And that captures my feelings. I agree that there’s no legal distinction; indeed, the appellate court’s decision is legally unassailable.
But in practice, visual images have received intense scrutiny, and the written word very little.
How does one ascertain the age of a cartoon character? (Not relevant if the image would fail the Miller test anyway, but assuming that it didn’t fail then the photo-realistic CGI would have to depict paedophilia, and we’d be at a question of determining the age of a fictional character).
One thought that occurred to me, could you end up in a situation where the fictional depiction would get you in trouble while a real depiction would not?
There are some porn stars who look younger than their documented age. (e.g. skinny, flat-chested, braces on teeth, etc). Real depictions of these people are apparently quite legal, and they have documents on file with the publishers to prove they are legally adults. If I was to create (in the US) photo-realistic CGI porn with characters of very similar stature, build, features, etc, could I find myself in trouble under PROTECT as I would be unable to prove the age of these characters?
Slightly tangential to the US situation – apparently in Australia it is possible for non-realistic depictions of fictional child characters to get one into trouble: (Aussie convicted over Simpsons sex pics).
If I understand it correctly, the deal is if a reasonable juror would look at it and say “child”, then it’s a representation of a child.
According to the *LETTER *of the PROTECT-Act as I read it (IANAL), it would seem that way, but it’s not completely clear to me if it’s still subject to the Miller test. The problem here is that though you will not be accused of CP, the penalty in the law as I read it harsher than that for simple obscenity.
(Because of my “other life” as an amateur cartoonist, I have had to deal with image-posting boards that have adopted various policies as to what to allow… with 3D lolicon being one of the most common restrictions. But even naked Kim Possible has gotten people suspended from DeviantArt)
A test that could, given my scenario above, lead to a photo being of an adult, but a CGI representation of the same person being a “child”. Seems a bit weird to me.
Which is also weird since, by season 4 at least, Kim – were she a real person – would have been 18. 
Okay, but my question is on what grounds you find yourself making the distinction, as you do in the OP where you seem to be saying that it’s okay to criminalize cartoon kiddie porn but not text kiddie porn. I can’t see anything that would be a basis for drawing a line there.
It should probably be noted in this thread that a significant amount of erotic literature is portrayals of rape, bestiality, snuff, or any other number of equally (or more so) illegal activities. I don’t think I’ve ever heard a peep about needing to save all the women who the writers/readers are fantasizing about raping.
Exactly. If a law can equate reading a description of pedophilia with committing actual pedophilia, then what is the legal distinction preventing the same illogic being applied to arresting people for committing “murder” when they read an Ed McBain novel?
Or, for that matter, watching a graphically violent film. (Or even worse: playing a graphically violent video game. On that account it’s a wonder I’m not in prison right now on several hundred thousand virtual murder charges. Won’t someone think of the children?!)
Personally, I think the very idea of the criminalization of any purely fictional representation of illegal acts is absurd. The very notion of “obscenity” is one that in my opinion is not within the rightful domain of legitimate government.
Bad cases make bad law. This isn’t a pure case of text only porn, but rather a mix. And the entire context is that he is trafficking in child porn. The appeals court is not protecting the text when thinking liberals and conservatives agree that text is absolutely protected under the first amendment. But it never has been. You can’t solicit for prostitution in classifieds or Craigslist, you can’t advertise your murder for hire business, etc. And you can’t depict children committing sexual acts because arousing people through depictions of children committing sexual acts, even though only imagined and no real children were damaged is inflaming the prohibited desires.
As clear as the language of the first amendment is, this country has a long history of limiting speech, and I really don’t see the danger of child porn prohibitions spreading to other areas of speech that I like. So while I will agree with the sentiment that the wider the protections are for speech the wider public discourse can be, to our great enrichment. But I’m not really going to lose sleep over banning any kind of child porn, however tenuous the logic. I will at some point think that we are beyond the 1980s DOJ of Ed Meese that spent so much time and effort chasing Hugh Hefner off of military bases out of old fashioned prudery and sucking up to the religious right. Democracy may suckle at the naked breast of Themis, but only a Republican like Ashcroft would miss the irony in covering her up.
So yes, we do get the judges we appoint, such as the 4th Cir, making perfectly predictable decisions when we appoint members of the “Federalist Society” to the bench. I’ve worked my whole life to keep these people off the bench for pretty much the reason that they will not have the courage to ensure political speech if it is so offensive as to try to shock the conscience with allegories of child porn. Judges who will uphold these kinds of convictions will find all sorts of things expedient. Waterboarding has been found expedient by our DOJ. Denying the writ of habeus corpus has been found to be expedient. The Bush DOJ did it, and so far the Obama DOJ is doing it. I don’t think my liberties are protected by this kind of attitude because there can easily be a slippery slope. Congresswoman Harmon didn’t think so until she was bugged. I find it sickening that every member of Congress who won’t even talk about public health insurance of any kind insist on having it for themselves and their families without even understanding their hypocrisy.
As for a political conservative being a PD, I cannot imagine that it was a good fit for the clients, but it needs to happen from time to time.
Which is, of course, just as silly as saying that graphically violent literature, films, and video games “inflame prohibited desires” and should be banned on those grounds. The main functional difference between the two is that one of the issues tends to flip a larger number of people into “brain off, moral outrage on” mode.
It’s not the sort of thing I would choose to defend, that’s for sure, but it’s in much the same way that I find it distasteful to defend the free speech rights of, say, the Ku Klux Klan. It’s still got to be done.
Porn reduces rape. Child porn…who knows?
If you want to protect the children, have a reason (AKA evidence) to do it. Otherwise you’re just as likely choosing the wrong path.
True, in the Whorley case we have the text and drawings at issue being part of a larger pattern of real CP offenses, so it’s not the same as a free-standing possesion case. But still the statute is there, and it doesn’t say “this applies in the context of an ongoing regular CP case”.
The thing that gets me, is that as Bricker and The Second Stone both recognize, there were ALREADY obscenity laws in the books that could be applied in this sort of cases. That the prosecutors and courts had developed a precedent of a double standard for text v. visuals was a different story. The drafters of the various “virtual CP” statutes over the last decade and a half either thought the mere obscenity laws were not enough… or that enforcing them more aggressively* accross the board* would step on too many toes.
Creating a new category, that is technically not CP – because SCOTUS said, “no real child = not CP” back around 2000 – but carries harsher penalties than mere obscenity and is harder to defend against the charges (the “no difference if they don’t exist” provision) is legislating on the basis of moral panic and righteous outrage. It’s also taking a reasonable bet on front-loading the obscenity test: that a juror would instinctively deny “redeeming literary merit” to a piece on the basis of the character being described as a “child”, right off the bat.
Well, I’ll be the first to admit when it comes to child porn, my brain goes into the off mode. I’d think it wouldn’t if I were a judge and that were my job. I’m not. I’m reminded of Potter Stewart’s “I know it when I see it” and I knew that a well written text (or a Penthouse letter, why does it need to be well written?) will make me sexually excited. Video games don’t. (Yet, there is still hope 
)
But I also think that most people’s brains do too, including judges, who are people. It is the mixed nature of the evidence that judges should be able to sort through so the jury doesn’t have to. Here they didn’t, and I’m not particularly surprised. Judges who got where they are through politics rather than being good lawyers and later judges are not going to be able to switch on the logic switch. Mandatory party membership in the Federalist Society for Republican nominees is a terrible thing inflicted on a supposedly independent judiciary.
As for there already being obscenity laws on the books, prostitution etc are not obscenity laws, but rather conduct laws. Obscenity necessarily touches free speech, whereas money for nooky is more a conduct matter. I’m not terribly impressed with prostitution laws as I think sex workers have a human right to temporarily sell their bodies, but that is another kettle of fish entirely.
Actually, I think there was no problem whatsoever there. As a conservative, I absolutely supported the proposition that the government’s power must be limited, and held very strongly to the ideal that the government must prove its case against an accused rigorously and with precision before it could be permitted to deny liberty to that accused.
The vast majority of my client were not political activists, and didn’t really care what my political opinions were, nor was I there to raise their political consciousness. My job wasn’t to hang out with them on the weekends and discuss El socialismo y el hombre en Cuba. I was there to make sure that no matter what they had done to get them there, the Commonwealth of Virginia couldn’t run roughshod over their rights.
That is, to me, a mission very much in line with conservatism.
I believe that the actual aphorism is “Good cases make bad law.” Was your version intended to be ironic or an actual assertion? Because if both good and bad cases make bad law, then all we’re left with are the meh cases to rely on for development of jurisprudence.
“Great cases, like hard cases, make bad law.” Northern Securities Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting).
I agree with this. If no non-consenting or non-adult actual people are involved, I don’t care how disgusting or perverted the text or cartoon is.
I’m just not seeing it. I don’t think the founding fathers thought of child pornography when they wrote the first amendment, and I don’t see how it is political speech or how our freedoms would be curtailed by outlawing it.
Hell, 35-40 years ago, pornography in almost all forms was illegal. I’m not saying I agree with it, but I don’t see any constitutional issue. Yeah, I know that the courts disagree with me.
Fair enough, but do you want the possibility of Das Kapital being declared to be Communist pornography? I mean, given the way the statutes are interpreted with strong first-amendment protections, do you really want to see how ‘lacks artistic merit’ and ‘offends community standards’ get interpreted without them?
Because it neither breaks your bones nor picks your pocket.
The government doesn’t have the right to decide what you believe, be that religion or politics or sexuality. It does have the right to keep you from harming others (and arguably the right to keep you from harming yourself–though that’s debated variously.)
What’s different from enjoying a rape fantasy and enjoying a child sex fantasy? There’s a whole row of books in the book store targeted to women where rape fantasies are darned prevalent and yet last I looked, rape is every bit as illegal.
Anal sex was prosecuted as sodomy–the same crime as you’re commiting if you fucked a goat–as was oral sex. Today oral and anal sex are quite easily seen within two seconds of Googling and no one bats an eye. We have a thread going right now about a 21 year old dating a 16 year old, and I don’t think anybody’s particularly worried that the 21 year old is a pedophile, so it seems like the 18 year old boundary is liable to move in the future. It could move down to 16 it could move down to 13–which is what mother nature thinks is alright. Personally, I doubt that mother nature is going to get her way any time in the next 100 years, but if it was legalized, to everyone in the nation, that’d be because it seemed natural and illogical to have it any other way, just as we’d find it illogical right now to forbid oral sex.
There’s no knowing what the future holds and saying that you know what the divine truth is, is a crock. If you can show that something actually, guaranteed, hurts someone, then yeah it falls under the purview of the law. But until that point, you’re just stepping on other people’s toes for no better reason than unfounded moral outrage.