The original post gets it exactly right. It should be unconstitutional, and it is a shameful law, but it is not so that it should be unconstitutional because it is shameful, nor is it true that it is shameful because it should be unconstitutional.

"18 U.S.C. § 1462 -- the Protect Act of 2003."

Unless I am mistaken, 18 U.S.C. 1462 isn't part of the Protect Act of 2003. It was enacted in its original form in 1909, and was last amended in 1996.

"And it is a small step -- an insignificant step, in my view -- from that to the criminalization of a drawn cartoon -- the visible expression of what was going on in some cartoonists' mind."

On that score, a photograph would be a visible expression of what was going on in some cartoonist's mind. But, as I think you would agree, that shouldn't relieve the photographer of culpability. Rather, the inquiry should focus on actual harm--were actual children involved? That quickly distinguishes the cartoon from the photograph.

Why not make it a crime to picture, in one's head, minors engaged in obscene acts?

I'm sure there are people who would like to. And when technology like this gets better, maybe they will. Can't have people thinking bad thoughts, can we?

Possession of "child pornography" shouldn't be a crime since it is impossible to define.

Certainly there are some clear-cut cases that we can criminalize? Depictions of actual children engaged in actual sexual activity is a no-brainer. I can agree that it's a difficult line to draw between that and innocent pictures of your grandchildren in the bathtub but I don't see how your conclusion follows.

My big concerns are that all three prongs in Miller are fairly vague. Once again, suppose I draw a cartoon:

A young girl is in bed with an old man. On the floor is a book with LOLITA written on the cover, and on the wall is a poster labelled "Bill of Rights." Obscene? Is it less obscene if I provide a caption: "Protected speech?"

The second problem I have with existing precedent is that it is underinclusive. A text in English might be obscene to average people in the community, but there is NO WAY that the same text translated into Latin would be, because the average person would not be able to comprehend it, unless text can be admissible as evidence in translation (and we all know how much subtlety can be lost in translation).

However, back to this case.....

If the case were just limited to having the emails in his inbox, I would certainly agree that this would be an issue. However, when we add the web searches, etc. it seems less problematic to reach the conclusion that these emails were sought out. In short I don't think that receiving an email by itself ought to be knowingly receiving material, but searching for such material in conjunction with receiving the emails might be.

A final element to this case that stands out to me is that he offers a facial challenge to the law because it does not grant some exceptions for private possession. Were he caught viewing the anime in his own home, that might be one thing, but I don't think it applies here.

Personally I think that obscenity laws need to be struck down as a class for the reasons specified above. However, I don't see a problem with the evidentiary standard in the appellate opinion.

There has been at least one instance of a conviction because of one's impure thoughts, at least when they are written in a diary. In November, 2001 Brian Dalton, a 22 year old man in Ohio, was sentenced to 10 years imprisonment for simply writing fantasies in his private journal about torturing and molesting children. (No sketches or drawings were included in the journal and he had shown it to no one.) His mother had found the journal and had given it to authorities. He had an earlier conviction (as an 18 year old) involving pornographic photographs of children. See, Doulin, Man’s Journal Ruled Obscene, Columbus Ohio Dispatch, July 4,2001. After eighteen months in jail his conviction was reversed and the charges dismissed. Columbus Ohio Dispatch, March 4, 2004.

what wording should a new constitutional amendment that actually prohibits the regulation of speech have?

How about: Congress shall make no law abridging the freedom of speech, or of the press.

Straightforward and impossible to misunderstand, right?

Wow, if damn counts as an obscenity, there's even more reason for eliminating the obscenity exception!

Even the notion of banning photographic child pornography doesn't seem very sensible to me.

The most commonly claimed purpose for banning the possession of child pornography is that the ban reduces the "market" for it, thus reducing the incidence of child abuse. This, however, depends on the production of child pornography being a commercial enterprise. But when child porn "rings" are busted, it appears that they are not commercial -- they are groups of pedophiles who abuse children and only secondarily trade pictures of it with one another. Market doesn't enter into it. The children are not being abused for profit; they're being abused by perverts who trade pictures as an afterthought.

A second reason claimed for banning possession of child pornography is that exposure to child pornography may cause normal people to become pedophiles. But the research on pedophilia doesn't agree. Pedophiles are people whose psychological development got messed up at some stage of their adolescence, making them sexually attracted to children instead of adults. You can't turn a normal man into a pedophile by showing him child porn any more than you can turn a straight man into a gay man by showing him gay porn. All you'll do is disgust him.

A third reason for banning child pornography is that the continued availability of a picture of an abused child renews the abuse, or exposes the child to continued harm. But this logic would apply to any pictures of a crime in progress. It is against the law to beat someone up; and it is nasty and uncivilized if a person enjoys movies of bum-fights or "happy slapping"; but it is not illegal to possess them. It is rude and illegal to make harassing phone calls, but it is not illegal to trade prank-call tapes. Indeed, possessing movies of a murder being done is not illegal!

So what is to be done about child pornography? It seems to me that the best thing to do is to treat it as evidence of a crime. When idiot teenagers post movies of themselves beating someone up, the police use those movies as evidence of the crime of battery, and the offenders are prosecuted. The same takes place for child pornography, but under a cover of shame and concealment -- because people who discover child pornography are usually loath to report it, for fear of being associated with it themselves, or even prosecuted for possession.

Decriminalizing possession of child pornography does not mean that it is tolerable, any more than "happy slapping" pictures, or pictures of murders taking place. These things are all vile.

But decriminalizing possession of child pornography should increase the rate at which it is reported to authorities -- by removing the risk that a person in possession of it will be prosecuted whilst they're trying to report it. And that would in turn increase the ability of authorities to investigate and to prosecute the actual offenders: the abusers.

To create a greater incentive to report, revive the notion of misprision of felony: the crime of concealing and not reporting a felony that you observe. If you receive child pornography (that is, evidence of child abuse) and have reason to believe the authorities don't already know about it, you are obligated to report it.

Frater, a few comments, in order from important to trivial:

(1) Even if the producers are not selling child pornography (and they certainly are, a quick search will confirm), there is a "market" in the informal sense. There is a primary market for those bartering child pornography which helps avoid entanglement with law enforcement. Then there is the secondary effect that producers are encouraged by the fact that others will derive satisfaction from it.

(2) There are significant international border problems here. A regime where we cannot punish consumers will inevitably lead to increased production abroad. Lax enforcement here has already lead to a profusion of such production that can be verified by looking for cp pay sites.

(3) There is significant societal value conveyed by criminalizing mere possession, in that it shows how deeply society disapproves of sexual relations with the prepubescent.

By the way, here is an allegedly verbatim copy of a skit that Bill Hicks performed on Letterman but was canned by CBS in 1993.

And this is what George Carlin said

I'd always understood Pacifica as establishing the FCC's increased authority to regulate public airwaves. That is, the FCC can prohibit speech on the airwaves that is otherwise constitutionally protected.

The raw constitutional text actually provides very little protection.

That was my point. It provides little protection, although (I think) it should, without any need for the qualifiers you mentioned. Although I could see replacing "Congress" with "No governmental entity or person acting under the auspices of the government."

The children are not being abused for profit; they're being abused by perverts who trade pictures as an afterthought.

As Oren alluded to, it isn't about commercialization; it's about child abuse. Criminalizing the possession of child pornography is meant to prevent child abuse because children are abused in creating child pornography.

First of all, much child porn is made for actual monetary profit. Go looking, you will find plenty of paysites with pornographic content (ranging from countries where 16 year olds are legal to shoot to straight up rape of very young children). There are very few barriers to setting up a website in an underpoliced jurisdiction (Eastern Europe), getting a credit-card provider that won't ask questions and start serving up child pornography.

If it were legal to possess in the US, those sites would proliferate like crazy. Even if it were still criminal to purchase it, but not to possess it, it would be impossible to prove unless mere transferring funds to a e-currency exchange.

Second, "child abusers would abuse children even if there were nobody else interested in pictures of the act." is true, but I would add that child abusers will be encouraged to abuse more children if they have a community of support and appreciation. That is to say, there is a significant community-enhancement effect.

Third, I was very disappointed in Kennedy v. LA. Rape of a child under 10 should be met with execution so, AFAIK, they are crimes of equal magnitude.

Mariner, the defendant here wasn't charge with child pornography, just regular old obscenity.

ReaderY:

Don't you think that a text in, say, Swahili, could never be obscene under the Miller test? If media is not an issue, why language?

“Obscenity is the sign of a weak mind trying to express itself” anonymous

Oh, bullshit.

Alligator wrote at 12.20.2008 4:46pm:

I'd always understood Pacifica as establishing the FCC's increased authority to regulate public airwaves. That is, the FCC can prohibit speech on the airwaves that is otherwise constitutionally protected.

Yep. The Communications Act of 1933/4 prohibits indecency and profanity, a much lower threshold than obscenity.

David, 17 year olds are not children. I was thinking more like, say, video of an 8 year old engaging in actual (penetrative) sexual relations on camera. I hope you were intentionally misunderstanding me.

Avatar, the right to engage in the commerce of sex toys is still in limbo.

David, I don't understand your point here -- you seem to be insisting that there is a boundary between conduct that should be legal versus conduct that should be illegal -- something that I acknowledged as obvious a long time ago.

Essentially, I can't tell whether you are arguing about generalities or attempting to negotiate the specifics (or confusing the two). The general part is pretty obvious to me: do you agree that depictions of real children under the age of 10 engaging in penetrative sexual relations should be illegal*?

If yes, then we agree in principle and it remains only to set a particular (and, by definition, somewhat arbitrary) definition of what should be illegal.

If no, then I respectfully assert that you are too far out of the mainstream to have a meaningful discussion.

* Where "real" means not animated, simulated or acted, depictions means media (pictures, video, sound) that captures the act as it happens, not reenactment and illegal means less time in jail than an actual rapist with some form of tightly-supervised release possible for the non-violent.

Also:

anyone know what the legal status of 18 USC 1462(c) is?

That seems particularly troubling, 1A-wise.

John Herbison:

I surmise that, in this hyothetical, that would be a reasonable person who reads and understands Swahili.

So does this mean we either require all jurors to be fluent in Swahili or that we get into an argument over translation (and probably over every word in the translation)?

Ok, suppose instead of Swahili, I write the passage in Hebrew (or Arabic, or related languages) without massiretic (sp?) dots? Now we get to argue over every *possible* word AND its translation!

Translation of such materials could be problematic. If I say "The spirit is strong but the flesh is weak" how do you know whether or not I am saying "Drink the vodka but stay away from the roast beef?" When we start

If 16-year-olds have the legal right to go and buy condoms, why don't they have the legal right to film themselves in the act, provided that there is no distribution?

Because those two acts are not really the same...

FWIW, I would vote in favor of a law to allow such filming because I think it is good policy, but it is not a policy mandated by the 1A.

that should be "readily comprehensible to jurors".

John Herbison:

Doesn't the idea of a contemporary community standard raise any sort of real vagueness issues for you?

If a Robert Mapplethorpe exhibit were to come to Salt Lake City, would the dirty pictures at issue in the 1990 trial result in an obscenity conviction? At what point doe the courts actually determine a matter of fact, overriding that of the jury (determining that a work does, indeed, have artistic or literary value)?

I have defended obscenity cases for two decades now. The concept of "contemporary community standards" is a legal fiction that Chief Justice Burger fashioned from whole cloth. The vagueness/fair warning problems are monumental.

Collateral estoppel sometimes does apply in criminal cases, as one aspect of double jeopardy. Ashe v. Swenson, 397 U.S. 436 (1970), is the leading case. There the accused had allegedly robbed six p*ker players at the same time, and was separately charged with six distinct robbery offenses. At the first trial, where the identity of the robber was the only contested issue, Mr. Ashe was acquitted. The Supreme Court held that double jeopardy precluded any subsequent prosecution of defendant for robbery of a different player.

That reasoning would apply to an obscenity prosecution where a defendant has been acquitted at a trial where the only disputed issue is whether the material is or is not obscene (as distinct from guilty knowledge or possession/distribution, for example). The government could then not prosecute another person for the same material in the same jurisiction.

Collateral estoppel works in only one direction, though. Where one defendant has been convicted of an obscenity offense, the same material in possession of a different defendant cannot be deemed obscene as the result of a proceeding to which the second defendant was not a party and did not have an opportunity to be heard on the question of obscenity.

[Apparently the spam filters do not like the name of the card game that the robbery victims were playing]

John Herbison:

Could a second Mapplethorpe exhibition in Ohio, say 20 years later, be prosecuted on the grounds that contemporary community standards may have changed and that these standards might not find serious artistic value in his works anymore?

David Schwartz:

I thought we were talking about obscenity law rather than child porn laws. I think the former is far more problematic than the latter.

Could a second Mapplethorpe exhibition in Ohio, say 20 years later, be prosecuted on the grounds that contemporary community standards may have changed and that these standards might not find serious artistic value in his works anymore?

I don't know the answer to that question. I would surmise that, as to the museum director who was acquitted, the prior verdict would be res judicata and double jeopardy would bar further prosecution. If another person were prosecuted for displaying the same materials, that defendant would have the burden of persuasion on a motion to dismiss. I don't know whether the obscenity vel non of the photographs was the only contested issue at Mr. Barrie's trial--guilty knowledge may also have been at issue.