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 -------------------------------------------------------------------------
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