the scenes were eliminated from the film, it could receive protection.
ReplyDeleteYou did mention one thing that I felt inclined to disagree with, which was that if both actors were 16, but one was playing an 11-year-old, you would still punish this speech. I don't think I would punish it if both actors were older, because I think there is something to be had in a coming-of-age story with a younger individual. If both actors are an appropriate age to be engaging in scenes of sexual nature and aren't being exploited as I feel the young 11-year-old actor likely was, I would protect the speech (I think!).