Another very broad decision on Free Speech–fake child porn

Now I know to many of you, child porn is thing that is distasteful to 99% of the population, I get that. But just how far does the First Amendment reach, and does it reach into the areas of child porn at all, even if the porn is fake, animated, uses adults and not children and no child is harmed.  Does it reach so far, that no one can make a movie or screen play about how a child was a victim of that because you could never get an actor for the younger child victims?  What if the child actor were shielded and the act was faked for acting?  All good questions.  Apparently the US Supremes did not think it necessary to prevent fake child porn, or stop the presentation of screen plays and plays that show real life stories but the child is not harmed and is protected during the production.

In any case, I do recall the issue of a website that said “bonsai kittens” make good pets and buy one here.  You can keep it in a jar on the shelf and only feed and water it and clean it up once a month and it will remain cute and fluffy with hardly any trouble at all.  Of course, the concept is abusive, but for anyone with half a brain, it’s a joke.  But will PETA and the Humane Society of the US protect fake animals.  Will they protect animated animals subject to abuse?  And what about all those horses in war movies where they say “no animals harmed or abused?”  Do we have to halt those pictures?  What would John Wayne say?

PETA and the Humane Society of the US responded to fake “bonsai kitties” and said they have enough to do protecting real kitties from abuse and it will not be their mission to protect fake kitties.

So here goes with the fake child porn decision:

 

Ashcroft v. US (and remember that Ashcroft once spent $10,000 of taxpayer money to cover the bare titty of Justice with fancy velvet drapes.  I didn’t get that one.  A $12 bra from Walmart wasn’t enough?  Please.

The Child Pornography Prevention Act of 1996 (CPPA) expands the federal prohibition on child pornography to include not only pornographic images made using actual children, 18 U. S. C. § 2256(8)(A), but also “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture,” that “is, or appears to be, of a minor engaging in sexually explicit conduct,” § 2256(8)(B), and any sexually explicit image that is “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression” it depicts “a minor engaging in sexually explicit conduct,” § 2256(8)(D). Thus, § 2256(8)(B) bans a range of sexually explicit images, sometimes called “virtual child pornography,” that appear to depict minors but were produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology. Section 2256(8)(D) is aimed at preventing the production or distribution of pornographic material pandered as child pornography. Fearing that the CPPA threatened their activities, respondents, an adult-entertainment trade association and others, filed this suit alleging that the “appears to be” and “conveys the impression” provisions are overbroad and vague, chilling production of works protected by the First Amendment….

Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards. The CPPA also prohibits speech having serious redeeming value, proscribing 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 for centuries. A number of acclaimed movies, filmed without any child actors, explore themes within the wide sweep of the statute’s prohibitions. If those movies contain a single graphic depiction of sexual activity within the statutory definition, their possessor would be subject to severe punishment without inquiry into the literary value of the work. This is inconsistent with an essential First Amendment rule: A work’s artistic merit does not depend on the presence of a single explicit scene.

the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not “intrinsically related” to the sexual abuse of children. While the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts. The Government’s argument that these indirect harms are sufficient because, as Ferber acknowledged, child pornography rarely can be valuable speech, see id., at 762, suffers from two flaws. First, Ferber‘s judgment about child pornography was based upon how it was made, not on what it communicated. The case reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the First Amendment’s protection. See id., at 764-765. Second, Ferber did not hold that child pornography is by definition without value. It recognized some works in this category might have significant value, see id., at 761, but relied on virtual images — the very images prohibited by the CPPA — as an alternative and permissible means of expression, id., at 763. Because Ferber relied on the distinction between actual and virtual child pornography as supporting its holding, it provides no support for a statute that eliminates the distinction and makes the alternative mode criminal as well. Pp. 249-251.

(3) The Court rejects other arguments offered by the Government to justify the CPPA’s prohibitions. The contention that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children runs afoul of the principle that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it. See, e. g., Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 130-131. That the evil in question depends upon the actor’s unlawful conduct, defined as criminal quite apart from any link to the speech in question, establishes that the speech ban is not narrowly drawn. The argument that virtual child pornography whets pedophiles’ appetites and encourages them to engage in illegal conduct is unavailing because the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it, Stanley v. Georgia, 394 U. S. 557, 566, absent some showing of a direct connection between the speech and imminent illegal conduct, see, e. g., Brandenburg v. Ohio, 395 U. S. 444, 447 (per curiam). The argument that eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well is somewhat implausible because

Page 237

few pornographers would risk prosecution for abusing real children if fictional, computerized images would suffice. Moreover, even if the market deterrence theory were persuasive, the argument cannot justify the CPPA because, here, there is no underlying crime at all. Finally, the First Amendment is turned upside down by the argument that, because it is difficult to distinguish between images made using real children and those produced by computer imaging, both kinds of images must be prohibited. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process. See Broadrick v. Oklahoma, 413 U. S. 601, 612. The Government’s rejoinder that the CPPA should be read not as a prohibition on speech but as a measure shifting the burden to the accused to prove the speech is lawful raises serious constitutional difficulties. The Government misplaces its reliance on § 2252A(c), which creates an affirmative defense allowing a defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children. Even if an affirmative defense can save a statute from First Amendment challenge, here the defense is insufficient because it does not apply to possession or to images created by computer imaging, even where the defendant could demonstrate no children were harmed in producing the images. Thus, the defense leaves unprotected a substantial amount of speech not tied to the Government’s interest in distinguishing images produced using real children from virtual ones. Pp. 251-256.

(b) Section 2256(8)(D) is also substantially overbroad. The Court disagrees with the Government’s view that the only difference between that provision and § 2256(8)(B)’s “appears to be” provision is that § 2256(8)(D) requires the jury to assess the material at issue in light of the manner in which it is promoted, but that the determination would still depend principally upon the prohibited work’s content. The “conveys the impression” provision requires little judgment about the image’s content; the work must be sexually explicit, but otherwise the content is irrelevant. Even if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that such scenes will be found in the movie. The determination turns on how the speech is presented, not on what is depicted. The Government’s other arguments in support of the CPPA do not bear on § 2256(8)(D)

only Renhquist and Scalia dissented from overturning this broad, unconstitutional statue.

I have to admit, I don’t like child porn, but the statute was overbroad.  Sometimes you have to tell the story of abuse victims to keep the concept of child porn being wrong alive.  And to protect fake children from fake child rape is too much even for me.  If that is your fantasy, have at it, but leave me out of it.  I will protect your right to view it in your own home on your own computer or with fake dolls.  I’m not getting into that.

So, from a distasteful case, we see the outer limits of our first amendment rights.

I don’t like fake kitties stuck in fake jars for their entire lives, and I don’t like fake child porn, but neither to me is criminal activity or even a civil activity to be quashed.  Nor do I think these activities are gateway drugs into something harsher.  They’re merely a weird strange enjoyment of  the minority of the population which harms no one.

95%+ of real rapes are never solved and the perps are never brought to justice.  The vast majority of crimes are never solved and no one is prosecuted–let alone convicted.  That’s the reality of the world.  If we can’t get the real world prosecuted, why are we even worried about a fake world?

I have to agree with this 7 to 2 decision.  And it wasn’t even the moderates that found the statute to be permissibly overbroad.  Some of the justices finding the statute to be overbroad were fairly conservative.  We really don’t need any think police.  Our thoughts are ours.  Our fake movies, books and thoughts should be ours too.

Again, this is a continuing series so the ARDC “gets it” and stops going after attorneys who publish the truth–that the courts are corrupt, that justice is not being done sometimes, and that it’s okay to make fun of the attorneys who operate without jurisdiction.

To go after an attorney that reports corruption and wrongdoing is pretty much judicial porn.  It’s shooting the messenger and it’s wrong, just plain wrong.

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