Clearing the air on that pornography bill
Additional reporting highlights different views and interpretations on SB394
My next column will get to the meat of this legislative session (the-tax-plan-that-is-universally-supported-by-bipartisan-House-members-and-a-majority-of-Senators-yet-is-still-somehow-controversial).
But, first I want to double back on the issue I raised about an editorial by the Kansas Reflector’s Clay Wirestone. He argued an age verification requirement for pornography sites would ban images of same sex couples holding hands.
I wrote this in response. My argument was 1) according to statute, a same-sex couple holding hands wouldn’t qualify as porn under the bill, and 2) saying that it is porn undermines our ability to push back against legitimate attacks on the LGBTQ community.
He shot back, saying that I was mistaken, and took a swipe at my lack of a law degree. Fair enough - I don’t have a law degree. Wirestone then rounded back to the attorney’s statements within his piece.
“As far as I know, Probst does not have a law degree.
I’ll tell you who does: Lawrence First Amendment specialist Max Kautsch, who not only served as my source for the column, but who responded at length to Probst. You can read a comment from him underneath the Substack post, and a longer explanation at Kautsch’s website. In this case, I tend to believe the person with legal experience.
Listen, I know that folks get stressed in the heat of the session and say things they don’t mean. I respect Probst and enjoy his writing.
On this subject, though, he’s mistaken.”
Ouch.
But it turns out other people have law degrees, too, and some of them lean more towards my interpretation of SB394. After this dust up with the Reflector, I privately joked to friends that every attorney is wrong half the time - otherwise we wouldn’t need courts or judges.
This week a piece came from the Kansas City Star that did a good job exploring the complexity and nuance of a difficult area of discussion.
Here are a few excerpts, admittedly picked to validate my argument:
D.C. Hiegert, an attorney who is an LGBTQ+ Fellow at the American Civil Liberties Union of Kansas said that while state statute does include homosexuality in its definition of sexual conduct, the legislation also says any material barred from minors must also meet the legal requirements for obscenity.
The bill would not allow for censorship of non-explicit LGBTQ+ content, he said. Rather, the law could only be used to restrict content online if it is sexual.
“While it is unfortunate that a lot of Kansas laws have remnants of old, homophobic or transphobic language in them, this is an instance where it is not necessarily explicitly being used in a homophobic or transphobic way,” Hiegert said.
Hiegert continued: “If folks are trying to use this legislation to ban all LGBTQ content, that is very clearly not what the bill does, and that would be an unconstitutional attempt to censor access to LGBTQ content.”
Max Kautsch, the attorney cited in Wirestone’s piece “vehemently disagreed with Hiegert’s interpretation.” Max also took the liberty of posting our email exchange on his website, which upon reflection, I don’t think I’ve ever had anyone do to me before.
There was also this in the article…
Groups who advocate for LGBTQ+ rights said they are keeping a watchful eye on the bill but believe it would not prevent access to non-explicit content.
In a time when LGBTQ+ Kansans are facing real attacks from the Legislature, Taryn Jones, a lobbyist for Equality Kansas said it is important to avoid creating additional worry for legislation that is unlikely to affect the lives of everyday people.
“We need to be careful not to create more anxiety and more worry for people,” she said. “That’s always our concern when we look at bills like this – making sure we’re being upfront and honest about what the bill does but not fear-mongering to make people worry more than they already are.”
This was one of my central points - yelling fire when there is no fire, (or in this case pornography) when there isn’t a fire is completely unhelpful in the bigger debate and discussion on legitimate attacks on the LGBTQ community.
There might be more people who want to carry on this conversation, but this will be my last comment on the matter.
I’m grateful to the Star for providing some neutral and in-depth examination of the issue. We need more thoughtful conversation about controversial topics. Knee-jerk or rhetorically -charged reactions are seldom helpful in advancing discussion.
This isn’t the first time I’ve had to push back on an incorrect assumption from Wirestone. Back when we were legalizing fentanyl testing strips, he had this to say in a column where he dubbed it “Hell Week” in the Kansas Legislature…
“On Wednesday, the tomfoolery continues. At 1:30 p.m., the House Corrections and Juvenile Justice Committee talks about legalizing fentanyl test strips. Also at 1:30 p.m., the House Health and Human Services Committee talks about legalizing fentanyl test strips. No, I didn’t copy and paste accidentally. They’re both doing the same thing at the same time.”
I was highly annoyed by that, because in truth, the committee chairs (Republicans) worked with me and others so that conferees - including mothers who had lost their children to overdose - wouldn’t have to travel more than once to Topeka and could condense the trauma of telling their story into a single day. One committee heard the test strip bill first, while the other committee heard another bill first to allow time for the transition from one committee to another.
To his credit, he wrote a statement correcting this after I pointed it out to him.
I want to be clear that I don’t have any personal beef with Clay. He’s doing his job, and I am doing mine.
With that said, I will address information I think is harmfully wrong. And, I’ll admit when I’ve done that myself.
In this case, I’ll entertain the possibility that my interpretation of SB394 could be faulty. I don’t think it is, and I think the growing body of evidence supports my view. But I’ll admit that I have made mistakes, that it’s entirely possible I’m wrong today, and it’s certain that I’ll be wrong again.
To that end, I want to address something in my original post on this. I cited a source that upon further research, I wasn’t happy about. The American College of Pediatricians is more of a political organization than a healthcare organization, and they seem to be decidedly conservative and support policies against the inclusion of LGBTQ members.
My citing of them was an error of haste. I had read several reports about the ill-effects of pornography on children and mistakenly pulled from that group’s report without taking proper time to explore them. I should’ve relied on the statement from UNICEF, which outlines many of the same concerns, but from a much more reliable source.
Being wrong isn’t fun, but the ability to admit when you are is important.