They are also tuned by culture — to higher, lower and variable sensitivities. I said this a while back in a discussion with Noah about eroticism in film, but our reactions to sexual imagery are immanently contingent. For instance, from a purely logical perspective it shouldn’t matter whether you see the image with one, two, or a thousand people — but it does matter. The more people, the more anxiety is produced around the “appropriateness” of the image. Also, it shouldn’t matter whether you see the image with a friend or mere acquaintance, with a spouse or registered sex offender, with a parent or a priest — but it does matter, often in substantial game-changing ways.

And longstanding circumstances can leave residues on the mind. For instance, my girlfriend was raised in a prudish southern family, and it’s taken about 10 years for her to not get squirmy when watching a sex scene, even if it’s just me watching it with her. That’s an anecdote, not data, but I think my induction is sound: relearning reactions to sexual imagery is hard.

In addition to culture, there’s the universal drive to keep sex private, that is, in every culture we have studied, sex is taken behind some kind of wall; sex in public is punished.

But then again, finite moral circles and xenophobia are human universals, too, and yet Rosa Parks was able to shame them into the shadows by tweaking a deeper commonality called “the affecting perception of injustice.” Of course, I’m sure her status as one of the innocent — quietly dignified, frail black woman riding a bus to work (or church or wherever) — helped to elevate her stand (no pun intended) into a fulcrum for the cause in a way that might be inaccessible for Tony Comstock. No sympathy for the devil, etc.

Ultimately, there won’t be progress without a broadly sympathetic martyr. Until the majority’s focus shifts from ‘the value of the material’ to ‘the value of the freedom’, society will continue to show you its ass while not allowing you to show them theirs. That’s my belief, at least.

This is the idea that I’ve been rolling around over and over.

In California v. Freeman, the ruling hinged on the idea that photography is essentially publication, there for, pay people to be photographed having sex isn’t prostitution. In the FLA case, it runs the other way; an essentially private act (making love and making a photographic keepsake said loving-making) becomes de-facto public because “photography is essentially a publication.

Maybe (maybe) this made some kind of sense in the photochemical age, which such “keepsakes” had to be turned over to a third party to be realized (except for the very few who processed the equipment and expertise to process their film themselves.

But how about now? If I’m in Utah on a business trip, and my wife is in Alabama and we fool around in iChat are we “publishing” anything? Or just doing what lovers have always done on the telephone? How about if we exchange photos via our phones? Unlike writing, for example, where we understand a private journal, I think we have a very poor understanding of the potential of photography as a private medium.

(Although at the time of Miller obscenity prosecutions for non-photographic representations were all but unheard of; but in the last few years we’ve had obscenity prosecutions of text only, and drawings.)

The essentially problematic aspect of sex/photography is that a photo takes how/when the sexuality of the subject will be made public out of the hand of the person(s) depicted. I always warn the subjects of my films that ultimately i cannot control how their images will be contextualized and they have to be ready for seeing their images in contexts they might find upsetting.

Conversely, depending on context we recognize in-person sexual displays as assaultive, but these sorts of assaults are much harder to police when they come in the form of photographs. You can say “Get over it, it’s just a photography” but that ignores the simple fact that sexual imagery, traumas and triggers are often tightly wound together.

Which reminds me of an (unsatisfying) back and forth I had with the head honcho of The Independent Film Channel around their broadcast of the film The Bridge, which features actually footage of people throwing themselves off the Golden Gate span.

What’s got me hung up right now is the idea of how important norms are to fill in the space in the regulation of behavior that laws can’t deal with effectively. I used to think I could be the Rosa Parks of sex/cinema; defiant and dignified. Now I’m not so sure…

Anyway, glad you’re enjoying you’re reading. Truth be told, I think this blog might be some of the best writing I’ve ever done, and it’s very odd to be developing these ideas so publicly. But it’s also odd to get so little response, so I really appreciate yours!

I think what turned “doing something that was legal” into something “breaking the law” tracks the same intuition that leads us to distinguish public from private — e.g., sex in private is legal, transferring that same sex to the park is illegal. The idea is that photography is essentially a publication. And while two minors may legally get it on, that’s because they are both members of “the protected class” — statutory rape laws create a protected class; a member of a protected class cannot be charged under a statute which creates the class; which is why you never see the 16 year old hottie getting tried as an accomplice.

Child pornography laws, however, have no protected class (though I think they should be construed as if they did). The crime is the creation, possession, or dissemination of contraband — defined by statute — which means, under the law as written, the minors were guilty of the charge.

I’m really enjoying your stuff so far, btw.