# Child porn conviction overturned on appeal -- Can fiction ever be "illegal"? **URL:** \ **Category:** Great Debates\ **Created:** [September 23, 2003, 8:08am UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279 "2003-09-23T08:08:09Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![Karellen](https://avatars.discourse-cdn.com/v4/letter/k/779978/32.png) [@Karellen](https://boards.straightdope.com/u/Karellen)\ **Post date:** [September 23, 2003, 8:08am UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/1 "2003-09-23T08:08:09Z")
[http://www.cnn.com/2003/LAW/09/19/obscene.journal.ap/index.html](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? ---
**Author:** ![Ms2001](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ms2001/32/18463_2.png) [@Ms2001](https://boards.straightdope.com/u/Ms2001)\ **Post date:** [September 23, 2003, 10:45am UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/2 "2003-09-23T10:45:46Z")
> [@](#): > > Do you think child porn fiction should be legally distinct from other disturbing written fantasies about illegal activities? Absolutely not, and I’m glad to see the conviction overturned. This guy has the right to write about whatever topics he wants. A lot of people seem to think that the right to free speech doesn’t extend to speech that happens to be offensive enough or disturbing enough. Newsflash, folks: Unpopular, offensive speech is the _only_ speech that needs protection. No one ever tries to ban popular speech. ---
**Author:** ![Master\_Wang-Ka](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/master_wang-ka/32/3325_2.png) [@Master\_Wang-Ka](https://boards.straightdope.com/u/Master_Wang-Ka)\ **Post date:** [September 23, 2003, 11:12am UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/3 "2003-09-23T11:12:46Z")
I agree. Banning photographs is one thing… but banning text is quite another. When we begin finding various kinds of TEXT illegal, we are sailing in dangerous waters, constitutionally speaking. While I think the guy’s a scumdog, personally, how can I deny him his freedom to write down his thoughts without cutting MYSELF short, as far as freedom goes? And a judge who thinks he has the right or obligation to do this needs correction. Quickly. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [September 23, 2003, 3:09pm UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/4 "2003-09-23T15:09:49Z")
I just want to make sure we get the facts correct: Back in 1998, Mr. Dalton was arrested and convicted of 5 counts of pandering obscenity involving a minor and 5 counts of pandering sexually oriented material involving a minor. He was sentenced to prison for a total of 18 months. After being released after serving 4 months, he was placed on probation and ordered to attend sex offender treatment. When he failed to do so, he was arrested for the probation violation. While he was in jail, his mother called the police because she had found the items at issue in this case in his room. He then pled guilty to a new pandering obscenity charge, and the probation revocation, and was sentenced to his current 7 year sentence and ordered to serve the remainder of his original 18 month sentence. He filed a motion to withdraw his guilty plea. The basis of that was that his attorney was mistaken as to which of his actions he was pleading guilty to. She mistakenly thought the new charges were for a was based on a letter that Mr Dalton wrote describing his sexual molestation of his young cousin, a real person. She further believed that the cousin letter depicted, at least in part, actual events involving a minor. In fact, the new charges were not for the letter, but solely for the apparently fictional journal he kept. The Court on appeal ruled that, due to his counsel’s mistaken belief, that Mr. Dalton should be allowed to withdraw his guilty plea. While I agree with most everyone here that simple possession of the fictional journal would not support a charge of pandering obscenity, I disagee with the extent that it is impossible for simple fiction writing to be illegal. As the Supreme Court has said: “Obscenity can, of course, manifest itself in conduct, in the pictorial representation of conduct, or in the written and oral description of conduct.” The Constitution protects the right of simple possession of obscene material, which is what Dalton did. However, it does not necessarily protect the distribution of obscenity, which there is no evidence I’ve seen that Dalton did. It is not simply a matter of text v. picures, both can be obscene. It is a matter that Dalton did not distribute his obscenity. My best guess is he’ll win the case about the journal, and be given credit for the time he served due to the probation violation. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 23, 2003, 3:32pm UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/5 "2003-09-23T15:32:01Z")
Is it “obscenity” if there is no attempt to distribute the material? This was a notebook of private fanatsies that he kept for his own gratification. He wasn’t trying to sell them or even show them to anybody else. Personally I think it’s ridiculous that mere words could ever be illegal and a clear violation of the first amendment no matter how offensive they are…especially words that are spoken to one’s self. What if the guy just muttered these fantasies under his breath and didn’t write them down? Would that still be obscenity? Why is it different if he writes them down? What if he writes it down in a code that only he can read? Would that still be obscene? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 23, 2003, 3:34pm UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/6 "2003-09-23T15:34:25Z")
Oops, upon re-reading, I see that you already answered my question about distributing vs. possessing obscenity. Never mind. ---
**Author:** ![Jimmy1](https://avatars.discourse-cdn.com/v4/letter/j/ea666f/32.png) [@Jimmy1](https://boards.straightdope.com/u/Jimmy1)\ **Post date:** [September 23, 2003, 4:22pm UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/7 "2003-09-23T16:22:23Z")
> [@](#): > > Is it “obscenity” if there is no attempt to distribute the material? This was a notebook of private fanatsies that he kept for his own gratification. He wasn’t trying to sell them or even show them to anybody else. Whether or not there is an attempt to “distribute” is not a factor in determining whether or not something is “obscene”. The U.S. Supreme Court has articulated the several factors to be considered in determining whether or not a work product of any kind in any medium is “obscene” and distribute simply is not one of them. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [September 23, 2003, 5:15pm UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/8 "2003-09-23T17:15:08Z")
According to **Hamlet** , though, the Constitutution still protects the right to simply _possess_ obscene material, which is what I was really asking about. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [September 23, 2003, 6:15pm UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/9 "2003-09-23T18:15:09Z")
Mere private possesion of obscene materially is constitutionally protected. [STANLEY v. GEORGIA, 394 U.S. 557 (1969)](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=394&invol=557) ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [September 23, 2003, 6:17pm UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/10 "2003-09-23T18:17:01Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\*According to **Hamlet** , though, the Constitutution still protects the right to simply _possess_ obscene material, which is what I was really asking about. \*\* Since 1969, when SCOTUS decided _Stanley v. Georgia_. The majority opinion, written by Justice Marshall stated: > [@](#): > > If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds. ---
**Author:** ![Karellen](https://avatars.discourse-cdn.com/v4/letter/k/779978/32.png) [@Karellen](https://boards.straightdope.com/u/Karellen)\ **Post date:** [September 24, 2003, 3:22am UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/11 "2003-09-24T03:22:53Z")
What I can’t find are the details about Mr Dalton’s initial arrest. If there was a pandering charge that involved distribution, then that would change his culpability. The CNN article apparently referred to the SECOND pandering charge only, which carried the 7-year sentence. But what got him arrested in the first place, if the writings were only in a private journal? ---
**Author:** ![mikerek](https://avatars.discourse-cdn.com/v4/letter/m/eada6e/32.png) [@mikerek](https://boards.straightdope.com/u/mikerek)\ **Post date:** [May 12, 2014, 2:24pm UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/12 "2014-05-12T14:24:18Z")
I’d never touch or even look at a minor sexually , but reading about it is different = and wanted to know if reading that kind of pornography is illegal or not ---
**Author:** ![Icarus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/icarus/32/72_2.png) [@Icarus](https://boards.straightdope.com/u/Icarus)\ **Post date:** [May 12, 2014, 3:32pm UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/13 "2014-05-12T15:32:45Z")
> [@mikerek](#): > > I’d never touch or even look at a minor sexually , but reading about it is different = and wanted to know if reading that kind of pornography is illegal or not And is reading about someone reading about it (when the details of what is being read is even generally described) grounds for prosecution?:eek: ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [May 12, 2014, 3:35pm UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/14 "2014-05-12T15:35:18Z")
> [@mikerek](#): > > I’d never touch or even look at a minor sexually , but reading about it is different = and wanted to know if reading that kind of pornography is illegal or not This thread, and that case, is over ten years old. Does anyone have any updates on this situation? ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [May 12, 2014, 6:38pm UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/15 "2014-05-12T18:38:07Z")
> [@mikerek](#): > > I’d never touch or even look at a minor sexually , but reading about it is different = and wanted to know if reading that kind of pornography is illegal or not If you’re really interested in seeking out and reading that kind of material, it would probably be a good idea to speak to an attorney in your jurisdiction to find out what the rules are and how close you are to trouble. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [May 12, 2014, 9:55pm UTC](https://boards.straightdope.com/t/child-porn-conviction-overturned-on-appeal-can-fiction-ever-be-illegal/203279/16 "2014-05-12T21:55:25Z")
> [@mikerek](#): > > I’d never touch or even look at a minor sexually , but reading about it is different = and wanted to know if reading that kind of pornography is illegal or not As noted, the best source of information to your question is a lawyer licensed to practice in your state/county/city. Whatever answers you got here would be suspect, (for a variety of reasons). Beyond that, a question with a factual answer would be better posted to General Questions, (although, for the reason I have noted, that would be rather pointless). A survey of how others viewed such activity would be better posted in IMHO, (although I will note that reactions on this message board will be nearly universally harsh). There was nothing wrong with your question, _per se_, but similar questions have resulted in rather fierce attacks on posters in the past. This is not really a debate topic and, in the interest of not provoking some of the brawling that has occurred on similar topics in the past, I am closing this thread. [/Moderating]