Slashdot Mirror
The Slippery Legal Slope of Cartoon Porn
BenFenner writes "Two out of the three Virginia judges involved with Dwight Whorley's case say cartoon images depicting sex acts with children are considered child pornography in the United States. Judge Paul V. Niemeyer noted the PROTECT Act of 2003, clearly states that 'it is not a required element of any offense under this section that the minor depicted actually exists.'"
The act defines a "child" as a "person":
(2) the term âchildâ(TM) means a person who has not attained
the age of 18 years and isâ"
ââ(A) under the perpetratorâ(TM)s care or control; or
ââ(B) at least six years younger than the perpetrator;
Plus as some cartoons are over the age over 18 like the Simpsons for example. They're 20 years old as a point of fact.
does it become illegal? Two stick figure drawings with a caption "10 year olds" would be considered illegal if you didn't pencil in some shorts? Madness.
If it's fantasy, you can say the depiction is as old as you want. It's not real, rules of reality don't apply, at all.
"we've got trenchcoats and bad attitudes" - John Constantine, HellBlazer
I was under the impression that the reason for child pornography laws was to protect children from exploitation. It may not be possible to prosecute the people abusing children if they are in a foreign country, but you can help to reduce their market by prosecuting the people who buy their products. How, exactly, does society benefit from prosecuting artists who draw cartoons, however tasteless? The money would be better spent going after mimes.
I am TheRaven on Soylent News
So, who exactly is the victim in this case? If none is required then logically everybody involved in production of any work of (questionable) arts depicting killing, assault, robbery or any other crime should be convicted. Too bad over 80% or more of Hollywood and TV production would become illegal.
TFA states that he was also convicted for obscene e-mails describing sex acts with children. Anybody else find this even more worrying than the pictures?
I guess this means you can commit a felony by posting a few choice lines on slashdot?
(Posting anon since I don't want to be associated with this subject, however remotely)
This sig is just as redundant as the rest of this posting
If pedophiles will get in jail whether they are looking at real CP or drawings depicting children, then why would they bother with fiction? I believe this can only bring a higher consumption of real 3D child porn.
"What is before you is an Aperture Sciences cube shaped phallus receptacle. I do not recommend utilizing the Aperture Sciences cube shaped phallus receptacle... for the results could be... unpredictable. Oh... I see that you are ignoring me and using the Aperture Sciences cube shaped phallus receptacle anyway. Fine. But will the Aperture Sciences cube shaped phallus receptacle... love you as I do?"
"Who modded this informative? Whoever it is must've been smokin' some of that martian pot!"
I'm reporting this thread immediately to the DOJ. You are all clearly trying to find loopholes around this important legislation that is vital to protect our cartoons and adults dressed as children.
For repeated and multiple murder, for torture, both physical and psychological, for cannibalism and for a few other things that I'd have to consult my library for and reread some of his work.
And while we're at it, I also ask to have the governor of California arrested for ... well, pretty much the same crimes.
No, they didn't commit them. They only depicted and acted them. But appearantly that difference is no longer important.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
was that its manufacture directly hurt children (the ones portrayed in it, not some abstract concept). While distasteful, virtual "child" porn, no matter how realistic, seems to be a freedom of speech which is protected under the Constitution. Otherwise, you are creating a thoughtcrime.
Also is the matter of arguing "age". Some are undeniably children, but we live in a country where 18 years old prosecuted for statutory rape of 16 years old isn't unheard of in our recent histroy. Do we really want to relegate to the prosecutors this power?
Also consider the common cartoon/anime characteristic of having an adult in mind in an essentially child like body. What then?
In summary:
-lack of victim
-Freedom of Speech, if only popular speech were to be protected, we wouln't need 1st amendment
-age ambiguities
Ya, real democracy, wonderful. So that a 90% Christian nation can impose its morals on everyone. No, we need to remove blue laws, not give people the chance to make more. Our republic is supposed to be setup so that the majority can't run roughshod over minorities. Democracy is nothing more than codified mob rule.
This has already happened, article here. Basically the dude ordered some manga from Japan, and the postal inspector had a look at it when it arrived in the US. When the guy went to pick up his delivery, police followed him home, seized his comics and charged him with possession of child porn.
If you're an oldster or a lawyer of the sort who can quote Dost, this may be sad but it isn't surprising.
For you young 'uns out there, listen up for a history lesson.
For a very long time in the U.S., child porn was legal. Admittedly, this point can be argued. Some say it was always illegal because it was always obscene. However, it wasn't prosecuted because the possibility existed that it could be produced in a way that was not obscene. Whether it was technically legal or illegal isn't important. The practical matter is that it wasn't prosecuted, wasn't specifically prohibited, and was easily available to anyone who wanted to send off a money order or walk into a big city adult book store.
IN the mid 1970s, the first laws were passed that said it was illegal. First amendment concerns surfaced but those were beaten back with the argument that producing it required that a crime be committed by an adult against a child. You couldn't produce child porn without actually raping a child. By the early 1980s, it was pretty much illegal everywhere in the U.S., though simple possession didn't get outlawed everywhere, uniformly until then. Even now, there have been major nations that didn't outlaw simple possession until recently. Simple possession didn't become illegal in Brazil, for example, until this year.
The U.S., though, was a different case. By the mid to late 1980s, the stuff had been mostly stamped out. In fact, immediately before the rise of the ubiquitous home internet connection, nearly all child porn sold in the U.S. was actually sold by the United States Postal Service as a part of sting operations.
In some of the early court decisions, the first amendment concerns were dismissed with the explicit allowance that depictions of underage sex for artistic purposes could continue unhindered as long as the actors involved were of age. At the time, the example often cited was "The Last Picture Show."
Since then, things have gradually changed from the sensible to the insane. The changes have been far too many and too complex to outline here and each change has been rather gradual. As the law now stands (IANAL, etc.) literally any picture of a child can be considered porn if a prosecutor can convince a jury that it was produced or possessed for prurient purposes. Nudity is not required. Sexual activity is not required. Prosecutors are willing to proceed on the flimsiest basis when motivated by stupidity or politics, sometimes successfully (the Pierson case, as a lead-in to prosecuting WebeWeb), sometimes unsuccessfully (as in the attempt in Oklahoma to criminalize the highly regarded movie "The Tin Drum.")
I'm not a big fan of Paul Little (the few minutes I've spent with him on several occasions convinced me that he's an ultimately harmless boor) but he should not be looking at jail time. Yet in this (U.S.) society, all rationality has flown right out the window where this subject is concerned.
Here are my two main points (and, incidentally, this is why I know so much about the subject):
1. If you value civil liberties, you need to know about child porn. It's the boogey man, just like "commies" back in the 1950s, that is used as an excuse to build freedom-destroying infrastructure into our laws and communications systems.
2. The original definition of child porn that justified outlawing it included one central tenet - that producing it requires adults to rape children. Nowadays, a large (probably the overwhelming majority) of child porn is produced by children for the consumption of children and there are no adults involved at any stage. If you have a 12-year-old with a web cam in their room or a digital camera built into their cell phone, there is a much-larger-than-you'd-like-to-admit possibility that you're providing a home for a child porn production studio.
Combine those two things and we're looking at a situation where child porn can be used to criminalize a huge portion of the populace. Forgive me for drawing parallels where
It's a bad summary.
The opinion makes it clear that the child pornography charges were related to the actual child porn he received, while his convictions related to the anime and emails were obscenity convictions. This is an important distinction.
In Miller v. California, the United States Supreme Court held that the First Amendment did not protect obscene speech, and that such speech could be banned by the government. However, the test for whether speech is obscene is so broad that very little pornography is subject to regulation. According to Wikipedia (since I'm too lazy to look it up on Findlaw), the three prongs of the test are:
* Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
* Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
* Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific).
If each if these prongs is met, then the work is obscene and may be banned.
In contrast, in Ferber v. New York, the Supreme Court held that child pornography is never protected by the First Amendment, regardless of whether it is obscene. The rationale being that the government has a compelling interest in preventing the sexual exploitation of children, and that by its nature child pornography causes injury to the children involved in its production.
So, in brief: child porn involving actual children--always illegal because actual children are injured in the process. Images and stories of children having sex--illegal if obscene. Whorely was convicted under an obscenity statute, rather than a child pornography statute.
--AC
Witch Hunt.
Pedophilia and child pornography are morally reprehensible to most people, not to mention damaging to those exploited in its production. It's also worth pointing out that COPA and PROTECT are two prime examples of how our system of government fails to do what it set out to achieve.
COPA basically stated (among other things) that your first amendment right to free speech was null and void when the content of that speech was fictional child pornography. The supreme court ruled COPA unconstitutional, and rightly so, due to the fact that COPA very specifically abridged free speech; something the first amendment very specifically states Congress does not have the power to do.
Due to the fact that Congress's fast one wasn't able to slip by the Supreme Court (whose job is to filter out this bullshit), they changed a couple of words and relabeled COPA as the PROTECT act. PROTECT, like its predecessor, also abridges free speech by again making fictional work, which is deemed morally reprehensible by the majority of voters who reelected the folks who pushed the bill through----er, wait a minute...
This is the most prime example I have borne witness to of flagrant abuse of power by the Congress in my life:
1. Congress passes law.
2. Supreme court says "wait just a fuckin' minute"
3. Congress changes wording on law, renames and repasses it, while supreme court bickers over previous law.
4. ????
5. Congressman Asshole wins reelection for being "Tough on Crime." (also known in politics as "Profit")
As long as anything is morally reprehensible enough, Congress can throw the bill of rights out the window to enforce their agenda while the flak takes years to tear its way through the judicial system only to finally be struck down by one court or another.
Just goes to show that politics really can be a system that clogs down on its own bullshit as long as there's enough of a popular opinion in the first place to ramrod the shit past its initial threshold.
Laws against child pornography are an easy route to power
It's also difficult to oppose a law against child pornography without sounding like you're endorsing child abuse, especially when you're a public figure, so these measures usually are passed without much opposition.
You know what's gonna remove blue laws? Successive generations.
The politicians of today are fighting against two things they can not possibly win against: time, and Big Bird.
Yes, Big Bird.
Most of us here - regardless of country - grew up watching Sesame Street and other children's programs. You know, the stuff that taught us about sharing and respecting others? This is why I believe in 20 years or less gay marriage will not only be the norm nationwide, but it will be common. Big Bird told us not to judge people based on their beliefs, appearance, etc. and by the furry grace of Elmo we listened.
The second enemy - time. People are travelling around the world more and more. Information is spreading and its getting nigh-impossible for the government to control it. I'd say most teenagers think weed being illegal is bullshit. They just tune out the "anti-drug" crap and other lies as if it were their English teacher in high school.
These kids are going to go to high school with other kids who won't have to live in fear of being openly gay, or Atheist, or Muslim, or do or believe whatever they want that doesn't infringe on the rights of others. And one day, these kids will be able to vote. The idiotic laws will be repealed to some degree. It's just a matter of time.
Random Thoughts From A Diseased Mind (Not For Dummies)
No flamebait intended (some hyperbole ahead), but parents are idiots when it comes to their kids, and often kids in general. They will abandon the pursuits and benefits of a free society to "protect the children" at all costs. The problem is nowadays they don't actually know what the real threat is and so they are ripe to be manipulated.
There is nothing wrong with the protective emotion in that nature has selected people with this tendency to survive, as this emotional/instinctive reaction was probably exactly what was needed to actually "protect the children" from an attacking tribe. It's the emotion that causes you to cast aside your fears when something real is attacking but it's now being used to fuel fear of an unknown enemy.
We need to balance our emotional response. Children need protection from real threats. Looking at the child abuse stats from 2006 (most recent on the USDHHS site) only 10% of all child abusers are non-parental (and half of that 10% are relatives, with almost half of what's left after that foster parents/relatives).
If we stick with sexual abuse statistics, parents and relatives still account for 60% of that, with friends, neighbors, daycare providers and other professionals making up 10%. Under 25% of sexual abuse is "other", which I guess is your classic "child predator" that we hear about on the news. I was always lead to believe that parents never hurt their children and we really need to pass laws against the people "out there" who are stalking our kids. The enemy is in the home already.
A purely emotional reaction ignores these facts and might put resources in the wrong places than it would really be needed to help more of the kids getting abused.