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The Crime of Lying About Fake Child Pornography
Today the U.S. Supreme Court upheld a federal law that makes it a crime to offer or solicit child pornography. This law defines child pornography more narrowly than an earlier statute that was overturned by the Court on First Amendment grounds, and it does not seem to leave a lot of room for punishing or chilling protected speech. But there is this strange wrinkle, noted by Justices David Souter and Ruth Bader Ginsburg in their dissent: In the case of a person offering to sell or transfer pornography, he either has to believe the images feature actual children or intend that people receiving the offer believe that. The images need not in fact feature actual children, however (or even exist). Yet the Court has said that "virtual child pornography," featuring computer-generated or manipulated images but no actual children engaged in sex acts, cannot be constitutionally prohibited (unless it is deemed "obscene"). Hence this law punishes, among other things, speech about transactions involving legal material, on the condition that the person offering it either thinks or claims it is illegal. In such a case, the transaction itself is legal, but talking about it is not.
Today's decision is here.
|5.19.08 @ 2:35PM|#
If I virtually kill someone, am I murderer?
People get busted for conspiracy for trying to hire phoney hit men
all the time.
|5.19.08 @ 2:46PM|#
And so, more thoughtcrime works its way into the federal legal code. Once such a thing gets a foothold, it spreads like kudzu. If any kind of libertarian, Pinette should be worried about that, on general principle.
|5.19.08 @ 2:47PM|#
In such a case, the transaction itself is legal, but talking
about it is not.
Umm, no. The "it" you'd be talking about is not the legal
transaction that would actually take place, but the illegal one
that won't.
|5.19.08 @ 2:49PM|#
JAM,
How is this thoughtcrime? You can think something is child porn as
much as you want, as long as you don't offer to sell it to someone
else.
|5.19.08 @ 2:52PM|#
If I go to the airport and point a banana at someone under my coat and say it's a gun, I can still get arrested, even though it's legal to have a banana under your coat.
Robert|5.19.08 @ 2:53PM|#
Blay Tranoff explained to me years ago that all crime is thought crime -- that what makes an act of crime is all about intentions. That's how attempts can be criminal, etc.
BakedPenguin|5.19.08 @ 2:54PM|#
Chris, I hope you didn't get that banana under your coat thinking about fake child porn...
|5.19.08 @ 2:56PM|#
You can think something is child porn as much as you want, as long as you don't offer to sell it to someone else....as real child porn.
Taktix®|5.19.08 @ 2:57PM|#
In the case of a person offering to sell or transfer
pornography, he either has to believe the images feature actual
children or intend that people receiving the offer believe
that.
This sounds like more of a good thing to me. It looks like a
protection for someone who pays for (suckers!) a picture not
knowing the picture features a minor.
I mean, honestly, if the subject of the picture is "barely legal,"
if you will, it would be very difficult to tell whether they are
above or below age 18.
The way this is written, it looks like there's a burden of intent
to look at child pr0n. I, of course, didn't RTFJ, but that's my
(worthless) two cents...
|5.19.08 @ 3:02PM|#
In the original court ruling, with SCOUS overturned, they wrote
that "any promoter -- be they braggart, exaggerator, or outright
liar" could be prosecuted under the law. From the news reports it
does appear that way. Does this mean that the cops who are the main
purveyors of such material, in entrapment schemes, are now
criminals for offering the material?
What apparently is not considered by those who are not upset by the
law is is what does it mean to present material, real or
non-existent, "in a manner that reflects the beliefs" it is child
porn? What is "reflects the belief"?
Does the use of words like "girls" and "boys" reflect a belief of
children? Does a promoiton of "hot girls" literally mean girls?
Obviously both "girls" and "boys" are words used to also describe
aduilts as well as children -- it reflects their gender not their
age. Even the phrase "hot, young girls" is non-specific since young
could refer to adults as well.
What sort of result will you get from this? First, it won't
criminalize any actual material that isn't already criminalized. So
it will do nothing to protect children anymore than now. But I
predice you will get religious wack jobs as prosecutors who will go
after mainstream adult material.They will argue that terms like
"hot, young girls" implies child porn. They will show images of
adult models who merely look young and contend that it is meant o
convey the idea they are children. What the Bush court has done is
open new doors for local prosecutors to harass producers of legal
adult material.
|5.19.08 @ 3:19PM|#
They will argue that terms like "hot, young girls" implies
child porn. They will show images of adult models who merely look
young and contend that it is meant o convey the idea they are
children.
The former would get laughed out of court, and the latter would
seem to be protected by the court's earlier decision.
T|5.19.08 @ 3:19PM|#
Child porn wouldn't be so popular if women over 18 didn't
get so goddamn fat.
Methamphetamines, SF, methamphetamines. Keeps the weight right off
'em. Plus, it makes 'em crazy as hell, and we all know the crazy
chicks are the best in the sack.
|5.19.08 @ 3:46PM|#
So have all of those "nude teen" websites have committed mega-multiple felonies, even if their "models" are all 18 or over?
fyodor|5.19.08 @ 3:48PM|#
Blay Tranoff explained to me years ago that all crime is
thought crime -- that what makes an act of crime is all about
intentions. That's how attempts can be criminal, etc.
Well that's rather overstating the case, but intentions are
important for determining culpability. They're necessary but not
sufficient for something to be a crime.
Of course, that's a layman speaking. Are there any accidental or
inadvertent crimes?
|5.19.08 @ 3:48PM|#
So have all of those "nude teen" websites have committed
mega-multiple felonies, even if their "models" are all 18 or
over?
eightTEEN and nineTEEN are still TEENS right? At least, literally
speking.
|5.19.08 @ 3:52PM|#
Oh, look, here's some
child porn
Can I get sent to jail for offering this material?
Does the criminality of my act depend on the prosecutor's ability
to detect sarcasm?
joe|5.19.08 @ 3:53PM|#
The former would get laughed out of court, and the latter
would seem to be protected by the court's earlier
decision.
This is almost certainly true.
Nevertheless, the bastards will try.
Brandybuck|5.19.08 @ 4:00PM|#
Am i a bad libertarian because this decision doesn't really bother me?
I'm in your camp. There's several hundred thousand more important
problems to solve before I start rending my beard over the
illegality of fake kiddie porn.
|5.19.08 @ 4:03PM|#
I seem to remember reading recently that the Rickroll (and its
predecessor, the Duckroll) was often perpetrated via offers of
child pornography ("Click here for underage
porn!" ... *click* ... "Never gonna give you up...").
Is annoying pervs in this way actually illegal, then?
Metal Messiah|5.19.08 @ 4:12PM|#
"So have all of those "nude teen" websites have committed
mega-multiple felonies, even if their "models" are all 18 or
over?"
That's a good question. All commercially produced pornography
(websites, videos, magazines) are required to keep "2257" records,
where the age of the models and actresses is listed. So even if
they use words like "teen" "girls" or "barely legal," both the
producer and consumer are aware that the material only contains
legal adults over the age of eighteen.
The 2257 compliance information is always shown on the website or
on the DVD and packaging, so I suppose it would be difficult for
the government to make such a case against commercially produced
pornography.
Doesn't necessarily mean they wouldn't try, though.
McH2Os|5.19.08 @ 4:14PM|#
It seems like this law is just adding additional punishment to
something that is already illegal. The way I see it there are two
options.
A) The material does depict children and they go to prison for
possesion/distribution/etc.
or
B) The material doesn't depict children and they're punished for
false advertising.
Is this law just trying to outlaw the very thought of
pedophilia/child pr0n? Personally, I don't see the problem with
Johnny No Game pretending the 18 year old on his monitor is 15. As
long as he doesn't go after a 15 year old off-line, of
course.
Put it this way: I'm pulled over and tell the cops I have weed in
my pocket. But in actuallity its oregano, can I be convicted of
possession?
bubba|5.19.08 @ 4:55PM|#
But it's legal for one to produce really good fake images of
children having sex, and then to sell them as really good fake
images of children having sex?
I'd think there would be a large market for that.
I don\'t buy that magazine|5.19.08 @ 5:00PM|#
"But it's legal for one to produce really good fake images of
children having sex, and then to sell them as really good fake
images of children having sex?"
Look at some of the ads in the next issue of Heavy Metal
Magazine.
leTerrassier|5.19.08 @ 5:35PM|#
So, if I have a twenty-four year old girlfriend who likes to dress in a Catholic school girl outfit, and she is such a good actress I believe she is fourteen, that makes me a sexual offender? Further more, I believe Lolita was based on a real person- officer, arrest the corpse of Vladimir Nabokov!
|5.19.08 @ 6:04PM|#
# Chris Potter | May 19, 2008, 2:49pm | #
# How is this thoughtcrime? You can think
# something is child porn as much as you want,
# as long as you don't offer to sell it to
# someone else.
# Robert | May 19, 2008, 2:53pm | #
# Blay Tranoff explained to me years ago
# that all crime is thought crime --
# that what makes an act of crime is all
# about intentions. That's how attempts
# can be criminal, etc.
A real crime involves harm or sincerely attempted harm to others,
or damage to their property. You can be responsible for harm
without being criminal (the basis for negligence or wrongful death
awards in civil cases, for instance). You can be criminal without
actually causing real harm, but only if you take deliberate steps,
intended by you to cause harm, which fail or are foiled in some
way. This is an aspect of the law that is ripe for abuse, however,
and I think that police stings go well over the line of proper
governmental conduct. (In passing, I should note that I have never
been able to accept the asymmetry that the government can lie to
citizens with seeming impunity, but that citizens are guilty of a
crime if they -- without being sworn, which is a different matter
-- knowingly utter false statements to government. Right there, the
government is no longer "of, by, or for the people," but is a
distinct thing above and apart from them.)
As far as whether trafficking in child porn under the present rules
is a thoughtcrime or not: Was there actual harm done to any real
person? Did the trafficker participate in the harm, taking definite
action with the expectation that harm would be the result? (For
instance, did the trafficker think he was commissioning the
production of porn -- as in an internet "pay for play" situation --
during which the minor participants would be harmed? Did be buy a
ticket and sit in the audience while children were abused onstage,
or behind a window?)
The point of criminal law is to capture and appropriately punish
those who knowingly cause actual harm, or who would have done so
but for unforeseen accident, or intervention by other parties, when
harm was otherwise inevitable. Trafficking in porn doesn't qualify
on that account. Any harm that may have been done is done by the
time the pornographic object exists, and the people who did it
should be held responsible for that. To make harmless commerce in
harmless objects illegal, however repulsive they or the
circumstances of their production may be to certain people,
needlessly distracts the law from dealing with real crimes, of
which there are plenty to command its attention. When transactions
that are not harmful in and of themselves are made not only
illegal, but criminally so, because of what the participants are
THINKING during the transactions, then it is only the thought
itself that is being punished, and that is the very definition of
thoughtcrime.
Now, if someone convinces another that the production of some item
of child porn actually involved real children when it did not, that
is fraud, which we can all agree is certainly a crime. If someone
is abusing children in the production of porn, bust the abusers.
The more the law can concentrate on real harm and those who cause
it, the better for society. Once the law starts defining and
prosecuting thoughtcrime, divorced from all notion of actual harm
to real people, the worse for all, as it won't stop with just the
disgusting perverts, any more than the income tax stopped with the
filthy rich that it was originally targeted to tax, or the tools of
RICO were limited to dealing with the scummiest of organized
criminals.
|5.19.08 @ 6:17PM|#
# Taktix® | May 19, 2008, 2:58pm | #
# Who the fuck is Blay Tranoff?
Blay TARnoff was an activist and wheel with the NYLP in the 1990s,
but I don't know of any recent activity. At the NY LP website, Blay
Tarnoff is listed as appointed (non-voting) "Telecommunications
Officer" for 2007-2008.
Yahoo Answerer|5.19.08 @ 6:33PM|#
The real difficulty in my mind is not the real child vs. fake child issue but where to draw the line between child porn and depictions of nude children. There was a flap over a picture called Klara and Edda Belly Dancing by Nan Goldin that was removed from a collection organized by Elton John. What about other depictions of nude children such as the famous picture of a nude Japanese Girl running away from the Hiroshima bomb. Clearly that girl tells an important part of the story in that picture. The picture would not be the same if she were wearing clothes.
|5.19.08 @ 6:48PM|#
"But it's legal for one to produce really good fake images
of children having sex, and then to sell them as really good fake
images of children having sex?"
If the child pornography laws are meant to protect actual children
from being used in that way, then there's no reason to extend them
to cover simulated child porn, which obviously doesn't use
children.
If the child pornography laws are intended to punish those icky
perverts for being perverted, then it's a different story.
Yahoo Answerer|5.19.08 @ 7:49PM|#
"If the child pornography laws are meant to protect actual
children from being used in that way, then there's no reason to
extend them to cover simulated child porn, which obviously doesn't
use children.
If the child pornography laws are intended to punish those icky
perverts for being perverted, then it's a different story."
For many people it is both. In the minds of many child pornography
is associated with child abduction. There is justification for this
association. Child abductees sometimes do wind up as unwilling
participants in child porn. When you start messing with children
people want you punished. There are many would love to have prison
guards turn their backs and switch off cameras when other prisoners
find out someone was involved in the making of child porn.
|5.19.08 @ 8:59PM|#
YA,
I agree with your analysis, but what I was trying to say was that
simulated child pornography doesn't run afoul of the first
purpose (protecting children), which I believe is justified. But it
does run afoul of the second purpose (punishing people who like to
watch child porn) which I don't believe is itself a justified
purpose of the law.
Yahoo Answerer|5.19.08 @ 9:40PM|#
Children, even simulated children, elicit so much emotion that people often do not think rationally about this issue. Look at how emotional people get about pets. From a rational standpoint there is no reason to be more emotional about dogs than cows. But if some company started slaughtering dogs and put the meat in the most accurately named hot dogs in the history of western civilization you bet there would be protests. Why? Because people treat dogs like children. People call them "my baby" and buy them toys and sometimes treat them more kindly than real children. People are willing to pamper these animals and take them to the vet when they are ill. Pets are "simulated children". The closer one gets to a real child the more emotion rules the day and the less rational arguments will work. With CGI technology I bet Industrial Light and Magic could whip up some ultra-realistic child porn if it wanted to. It could probably make some money from it. It won't though because if it did people would boycott any movies they helped make. It doesn't want to take that chance.
Yahoo Answerer|5.19.08 @ 10:03PM|#
I also remembered something from another Reason post:
https://www.reason.com/news/show/126030.html
This quote comes from an article about new regulations in Second
Life:
"The reversals started last year. Age play and other vaguely
defined "broadly offensive" behaviors were universally forbidden in
May 2007. This policy was announced shortly after a German
television crew presented evidence to Harper that avatar-based age
players were also using Second Life as a conduit to exchange real
child porn photos. Age play was creepy but arguably harmless; when
real-world molestation entered the picture, the moral equation
changed."
|5.20.08 @ 12:51AM|#
Well, I think CGI is still too expensive to be practical for porn, especially when there's a huge supply of, er, cheap labor. It's still probably less expensive to make up a barely-legal woman so she looks younger than to go the CGI route.
Don\'t ask me how I know this|5.20.08 @ 1:05AM|#
There are websites dedicated to CGI porn. Also, people have made
pornos using the graphic engines that are the background WoW and
Everquest. And of course, Second Life has a large contingent
(plurality?) of people who use it as a furry porn site.
The limiting factor right now is the uncanny valley. (just learned
this term the other day)
|5.20.08 @ 10:02AM|#
a little off topic, but this reminds me of the cases where
someone grinds up sheetrock and tries to sell it as cocaine. It
doesn't matter that the substance is perfectly legal, but because
it is presented as if were illegal, and the buyer believes it then
you've committed a criminal act.
I never understood how to prove / defend charges like this as the
bare facts don't seem to matter as much as what is in people's
heads while the act was committed.
An Honest Question|5.20.08 @ 12:00PM|#
The reverse case could conceivably occur too. Someone could have a fetish for adult little people and instead innocently wind up downloading child porn when the site advertised "Little People Porn".
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