Censorship-Jock Sturges comes to Photo.net

I enjoy it here and am pleased to learn our subscriptions aren't in any danger of being wasted on unnecessary legal fees.

Touchee, Seven.

 

John (Crosley)

John Crosley wrote: "It was the right decision under the circumstances -- no matter how much I wish it [Photo.net] had the will and the resources to fight."

 

I agree, and this is the terrible dilemma in a case like this. Brian Mottershead is a Harvard-educated intellectual in the best tradition of free expression, but there are practical limits to the power of an administrator in these kinds of cases, no matter what his or her background and convictions.

 

I have the same ethical dilemma as a social theorist, but IN THIS SETTING OF PHOTO.NET I am without the practical responsibility of seeing to it that the site continues to function, and I am totally free of worrying about the prospect of being sued or criminally indicted for what is allowed on the site.

 

I happen to be a near absolutist on First Amendment freedoms. My champion is William O. Douglas. Would that nine persons of his ilk were on the High Court! I also agree with Alexander Meiklejohn that the "Clear and Present Danger" doctrine of Justice Oliver Wendell Holmes was a very inept way of dealing with the issue of the abuse of free speech. "The time of danger," said Meiklejohn, "is exactly the same to show people that you mean what you say." So far, so good. We should continue to speak and to publish, that is, guided by our own internal lights, not the law, not administrative regulations.

 

Jock Sturges has done that, and most of applaud his artistic integrity and do not doubt for a moment the purity of his artistic vision. The issue presently confronting the site, however, is not what Jock Sturges or Edward Weston should do or should have done. We who are champions of free expression agree that they should publish and should have published what they see or saw as valid.

 

It is indeed painful to watch someone such as Sturges have to brave these waters alone, in the same way that it is painful to read that Weston lived in constant worry that he would run afoul of the Feds if one simple pubic hair were visible in the prints that he sent via the U.S. Mail.

 

We have indeed come a ways since those days on the issue of the artistic expression of nudity in general, at the same time that we have not in the United States come nearly far enough in overcoming the suffocating forces of reaction and prudishness in general. For the extreme right, being able to interject "children's rights" into the legal/political arena is a godsend for their often misbegotten causes. It gives them the apparent high ground, and they are abusing it.

 

They must indeed be resisted, and we as individuals must do what we can to take the high ground back from the fundamentalist hysterics who violate their own principle of "the [theoretical] Separation of Church and State."

 

Enter Photo.net as an incarnation of the liberal mindset of Philip Greenspun, who has passed the torch on to another generation of administrators. With the rise of the internet, a collision over these issues of social mores was unavoidable.

 

We want such persons as Greenspun and Mottershead to champion the principles of artistic free expression that most of us believe in. We justifiably chafe when the site becomes too restrictive on censorship questions, which it does from time to time. We shall continue to search about for the fine line on difficult questions, and, no, it will not be intellectually satisfying or edifying to hear private property arguments advanced as a way of escaping the conflict. We typically do check our First Amendment freedoms at the door when we enter our workplaces in this culture, for this is a capitalist culture, and this fact is enough to make us doubt how much this culture at its very foundation is indeed committed to First Amendment freedoms. We also do well to remember that the framers of the Constitution included no language regarding rights in the draft that they sent out for ratification. It was the people, and rightly so, who insisted that the political-economic document written in the summer of 1787 should have some protection of individual liberties.

 

Enter the Religious Right as an increasing force throughout the last years of the twentieth century and into the early years of the twenty-first. No, we do not intend to let them bully us. No, we do not intend to let them set our artistic and political and moral agendas in any realm.

 

Given all that, is it fair to demand that others be the ones who incur all the risks, including the administrators of Photo.net? Does anyone seriously envy Brian and cohorts when they found out that Sturges was on the site, given that he has become a lightning rod for the extreme right? It is one thing to champion free expression in the abstract. Talk is cheap. What does one do when the chips are down and the issue--and the law and its ambitious prosecutors--stare one in the face?

 

Again, in the best of all possible worlds, the site administrators would have said "Welcome!" and that would have been the end of it.

 

The responsibility for administering this site is huge, however, and the burdens of trying to strike a reasonable balance during this era of right-wing extremist hysteria must be crushing for Brian and others. I have not agreed with Brian or anyone else on every point involving censorship. The simple fact, however, is that this is NOT the same issue as to whether or not Sylvie Lueders or Dave McCracken or someone else may post freely here, without any interference whatsoever from the site administration, although the issues are related.

 

The biggest difference is that this issue as a national issue has been turning more and more on the question of the exploitation of minors. Once the issue of the rights of children is brought in, then in both scope and intensity this firestorm of reaction seems to match the Red Scare of the McCarthy era in the early 1950s. There the comparison stops. There has been no McCarthyite purge. The reactionary right continues to pose a massive threat in a number of areas, and no simple strategy for dealing with them avails itself, but so far they have been more of a harassing and worrisome force, not destroyers of careers, at least not on the scope of Senator Joe McCarthy and his own fellow travelers.

 

So what do "we" do? Well, first of all, what do we mean "we"? I am frankly relieved that someone else beside myself has been willing to make this call. I am relieved that I can plunk down twenty-five dollars a year, fifty cents a week, and post my non-controversial pictures without having to resolve the practical day-to-day issues and problems. I can walk away from the fray here anytime and go try to publish my next book--no pictures, just ideas that make some people want to explode. But, hey, that is my battleground. Photo.net for me is a playground, and I can walk in and out at will, no worries.

 

Meanwhile the administrators of Photo.net are in the eye of this particular storm. What should they do? Before you answer, ask yourself what you would do if you were in their shoes, and, if you are honest with yourself, you will have to admit that you are very, very glad that you are not in their shoes.

 

You, like myself, can turn off the machine and walk away from this issue. They cannot. I am going to turn off the machine now and grade some exams and turn in some grades.

 

Life is good. Freedom is cheap. Let the other guy bear the burden. Yes, there is hypocrisy, but this time it is not coming from the site administration.

 

--Lannie

Alexis Neel AKA Patrick Henry AKA John Adams AKA John Hancock ? oh really.........LOL he needs his account pulled

Let me start by saying that I am not here to defend Jock Sturges (I don't think he needs to be defended) nor do I feel sorry for him over his past legal problems. He knowingly made the choice to pursue such a controversial area and all the implications that go with it.

 

Having said that, I do take issue with those of you who automatically assume that what he is doing is illegal. Will King has pointed out several times about the FBI accusing Mr. Sturges of child pornography but what he has failed to mentioned is that a grand jury threw out the charges. Will, with all do respect, it's very dangerous and completely unfair to present only part of the story.

 

Lannie, it seems you have implied several times that Mr. Sturges' work is unlawful and might cause legal problems for PN. That is not for either you or me to say, but the U.S. court system has already decided the matter and they said his work is not illegal. Based on what Brian Mottershead has said, it does not seem that his concern is over possible legal consequences specifically related to Mr. Sturges work, but rather the precedent it might set for others posting their work on PN - perhaps a reasonable concern.

 

Lannie, you also seem to have implied that Mr. Sturges was somehow testing the waters by posting his photos on PN and maybe because he's so wealthy (don't know how you arrived at that conclusion) he should set up his own website. If you knew anything about him, you would know that the waters have been well tested - legally and otherwise. I believe his reason for coming to PN was a genuine effort and extremely unselfish act to share his vast photographic experience and knowledge with other photographers who are earlier in their careers. This was a gift that many of you don't seem to recognize or value. Please, read his commentaries and critiques while they're still posted.

 

Brian Mottershead, I respect your right to set rules for PN and enforce them - uniformly. I do take issue with your statement that they are applied uniformly and that "famous" people are not going to receive special treatment. I think that Jock Sturges has received "special treatment" in the form of closer scrutiny than anyone else because of his high profile status. It didn't take you long (a matter of a few weeks) to zero in on him, yet I have found example after example of photos that have been posted and continue to be posted that violate your rules. As a matter of fact, there is one that I will attach that was posted about 2-1/2 years ago of a bare-breasted little girl that I found in about 30 seconds - if I can find it, certainly you should be able to find it as well. I can understand some photos slipping under the radar, but the discussion (very controversial) on this particular image has been ongoing for 2-1/2 years! I find it difficult to believe that you weren't aware of it. However, what I would like to think is that you have been aware of it and used good common sense judgement to decide that it is not problematic and the discussion is healthy. I suspect by attaching it here, you will quickly track it down and delete it only because I have brought it to everyone's attention. For that, I apoligize in advance to the artist who made the photo (I don't want to mention his name).

 

There are many others as I've said. Actually, I posted one a number of months ago and never in a million years would have thought my photo violated some rule that you have. I will attach it here as well. It's of a little girl walking by an old car without a shirt on. She's maybe 8 or 9 years old. The photo was taken in the tropics and as most people know, the closer you get to the equator, the fewer clothes you wear. How in the world could this image be problematic for anyone? Yet, by strict interpretation, it violates your rules. It was in my portfolio for several months, but I removed it as well as all others.

 

If common sense doesn't make its way to the surface soon, we will have nothing but peopleless boring photographs. Forget about taking a camera to the beach or to Africa or to the tropics. And, cancel your subscription to National Geographic.

 

As I said in a previous post, this entire incident with Jock Sturges is unfortunate. It is unfortunate not becuase his photos are no longer on PN, but because we have all lost his candid and thoughtful commentary. I strongly recommend that all who have express an interest in this topic, regardless of whether you care for his work or not, to please read the numerous comments he made regarding other photographers' work. It is so rare to get this kind of input and just like that, it's gone. Very unfortunate.<div></div>

Here's the other photo I mentioned in my previous post ... I guess you can only attach one at a time.<div></div>

"...the U.S. court system has already decided the matter and they said his work is not illegal."

 

No, there's no blanket finding regarding his work just because he's Jock Sturges. There's nothing to prevent a prosecutor from filing new charges against other works of his.

 

Mr. Kelly has it right. Anyone wanting to do battle with the government can do so. However, they don't have the right to drag unwilling others to the front.

When I grew up in the Great Pacific Northwest, there were roadside signs in a very large number of backwoods communities -- usually in very rural areas, and they almost always appeared 'homemade' and all invariably said something on the order of 'Impeach Justice [William] Douglas' -- he was universally reviled for his absolutist views of 'freedom of speech and expression'. There were would-be censors everywhere, and they were not only vocal, but very active.

 

Justice Douglas was an absolutist of his own kind on the issue of freedom of speech and expression where it did not intersect other rights.

 

He contended that it was up to the individual to look or not look at what was presented to him/her, and while I am sure he was personally revolted by much of what was presented before the High Court, he invariably voted against adults depicting adults, no matter what the consensual conduct.

 

I am sure he would have (and probably did, since I have not reread his opinions for some very long time) prevented public exhibition of certain graphic images in public places -- one of the issues of the times was whether 'porno' films could be shown at drive-in theatres, -- and the issue was where the 'freedom of expression' intersected with the rights of families to be free of offensive images in their front and back yards, and as they drove down their roads or worked their fields with their children.

 

Zoning laws were implemented to restrict x-rated displays, and perhaps rightly so. Rights sometimes intersect and balancing those rights requires sometimes that one or another right be curtailed, though as little as possible in my view.

 

Landrum Kelley has written about the dilemma in which the Administration has found itself, and I congratulate himself for writing so clearly, passionately and thoroughly.

 

I had an ex-father-in-law at one time who gave me some clear advice about gun ownership. He wanted me to buy a great big gun for 'self-protection', and I suggested that if I really had to own a gun that a .22 would be sufficient.

 

He said to me 'John, if you are going to get into a fight, you need something that will be guaranteed to win it, otherwise they're gonna bury you.' He said a .22 had no 'stopping power' and would allow a foe to overpower me. (In the end I didn't buy any gun and remained gunless, but his words stayed with me.)

 

Don't buy into a fight unless you're willing to fight with all you've got to the end, and you're committed to fight.

 

Photo.net finds itself in a precarious position.

 

Fighting the foreseeable battle that inevitably will arise if it continues to display the (non-pornographic) images of Jock Sturges almost certainly will lead to a fight, and it appears that Photo.net only has a pop-gun for a warchest, and that warchest will be quickly exhausted by assaults from the far right -- from ambitious publicity-hound prosecutors in various backwaters who are seeking re-election, as well as citizen groups seeking membership dues and contributins.

 

And Photo.net, with its $25.00 a year fee, (somewhat optional, though not quite), is hardly financially capable of taking on such a fight.

 

A substantial but minority part of the membership is comprised of non-US members for whom fighting US authorities may seem parochial, and outside the scope of what they wish to sponsor; invariably the dues would have to rise -- probably by several times at least -- and paid membership inevitably would dwindle as legal battles ate up increased membeship fees. The site would suffer, if it could survive at all.

 

Probably it would not survive.

 

It is always good judgment to pick one's fights where one can do so.

 

This issue potentially has all the earmarks of a U.S. Supreme Court case, and any outcome involving claims of 'pornography' and 'child pornography' is no longer so certain as it once might have been, now that the Court has been 'packed' with conservatives, and it may be 'packed' even moreso in the future before the present Administration is out of office.

 

It is possible that this 'neo-conservative' President may be followed by another like-minded President, and that the Court will take a hard right turn (if it has not already).

 

Thus, no one can predict with much certainty how Justices like Scalia, Thomas and any others of their ilk might rule of they had the majority in a case involving PN and Mr. Sturges or any other, similar issues of censorship versus free speech/freedom of expression.

 

Moreover, cases take years to come before the Court -- a decade or more sometimes -- and much can happen Anyone who makes prognostications about the outcome of any case that might come before a future Supreme Court is showing his/her foolishness; there are no longer any 'sure bets' in this particular area of 'freedom of expression'.

 

Landrum Kelley has written brilliantly for which I congratulate him, and he has seen that the site has made the correct decision, as regrettable as it appears.

 

In the end, Brian Mottershead made the correct (and only proper) decision under the circumstances.

 

Regrettably.

 

John (Crosley)

To Peter Singhofen: We still allow images of nude children under the age of four, and it was only recently that we made the terms specific regarding this lower age limit. Before that we didn't bother with images of very young children, up to six or seven, or so, worrying more about images of prepubescent and adolescent children. We left the definition of "young" vague.

 

Personally I think people are nuts if they see wrong in pictures of very young children, and I can't help but think that they might be a bit sick to find such images shocking. Maybe it is because I lived for years in France, where females of all ages are routinely topless on the beach, young children are often naked, and nobody thinks a thing of it. But people in the United States are getting more and more hysterical on this issue. I'm fifty years old, and I can't recall that attitudes were like this in the U.S. thirty years ago. Pretty soon people will face charges if they are found in possession of images of their own babies in the bathtub. In fact, from time to time, one reads of fathers being turned in to the police by overzealous photo processing clerks for precisely that.

 

Regarding the images you point out, I never noticed your image when it was on the site. As for the other one, now that you have posted it, I do recall it, but I had forgotten it. You are apparently very impressed by my omniscience concerning what is uploaded to the site. I am sorry to disillusion you, but I have not examined all of the few million images that we have on the site. I don't even make an effort to review all the images, and I don't have a photographic recall of the large numbers of images that I have seen. Images come to my attention because from time to time I like to look at the TRP, the same as everyone else, or because something draws my attention to an image.

 

There may well be inconsistency in the application of our rules. This is not because we have different sets of rules for different people on the site. It is because we don't review all the photos on the site and there are many images that we don't know about. It may come as a surprise to you that controversies can rage for years in the Gallery without my knowing about it. I spend most of my time not as a visitor to this site but behind the scenes tweaking the hardware and the software, dealing with advertisers, etc, etc.

 

You didn't mention this, but another common theme is that we only delete images by way of knuckling under to complaints. The fact is that we remove images that violate our Terms of Use when we see them. Many times, it is debatable and we think about it for a while, or wait to see how the portfolio develops, and what else the person uploads. Much of the time, the photographer's reaction to having a photo deleted is to complain about someone else's portfolio that is similar and to demand to know why he/she is being singled out. The response is then to delete that other portfolio. Actually, people complaining about our hypocrisy and inconsistency are among our most reliable sources of information about images that are violating the Terms of Use.

 

So you are wrong about the reasons for the inconsistency, but don't let that stop you from reporting it -- I mean pointing it out.

Peter, I meant no disrepect for Jock or any of his admirers. When I mentioned the FBI investigation, I was merely repsonding to Darrell's comment when he stated : <i> "as far as I am aware, no one is suggesting Sturges work IS pornographic or illegal." </i>

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Well, we all know that Darrell's statement is not true, is it? I'm not accussing anyone of anything. I was simply stating a fact. I really don't see what the big deal is here. Photo . net has a policy that is available for everyone to read. Brian has already stated that there will be no expcetions so why are people making a big deal over this? If it were some Joe off the street that was asked to remove his photos, would we be having the same discussion? I think not. Why wasn't anynone crying censorship for the 5 years that photo . net has had this policy. Now that a famous photographer is affected, it's an issue?

This is a private site, it doesn't belong to its members and none of us have the right to complain about decisions taken by the administrators.

 

If we don't like the decisions we have the option of opening our own site and doing things differently.

 

I'm very sure that if I was the administrator here I'd do many things differently - but I'm also sure that my decision in this case would have been no different.

 

I wonder how many of the people who scream 'censorship' would keep their 'artistic ingegrity' if the decision was theirs to make?

Brian,

 

I hope my comments aren't coming across as mean-spirited because that is not my intent.

 

You have answered a few of my questions, thank you.

 

First, you were aware of the first image I posted and it seems you did give it some thought and used good and reasonable judgement in leaving it posted. You are incorrect in thinking that I think you examine every picture that is posted. As I said, I can easily understand photos passing under the radar, but it is hard to believe that the first photo I pointed out went unnoticed and that there were no complaints given the lengthy and controversial discussion - but anything is possible.

 

Second, you react to complaints which is what I suspected. That's understandable I suppose, but it does make me wonder about your statement in applying the rules to everyone without exception.

 

The reason I posted the second photo was not to give you an example of how "one got by" but moreso how ridiculous this could all become if you truly did what you said - apply the rules with no exceptions. There are exceptions and it seems like maybe there is some room for applying good judgement - I hope so. That good judgement is entirely PN's call and I respect that and that's the way it should be. But, it's just unfortunate that sometimes the baby gets thrown out with the bath water.

Peter, those are beautiful pictures. Surely only a madman could have trouble with such wonderful and perfectly innocent portrayals of young children. (I frankly have the same view with regard to Jock Sturges' work.)

 

For the record (and it is a minor point), I don't believe that my views imply any of the things that you infer. Perhaps it would be better to stick to what persons say than make inferences about possible implications.

 

As for the issue at hand, I am glad--and almost astonished--that rationality has generally prevailed on this issue, which got quite a rash of responses late last night. The issues are not settled, but we have a course to find and follow, and the administration is trying to lead us through some uncharted waters.

 

Anyone else care to take the helm?

 

--Lannie

for Will King:

 

Will, I know you didn't mean any disrespect for Jock Sturges. It's just when a person points out only part of the story, it just fans the flame, that's all. And I hope it didn't seem like I was taking a shot at you - if it did, I apologize.

 

For me, it's not so much the censorship that bothers me. It's the fact that Jock's wealth of experience and knowledge is lost to PN. I think we all could have benefited from it. Again, if you read his various commentaries maybe you'll understand what I mean.

Peter, no offense taken and it was my fault for only mentioning half the story. I was only trying to make a point to Darrell and not trying to make Jock look bad. As far as Jock's knowledge being lost, he was asked only to remove certain photos, not to leave PN. Maybe he will see how many people came to his defense and decide to stay and offer his expertise.

Best regards,

Will

The right way to think about it is that the rules apply to everybody but that does not necessarily mean that they have actually been applied (yet) to everyone to whom they should be applied. The reason is generally that a photo that would trigger the application of a rule may not have been noticed.

 

Also, many of the rules require judgement, and the people exercsing judgement may not always be consistent with one another or even with themselves over time. For a rule like the "no child nudes" rule, which in its current form is quite objective and specific, judgement is still required in determining the ages or in whether the photographer should be queried concerning the ages. Judgement is also required in deciding what to do about images that were uploaded when the rule was not as specific as it is now.

Lannie,

 

It seems like in a post under Jock's portfolio that you referred to his work as "unlawful", but I don't see it now so perhaps I am mistaken. It was that plus statements like:

 

"I respect Sturges' work, but I will repeat here what I said elsewhere: DON'T EXPECT OR DEMAND THAT BRIAN SHOULD GO TO JAIL FOR JOCK." <your emphasis>

 

that give the impression that it's a foregone conclusion that his work is illegal. I understand your point now after your last clarification. Thanks.

To Brian

 

My respect for your decision Brian. As it is, children in many countries are exploited for the sex industry . I think that we as adults have to do what we can to protect children, and art, even the best, needs red lines.There is a tendency to close an eye when the person is famous. I appreciate your decision to stick to the rules in this case. I speak in general terms as I'm not familiar with his work.

"This entire incident with Jock Sturges is unfortunate. It is unfortunate not becuase his photos are no longer on PN, but because we have all lost his candid and thoughtful commentary. I strongly recommend that all who have express an interest in this topic, regardless of whether you care for his work or not, to please read the numerous comments he made regarding other photographers' work. It is so rare to get this kind of input and just like that, it's gone. Very unfortunate." - Peter Sibghofen.

 

This is exactly what I think as well. I read all of Jock Sturges comments on PNet, and they were truly priceless material, the kind of material I think PNet should strive to get IN, no matter how, rather than pushing it OUT.

 

As a side-note, I hadn't seen much of Jock Strudges' work - and none on this site - till today. But the pictures of his, that I could see so far were really wonderful, and had strictly nothing to do with child pornography in my (French) opinion.

 

That said, I do also understand the fact that PNet wouldn't want to have some sick viewer launching a court case against the site. So I agree that protecting the site from all bad legal issues is one of Brian's main responsabilities.

 

So here is my suggestion: could we perhaps HOPE, in a way or another, to get Mr. Jock Sturges back on the site ?

 

I know, and I fully understand, that his reaction was to delete ALL his works, although he was just asked to delete SOME of his works. Many if not all passionate photographers would have done the same.

 

I am hoping nevertheless, that things could perhaps be talked out.

 

After all, I think we were all glad to have him here, right ? I'm no lawyer, but if I'm not mistaken, Sam M-M is an administrator on this site AND a lawyer... Did PNet try to see with Sam whether there would be a way or another to simply protect the site WITHOUT losing Jock Strudges. Maybe Jock Sturges could accept in written the full legal responsability of the works he would post here, in case of a law suit ? Or... I don't know, but a lawyer should know...

 

Perhaps I'm wrong, but I imagine some sort of an arrangement could perhaps be found this way...? Yes, no...?

 

At any rate, I'd really like Photo.net to consider what we all just lost, and to find a solution if there is one. As a side-note, I personally asked PNet for Mr. Strudges' email address today, and the address is now "gone.com".

 

I do hope that photo.net can still write to Mr. Strudges, and that things are not irreversible. Again, it's not just about the very moving pictures he takes, but also about the real in-depth understanding of photography displayed in each of his past comments. This is too great a loss, and I hope photo.net will still try to resolve this issue.

 

Finally, if anyone has Mr. Strugres' email address, I'd really appreciate if he could email it to me. Regards.

I hope, as many of you probably do as well, that this will be my last comment on this matter and then I shall return to my little world. There have been several folks that have suggested that Jock could have simply deleted the controversial images and stuck around. I don't know Jock Sturges personally, but he seems to be a man of high principals and has spent the past 3 decades or so doing what he does and fighting for the right to do it. To simply agree that there is something morally wrong with half of his life's work is, well, it's like saying you can live in my neighborhood if you get rid of half your kids. It ain't going to happen.

 

Take care all

I must admit I was surprised to see some of the photos last more than a day or two. As many others have said, there was nothing indecent about the pictures. Even I can understand why many people were uncomfortable with the images. With that in mind I would like to say, I do like the ability of a photograph to generate a debate and for that reason, if no other, it is sad to see them gone. It is interesting that Brian 'asked' Jock to remove his pictures. I wish he had done the same with me. I would have uploaded a 'blank' image so that the debate could have been left for all to see and anyone wishing to see the photograph to which the debate pertained, could have emailed me.

Many Photo.net members including some shown on this thread, have there own internet websites and galleries. Perhaps those who feel strongly about Jock Sturges should offer to host some of his images on their sites.

 

I think that Brian Mottershead should be commended for holding his ground and not bowing to celebrity pressure.

Marc sent on a note to me, so let me chime in - I'm not an admin, just another poster like others, but am a lawyer and do have some knowledge of the issues. None of this is legal advice (yes, the standard disclaimer), because if it were I'd have to be even more conservative and cautious than I'll be (occupational hazard).

 

I think Brian is right to do his best to apply the rules as they are set up, and as everyone agrees to follow when they sign up, but I would point out a couple issues in this area: one is that Jock is someone who actually thrives on controversary, and most of the law enforcement types who push the idea that work like Jock's could be porn are themselves people who thrive on controversary, so the day Jock shows up and starts posting is probably exactly the day the rules were written to protect against. I suspect he'd love a good forum to fight the good fight. But whatever forum does that will take on risk and expense.

 

Jock has made a point, and the image he has left is a wonderful metaphor that we should all view as driving home that point. It's a point that I don't view as being just about photo.net and its management, but most accutely focused at the broader internet society we live in. As long as those law enforcement officials have the backing of significant constituencies, web sites like photo.net are going to need to be sensitive to the risks of prosecution by every jurisdiction the internet reaches - whether Iran, Ireland, or Alabama. And since those prosecutors have criminal as well as civil power, the risk is not just monetary.

 

That having been said, I wish Jock would leave a link to his home site from here, so those interested in his work could find it more easily. It does appear some of it is exhibited at the Koch Gallery online, and not that difficult to find.

Marc G.

 

I am no longer practicing law, but I have a very well-grounded and fundamental understanding of American common law. I am a law graduate, cum laude, and passed the the most rigorous bar in America on the first try a very long time ago. (But I haven't practiced for a long time and am not currently practicing, however from time to time, I advise young attorneys -- and even experienced ones -- as they enter practice in certain fields on how to practice litigation and certain other fields.)

 

One applicable concept is that of joint and several responsibility, another is the concept of non-delegability and non-assignabilility of obligations as regards other persons and entities, and finally there is the concept of 'deep pockets' which is a practical rule (not a legal rule), which all add up to defeat your expressed wishes and hopes of 'working out' something legally, that would relieve the site of responsibility for posting Mr. Sturges's images. (which I believe you are suggesting).

 

If Mr. Sturges were to produce and post an image and be accused of posting a pornographic image, then regardless of any private agreement between Photo.net and Mr. Sturges, that agreement would not be binding on private parties or public prosecutors.

 

That would be true civilly and criminally -- one cannot privately divvy up the responsibility for obligation to third parties by limiting the rights of third parties to bring claims to one person/entity or another.

 

Parties CAN make deals about who is to pay for lawyers and any monetary judgments, but enforcing those agreements is problematic.

 

The limitation that Photo.net and Sturges cannot tell third party prosecutors and attorneys that they are limited to bringing claims against Sturges only is not to be confused with so-called 'indemnification agreements' in which one party agrees to pay for the other party's costs and expenses should some action be started, but should a criminal action be commenced, Mr. Sturges could not say 'I agreed to take responsibility and Mr. Mottershead is immune and cannot be accused because we agreed I (Sturges) would solely be responsible - and the same civilly.'

 

And were a prosecution to be successful against Mr. Mottershead, Mr. Mottershead could not force the prosecutor only to prosecute Mr. Sturges, and in the event of a conviction (however likely or unlikely) Mr. Mottershead cannot force the 'state' to only punish/imprison Mr. Sturges and let him go free, based on such an agreement. To suggest otherwise is wishful thinking.

 

It just is impossible under American law.

 

Now under 'side agreements' or so-called agreements under which one party agrees to defend and pay claims (indemnity claims), if PN suffers a financial loss, or is forced to 'defend' claims, Photo.net can agree with Mr. Sturges that Mr. Sturges undertake the defense and pay any claims that prevail against the site, but enforcement presents a great problem.

 

(That ignores the virtual certainty that all claims will be brought against the site AND Mr. Sturges together, almost certainly, and neither party can make any agreement privately to affect that).

 

Further, if Mr. Sturges were to renege on any agreement to pay for attorney fees and pay any judment and/or fines against the site (if that were even lawful, which may be doubtful) that leaves the site out in the cold; perhaps Sturges dies, gets incapacitated, goes insolvent or bankrupt, simply runs out of money, his attorneys are stupid or don't file papers in time, he ignores his responsibilites -- or even contests the agreement.

 

PN then is hung out to dry.

 

It's not a pretty picture. (excuse the pun)

 

No one party can delegate to another party responsbility for claims made by another party against them.

 

An analogy: If you sign on a credit card, and your non-signing spouse runs up charges on that credit card to the limit, you then get divorced, and in the divorce decree the spouse is ordered to pay the credit card bill, that does not relieve the card holder of responsibility to the credit card company -- if the payments from the spouse stop, the credit card can and almost certainly will come against the holder and signer of the credit card agreement (who doubtless has better credit and more money) -- no matter what a judge ordered the other spouse to pay.

 

Side agreements between the two, even if court-approved, don't affect the rights of the credit card company. Perhaps that analogy will explain PN's position regarding such side agreements as relates to claims that might be made, if it attempts to deal with Mr. Sturges and 'lay off' responsibility to Mr. Sturges. Such ageements are literally so fraught with problems that they are problematic at best and almost impossible to implement.

 

Complicating matters it appears that Mr. Sturges is a non-resident but Mr. Mottershead is a Mass. resident and Luminal Path Corp. is a US Corporation. Both are likely targets, AS WELL AS Mr. Sturges.

 

Any good lawyer or prosecutor names as many defendants as he/she can name, and lets them sort it out later. They hope to turn one side agains the other in exchange for 'concessions' -- to make a 'deal'.

 

The result: chaos and countless legal fees.

 

Finally, despite the assertion that Mr. Sturges is quite wealthy, I don't personally know that, but I do know that PN's finances are quite public or at least publicly findable whereas it appears Mr. Sturges may be a European resident, and who knows how to trace his finances?

 

If there is any scramble for money to pay penalties such as fines or judgments, guess who/what has what are known as 'deep pockets' -- Photo.net of course, because it's there, it's visible, its finances are easily found it and its money flow is easily tapped.

 

Mr. Sturges' finances are more problematic, and probably being 'offshore', would be more protected and harder to get at (if indeed they are offshore).

 

(This makes certain assumptions that may not be true, in order to make certain points).

 

I no longer practice law, but I practiced for over a decade and a half, and this lay discussion of the law does come from a law graduate who engaged in the busy practice of taking other people's money (and occasionally defending those whose money was sought).

 

Certain things are fundamental, and I believe that when and if Sam M-M weighs in, he will tend to ratify the gist of this post.

 

If not, I ask him, or anyone else with superior knowledge to correct it.

 

This is meant for general informational purposes only; not a legal opinion, but there are some 'general principles of American law' which are pretty fundamental regarding litigation, and I'd be incredibly surprised if any substantial part of this were in error.

 

John (Crosley)

 

(no longer practicing -- for general argument purposes only -- not a legal opinion)

John's exactly right - when the elephants fight, the blades of grass suffer.

 

And in this case, it's both civil and criminal liability that are involved.

 

I think Jock understands this, and suspect he has learned it the very very hard way. He was both clear and polite in his departing email.