FC: Summary of Ashcroft "morphed" child porn bill, by Larry Sutter

From: Declan McCullagh (declanat_private)
Date: Thu May 02 2002 - 12:20:00 PDT

  • Next message: Declan McCullagh: "FC: Photos from NRC porn-kids-Internet report briefing today"

    I asked Larry if he would write a short summary of the Ashcroft "morphed" 
    child porn bill for Politech. He was kind enough to contribute the writeup 
    below. Larry is general counsel of General Media Communications, Inc., 
    which publishes magazines including Penthouse.
    
    Previous Politech message:
    
    "Ashcroft & friends: We'll try again to ban 'morphed' child porn"
    http://www.politechbot.com/p-03470.html
    
    -Declan
    
    ---
    
    Date: Thu, 02 May 2002 13:38:30 -0400
    From: Laurence Sutter <lsutterat_private>
    To: Declan McCullagh <declanat_private>
    Subject: Re: FC: Ashcroft & friends: We'll try againtoban"morphed"child porn
    
         Dear Declan:
    
             When the memo got to three pages I chucked it and am writing
    this:
    
             It's a very complicated set of laws and basically attempts
    to track the dissent (Rehnquist and Scalia, and O'Connor to the
    extent she would still ban computer images "indistinguishable from"
    real children). The first section bans a computer image that "is, or
    appears virtually indistinguishable from" a minors, wiping out the
    old "is or appears to be of a minor" struck down by the Court. But
    Justice O'Connor didn't say "appear to be virtually
    indistinguishable", she said are. It also redefines sexual conduct
    just for this section, adding the word "lascivious" at all points
    and adding that simulated intercourse is child porn if it's
    lascivious and the breast is exposed. Men too?
    
         The next section creates the new offense of Pandering. It
    replaces the stricken section criminalizing any sexually explicit
    image marketed as child porn. Among the Court's problems were that
    since everyone in the chain of distribution of child pornography,
    including the ultimate recipient (even a mere possessor), is a
    felon, the downstream people could be caught on the basis of a
    marketing pitch unknown to them to an upstream person. The new law
    criminalizes knowingly marketing or attempting to sell a visual
    depiction intending that someone else believe it's child porn.
    Nothing need change hands. It also would now be a crime to do
    anything if you thought the end result would be your receiving child
    pornography. This is not a misprint. Even Rehnquist and Scalia did
    not go this far, although they said the panderer--who "conveys the
    impression" to another that what he is marketing is child
    pornography--could constitutionally be convicted (the majority
    disagreed).
    
         The next new offense is creation, possession or distribution,
    etc., of images of or virtually indistinguishable from, a
    pre-pubescent child. This appears to go to the majority's discussion
    of the possible social worth of many depictions of youthful, i.e.,
    teen-aged, sexuality. Who could object to the criminalization of
    images of true children, as opposed to minors, engaged in sexual
    activity or lasciviously exposed? There is a defense that the
    accused possessed less than three images and promptly either
    destroyed them or called the cops.
    
         Next, to support the "enticement" rationale (which the majority
    dismissed by noting that molesters use candy and video games to
    entice kids, too), the law criminalizes showing or displaying to a
    minor under 16 any actual or "virtually indistinguishable" explicit
    image of a pre-pubescent child. Also added is a prohibition on
    extraterritorial production of child pornography intended to enter
    the US, an optional provision for service providers online to report
    any instances they see, and the creation of a database of images of
    child pornography involving real children for purposes of
    prosecution. No doubt the world's largest collection of this
    material will soon be residing on the DOJ's computers.
    
         Will it all pass constitutional muster? It shouldn't. In this
    country anything that doesn't involve a live child must pass the
    *Miller* test of violation of community standards and lack of social
    utility--serious artistic, literary, etc., value. An exception is
    made for pornography involving a live child (under 18) because, the
    Supreme Court says, this involves the abuse of a real child and its
    permanent recordation. As to such material, the social
    utility/community standards test goes out the window because the
    issue is physical abuse and not literary/artistic content. But when
    a real child is not involved  AND the *Miller* test is not applied,
    the rationale is neither content-based, nor child-abuse based.
    Instead, the law is justified  by the effect of the material on
    susceptible people--the molestor, his victims, whatever. But that
    completely contradicts our free speech, free thought and First
    Amendment principles no matter how despicable the image--and this
    legislation is taking pains to define the images as being as
    despicable as possible. Ultimately the rationale itself is
    contradictory, because to say something is indistinguishable from
    hard-core, sexually explicit pornography, implies a judgment that
    the material is also socially worthless. If they know it when they
    see it, and the computer generated image really is indistinguishable
    from real, hard-core, unredeemable obscene depictions of children,
    don't the lawmakers have enough faith in the jury to trust them to
    recognize this and do the right thing? Evidently not.
    
    
    
    
    -------------------------------------------------------------------------
    POLITECH -- Declan McCullagh's politics and technology mailing list
    You may redistribute this message freely if you include this notice.
    To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
    This message is archived at http://www.politechbot.com/
    Declan McCullagh's photographs are at http://www.mccullagh.org/
    -------------------------------------------------------------------------
    Sign this pro-therapeutic cloning petition: http://www.franklinsociety.org
    -------------------------------------------------------------------------
    



    This archive was generated by hypermail 2b30 : Thu May 02 2002 - 12:54:18 PDT