The importance of being earnest

Kansas Reflector editorial misses the mark and undermines fight against real issues

In another life, I was a fiery editorial writer. Perhaps, in my time, the most fiery editorial writer in Kansas.

I learned - sometimes the hard way - that if you’re going to launch a screed about a piece of policy or a personality, you had best be sure that you are right.

Earlier this week the Kansas Reflector’s editorial writer Clay Wirestone published a piece titled “Don’t look, kids! According to Kansas lawmakers, this is pornogrophy.” The headline was followed by a photo of two men exchanging wedding rings.

The headline, and the arguments in the piece, are patently false. And in an effort to create a fire where none exists, he has provided fuel to critics who often lament that liberals wail and gnash their teeth over the slightest of slights.

Here’s the opening salvo in Wirestone’s piece…

“Take a good look at the photo just above these words. You should see two men exchanging rings at a same-sex marriage ceremony.

You’re also seeing, according to the Kansas Legislature, the kind of pornographic content that should be walled off from those under age 18 with age-verification software. That was the consequence — intended or not — of passing Senate Bill 394. All 40 state senators voted for the legislation, including 11 Democrats. In the House, nine Democrats joined Republicans to pass the bill, 92-31.”

For the record, I was one of the Democrats that voted for Senate Bill 394 - which creates an age verification requirement to access online pornography sites.

On the morning of the vote, in the comfort of my temporary Topeka home while sipping a cup of coffee, I wondered if voting for the bill might do exactly what Wirestone contends in his missive. So, as I often try to do, I did my homework. My conclusion that calm morning was quite different from Wirestone’s hysterical interpretation.

SB394 relies on the definition of material harmful to minors outlined in statute. It is a long definition that includes a number of exemptions and clarifications on what is legally defined as harmful to minors.

Wirestone argues that SB394 is a direct assault on the LGBTQ+ community because the definition of harmful to minors has a specific reference to homosexuality. He pulled in the advice of media attorney Max Kautsch, who lent some legal credibility to Wirestone’s off-target accusations.

Here’s another snippet…

“The online age-verification bill expressly incorporates the definition of ‘harmful to minors’ that already exists in Kansas statutes, a phrase defined to mean ‘any description, exhibition, presentation or representation, in whatever form, of … acts of … homosexuality,’ ” (Kautsch) told me. “The term ‘homosexuality’ is undefined in the law, but it could include a wide swath of conduct between two persons of the same sex, including kissing, hand-holding, and other activities that would be considered ‘public displays of affection.’ ”

We’re going to get in the weeds a bit, and get a little lawyer-y, but I think it’s an important discussion to have.

The definition of harmful to minors reads: “harmful to minors" means that quality of any description, exhibition, presentation or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sadomasochistic abuse when the material or performance, taken as a whole or, with respect to a prosecution for an act described by subsection (a)(1), that portion of the material that was actually exposed to the view of minors, has the following characteristics:”

Then it goes on and defines the elements outlined in the above definition.

There is only one reference to homosexuality in the statute, and that is under the definition of “sexual conduct.” It reads: “sexual conduct means acts of masturbation, homosexuality, sexual intercourse or physical contact with a person’s clothed or unclothed genitals or pubic areas or buttocks or with a human female’s breasts…”

So the proper order of reading, in my view, looks like this..

Harmful to minors —> Sexual Conduct —> any act of sex as defined, including acts of homosexual and heterosexual intercourse.

Additionally, there are a load of examples of when images that might meet the harmful to minors definition is exempt. They include language that states there is an affirmative defense if there is an educational, artistic, cultural, scientific or medical purpose. There’s even a clause that says it’s OK for minors to view harmful material, if it’s done so in the presence and with permission of their parents.

I agree that there’s cause to update old language in our statute to eliminate the specific reference to homosexuality. That’s a fair compliant. But functionally, Kansas’ definition of sexual conduct simply states that all images of sexual activity would be considered harmful to minors.

Normally, I might let this go and not spend the little bit of time I have between conference committees airing my concerns. But there are two big issues here that I think warrant discussion.

First is the issue of children and pornography. I voted for SB394 because I have always thought we should do more to prevent children from accessing online pornography.

We’re a generation into what I view as a dangerous normalization of pornography. Most surveys indicate that children are accessing porn between the ages of 10-12, and there’s growing evidence that it affects their ability to form normal, healthy relationships in their teen years and adulthood.

The American College of Pediatricians reported that underage exposure to pornography led men to have “increased callousness toward women, consider the crime of rape less serious, say they were less satisfied with their sexual partner, and a decreased desire for children.”

The provisions in SB394 definitely aren’t perfect, but it’s at least trying to address what I view as a serious cultural problem - one that we’ve been far too passive about, as it relates to the harm it can cause children.

The other reason I feel compelled to fire back is because such hyperbolic protestations from the left - and more specifically from someone in the media - feeds the narrative that 1) hypersensitive liberals level over-the-top accusations that aren’t based in fact and 2) that media is biased.

What Wirestone wrote this week is demonstrably wrong. That photo of two men getting married is a nice prop for his opening paragraphs, but it is not, under Kansas statute, pornography. And SB394 does nothing to change that fact.

When people with a platform get wound up and scream about things that aren’t really real, they undermine our work to elevate the conversation about the things that truly matter. It, then, shouldn’t surprise us when people who have been unfairly accused of malfeasance don’t listen to our concerns or take us seriously.

There are real attacks against the LGBTQ+ community and those deserve our earnest effort and attention. There are real efforts to muzzle speech and to disenfranchise entire groups of people. Those deserve our best effort. What’s most unhelpful in our endeavors, however, is screaming pornography into a perfectly fine, and legal, photo of two men in love.