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.

Comments

[Pinette]

Am i a bad libertarian because this decision doesn't really bother me?

[Colin]

If I virtually kill someone, am I murderer?

[joe]

Baking soda is legal, too. You can still get busted for soliciting drugs.

[joe]

If I virtually kill someone, am I murderer?

People get busted for conspiracy for trying to hire phoney hit men all the time.

[the OverKiller]

So, if she's 18, but I believe she's 16, would that make it an illegal act?

[joe]

The police stage stings using that exact scenario all the time.

[James Anderson Merritt]

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.

[Chris Potter]

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.

[Chris Potter]

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.

[Chris Potter]

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]

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]

Chris, I hope you didn't get that banana under your coat thinking about fake child porn...

[joe]

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®]

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...

[Taktix®]

Who the fuck is Blay Tranoff?

[wmf]

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.

[SugarFree]

Child porn wouldn't be so popular if women over 18 didn't get so goddamn fat.

[Chris Potter]

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]

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.

[SugarFree]

T,

Meth also makes all their teeth fall out. That has its advantages.

[R C Dean]

So have all of those "nude teen" websites have committed mega-multiple felonies, even if their "models" are all 18 or over?

[fyodor]

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?

[ChicagoTom]

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.

[prolefeed]

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]

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]

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.

[Jake Boone]

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]

"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]

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?

[jp]

Eugene Volokh (not surprisingly) has a good discussion of the decision hier.

[bubba]

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]

"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]

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!

[James Anderson Merritt]

# 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.

[James Anderson Merritt]

# 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]

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.

[Chris Potter]

"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]

"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.

[Chris Potter]

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]

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]

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."

[Chris Potter]

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]

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)

[greg]

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]

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".