The Volokh Conspiracy

The thing that most worries me here is the notion that synthetic images --- ones in which no actual child occurs, must less is sexually harmed --- and even apparently talking about it can apparently be proscribed. IANALTG, but it's a *little* hard for me to see what this does for, say, Amazon.com, which advertises several versions of Lolita, and September Morn prints. Or Annie Liebowitz's recent Miley Cyrus photos.

it's a *little* hard for me to see what this does for, say, Amazon.com, which advertises several versions of Lolita, and September Morn prints. Or Annie Liebowitz's recent Miley Cyrus photos.

The Court's answer to this is:

But an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means “a protected category of expression [will] inevitably be suppressed,” post, at 13. Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography.

Which leads me to the question--does this mean that at least those soliciting child pornography can effectively insulate themselves by couching their request in terms of seeking "simulated" or "virtual" depictions?

Suppose someone expresses a desire to have their wife killed. I go to them and say, "I killed your wife, as you wished, pay me $20,000". If they do, would you argue that no crime was committed if I didn't actually kill anyone?

Or suppose I have a picture of simulated child pornography, tell you it's real child pornography, and you buy it from me. Haven't you committed a crime under the basic theory of attempt?

I guess the dissent's argument seems stronger if you consider a hypothetical like this one: I say to someone, "I want to buy a Rolex watch, I don't care if it's stolen". The police bust in at this point and charge me with attempting to purchase stolen property. Assume that the person I said this to is (though I don't know it) a lawful dealer in Rolex watches who would never offer a stolen watch and who was about to show me his collection of watches, none of which are stolen.

I suppose it's really another case of impossible attempts. The general rule is that if the one attempting didn't know or didn't care that his attempt was impossible, he is still guilty of the attempt.

This is really just the adoption of the Model Penal Code approach to incohate crimes. The MPC views the willingness to do the bad thing as the crime -- the purpose with the requisite amount of overt action (which depends on the crime. For attempt, it must be a substantial step. For conspiracy, there must be agreement. For solicitation, there must be a soliciting).

For example, it may seem absurd that a burglar in a store that shoots a mannequin, thinking it was a person, can be convicted of attempted murder. But the outcome makes more sense when you realize that what the crime punishes is the willingness to kill a person, because, if the criminal had been right in his beliefs, a person would be dead.

Similar here. Here, there is a willingness to commit the crime and accept (or send) child porn, whether there is really child porn or not.

The law seems very broad. And I doubt it will be used to prevent child porn since such laws already exist. It will be used by would-be censors in the prosecutor's offices to go after adult erotica instead. They will argue that various adult films "intend" to convey the message that an actor is actually a child. This may be done via a title, "Girls Gone Wild", the name of an actor (Lolita), the costume they wear (dress as a schoolgirl/boy, or their physical looks, that they look young. I think they will claim that these were attempts to get people to think it was child porn and use the law to go after this. It will be an excuse to harass adult erotica.