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PaperclipPerfector  7mo ago (text post)   3143 thread views

Friday Fun Thread for September 20, 2024

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Volokh: Security Clearance Denied for Watching Furry Porn Depicting Animated 16-Year-Olds

Bierly confessed that some of the furries in the videos he watched were depicted as minors as young as age 16. The SOR advised that Bierly's history of "engaging in criminal sexual behavior by viewing and masturbating to pornographic images of minors" and intent to continue doing so constituted a "security concern". For his part, Bierly objects to characterizing the videos as child pornography because they featured animated characters rather than actual 16-year-old people.

Bierly's constitutional claims are as follows:

  • Count I claims that viewing animated furry pornography is protected speech under the First Amendment, and that DCSA's suspension of his security clearance therefore infringes this right.

  • Count II argues that DCSA's suspension of his security clearance abridges Bierly's First Amendment freedom to associate with others who share his political, religious and cultural beliefs.

  • Count III contends that SEAD 4, which allows the DCSA to withhold clearance based on sexual behavior that "demonstrates a lack of judgment or discretion or may subject the individual to undue influence of coercion, exploitation, or duress", is unconstitutionally overbroad under the First Amendment.

  • Count IV challenges the same language in SEAD 4 as unconstitutionally vague.

  • Count V is a substantive due process claim, arguing that the viewing of legal pornographic material is a protected liberty interest that the DCSA has wrongfully abridged.

  • Count VI is a Fifth Amendment Equal Protection argument, alleging that the defendants have unequally and arbitrarily applied SEAD 4 against Bierly, and that this uneven application fails strict scrutiny.

The court avoided the substantive constitutional questions, in part because federal precedent provides that "the grant of security clearance to a particular employee is committed by law to the appropriate agency of the Executive branch" and therefore "employment actions based on denial of security clearance are not subject to judicial review", especially when it comes to requests for injunctions seeking the grant of a clearance (to oversimplify in some measure).

The court also rejected Bierly's separate statutory claims under the Administrative Procedure Act, Freedom of Information Act, and Privacy Act. Note that Bierly's Complaint states that, "Mr. Bierly admitted to watching 16 year old Furry pornography when he was 15 years old, and the polygrapher used that age for all subsequent Furry pornography that Mr. Bierly admitted to watching," though that wouldn't affect, I think, the court's analysis.

Oof. That's a mess.

While it (and even the publicity) might not completely kill this guy's career, it definitely chops a lot of potential off it. There's some civilian uses for the sorta skills the software parts of that career field do, and some cybersecurity shops won't really care, but quite a lot of them either depend on background checks or lower levels of clearance that are gonna red flag this. Even if he didn't plan on staying in the DoD, having a security clearance before leaving can be worth a lot of salary.

(LinkedIn points to a higher education nonprofit, which... works, I guess, though depending on exactly where it falls in 'higher ed' would raise different concerns if he really were a threat. Dunno if it's more or less of a Google Problem than having your real name tied to the other sort of 1000-year-old dragon.)

And while not the most central case of where these definitions break down, and squicks me a bit (especially "intent to continue doing so" as he stops being a teenager, though not being able to read the complaint leaves me some concern for how accurately that's being repeated), it's still the sort of thing that also gets played at Cannes or put into a school library when there's a sufficient bow slapped on top. Law is filled with these sorta graduations, but if you wanted a similar level of 'officially banned, unofficially tolerated or sometimes feted' the first place to come to mind would be marijuana legalization, which... hasn't worked out great.

It's not clear whether it's illegal in the strict formalist sense. Ashcroft v Free Speech is usually what people point to as suggesting that obviously fictional works can't be generally prohibited, but that opinion allowed such speech to be restricted under the rules around obscenity, and Congress did do that. While that definition is vague (imo badly so) and counterproductive (imo badly so), modern technical advances have made Rehnquist's dissent much more persuasive at the same time that SCOTUS's makeup is more skeptical of the ACLU takes. From a legal realist perspective? It's a clusterfuck to determine if any one piece has 'redeeming value' (though a majority of furry porn is straight-up porn that would directly fail by honest tests, and others by close-enough checks), whether it offends community sensibilities, whether the ways it does offend community sensibilities are actually the sort the courts unofficially overlook because it's a proxy for 'animus', what the age of characters even are (is this goat the probably-older-than-universe-but-woefully-immature Asriel from Undertale, the unknown-aged-but-probably-late-high-schoolish Ralsei from Deltarune, an aged-down version of either, an aged up version of either, or an Original Character Donut Steel?), yada yada. Prosecutors generally don't want to deal with it, but they have on rare occasions with especially clear cases.

On the other hand, this isn't criminal prosecution: especially this level of higher-tier security clearance. There's a reason you can tell who's been through that level of interview from those who've just heard about it by the extent they flinch at certain questions. For all the official guidelines are about really overt behavior showing sympathy to foreign governments, illegal behaviors, or blackmailable targets, the practical guidelines are looking for broader understandings of strong impulse control and good judgement, pretty vaguely defined. If playing War Thunder is an unacceptable security risk -- and I think it's pretty persuasive that it is -- it's not like this is that unreasonable.

On the gripping hand, the extent the underlying laws and definitions are a mess and largely unconfrontable is gonna keep making the paradoxes more present, both here and in cases with more serious consequences. I get that critics of the law are (understandably!) looking for cases with perfectly sympathetic defendants and especially clear legal processes, both for normal legal tactics and because a decent number of the 'it's ephibophilia' people end up taking off the mask, but in practice there's been thirty years of establishing a pretty harsh new social norm.

((On the other gripping hand, it's quite possible we'll seriously confront those central cases where the definitions completely break down and decide that's because we do need to crank up enforcement of stricter social and legal norms. Totally fictional porn by people who are just working through their own missed opportunities in their youth still have the Kabier problem, and there's a lot more evidence in favor of even sometimes-above-age-of-consent sexualization being either risky or prone to abuse.))

Every time I see furry artists cancelling each other because one of them drew a guy fucking a cartoon dog that was only 17 years old in one of the Nickelodeon spin-offs, I become even more grateful that foxy Maid Marien didn't groom me as a toddler.

Wouldn't even have such a problem with furries if they'd stick to their own communities and leave the rest of us to play Blue Archive in peace. But the number of furry communist they/thems who do nothing but witch-hunt for artists who drew, said, or thought something "problematic" makes the entire community too toxic to coexist with. I can't imagine how awful it is to actually be a part of it.

It'd be funny if it were just the they/them Marx fandom furries -- hell, it wouldn't even be the most defamatory thing from DogPatch Press, somehow. But I think that the problems the furry fandom fight with are just particularly prominent, because the most arguable border cases and the central version of the prohibited content are visible without the FBI getting involved or having to read three hundred pages of crappy Harry Potter AU fanfic for context, and the resulting internal discourse has given some of the witchiest and witch-hunterist people a lot of ammo to work with.

There's been similar problems throughout the various writing spheres, Archive Of Our Own gets regular attacks over it, it's one of the main Tumblr Discourse platter options. And the New Right has its own versions. I think there's a broader matter where it's become the new room temperature.

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