Third federal circuit upholds criminality of Childless Pornography.
November 12, 2000 10:29 PM   Subscribe

Third federal circuit upholds criminality of Childless Pornography. Anyone know a good source for jackboots?
posted by baylink (26 comments total)
I'm sorry, but I just don't have a problem with this law. It seems to me that it is both reasonable and in the best interests of society.

Maybe I'm missing something. Are you really concerned that your rights are being trampled on if you can't watch videos with children having sex?
posted by y6y6y6 at 5:43 AM on November 13, 2000

If you read the article, y6y6y6, you'll see that these are not videos of children having sex. They're videos SIMULATING children having sex. Which is certainly different. What, really, is the difference between this being illegal and a cartoon of children having sex being illegal? Or, for that matter, making it illegal to sell "Lolita" because it simulates adult/child sex through the clever manipulation of words?
posted by Doug at 6:17 AM on November 13, 2000

No, I read the article and I'm familiar with the argument.

But I don't think there is any difference between child pornography and simulated child pornography. I think we're better of without child pornography.

"Lolita" is not child pornography. As to cartoons, that's up to the courts to decide.
posted by y6y6y6 at 6:38 AM on November 13, 2000

Ok, so what is the argument against simulated child pornography? I mean, talk about a victimless crime. What exactly is bad about this?

Also, are you against simulated animal sex? Simulated rape? Simulated violence?

I think this does trample on my rights. I think the fact that I can't sit in my room, if I so desire, fire up photoshop and make anything I want infringes on my rights. It isn't the governments concern whether I make pictures of clowns holding balloons or pictures of kids having sex.

Of course, I think anything that doesn't hurt someone else should be illegal.
posted by Doug at 6:53 AM on November 13, 2000

Clearly I'm still very tired. That last line should say LEGAL.
posted by Doug at 6:57 AM on November 13, 2000

The argument is precisely that, by the letter of this law, 'Lolita', a 25 million dollar hollywood film starring well known actor Jeremy Irons, is in fact the child pornography he was so concerned that everyone not take it as -- the book being a classic work of literature.

The legislative intent of federal child pornography laws has always been the protection of the children necessary to make such material. Anything else was clearly felt to be infringement on free speech -- unless it passed over the edge into the obscene.

Until CoPPA.

And in fact, anime and other animation, and written material have never been restricted.

Is that where you want them to go next?

Zero tolerance laws *never* work; we covered that here a month ago... :-) And we have a Constitution precisely because legislatures like to slide down slippery slopes.
posted by baylink at 7:31 AM on November 13, 2000

"The argument is precisely that"

The argument doesn't even come close to that. As I read it this law concerns "any visual depiction, ...... of a minor engaging in sexually explicit conduct."

This would exclude "Lolita" and it would also exclude animation.

"Zero tolerance laws *never* work"

This isn't a zero tolerance law. All it does is close a loop hole in existing legislation.
posted by y6y6y6 at 7:48 AM on November 13, 2000

The law wouldn't exclude the film of Lolita
posted by owillis at 8:51 AM on November 13, 2000

The basics of this law, in my mind, go like this:

Originally, anti-child-porn laws were put into place to help protect children from abuse. However, we now have the possibility of creating child pornography without needing a child. Thus, childless child porn, whether you like it or not, doesn't fall under the intent of the original law.

Whether or not you think childless child porn (for lack of a better term) should be outlawed depends on whether you think the crime lies in the creation of the images, or in the viewing of them. Personally, I think the crime lies in the creation, and since messing with Photoshop isn't a crime, outlawing "simulated" child porn is akin to a "thought crime" in my mind. Nobody has harmed anyone in the creation of these images, so where is the crime?
posted by CrayDrygu at 10:30 AM on November 13, 2000

Whether or not you think childless child porn (for lack of a better term)
Diet Child Porn? Kid E-porn?
posted by thirteen at 12:00 PM on November 13, 2000

posted by dhartung at 12:06 PM on November 13, 2000

This is such a strange issue, because nobody is for child porn. I'm not for people watching child porn, simulated or real. But, I'm able to separate that personal repulsion from my political beliefs. I mean, if everything that freaked me out was illegal nobody would be able to watch The Golden Girls, or have a mullet.
posted by Doug at 12:06 PM on November 13, 2000

The original arguments against "real" child pornography concern the "compelling interest" of government to protect children. This was deemed sufficient to override constitutional protections for free speech.

If you remove the victim, you remove the "compelling interest" of the federal government. You regulate a thought crime.

Under this law, Beverly Hills 90210 is child pornography.
posted by dhartung at 12:10 PM on November 13, 2000

I'm not sure I agree with this, dan.

"Pedophiles use computer-generated images of child porn to whet their sexual appetites and to make minors more susceptible to sexual demands, the panel reasoned."

so the compelling interest here is in the harm that these images, produced by any means, might do to children who are not in the photographs.

posted by rebeccablood at 12:33 PM on November 13, 2000

Isn't it possible that getting some magazines or downloading some pictures with 18 year-olds dressed to look young might keep at least a portion of sickos from going after the real thing, Rebecca?
posted by snarkout at 12:45 PM on November 13, 2000

That's a valid argument, Rebecca... but is it good *enough*?

Certainly people trying to create child pornography can find other sources, even if "simulations" are made illegal, no?

But the really telling point is that, these days, the only place to purchase child pornography commercially is from postal inspectors; the federal law has effectively stomped out any semblence of a market in commercial material.

The argument doesn't even come close to that. As I read it this law concerns "any visual depiction, ...... of a minor engaging in sexually explicit conduct."

This would exclude "Lolita" and it would also exclude animation.

While it might exclude Lolita (judge's call), no, it would not exclude animation -- hentai, for example -- and that's the point I keep trying, fairly clearly, to make. Why do you keep missing it? It is precisely the intent of CoPPA to make actual depictions of sex with simulated minors illegal.

If I shoot a porn flick of a 19 year old girl with blonde pigtails and a lollipop, I'm a child pornographer. What's that about?

Cray and Dan have made the remainder of my point more clearly than I can.

But in the final analysis, it comes down to this: there's a difference between fantasy and reality. Many of us know what that difference is. Regardless of the target (and let us note here that fantasizing about Britney Spears one day before her 18th birthday would have been illegal under such a regime), do you want the government telling you what to fantasize about; ie: what to think?

Do you see how slippery this slope is?

The law as written makes it illegal for you to videotape yourself having sex with your wife... if she happens to be 16 or 17; ages which are perfectly legal ages for marriage in many states.

(And note that here, I'm not bitching merely about CoPPA, but the entire body of 18 USC 2257.)

In fact, it would technically be illegal for her to possess these films of herself.

That's pretty stupid, no?
posted by baylink at 12:54 PM on November 13, 2000

I don't think this has to do with 18-year-olds dressed to look young.

I'm reading this as pertaining to pictures of children younger than this (and I'm a little confused as to how these pictures might be manipulated without using existing pictures of children, but maybe there are absolute wizards with photoshop.)

in any case, I wouldn't think that pictures of young-looking 18-year-olds would be called into question (although I may be entirely misreading the intent here.) I was thinking of pictures of much younger children manipulated to appear to be engaged in sexual activities. as I understand it, pedophiles often use such pictures to introduce their victims to the specific activities in which they would like them to engage.

posted by rebeccablood at 12:56 PM on November 13, 2000

To quote from the original link, the statue covers:
"such visual depiction is advertised, promoted, presented, described or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct."
Although IANAL, that sounds like it would cover 18-year-olds in material designed to convey that they're below the age of consent
posted by snarkout at 1:01 PM on November 13, 2000

Which material, I'll add, is apparently legal to make (if you can prove that all the participents were, in fact, 18 or older), but not to own (unless you can prove same, which I imagine Joe Pervert can't).
posted by snarkout at 1:02 PM on November 13, 2000

well, let's see.

I think it's worth noting that most states have statutory rape laws that apply to (basically) adults having sex with teenagers--in other words, to differentiate with a physically mature minor and minors who are not physically mature.

the (old) child pornography law seems to be saying that anyone under the age of majority isn't in a position to decide whether or not they want to engage in real or simulated sex.

okay. now I can see that it might be difficult to make a child pornography law that made a distinction between minors the way the statuatory rape laws do--or could you?

while I find it hard to believe that this law would be applied to 18+ "hot teen action" (it would be easy to make an argument that the young women involved *were* 18, *and* they look like that, so obviously it's not simulating a younger age). but let's assume for a moment that it might.

how would you write the law so that it would protect young children (even from the manufacture of materials that might be used to encourage them to have sex for an adult) *and* protect the "hot teen action" material?

or would you?

posted by rebeccablood at 1:25 PM on November 13, 2000

I don't feel equipped to discuss how I would write the law, Rebecca -- I hadn't heard about the use of child pornography (simulated or otherwise) as a tool of pedophiles before this. I will say that my gut reaction is that holding people responsible for the potential use of their creations is alarming unless those creations seem to be made explicitly for that use. (To pick an example that makes me sound like a Republican, I don't think holding handgun or rifle manufacturers liable for handgun shootings is right, while I do think that assault rifles -- which don't have any real defense or hunting purpose -- fall out of that protection.)

I recognize that child abuse is a terrible thing -- and I think that making child pornography with real children is truly unconscionable and should be punished with every ounce of the overwhelming force that the American legal system is capable of delivering -- but to say that image manipulation should be illegal because it encourages illegal behavior or has a potential illegal purpose worries me. Twenty years ago, couldn't that very argument have been made about gay skin mags? Couldn't that argument be made now about High Times or The Turner Diaries or black-block anti-WTO newsletters or Quake? Or, for that matter, gay skin mags in places where sodomy laws are still on the books?

Do you see any similarity between this ruling and the Palmer Raids? I think that when you start outlawing movies or magazines or books or speeches based on the behavior they encourage, you're one step closer to the end of the First Amendment, even if the speech in question is morally reprehensible.
posted by snarkout at 2:14 PM on November 13, 2000

You may drone on all you want about how naive I am but:

1) I don't think hentai is covered under this decision.
2) I don't see any slippery slope.

Further more: The decision only says that it's illegal to create illegal images. If you want to create illegal images in the privacy of your own home, then you should use the same caution you use when you do other illegal things in the privacy of your own home.

I don't think I'm all that happy with the CPPA (jury's still out), but the decision described in the article makes sense to me.
posted by y6y6y6 at 4:19 PM on November 13, 2000

"you're one step closer to the end of the First Amendment"


(you may picture Jon running about waving his arms and screaming in horror over the possibility that freedom of speech in the US will be legislated away)

Hey..... Wait a minute.......

(Jon suddenly realizes that the possibility of this ever happening is exactly 0.0)
posted by y6y6y6 at 4:22 PM on November 13, 2000

I think it's a step in that direction, y6 -- I don't need to think we'll ever reach the destination to find it troubling. Sorry if I sounded alarmist, but I thought it was worth saying why I feel compelled to defend a perversion that I -- and most people, thank goodness -- find unsettling.
posted by snarkout at 6:44 PM on November 13, 2000

I love when you c-razy yanks get all riled up about the right to free speech.

Note that I live in a country that does NOT have freedom of speech, and I'm just happy about that. Keep those damn kooks shut-up I say.
posted by Neale at 7:11 PM on November 13, 2000

Thanks, Neale. It was getting entirely too serious in here.

(Not!; but it's nice to see you back around anyway.)
posted by baylink at 9:44 AM on November 14, 2000

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