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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.

I mean, SomethingAwful was the original furry community. That should tell you all you need to know about how things were going to play out.

The fact that 4chan splintered from SA because of loli is similarly informative about the politics of its people, for good and ill.

Furries are hypermasculine superstimulus, loli (and shota) are hyperfeminine superstimulus, neither one wants to admit the obvious implications (though zoophilia is the lesser of those), and the narcissism of small differences does the rest.

(Actually, I wonder if that means diaperfurs/cub fans are more likely to be bisexual? Furries are generally gay and lolicons are generally straight, so maybe furry lolicons are more likely to be a mix compared to the average.)

Furries are hypermasculine superstimulus, loli (and shota) are hyperfeminine superstimulus, neither one wants to admit the obvious implications (though zoophilia is the lesser of those)

Sorry but I'm lost. Do you mind elaborating? What's a (hyper-masculine/-feminine) superstimulus, how is furry masculine, how is dubious anime porn feminine?

I assume the obvious implications you imply are that furries probably wanna fuck animals and hentai people probably wanna fuck children.

I'm still having laughing fits from his post, so sorry if there's typos in this.

I think what he's getting at is that all furry porn is gay bathhouse sex orgies, with slightly more literal bears. It's hyper-male-sexuality in the sense of bro-y casual sex where the guys drink beer and lose their keys fisting each other.
If characters are sexual they are grotesquely so, with comically large sex organs and insatiable appetites (again often literally, because eating each other is sexualized too). Non-sexual characters literally don't exist somehow, because the scenes bounce from frat party to shower room to bdsm club to meat grinder. Even the straight porn is gay male hyper-stimulus. All the furry transsexuals you see dress as bimbos and get enormous fake breasts because his fetish is at its core a hyper-male autogynophilic fixation.

And on the other hand your typical loli book has an awkward girl who looks like a potato thinking about her feelings for 30 pages (or 60 chapters if it gets serialized). She is possibly caught in a love triangle between her kindly vampire English tutor and a dark and handsome werewolf delinquent who rescued her from bullies on his motorbike. One or both of these relationships may be socially forbidden, heightening the emotional tension. When they finally have sex there will be closeups of hand-holding and flowers in the screentone background.

The way he said it is guaranteed to upset both sides (which is why it's so hilarious), but the basic truth behind it is undeniable.

The way he said it is guaranteed to upset both sides (which is why it's so hilarious), but the basic truth behind it is undeniable.

Huh? Why is it guaranteed to upset both sides? It seems obviously directionally correct to me (I'd nitpick that femininity is more prominent than masculinity rather than being hyper-feminine, which implies the near absence of masculinity to me) from the lolicon side and I have pointed to research supporting much the same conclusion in the past:

Recall Kinsella's suggestion that lolicon be understood as men performing the shōjo to come to terms with an unstable gender identity (Kinsella 2006: 81-83). If being a man ceases to promise power, potency and pleasure, it is no longer the privileged subject position. Akagi explains that lolicon is a form of self-expression for those oppressed by the principles of masculine competitive society (Akagi 1993: 232).32 Lolicon is a rejection of the need to establish oneself as masculine and an identification with the "kindness and love" of the shōjo (Akagi 1993: 233). This interpretation reverses the standard understanding of lolicon as an expression of masculinity to one of femininity. This is, of course, not the only way to approach the wide range of lolicon images, but it certainly highlights the complexity of "pornographic content" and its uses.

What's there to be upset over?

Probably worth noting that the research you cite comes from japan, where the culture is different. Lolicon stuff (in fictional form) is legal there and at least somewhat tolerated. Pretty different from the US where it will get you arrested.

Fictional lolicon gets people arrested in the US? I think generally not. I see 9 cases since 2008, mostly involving people who also had real child porn which is how they wound up in court. Your average "16 year old furry comic" enjoyer shouldn't fear prosecution even if it is hypothetically possible. But sure, it is more than zero getting busted.

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