Glee, The Simpsons, and Virtual Child Porn

The Parents Television Council is complaining about a GQ photo spread featuring two actresses from the Fox musical dramedy Glee, Dianna Agron (Quinn) and Lea Michele (Rachel), in provocative poses. Although both actresses are 24, the characters they play are teenagers. As far as PTC President Tim Winter is concerned, that fact makes the GQ photos quasi-felonious:

It is disturbing that GQ, which is explicitly written for adult men, is sexualizing the actresses who play high school-aged characters on "Glee" in this way. It borders on pedophilia. Sadly, this is just the latest example of the overt sexualization of young girls in entertainment.

I suppose that being sexually attracted to 24-year-olds dressed like 17-year-olds "borders on pedophilia" in the same sense that adulthood borders on childhood. But it's absurd to pretend there is something perverse or unusual about such attraction, or that any man who likes to see Dianna Agron jump around in a cheerleader's outfit is just one step away from raping children. Still, that seems to be the assumption underlying bans on child pornography. Such laws do not distinguish between prepubescent kids and sexually mature teenagers, and they can even be used to prosecute high school students for pictures they take of themselves or receive from the teenagers featured in  them.

But to reiterate: Agron and Michele are not actually teenagers; they just play them on TV. In the 2002 case Ashcroft v. Free Speech Coalition, the Supreme Court overturned a ban on "virtual" child pornography, production of which does not involve any real children, as a violation of the First Amendment. Presumably that is why Winter does not argue that GQ actually committed a crime by showing fake high school students in their underwear.

Over at When Falls the Coliseum, Ricky Sprague cites a recent federal pornography case in Idaho, noted here last week by Radley Balko, as evidence that such a charge is conceivable. In that case, Steven Kutzner faces up to 10 years in prison for cartoon images, many featuring characters from The Simpsons, of children engaged in sex acts. But Kutzner was not charged with possessing child pornography; he was charged with possessing "obscene visual representations of the sexual abuse of children"—meaning the material has to meet the obscenity test that the Supreme Court established in the 1973 case Miller v. California:

1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.

2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable law.

3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

No jury—not even one consisting entirely of PTC members—would say GQ's relatively tame photo spread qualifies as obscene. Indeed, it would be hard to obtain an obscenity conviction even for hardcore pornography featuring adult actors playing teenagers. Kutzner's cartoons are another matter. Until I searched for images to illustrate this post, I did not realize how much Simpsons porn (definitely NSFW) was available online. Most of it seems to feature adult characters, but according to Kutzner's plea agreement the cartoons on his computer included images of Lisa performing oral sex on Homer, Maggie doing likewise to Bart, Lisa pleasuring a pony, and Maggie mounting a man. It is not hard to imagine a jury deeming these pictures obscene, which helps explain why Kutzner not only pleaded guilty but waived his right to challenge the constitutionality of the possession charge, which was legally vulnerable because the Supreme Court has said bans on mere possession of obscenity violate the First Amendment. (Addendum: By contrast, it has upheld bans on mere possession of child pornography, "a related and overlapping category of proscribable speech" that is not necessarily obscene.) Jim Peters, an assistant U.S. attorney who worked on the case, says Kutzner agreed to the deal to avoid prosecution for receiving the cartoons, which is treated the same as distribution, triggering a five-year mandatory minimum sentence.

Peters adds that Kutzner's computer also contained traces of actual child pornography that Kutzner claimed he downloaded by accident and deleted. Prosecutors decided not to bring charges based on those images because they were downloaded before federal law was changed to make mere viewing of child pornography a crime. Peters says his office's main priority was to keep Kutzner, a former middle school teacher, away from children.

So does this case show that virtual child porn has been criminalized in practice, despite the Supreme Court decision prohibiting explicit bans? Sort of. Technically, such prosecutions hinge on a finding of obscenity (a dubious legal concept in its own right), but the fact that sexual images feature fictional children rather than fictional adults surely would influence a jury's judgment on that score.

Another point illustrated by this case is that the government views possession of child pornography (or, in this case, simulated child pornography) not only as a crime in itself but as an indicator of an individual's criminal propensities. It treats anyone caught with such material, even if he has never committed a predatory crime, as a potential child molester who needs to be deterred, isolated, and incapacitated—an attitude that helps explain why the sky's the limit on punishment for this nonviolent crime. The penalties for possessing child pornography, combined with registration as a sex offender and the restrictions that entails, are viewed as preventive tools. I'm not sure this policy is effective, but I am pretty sure it is unjust, essentially punishing people for crimes they might commit in the future.

Jesse Walker traced "the blurry boundaries of child porn" in the July 2009 issue of Reason. More on treating sexting teenagers as child pornographers here.