http://www.cnn.com/2003/LAW/09/19/obscene.journal.ap/index.html
"Dalton, 24, is believed to be the first person in the United States successfully prosecuted for child pornography for writings rather than images.
The stories, which prosecutors say were made-up and never acted on, were about three children, ages 10 and 11, being caged in a basement, molested and tortured."
So. A man (whose background information I know nothing of) is caught with a private journal that contains fiction that depicts some pretty awful stuff. He’s convicted of “pandering obscenity” even though he didn’t publish or distribute the writing. The appeals court agreed he received bad counsel and has thrown out the conviction.
Well, I’m sure what kind of man this Mr B. Dalton is, but imagine he won’t be getting invited to any neighborhood barbeques anytime soon. But assuming that the writings were not based on real people, or distributed in any way to minors or those who would not wish to view them, it seems that he’s well under the scope of First Amendment protection. If Bret Easton Ellis can write “American Psycho”, depicting a yuppie skull-f*cking a freshly murdered hooker, one would think that Mr Dalton’s depictions of disturbing, illegal activities should be allowed as well.
This appears to be an extension of the irrational behavior that lawmakers take (and politicians endorse) with any issues involving child sex crimes. The emotional charge that accompanies the topic appears to preclude any considered, two-sided discussion of what the law can and should do. Regular murders and standard issue rapes seem to get downgraded in the process.
As Chomsky remarked famously, it is for the speech we find most distasteful that the right to free speech must be defended most vigorously. Mr Dalton should be allowed to write his disturbing, distasteful fiction freely, and even distribute it among consenting adults who wish to read it. I cannot see how writing about molesting children would fulfill a legal standard for “fighting words” or “threatening speech” that books on arson, assasination, arson, racial holy wars, medieval torture, serial killers, and the Roman Empire do not.
What I’m uncertain about is whether the FBI shold be allowed carte blanche to monitor the activities of those who openly solicit such materials. If they need a grand jury to approve the search and requisition of library records and Neo-Nazi club memberships, then presumably they would have to prove probable cause of a crime before putting Mr Dalton’s readers under surveillance.
So? Do you think child porn fiction should be legally distinct from other disturbing written fantasies about illegal activities? If so, why and on what legal grounds?