Aschcroft v. Free Speech Coalition

Ashcroft v. Free Speech Coalition

What are your thoughts? Is it still kiddie porn if it’s not real kiddies?

Perhaps some explanation would get a thread going:

In this Supreme Court decision, it was ruled (on the basis of precedents named in the above link) that graphic depictions of minors in explicit acts are not prosecutable under child pornography laws unless the acts involved actual minors. In other words, 18 year olds posing as adolescents can make a porn movie and it’s legal, or an artist can create a drawing, painting, sculpture, computer animation, etc., of the most vile acts imaginable involving children of any age, animals, priests, and or battery operated devices and market it online and in a booth at the NAMBLA conventions and in so doing they are protected from obscenity and indecency violation by virtue of the fact that, regardless of what it depicts, no children were actually required to have sex for the “artwork” to exist.
In your opinion, should graphic artistic representation of something as loathsome as child pornography be protected under the First Amendment? If you answer yes, it should, how do you respond to the allegations that it could encourage pedophiles to actually pursue the act? If you answer no, how do you respond to the charge that this could set a precedent in which illegal acts (robbery, murder, terrorism, drug use, etc.) cannot be depicted in a movie? Please phrase your answers in a Norwegian haiku.

Greetings, Panic, and welcome to the SDMB. The topic you address in your opening post has been pretty extensively debated in this thread. Threads on topics can be found using the search function, and it is considered courtesy around heres to check to see if a topic has been previously addressed.

Read through the old thread and if you feel you have something to add, certainly revive the debate - it’s also SOP around here to beat a topic to death, revive it, then start kicking at it again. :smiley:


I’m no lawyer, and I didn’t like the virtual pornography law that was struck down, but the reasoning behind the SCOTUS ruling confuses me. Here, they seem to be saying that as long as no actual people performed the obscene acts, then it is acceptable.

However, SCOTUS has ruled in the past that obscenity is not protected by the first ammendment. This would imply that something can be obscene no matter how it is prodeuced. The Supreme Court’s criteria for obscenity are: [ul]1) it must be prurient in nature
2) it must be completely devoid of scientific, political, educational or social value
3) it must violate local community standards[/ul]Even animated child pornography would seem to qualify as obscenity under these criteria.

Beeblebrox, the Supremes addressed that point. The problem with the law was that is was overbroad - it did not call for the application of the Miller obscenity standard (which is what you paraphrased) before finding materials illegal.

And the Supremes noted that some things covered by the law would not be obscene under Miller. For example, a stage production of Romeo and Juliet, in which the (over 18) actress playing Juliet appeared on stage nude or topless (remember, she is playing a 13 y.o. girl) could be prosecuted under the law. Similarly, American Beauty could be considered afoul of the law.


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Thanks, Sua, I had been scratching my head on that one. I agreed with them that the law was overbroad, but it seemed to me that they were ignoring Miller. I guess that’s not the case.

A follow up, though. Animated child pornography would still be illegal because of Miller, correct?

My apologies; I am a stranger in a strange land, but I like the scenery.

You still have to do a case-by-case analysis as to whether the material in question violates the Miller standard.
To make the obvious (though, of course, ludicrously hypothetical) distinction, say an animator wanted to make an animated (or “virtual” CGI) version of Romeo and Juliet. To adhere to his artistic vision, which interprets the play as positing the power of physical love in overcoming obstacles between people, he presents the love scene in Romeo and Juliet* graphically. Still a portrayal of a 13 year old girl and a (IIRC not specifically aged, but very likely minor) boy engaged in sexual activity. But very likely not obscene.


De nada, Snopes - I wasn’t intending to come down on you, and apologies if it sounded that way.

Welcome again; the scenery truly is wonderful around here.


It seems to me that…

  1. Thomas Harris writing about killing and eating a human being is not the same as Jeffrey Dahmer doing it.

  2. Al Pacino robbing a bank in a movie isn’t the same as John Dillinger doing it.

  3. Using a computer to create a virtual naked child isn’t the same as photographing and exploiting a real child.

Some people (understandably) find all three things distasteful, or even disgusting. But I don’t see that a crime has been committed in any of these three cases, since there’s no actual victim.

But see, this is what I was wondering. Wouldn’t this virtual pornography pass the Miller obscenity standard, and therefore not be protected by the first ammendment? It’s prurient, has no scientific, political, educational or social value, and would be against the standards of almost every community in the US.

The Supreme court struck this one law down, but I think they left the door open for more precise laws regarding virtual pornography.

To clarify, I have read the other thread and seen many arguments similar to astorian’s, but I think they may miss the point a bit. If we are going to have obscenity laws at all, then they must cover “virtual” obscenity as well. Obscenity laws are not based on a victim, but rather on the effect this type of unprotected speech would have on the community. SCOTUS struck this particular law down because it was too broad, and not because the pornography is “virtual”.

It seems to me that SCOTUS has not abandoned the Miller criteria and will uphold the next virtual pornography law that comes down the pipe, provided it is sufficiently specific.

“virtual” is irrelevant too obscenity.

The courts seem to recognize at least three categories of speech. There is ordinary speech which is not subject to prior restraint of any sort although it may be actionable after publication, as in the case of defamation. There in indecent speech, which is subject to regulation, as in restricting publication of indecency to adults to the exclusion of minors? There is obscenity which is not entitled to protection of any sort. Admittedly the boundaries between these categories have become blurred.

When the courts started dealing with child pornography as indecent speech and not as obscene speech, they took the view that the State had no power or right to protect adult viewers but that the State did have the power and duty to protect the children who were the participants in the stuff.

The last US Sup Ct decision simply followed that proposition. The State has the power to protect child participants. If there are no actual child participants there is no interest for the State to protect (save restricting publication to adults).

It the extent this duplicates stuff already posted, my apologies.

Spavined Gelding, when did child pornography become “indecent speech” rather than “obscene speech”? Do you have a cite?

Please note that I am not doubting you, but I am genuinely curious and want to read more about the difference between indecent and obscene.

I can’t tell you that the courts have articulated it in just that way, that is, that there is protected speech which anyone may publish to anyone, indecent speech which may be denied to minors, and obscenity which may be denied to everyone. Since the initial decisions in the 50s and 60s, however, it is apparent to me that is where we end up. Without that distinction there does not seem to be any justification for allowing adults access to things that are denied to minors.

It is also clear to me that the standards are changing as the population either develops a taste for or an acceptance of sexually oriented material. There is no doubt in my mind that there is stuff on cable TV tonight that would have been suppressed as obscenity 20 or 30 years ago.

My point is that it is proper to protect minors from pornography that does not rise (sink) to obscenity. That is done by preventing children from viewing or creating the stuff. If children are neither the viewers nor the creators, and the stuff is not obscene, there is no lawful basis to restrict adult access to it. This seem to be the distinction between literal kiddie porn and figurative kiddie porn. The courts see the difference, the legislature, with its different priorities does not. The court is concerned with protecting children consistent with the principals of the Constitution. The legislature, reasonably enough, is concerned with keeping the electorate happy. That is why we have separate and independent branches of government.

  1. Yes.
  2. Bullshit.


Thank you Spavinged Gelding, that was very well spoken. However…

originally posted by Spavined Gelding
If children are neither the viewers nor the creators, and the stuff is not obscene, there is no lawful basis to restrict adult access to it. This seem to be the distinction between literal kiddie porn and figurative kiddie porn.

What is obscene then? If figurative kiddie porn is merely “indecent” what could the courts possibly view as worse? We already have laws against pedophilia, and these apply whether or not the act was filmed.

I suppose my question is simple. Child pornography is the closest thing I can think of to fit the term “obscene”. Obscenity is not protected speech. If child pornography (no matter how it is produced) doesn’t fit the rubric of obscene, what the Hell would? Does there have to be a crime commited during production? Has obscenity become meaningless in terms of speech?

Beeblebrox, you’re getting off on the wrong track. Let’s back up a bit.

An important thing to remember is that “real” kiddie porn never came under a speech analysis. Obscenity was not the issue; child abuse was. The illegal aspect of kiddie porn was the act of making a child engage in sexual activity, and the act of degrading and humilating that child by selling depictions of that child engaged in sexual acts or behavior, when that child did not (and legally could not) consent.

Now, virtual child porn comes along and takes the actual child out of the situation. We are left with the depictions alone. The question presented to the Supremes was twofold. First, does the traditional analysis of kiddie porn as non-speech still apply when there is no child being abused? Second, if virtual kiddie porn is considered “speech,” what standard should apply to it?

On the first question, the Supremes determined that, if a child is not involved, the traditional analysis of kiddie porn does not apply.
On the second question, the Supremes determined that the Miller standard should apply.

Your last post indicates that you think that virtual kiddie porn is now subject to a blanket rule. It’s not. Miller requires a case-by-case analysis and requires applications of the “community standards” of the relevant community. That which is obscene in Montana may not be obscene in New York (don’t get me started on the atrocity that this implies - people in different parts of the country have different 1st Amendment rights. But anyway).

I suspect that the fact that the depiction of minors will play a heavy role in that analysis - depictions of sexual acts that do not violate “community standards” when performed by adults may very well violate those standards when performed by virtual children.
But remember - “kiddie porn” is a misnomer here, or at least an overbroad term. Films such as Blue Lagoon, American Beauty, Lolita, etc., involved either minors or depictions of adults as minors. They are probably also “indecent.” But they weren’t “porn,” kiddie or otherwise. All three, despite the fact that they portray or display nudity or sexuality by minors, would fall within the “community standards” just about anywhere in the country, and would therefore not be obscene.