A brief quote of an article which should explain US law on "virtual porn"

[heidi]

Since there's been some questions on this issue on various LJs that I read overnight:

A few years ago, the US Supreme Court stated that under the first amendment, there is no bar to the creation of virtual porn, or its dissemination among adults.

Justice Anthony Kennedy, writing for a 6-3 majority, said the 1996 federal law "turns the First Amendment upside down" by outlawing protected speech as a way of banning unprotected child pornography. The law, said Kennedy, "prohibits speech that records no crime and creates no victims by its production."

Federal law has long forbidden child pornography that uses real children, but Congress in 1996 expanded the statute to include computer-generated images that "appear to be of a minor engaging in sexually explicit conduct."

Congress and the Justice Department argued that virtual child pornography jeopardizes real children by stimulating the market for illegal materials and makes it difficult for police to distinguish between what is legal and what is illegal.

But the decision yesterday in Ashcroft v. The Free Speech Coalition, No. 00-795, flatly rejected that rationale with wording that is sure to be used in other litigation against government restrictions on speech. "The government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse," Kennedy wrote.

"The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it," Kennedy also said. In cases about zoning, some "secondary effects" cited by government have convinced the high court to allow restrictions on adult businesses and other forms of expression. But the opinion yesterday appeared to foreclose the possibility that this "secondary effects doctrine" would expand beyond zoning cases.



"It was a Brennan-like statement of the importance of maintaining First Amendment protections," said Michael Bamberger, a New York partner at Sonnenschein Nath & Rosenthal who co-wrote a brief in the case on behalf of book, magazine and video publishers. "They are reminding us that just because the goals of Congress were legitimate, that does not validate the law."

Ann Beeson, staff attorney at the American Civil Liberties Union said, "We were all worried that the court would change its mind about Miller v. California and Ferber v. New York, which are getting to be old precedents.

"The court said today it is not going to redraw its line on obscenity. And the fact that it wasn't a splintered decision was a welcome surprise."

The opinion said the 1996 Child Pornography Prevention Act banned substantially more speech than obscenity as defined by the 1973 Miller case. Kennedy said the law also ran afoul of Ferber, the 1982 decision holding that child pornography could be banned because of the damage done to the actual children involved in producing it.

Kennedy wrote that the law "proscribes the visual depiction of an idea - that of teenagers engaging in sexual activity - that is a fact of modern society and has been a theme in art and literature throughout the ages."

A well-known Shakespeare buff, Kennedy noted that the character Juliet had not reached the age of 14. "Romeo and Juliet" has inspired 40 motion pictures, Kennedy noted, adding that "Shakespeare may not have written sexually explicit scenes for the Elizabethan audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene."

Kennedy also cited two acclaimed recent movies, "Traffic" and "American Beauty," that include scenes that could fit the law's definition of virtual pornography - whether or not real child actors actually engaged in sexual acts. "Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young," wrote Kennedy.

"Congress passed an indefensible law that, on its face, would criminalize various scenes in movies like Traffic and America Beauty and make production and possession punishable by up to 15 years of prison," said Joan Bertin, executive director of the National Coalition Against Censorship.

"As the Supreme Court recognized, numerous other laws suffice to protect children from sexual exploitation and predation."

Martha Coolidge, president of the Directors Guild of America, said, "We can all thank the Supreme Court for once again defending the First Amendment freedoms central to our free society, and preserving the creative freedoms that all Americans treasure. Every American would suffer the loss of freedom if this overzealous governmental intrusion into our rights of expression had been allowed to stand."

Find a contemporaneous article here.

So basically, unless there's a significant change in the makeup of the supreme court *and* new legislation passed on a state or federal level, nothing can happen in the US in terms of creating or distributing "virtual" porn. Keep it fictional, and there's no issue.

This, btw, is not legal advice and has *nothing* to do with the current state of the law of any country other than the US's.

Comments

[annearchy.livejournal.com]

So is there any problem for fan-fic writers whose fictional characters are in a marginal age group (say 17, which is legal/adult in the wizarding world but not necessarily in the real world)? A lot of people seem to be stressing out about that Austrialian law (I haven't seen the actual wording yet).

BTW how is Baby Cate?? :)

[heidi8.livejournal.com]

The Australian law says anyone under 18 is treated the same way, whether real or fictional, 17 and 10 months old, or 7 years and 10 days old. But the law seems to apply only if you're either Australian or if you're hosted on a server located in Australia.

And she is just DELICIOUS!

[irinaauthor.livejournal.com]

I'm on a complete first amendment bender lately. Check out my latest entry for why. Other people scare me sometimes.

[heidi8.livejournal.com]

OMG yes. And weirdly enough, I bet they all think know that using things like bittorrent to trade movies is illegal, but they all do it.

: facepalms

[hedwig-snowy.livejournal.com]

A little concerned that a new make-up of the high Court could result in a ruling against slash? That slippery slope is pretty steep about now. :) Wonder if people shrug their shoulders and say, "Why shouldn't a President get to appoint anyone HE wants to the Federal Bench?" Maybe they'll understand...one day. It seems to be an administration that can be defined by the idea of "Laws of Unintended Consequences".

[nyourdrms.livejournal.com]

November 2008 please come quick before they burn all the books and lock away the women

[gorgeousnerd]

Thanks, I was wondering about this. It makes me breathe a little easier, although I don't think I'll stop worrying because of Bush.

[malsperanza.livejournal.com]

W00t!

World: 1
Forces of Darkness: 0

[bordergold.livejournal.com]

I feel stupid for asking, but we're just talking written pr0n here, right? Because, yeah, I agree, the written word should never be censored unless it's libel. Look at all the Anais Nin literary pedophilic porn out there. However, visual pr0n with real little kiddies? That's sick and cruel.

[xdistantsparkle.livejournal.com]

The law is talking about anything virtually created. Movies, such as Romeo and Juliet, American Beauty, Traffic, etc which depict characters who are underage involving in sexual activity are fine, just as the written creations of minors in sexually explicit scenes.

Anything that doesn't involve a real child. So fanfiction, fanart, movies, novels, all of that is fine under US law. Because it seems that they understand that there's a market for it, and that teenagers are quite susceptable to sexual situations.

The law definitely is against real children, and even real teenagers under the age of 18 (and 21 in some states, I believe) engaging in sexual situations for the use of pornography. So no need to be worried :) We definitely go after the child porn-freaks. It's why Michael Jackson is in trial at the moment ;)

[bordergold.livejournal.com]

thanks so much for clarifying that. Again, I feel stupid, but it was bothering me :)

[heidi8.livejournal.com]

Actually, anything that doesn't involve a real child where said child is engaging in real sexual activity (which can include nudity or sexual contact). If there's a fade-to-black and we the audience don't see what's happening afterwards, a person under the age of 18 can portray the character.

[kaalee.livejournal.com]

Here via one of the fandom newsletters, thank you for posting this.

It was informative and actually got me thinking about a few things. Thank you.

[saridout.livejournal.com]

thanks for posting this :) it's put my mind at rest.

[irana.livejournal.com]

I wanted to save this as a favorite, but I can't find the button. Can I quote you in my journal?

[heidi8.livejournal.com]

I think you have to go to the main page of my LJ, but it's also here . And yes, of course you can quote me. No problem. Share the link when you do? I'll be curious to see more comments on this.

[rated-g.livejournal.com]

This is all good to know, because I have a comic starting up that features a sexually-active 14 year old anthropomorphic fox. I've wondered if I should cover up parts of him or have anything involving him be off camera, but that would just ruin the moment.

Porn robs you of your humanity

[(Anonymous)]

Heidi?

A very political statement. Quoting lots of U.S. law is informative, but nothing else. From someone with as much fandom exposure as yourself? I'm quite disappointed. Sorry if I'm staying anon, but, HP fandom, as partially dictated by influential liberals like yourself, dictates it must be so. Fruitful discussion? I hope we can all work toward that.

Re: Porn robs you of your humanity

[heidi8.livejournal.com]

1. All I wanted to be was informative.

2. Don't you dare imply that only liberals partake of pornographic materials. First, look at Justice Thomas. Then look at which companies are engaged in the distribution of pornographic material which includes real people - Adelphia, Hilton, Marriott - major donors to the Republican party. 86% of all Utah residents voted for Bush, but in recent court cases, evidence from adult-emporiums in Utah showed that Utah County cable subscribers had ordered at least 20,000 explicit movies, etc., etc. Similar stats came from Cincinatti, Ohio, as well as other cities and towns which tend to vote for Republicans more often.

Personally, I think that the age at which people should be *allowed* to be in pornographic films and photos should be raised to 21, because if the law determines that you don't have the judgment to drink, then you shouldn't be deemed to have the judgement to have sex on camera for money. But, since you asked, I see written materials and drawn/CG-ed/sculpted art as something very different from on-camera fucking, because the only real person involved in the creation of said works is the one whose imagination is creating the scenes; in other words, nobody is being exploited, abused, coaxed or baring his or her body.

If porn robs you of your humanity, then do you think that all those residents of Utah and Cincinatti have lost their humanity? What about Justice Thomas? And do you, personally, think Lolita is porn? If so, then what's that done to JKR's humanity?

And is it the reading of porn that robs one of humanity, the creation of it, the creation of it when it's entirely text-based, the distribution of it, or the watching of it? And where does the line to porn begin? Is it at Judy Blume's Wifey? Forever? Flowers in the Attic? Lolita? If reading Wifey robs one of one's humanity, in your opinion, I was lost when someone lent it to me at camp when I was 11. What do I do now, approaching 35 as I am?

I'd been looking for what Alberto Gonzalez said...

[heidi8.livejournal.com]

Finally found it. Back when he was serving on the Supreme Court of Texas with Patricia Owen (one of the women whose elevation to a federal judgeship is expected to be filibustered in the Senate), he signed onto a ruling which said, that whatever their feelings about abortion, judges "cannot ignore the statute or the record." I'll paraphrase that by saying, whatever my feelings about pornography, in explaining the current state of US law, I cannot ignore the record; that's all I was trying to do with my post.