So says Fox news.
The application of this seems to mean that simulated sex scenes with children, such as have appeared in Traffic or Lolita are legal, as are computer-generated images of child porn. In other words, apparently this means that from now on, images like [this](JUST KIDDING) are no longer illegal.
Victory for free speech or victory for pedophilia?
Discuss.
Well…um…hmm…
I’d say victory for free speech. I’m not sure how I feel about it though.
I’d like to read the case. Give it 24-48 hours and we can find it on Westlaw.
Ashcroft lost though. That’s gotta be good news, right?
Criminalizing “virtual” pedophaelia criminalizes any and all discussion of pedophaelia that isn’t blanket condemation. Lolita, Traffic, and Kids would be illegal. Any discussion of children’s or teen’s sexuality would be suspect.
Heck, wouldn’t banning “virtual” pedophilia mean you can’t even doodle a picture of two kids getting it on?
Basically, yes.
God help you if you draw anime.
Note that Justice Thomas voted with the majority and Scalia dissented. Not in lock-step this time.
One pundit suggestst that this free-speech decision portends the SCOTUS overturning of the recent campaign finance reform law.
No need to wait, Ender. Here it is.
I haven’t read it yet.
Sua
*Another section of the law was not challenged, and remains in force. It bans prurient computer alteration of innocent images of children, such as the grafting of a child’s school picture onto a naked body. *
This sounds to me like fake kiddie-porn sites are still covered by the law.
depends on what kind of “fake” you mean, blowero. If you mean “pasting heads on bodies”, then yeah. If it means “they’re over 18 but look much younger”, then this law appears to address that.
I wonder how related this is to the Canadian SC ruling that said that child porn that doesn’t actually involve real children is disturbing but legal?
Interesting decision. Kennedy did a workmanlike job - nothing inspiring, but a detailed and thorough exposition of the bases of the decision (vanity alert: at one point, he cited to his own concurrence in a 1991 decision, for a point that, I’m sure, many majority decisions also support. ;)). All in all, I agree with the reasoning. I don’t like the result, but, as always, civil liberties do have a real price, one which we should pay.
Bizarrely, I most agree with Thomas’ concurrence. (Never thought I’d type those words.) At some point, the issues here will have to be revisited, and the decision shouldn’t be read as a blanket bar to regulation of this field.
Demonsthenesian, I haven’t read the Canadian SC ruling, but it sounds like precisely the same issue.
As december continues his quixotic quest to be included in the One-Trick Pony Society.
Sua
Very interesting. I must say that as much as I dislike our government in particulars, overall the Supreme Court does seem to be (what I would say is) pretty reasonable.
Or if you produce, distribute, sell, or own Anime.
Chalk one up for " Victory for Free Speech".
Nah, he posts too much about affirmative action. Maybe a Two-Trick Pony? 
What’s interesting to me is that actual naked pictures of children are not necessarily child pornogrophy. This tends to come up every so often in GQ (e.g “how was Thora Birch able to appear nude in American Beauty at the age of 17?”). For a picture of a child to be pornographic, if I remember correctly, it has to show the child engaged in sexual conduct or posing in a “lewd” fashion. Pictures which contain non-lewd nudity and without sexual conduct are legal (though if there’s a question about what is or isn’t lewd then I suppose it ends up with a jury deciding).
So would a picture of a naked adult that would be legal if the subject was a child (i.e. no sexual conduct and non-lewd) that has a minor’s head pasted on be legal? Or is the act of manipulating the image presumed to sexualize it regardless of the content?
It would probably be a matter for the jury to decide. Kennedy only addressed the issue in passing, but it seems that the Ferber analysis would apply to such a picture, as to whether it would be lewd, etc. The idea appears to be that attaching the head of a real child to the body incurs a risk of psychological and reputational harm to said real child, depending on whether it is lewd or not.
Sua
I meant the kind of “fake” that means “not real”. Is there another kind? How would you enforce a ban on models who simply “look” younger than 18? Isn’t that just a matter of opinion? Wouldn’t the fact that they ARE 18 tend to prove that they look 18?
Thanks Sua
Well, I’ve read most of Kennedy’s opinion and nothing of the Thomas’ concurring or the dissents. Its an interesting argument and I think that I agree with the majority. This isn’t much of a surprise (to me at least) because I tend to fall pretty firmly on the “free speech” side of debates.
Nevertheless, there are some questions which I don’t think Kennedy adequately answered in trying to rebut the government’s arguments.
Kennedy mentions several times that these images may “whet the appetite” of potential or actual child molesters. How can this be a good thing?
This case comes down to the question of whose rights are more important: the citizen and his right to free speech or the government and its compelling interest to ensure that children are not harmed.
That children are not directly harmed is irrelevant. It is possible, indeed, perhaps probable, that these images could lead to the harming of children.
Is that the artist’s fault or responsibility? I don’t know. But, not to get off into a “won’t someone think of the children?!?” rant, we ARE still talking about the safety of children. Should that be less important than someone being able to draw a cartoon?
I get up on a soapbox and yell “Hey everyone. Rioting would be pretty cool. Let’s go smash some windows!” I’m not serious. Most people know I’m not serious. But there are a few people who heard my message who had a disposition towards violence and actually started smashing windows. My right to free speech caused those with less control to act inappropriately and a third party got hurt because of it. Do I still have that right to free speech? How is it different in this case where I’m “whetting the appetite” of potential molesters?
This may turn the 1st amendment upside down, but look at the alternative. By NOT being able to tell which image is a child and which image is an actor portraying a child, you allow children to be more easily abused.
The cost of letting this happen, then, seems to be that we harm children. Is our right to free speech worth that?
Ah, the old, “Won’t somebody please think of the CHILDREN!!!”
I’m not knocking you, and I see the dilemma. But you can’t always go with the whole, “But children will be hurt!” argument.
Yes.
Guin, you’re doing a disservice to Ender24’s argument by protraying it as a pithy, thoughtless remark. One of the points O’Connor makes in her opinion is that the government does have a “compelling interest” in protecting children that may override any slight infringement on unprotected speech. In this case, Thinking about the children is, in fact, a major part of the analysis.
When I first heard of this issue, like many, I wasn’t sure how to take it. Then I thought of this: If the simulation of an illegal act (like kiddie porn in movies) were banned, then why draw the line there. Wouldn’t you then have to ban the simulation of any illegal act, i.e. homocide, rape, assault, car theft, etc. An illegal act is an illegal act, despite the relelevent morality involved. I don’t have the guns to hang with this heavy legal issue stuff, but thought I’d throw that out there.