A NAIL THROUGH THE GENITALS: The Outer Limits of Speech

By Jonathan Wallace, jw@bway.net

Wired reporter Brock Meeks, my fellow plaintiff in the anti-CDA case ACLU vs. Reno, recently began a report from the Computers, Freedom and Privacy conference with these words:

"He smokes, he drinks, he swears on occasion. And his face twists into a kind of ironic smile when he reels off the phrase, 'female genitalia nailed to a board.'"

Brock is describing Bruce Taylor, ex-prosecutor, head of the National Law Center for Children and Families, and one of the architects of the Communications Decency Act. Taylor is talking about genitals nailed to a board because that image has become a "poster child", so to speak, of the pro-CDA forces. To them, it represents the kind of horrifying image that must be banned from cyberspace.

Every activist movement has its poster children. The pro-choice faction has the picture of the dead woman slumped in a pool of blood after a botched abortion. The pro-lifers have photos of fully formed fetuses. The major difference is that every other group shows you the picture-- Taylor only likes to talk about this one. "But there's a small problem," Meeks wrote. "No one's ever seen this picture. Taylor, unfortunately, doesn't carry a copy with him to back up his claims."

The picture Taylor loves to talk about is one of the GIF's for which California sysops Robert and Carleen Thomas were convicted in Memphis, Tennessee. On September 7, 1993, federal postal inspector David Dirmeyer, on an undercover assignment as "Lance White", logged on to the Thomas's Amateur Action BBS and downloaded a GIF described as "HAIRLESS PUSSY NAILED TO A TABLE." The AABBS was membership only; Thomas had filled out and faxed an application form, with address and phone number information included, and Robert Thomas had attempted to screen him but had gotten only the "Lance White" answering machine.

The GIF's were come-ons for videos the Thomases sold; each GIF was a freeze-frame from a video. On September 17, Dirmeyer ordered video K17 (in the Thomas' numbering scheme, K stood for "kinky"), which Thomas's online catalogue described as follows: "He makes her sit on a table and then nails her hairless pussy to the table! The girls scream with pain throughout the whole video! Excellent Action!"

At trial, prosecutor Dan Newsom of Memphis introduced video K17, and then a GIF that he said had been taken from it. The ensuing dialog between the lawyers provided one of the trial's many moments of bizarre comedy. Defense attorney Richard Williams rose to call to the court's attention that video K17 showed only one nail being driven through the actress's genitals. The proffered GIF showed two nails. "Is that an oversight?" he asked, challenging his adversary to prove that the image came from the video. "Why don't we wait and do it after lunch?" Judge Julia Smith Gibbons suggested. That afternoon, prosecutor Newsom admitted that he had erred in attributing the GIF to the video.

The Thomases were convicted, and the meme of the transfixed genitals passed into the meme pool and cyberspace history, later being resurrected by Bruce Taylor as his proof that the Net requires regulation.

The nail-through-the-genitals picture almost certainly represents the outer limits of speech. At a post-trial hearing, Judge Gibbons made an unusual reference to the press coverage the case had received. She protested the inference that a conservative Memphis prosecutor had successfully convicted the Thomases for speech that would have been acceptable elsewhere: "This was far at the extreme end of the scale of what might be considered obscenity....this was way worse than anything I have seen."

Judge Gibbons is right. If we are to have obscenity laws at all--if they serve any purpose-- then it is hard to imagine what else they cover if they do not prohibit photographs of nails through a woman's genitals.

But if you take a step back, and ignore the knee-jerk reaction most of us feel to the description of the picture, you can ask yourself the question, "Why is this picture illegal? Whom are we protecting by forbidding it?"

Hovering behind the AABBS case and Bruce Taylor's contemptuous words is the philosophy of University of Michigan law professor Catharine MacKinnon, who wrote:

"What pornography does, it does in the real world, not only in the mind....In pornography, women are gang raped so that they can be filmed. They are not gang raped by the idea of a gang rape.... It is for pornography, and not by the ideas in it, that women are hurt and penetrated....so that sex pictures can be made...."

MacKinnon is the best-known proponent of the proposition that pornography is violence, that it is made through, and causes, violence against women. MacKinnon's proposed anti-pornography ordinance, held unconstitutional in federal court, defined as pornography materials which present women as "dehumanized sex objects.... tied up or cut up or mutilated or bruised or physically hurt....being penetrated by objects or animals...." The words could have been written with the nail picture in mind.

In writing about the AABBS case, I had never seen the picture, only read various descriptions in the trial transcript. What I imagined was a sadomasochistic ritual captured on film, a woman being tormented for the entertainment of a sick, and sickening audience. During April 1996, I finally had the opportunity to see the photo in question, and was quite startled by what I saw.

The picture captures the torso of a thin woman, who is standing by a table. Her labia is extended, and someone else's hands are holding a nail which has passed through the extended lip and a hammer with which the nail is apparently being pounded. Her body is completely at rest; there is no indication in the picture that she is experiencing any pain.

In fact, what we are likely seeing is a woman with a previously pierced labia, pretending (or conspiring to pretend) that a nail is being hammered through it. One acquaintance told me: "Its a pretty common party trick in the pierced community. I've done it myself." (Thereby giving me a glimpse of an extremely unfamiliar world.) A few years ago, at the circus museum in Coney Island-- now closed--I saw a man put a nail through a pierced place in his tongue--same trick, different anatomical part.

Years ago, when I took up scuba diving and saw my first barracuda and moray eel, I realized that I had to put aside significant preconceptions. The word "barracuda", the word "moray eel" came with significant baggage already attached, pertaining to their wild viciousness and their propensity to attack. In order to learn what these animals really were, I had to strip the words of any significance and start again. I went through a similar mental process when I saw the nail picture.

Once you clearly understand what you are seeing in the picture, it is neither "prurient" or "patently offensive" (two of the three prongs of the Miller test of obscenity.) It is not prurient because it did not turn me on, and I suspect it would not arouse the average human being. In fact, the picture has a clinical aura, like an illustration from a medical textbook.

One of the absurdities of the Miller standard is that it applies local community standards--in the AABBS case, those of Memphis, Tennessee--then gives itself an out by allowing the jury to convict even if they do not find the work prurient. The prosecution is allowed to present an expert to testify that the intended audience finds the work prurient. The complete unfairness of this result is illustrated by the fact that the beliefs or reactions of the users of the material are irrelevant for all other purposes. If the jury finds the work prurient, it is irrelevant that those who buy it do not. If the jury finds the work patently offensive, it is irrelevant that the users do not. So what Miller really says is: If someone finds this prurient, and you think it is patently offensive that they do, you can lock them up.

The nail picture is not patently offensive either, if it portrays a consensual party trick that hurt nobody. (It would be patently offensive, but still not necessarily prurient, if it portrayed an actual scene of torture.) Looking at it, one is left with the feeling that here is another tempest in a teapot. After looking at the picture for awhile, one feels nothing about it; it is hard to believe that it is the subject of all this fuss.

Another insight granted by the nail picture is that the third prong of the Miller test also makes no sense. If the work is prurient and patently offensive, says Miller, you still can't convict if it has some scientific, literary, artistic or political (SLAP) value. On this one test alone, we don't trust the jury to apply their local standards; we apply a national "reasonable person" standard.

But who made judges literary critics? In no other arena do we let any legal consequence, let alone prison, rest on a judge's unqualified evaluation of whether something is art. A glance at the case law of recent decades confirms that judges, while not admitting that they are not critics, have found two main ways to avoid the issue.

First, they never hold pure text to be obscene any more; instead, courts have all but conceded that all prose has at least minimal SLAP value. Why, then, is this not true of pictures? Why is a judge qualified to decide whether a picture is "artistic" if he or she cannot safely make this determination for prose?

The second may be called the "Mapplethorpe" approach. The Cincinnati police closed an exhibit of photographs by the famous New York photographer, arrested a museum curator, and put him on trial for obscenity. The verdict: the pictures had SLAP value; most of the exhibit was flowers and portraits, while a few photographs showed subjects like the artist nude with a whip inserted in his anus.

The court actually reasoned backwards, however. Because it was Mapplethorpe--who had acquired a significant reputation in the art world-- it could not be obscene, and must have SLAP value. But this kind of determination rests on very thin ice. The same photograph, attributed to Mapplethorpe or anonymous, then becomes obscene or not under the same community standards. We are supposed to be a nation of laws, not of men.

I have the same reaction to the nail picture as to the Mapplethorpe self-portrait. Both have a clinical feel to them; neither is prurient to me, though they both are mildly alienating or disengaging-- an effect considered artistic by many. One cannot attribute entirely dissimilar motives to the author of the nail picture and to Mapplethorpe. Both may have intended to provoke or to produce discomfort; but so did Joyce, Burroughs, and Nabokov, all of whose work is now clearly First Amendment-protected. So we are left with the question: who is harmed?

I seriously doubt that anything about the nail picture will make anyone want to hammer a nail through someone else, or have a nail hammered through them. The picture is too static and clinical for that. It does not advocate or incite.

No-one is arguing that the nail picture should be seen by minors, though. The Thomases didn't do that. In order to see the nail picture, you had to join AABBS, faxing them an application with an original signature, paying them some money, and undergoing a phone screening. There was no allegation that the nail picture ever reached a minor, or even that it was ever seen by anyone (other than the jury) who was offended by it. The nail picture, according to the decision in the AABBS case, may not be shown to consenting adults. Why? Because obscenity laws careen on from decade to decade, fueled by knee jerk reactions, while no-one (with the possible exception of Professor MacKinnon) has any idea what societal interests we are attempting to protect.

I believe that Milton's statement in The Aeropagitica is broad enough to cover the nail picture. "Read any books whatever come to thy hands, for thou art sufficient both to judge aright, and to examine each matter....Prove all things, hold fast that which is good...." Bad ideas, Milton said, "serve in many respects to discover, to confute, to forewarn, and to illustrate."

I learned something from the nail picture. If the law had succeeded in preventing me from seeing it, I would have been poorer. For me, the nail picture had SLAP value; it sparked a thought process. But if you prevent anyone from seeing it, then, again in Milton's words, you censure us "for a giddy, vicious, and ungrounded people; in such a sick and weak state of faith as to be able to take nothing down but through the pipe of a licenser."