Wonder how the FSC will Spin this one ?

[gonzo]

In a world where 6 year olds are being sold bras we get a United States Supreme court decision in US v Williams that essentially makes it a crime to claim to be breaking the law, regardless of whether the law was broken. The story runs like this, originally congress passed a law, Child Pornography Protection Act of 1996 which became inserted into the Federal code as 1 U.S.C 2252A(a)(3)(.

The opinion of the court in Ashcroft v Free Speech Coalition was that the original prohibited a substantial amount of protected speech. Specifically:

(1) The CPPA is inconsistent with Miller. It extends to images that are not obscene under the Miller standard, which requires the Government to prove that the work in question, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value, 413 U.S., at 24. Materials need not appeal to the prurient interest under the CPPA, which proscribes any depiction of sexually explicit activity, no matter how it is presented. It is not necessary, moreover, that the image be patently offensive. 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. See, e.g., Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Mass., 383 U.S. 413, 419. Under Miller, redeeming value is judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive. See Kois v. Wisconsin, 408 U.S. 229, 231 (per curiam). The CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the obscenity definition. Pp. 6—11.

Ashcroft v Free Speech Coalition

Basically what the court said in Ashcroft v FSC was that child pornography can't be outlawed if it wasn't made with children, and doesn't violate other forms of obscenity law. However the new law was much more narrowly targeted to outlaw presenting material as being child pornography, whether it the material is or not. More over, the original statute tainted the material in question. That is if material had been claimed to be child pornography, the having it was a crime. So if a book seller sold a copy of Snow White claiming it was about a teen living lustfully with 7 ugly dwarves, and was purchased with that belief, then having the the copy of Snow White itself was criminal. The court overturned both of these provisions.

As often happens the Congress passed fresh legislation aimed at overcoming the defects in the original law. The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, yet another acronym act, sigh. This statute removed both the tainting, and the criminalization of the images.

The facts of the case are depressingly common, a chat room which was used to swap child pornography had a particularly stupid swapper who thought that the best way to prove he wasn't a Federal Agent was to show everyone that he had actually criminally illegal material. It was exactly the circumstance that the statute was intended to catch: peadophiles swapping actually child pornography and telling each other that that is what is on offer.

What was at issue in this case was whether the statute was overly broad on its face. For a statute to be overturned as overly broad, it has to be proven, in effect, that it invalidates a large amount of protected speech, or allows such selective enforcement as to obviously invite abuse. The standard of substantial amount of speech is intended to set a high bar for invalidating a statute. The reasoning is that if some protected speech is covered, then courts can grant exceptions, but if there is a broad chilling effect, then the statute must go.

The new law made it illegal to engage in activity that "advertises, promotes, presents, distributes, or solicits" material which is intended to make people believe that there is an exchange of child pornography. In the decision the court made some important limitations on the law. First it said that the verbs must be taken together in context. The law cannot be construed to make illegal merely advocating legalization of child pornography. Moreover, in Scalia's decision, material which looks like children having sex, but is not, isn't illegal, because, according to Scalia, it is absurd that reputable companies would want people to believe they had produced objectionable material with children.

This last is a slippery argument, because clearly we do sexualize children, and even "reputable" commerce push sexualization of children. However, this is beside the point, because what was really at issue was whether it could be made a criminal transaction to offer to enage in another criminal transaction, even if the underlying criminal transaction was impossible. The court has held that, yes, offering to do something that is illegal, even if it is impossible to carry it out, is in itself illegal.

Interesting in this decision is the stiffness of the rebuke to the 11th circuit:

What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is. Thus, we have struck down statutes that tied criminal culpability to whether the defendant's conduct was "annoying" or "indecent"--wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings. See Coates v. Cincinnati, 402 U. S. 611, 614 (1971); Reno, supra, at 870-871, and n. 35.

The court decision bludgeons the 11th Circuit particularly hard in saying, first that the basis the lower court decided on was wrong, and then, even if the standard of strict scrutiny was not applied the lower court would have been wrong.

How does this effect Second Life? Not really much. It is already more broadly against the rules to engage in creation of images and acts here than the American Law allows. That is there are plenty of things that are perfectly legal under American law which are against the ToS here. The ToS is also much more stringent about what constitutes advertising than the the revised statute. In limiting the statute in particular ways, in effect pruning away potential vagueness, the Supreme Court left behind the law that Congress probably intended to write, and did so without materially harming the rest of us.




http://sexsecond.blogspot.com/2008/0...hild-porn.html

[Paul Markham]

Even worse in the UK. The girl only has to appear to be under age to get the viewer in trouble. So a slim late developing 18 year old say a gymnast posing nude could get people in trouble.

The UK prosecutor only has to prove she appears to be 15 to get a conviction.

[EmporerEJ]

You know, I was thinking about this when I was watching Gene Simmons family jewels last night on A&E. They showed family movies of the kids when they were little. And in a couple of them, the kids were nekked and fuzzed out. Harmless of course, but prosecutable, and in the eyes of a pedophile, probably gold.

So I guess the FBI will be taking Gene in? And A&E?

[RawAlex]

Originally Posted by EmporerEJ

You know, I was thinking about this when I was watching Gene Simmons family jewels last night on A&E. They showed family movies of the kids when they were little. And in a couple of them, the kids were nekked and fuzzed out. Harmless of course, but prosecutable, and in the eyes of a pedophile, probably gold.

So I guess the FBI will be taking Gene in? And A&E?

Context. It makes the world go around.

[EmporerEJ]

Originally Posted by RawAlex

Context. It makes the world go around.

Yea, my point exactly.

As a US Supreme Court judge once remarked: "It may be difficult to define, but I know what porn is when I see it"

Now, let's see if we can set that down in legislation?

[Hammer]

The fact that obscenity is a subjective matter and everyone has a different opinion of what is obscene is the entire problem.

I think we all (hopfeully) agree that CP and rape are terrible and should be illegal. However, anything else, simulated rape, scat, double anal, fisting, pissing, bondage with abuse, self mutilation, and all those things that most people find offensive and would consider obscene should not be illegal when they involve consenting adults. If they involve children or a non consenting adult, then they become CP or rape and prosecutable, preferably by death, but of course the last part is just my opinion.

[EmporerEJ]

Originally Posted by Hammer

The fact that obscenity is a subjective matter and everyone has a different opinion of what is obscene is the entire problem.

I think we all (hopfeully) agree that CP and rape are terrible and should be illegal. However, anything else, simulated rape, scat, double anal, fisting, pissing, bondage with abuse, self mutilation, and all those things that most people find offensive and would consider obscene should not be illegal when they involve consenting adults. If they involve children or a non consenting adult, then they become CP or rape and prosecutable, preferably by death, but of course the last part is just my opinion.

Yea, I pretty much see it that way...but I'd give the predators to the mob.
Not too much into state sanctioned murder.
I question the legitimacy, and the effectiveness, of the death penalty.

[RawAlex]

Hammer, one of the problems that seems to haunt the Republican'ts is that they aren't willing (or able) to apply the existing laws, and feel the need to make law on top of law on top of law to try to outlaw something that is already outlawed.

Part of their problem is their desire to take a known bad, CP, and try to tack other stuff onto it, so they can get their conservative christian OPINION into law. USC 18 section 2252 and 2253 (if I remember correctly) already outlaws CP. There is no additional laws or rules required beyond that point to make CP illegal, because at that point, it is already illegal.

However, they want to take it up to the next level. They create 2257 record keeping requirements (only applies to porn, doesn't apply to hollywood movies, how odd!). 2257 will never stop true CP, at best it will possibly stop 17 year olds from lying their way onto a porn set (although good faked government ID pretty much makes that possible even under 2257). The reason 2257 exists (and the reasons why it's rules are so complicated on onerous) is to stop porn from being produced period.

There was already a CP law. Nothing else was needed. If the US government just took 2252 / 2253 and applied them, they wouldn't being spinning into the ground on the issue. Instead, they are attacking the porn world with a myriad of useless laws and subjective guidelines of obscenity and indecency to attempt to regulate something that they themselves cannot define in law.

It truly sucks.

[gonzo]

Originally Posted by RawAlex

Hammer, one of the problems that seems to haunt the Republican'ts is that they aren't willing (or able) to apply the existing laws, and feel the need to make law on top of law on top of law to try to outlaw something that is already outlawed.

Part of their problem is their desire to take a known bad, CP, and try to tack other stuff onto it, so they can get their conservative christian OPINION into law. USC 18 section 2252 and 2253 (if I remember correctly) already outlaws CP. There is no additional laws or rules required beyond that point to make CP illegal, because at that point, it is already illegal.

However, they want to take it up to the next level. They create 2257 record keeping requirements (only applies to porn, doesn't apply to hollywood movies, how odd!). 2257 will never stop true CP, at best it will possibly stop 17 year olds from lying their way onto a porn set (although good faked government ID pretty much makes that possible even under 2257). The reason 2257 exists (and the reasons why it's rules are so complicated on onerous) is to stop porn from being produced period.

There was already a CP law. Nothing else was needed. If the US government just took 2252 / 2253 and applied them, they wouldn't being spinning into the ground on the issue. Instead, they are attacking the porn world with a myriad of useless laws and subjective guidelines of obscenity and indecency to attempt to regulate something that they themselves cannot define in law.

It truly sucks.

And here on the other side we have the FSC who lied about how all its members will exculsively protected from these 2257 inspections.

Like Mike says... those cock suckers wont even return Stagliano's phone calls. With them at the same venue at Cybernet Expo Im thinking its going to be some very tense moments for sure.

Jay and Conner I hope you realize what youve set the stage for!

[Hammer]

Originally Posted by EmporerEJ

Yea, I pretty much see it that way...but I'd give the predators to the mob.
Not too much into state sanctioned murder.
I question the legitimacy, and the effectiveness, of the death penalty.

I'm undecided on that issue but if my wife or one of my daughters was ever raped it wouldn't take a state sanction to git 'er done.

[gonzo]

Originally Posted by Hammer

I'm undecided on that issue but if my wife or one of my daughters was ever raped it wouldn't take a state sanction to git 'er done.

I have the number to Man and Bat Inc. - with references.

[EmporerEJ]

Originally Posted by RawAlex

There was already a CP law. Nothing else was needed. If the US government just took 2252 / 2253 and applied them, they wouldn't being spinning into the ground on the issue. Instead, they are attacking the porn world with a myriad of useless laws and subjective guidelines of obscenity and indecency to attempt to regulate something that they themselves cannot define in law.

It truly sucks.

This is the most important point, and and is the clear indicator of the desire to control and censor us.

[LAJ]

Originally Posted by gonzo

And here on the other side we have the FSC who lied about how all its members will exculsively protected from these 2257 inspections.

Like Mike says... those cock suckers wont even return Stagliano's phone calls. With them at the same venue at Cybernet Expo Im thinking its going to be some very tense moments for sure.

Jay and Conner I hope you realize what youve set the stage for!

I welcome tense moments at the show. The industry is going thru some very tense times. If there wasn't any controversy or arguing on any of the panels and just a bunch of back slapping and agreement then it wouldn't be Cybernet Expo as we know it and rather just a bunch of bullshit.

[RawAlex]

I am actually thinking this could be one of FSC's last stands. They have be OTBE so often it is almost funny to watch.