Would it be legal for some animation studio - say, one that was very rich, and also unconcerned with any kind of bad publicity - to produce an explicit pornographic movie involving children?
Obviously no child is actually being harmed. It would all be, technically, “art.” So does this mean it would be legal to own and sell such a thing?
That’s an article from '97. I believe the district judge’s decision in this case has since been overturned. I’ll see if I can find a citation.
Last I checked, entirely simulated CP was deemed protected. If it is not, then we get into a situation where a high school boy doodling nude fantasy drawings of his girlfriend is guilty of possession of CP.
IIRC, the law now distinguishes among 3 types of virtual kiddie porn.
The first is entirely virtual, involving no real people. I’m pretty sure the current ruling is that no crime has been committed in the production of entirely virtual porn of any sort.
The second is what’s called “pumpkin man” porn, after the case that established the precendent. This is where someone uses images of actual children combined with images of adults to produce the appearance of CP. That’s illegal, because there is harm to the kids whose images are used. (The “pumpkin man” was a guy who used pornographic images with kids’ faces pasted on them to induce children into sexual acts.)
The third is so-called “90210 porn” which involves using adults who look like minors. This also is protected because no harm is being done to children.
In fact, if I’m not mistaken, ASACP refuses to forward complaints about Web sites to the FBI unless the content is “clearly” depicting minors. If there’s any doubt, it’s assumed to be “90210” content and not forwarded.
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) is the current starting point on the constitutionality of virtual child pornography. I believe Congress attempted to rewrite the statute in the Protect Act of 2003, but I don’t know offhand if it’s been challenged yet.
ETA: An important point of the case was that the content was deemed to be non-obscene. If your movie is obscene and lacking in any serious artistic content, it probably won’t be protected.
You’ve also got the problem of establishing the age of a cartoon character. If I take a photograph of someone who looks about 17 or 18, then I can check her ID and see what year she was born in to be sure of her age, and if she is in fact 17, then I’m in trouble. But if I draw a picture of someone who looks about 17 or 18, there’s no way to tell which she is.
Or to take it a step further, since we’re talking about cartoons, they don’t even need to be human. Suppose I draw a picture of what looks like a ten-year-old human, but give it pointy ears and say it’s a 50-year-old elf. Is that allowed? What if I have another drawing of the same character but from the neck down, so you can’t see the ears? Is that?
IANAL but if you watch x-rated anime featuring apparently young characters you’ll see a disclaimer saying that all of the characters in the story are over eighteen. And these are fictional cartoon characters. I would presume that the distributers didn’t go to the expense of adding this disclaimer for no reason and so they must have felt they were facing a genuine legal liability.
Or it could be preventative, to try to preempt themselves from being in a gray area. That’s a good reason, but it’s not necessarily because there’s already a law against it.
You are asking about simulated pornography, and as usual, Wikipedia has information on where it is (il)legal. To summarize, it’s legal in the US, and illegal in the EU.
Correct on your edit: Title V of the PROTECT Act specifically adds the language of the Miller Test (definition of obscenity) to the definitions in order to narrow down what material may be outlawed.
Part of PROTECT also includes a specific point targeting such simulated material in those cases in which it cannot be distinguished from a photograph taken from life. In that sense, a lot of hentai sites that do 3D art have preempively adapted their TOS so as to exclude hyperrealistic sim-CP. This is yet to be formally challenged.
As **TheFatKid **mentions, there is also the matter of processed/sampled images that originate with a real minor. Those were and remain illegal.
An Iowa man was recently arrested for importing comics containing sexual depictions of minors from Japan.
They must have threatened him with some pretty hard time to get a guilty plea.
A shame, really. It would have been interesting to see an appeal of that case.
I’d put my money on unconstitutionality.
I wouldn’t - taking a look at cousin cases dealing with residency restrictions for convicted sex offenders. Child porn possessors, rightly or wrongly, don’t have many friends in the legal world.
You’re begging the question.
The high courts have traditionally been much more friendly to free speech than have lower courts or legislatures.
When it comes down to a case of someone possessing cartoons, I’d bet on free speech prevailing.
If children are involved, then yes, you can count on punishment, and rightly so.
But if you’re talking about mere art, with no children involved, the high court is quite likely to determine that no actual harm has been done, that no one has any standing to claim harm.
harm is not a component of a *Miller *test analysis of obscene speech
Be that as it may, I’d still bet that the ramifications of allowing the state to prosecute in such a case would be sufficient to overturn.