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The Slippery Legal Slope of Cartoon Porn 933

Posted by timothy
from the in-a-perfect-world-the-topic-would-not-arise dept.
BenFenner writes "Two out of the three Virginia judges involved with Dwight Whorley's case say cartoon images depicting sex acts with children are considered child pornography in the United States. Judge Paul V. Niemeyer noted the PROTECT Act of 2003, clearly states that 'it is not a required element of any offense under this section that the minor depicted actually exists.'"
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The Slippery Legal Slope of Cartoon Porn

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  • by Manip (656104) on Monday December 29, 2008 @09:00AM (#26256851)

    The act defines a "child" as a "person":
    (2) the term âchildâ(TM) means a person who has not attained
    the age of 18 years and isâ"
    ââ(A) under the perpetratorâ(TM)s care or control; or
    ââ(B) at least six years younger than the perpetrator;

    Plus as some cartoons are over the age over 18 like the Simpsons for example. They're 20 years old as a point of fact.

  • by Anonymous Coward on Monday December 29, 2008 @09:02AM (#26256859)

    In Australia, a guy got done for having cartoon porn of the Simpsons.

    http://www.theage.com.au/national/simpsons-cartoon-ripoff-is-child-porn-judge-20081208-6tmk.html

    Yet another reason for me to leave this backward backwater.

  • by SteveFoerster (136027) <steve AT stevefoerster DOT com> on Monday December 29, 2008 @09:37AM (#26257111) Homepage

    Denmark is pretty good about not censoring their cartoons [wikipedia.org].

  • Re:Victims? (Score:3, Informative)

    by lxs (131946) on Monday December 29, 2008 @09:48AM (#26257185)
  • Re:Hmm (Score:5, Informative)

    by Sigismundo (192183) on Monday December 29, 2008 @09:56AM (#26257253)
    This has already happened, article here [cbldf.org]. Basically the dude ordered some manga from Japan, and the postal inspector had a look at it when it arrived in the US. When the guy went to pick up his delivery, police followed him home, seized his comics and charged him with possession of child porn.
  • How far we've come (Score:5, Informative)

    by BenEnglishAtHome (449670) on Monday December 29, 2008 @10:06AM (#26257337)

    If you're an oldster or a lawyer of the sort who can quote Dost, this may be sad but it isn't surprising.

    For you young 'uns out there, listen up for a history lesson.

    For a very long time in the U.S., child porn was legal. Admittedly, this point can be argued. Some say it was always illegal because it was always obscene. However, it wasn't prosecuted because the possibility existed that it could be produced in a way that was not obscene. Whether it was technically legal or illegal isn't important. The practical matter is that it wasn't prosecuted, wasn't specifically prohibited, and was easily available to anyone who wanted to send off a money order or walk into a big city adult book store.

    IN the mid 1970s, the first laws were passed that said it was illegal. First amendment concerns surfaced but those were beaten back with the argument that producing it required that a crime be committed by an adult against a child. You couldn't produce child porn without actually raping a child. By the early 1980s, it was pretty much illegal everywhere in the U.S., though simple possession didn't get outlawed everywhere, uniformly until then. Even now, there have been major nations that didn't outlaw simple possession until recently. Simple possession didn't become illegal in Brazil, for example, until this year.

    The U.S., though, was a different case. By the mid to late 1980s, the stuff had been mostly stamped out. In fact, immediately before the rise of the ubiquitous home internet connection, nearly all child porn sold in the U.S. was actually sold by the United States Postal Service as a part of sting operations.

    In some of the early court decisions, the first amendment concerns were dismissed with the explicit allowance that depictions of underage sex for artistic purposes could continue unhindered as long as the actors involved were of age. At the time, the example often cited was "The Last Picture Show."

    Since then, things have gradually changed from the sensible to the insane. The changes have been far too many and too complex to outline here and each change has been rather gradual. As the law now stands (IANAL, etc.) literally any picture of a child can be considered porn if a prosecutor can convince a jury that it was produced or possessed for prurient purposes. Nudity is not required. Sexual activity is not required. Prosecutors are willing to proceed on the flimsiest basis when motivated by stupidity or politics, sometimes successfully (the Pierson case, as a lead-in to prosecuting WebeWeb), sometimes unsuccessfully (as in the attempt in Oklahoma to criminalize the highly regarded movie "The Tin Drum.")

    I'm not a big fan of Paul Little (the few minutes I've spent with him on several occasions convinced me that he's an ultimately harmless boor) but he should not be looking at jail time. Yet in this (U.S.) society, all rationality has flown right out the window where this subject is concerned.

    Here are my two main points (and, incidentally, this is why I know so much about the subject):

    1. If you value civil liberties, you need to know about child porn. It's the boogey man, just like "commies" back in the 1950s, that is used as an excuse to build freedom-destroying infrastructure into our laws and communications systems.

    2. The original definition of child porn that justified outlawing it included one central tenet - that producing it requires adults to rape children. Nowadays, a large (probably the overwhelming majority) of child porn is produced by children for the consumption of children and there are no adults involved at any stage. If you have a 12-year-old with a web cam in their room or a digital camera built into their cell phone, there is a much-larger-than-you'd-like-to-admit possibility that you're providing a home for a child porn production studio.

    Combine those two things and we're looking at a situation where child porn can be used to criminalize a huge portion of the populace. Forgive me for drawing parallels where

  • Bad Summary (Score:5, Informative)

    by Goobermunch (771199) on Monday December 29, 2008 @10:09AM (#26257359)

    It's a bad summary.

    The opinion makes it clear that the child pornography charges were related to the actual child porn he received, while his convictions related to the anime and emails were obscenity convictions. This is an important distinction.

    In Miller v. California, the United States Supreme Court held that the First Amendment did not protect obscene speech, and that such speech could be banned by the government. However, the test for whether speech is obscene is so broad that very little pornography is subject to regulation. According to Wikipedia (since I'm too lazy to look it up on Findlaw), the three prongs of the test are:

    * Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
    * Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
    * Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific).

    If each if these prongs is met, then the work is obscene and may be banned.

    In contrast, in Ferber v. New York, the Supreme Court held that child pornography is never protected by the First Amendment, regardless of whether it is obscene. The rationale being that the government has a compelling interest in preventing the sexual exploitation of children, and that by its nature child pornography causes injury to the children involved in its production.

    So, in brief: child porn involving actual children--always illegal because actual children are injured in the process. Images and stories of children having sex--illegal if obscene. Whorely was convicted under an obscenity statute, rather than a child pornography statute.

    --AC

  • by Brian Ribbon (986353) on Monday December 29, 2008 @10:23AM (#26257459) Journal

    "Arguably, banning the drawing of such things, and dissemination of such cartoons discourages sickos from watching the cartoons and being encouraged."

    There is no evidence for the argument that viewing child porn cartoons increases the risk of a person molesting a child. There is evidence to the contrary, however. Hall, et al. (1995) [ipce.info] found that "arousal to pedophilic stimuli does not necessarily correspond with pedophilic behavior", Freel (2003) [oxfordjournals.org] found that "if someone is fully inhibited from sexually abusing children, no amount of emotional congruence, sexual arousal, or blockage will lead them to abuse children", while Sheldon & Howitt (2008) [direct.bl.uk] found that "fantasy deficit may be involved in contact offending against children."

  • Re:Bad Summary (Score:5, Informative)

    by makomk (752139) on Monday December 29, 2008 @10:44AM (#26257607) Journal

    The opinion makes it clear that the child pornography charges were related to the actual child porn he received, while his convictions related to the anime and emails were obscenity convictions. This is an important distinction.

    That's not true - two of the three charges were child pornography charges, including one of the two in respect of the drawn images. Under current US law, drawn images are treated exactly the same as real child pornography (but only if they're either obscene or "depict an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and lack serious literary, artistic, political, or scientific value" - anything which isn't has 1st amendment protection). Note that there is no requirement of obscenity under the second criterion; I doubt this is generally in issue, but it's possible there are circumstances under which it could be.

    Technically, the charge regarding the drawn images was under 1466A rather than the actual child porn statute, 2252A, but it's only a technical difference - 1466A basically just says that the images are treated exactly the same as real child porn would be under 2252A.

    The other charge regarding the drawn images is indeed an obscenity charge, more specifically one of importing obscene materials. In this case, by "import" they really mean "download from the internet" - the law in question specifically states that downloading from the internet counts as importing. (So putting this in "YRO" may actually be appropriate. Shock horror!) I suspect this law has far wider implications than just child porn.

  • by Wonko the Sane (25252) * on Monday December 29, 2008 @11:03AM (#26257771) Journal

    I have not heard of any cases of Teenagers sending pictures of themselves to other teenagers being called Child Porn

    Apparently you haven't been listening [google.com].

  • by Jah-Wren Ryel (80510) on Monday December 29, 2008 @11:12AM (#26257857)

    They may have created the image, or they may have filtered the image in PhotoShop to remove any digital signatures from the camera that took the image. Okay, Solomon, how do we settle this one?

    Uh, innocent until proven guilty?

  • by Mugabe (1440833) on Monday December 29, 2008 @11:14AM (#26257889)
    Zimbabwe is mine!
  • by multisync (218450) * on Monday December 29, 2008 @11:18AM (#26257933) Journal

    So I assume these judges have signed affidavits of concern with respect to the depictions of a clearly naked Bart Simpson in the latest (and so far only) Simpsons movie? Right?

    Wrong. Naked isn't equivalent to pornographic. If Bart had been depicted in a sex act, that could be considered pornographic. Nudity alone isn't sufficient.

  • Re:Easy fix. (Score:3, Informative)

    by Ihmhi (1206036) <i_have_mental_health_issues@yahoo.com> on Monday December 29, 2008 @11:29AM (#26258075)

    A cursory Google search reveals the name of that disease: Kallman Syndrome [wikipedia.org].

    There are other diseases that can have similar symptoms, i.e. dwarfism.

  • Re:Bad Summary (Score:5, Informative)

    by Goobermunch (771199) on Monday December 29, 2008 @12:25PM (#26258637)

    Here's a link to the opinion: http://pacer.ca4.uscourts.gov/opinion.pdf/064288.P.pdf [uscourts.gov]

    Here's the language from the opinion:

    Counts 1-20 charged Whorley with using a computer on March 30, 2004, to knowingly receive obscene cartoons in interstate and foreign commerce, in violation of 18 U.S.C. 1462. The 20 cartoons forming the basis of those counts showed prepubescent children engaging in graphic sexual acts with adults. They depicted actual intercourse, masturbation, and oral sex, some of it coerced. Based on the same cartoons, the jury also charged Whorley in Counts 21-40 under 18 U.S.C. 1466A(a)(1) with knowingly receiving, as a person previously convicted of illegally downloading child pornography, obscene visual depictions of minors engaging in sexually explicit conduct. In addition, the grand jury charged Whorley in Counts 41-55 with knowingly receiving, on March 11 and 12, 2004, 15 visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. 2252(a)(2). These counts were based on lascivious photographs of actual, naked children. Finally, the grand jury charged Whorley in Counts 56-75 with sending or receiving in interstate commerce 20 obscene e-mails during the period between February 5, 2004, and April 2, 2004, in violation of 18 U.S.C. 1462. The e-mails described sexually explicit conduct involving children, including incest and molestation by doctors.

    By my read, the key factor that made these prosecutions legitimate from a First Amendment standpoint is not that they were "child pornography," but that they were obscene.

    --AC

  • by QCompson (675963) on Monday December 29, 2008 @12:44PM (#26258827)

    Wrong. Naked isn't equivalent to pornographic. If Bart had been depicted in a sex act, that could be considered pornographic. Nudity alone isn't sufficient.

    Wrong. For purposes of the child pornography statute, nudity alone is certainly sufficient, as long as there is a "lascivious exhibition of the genitals" (in fact, nudity isn't even required). The scene referred to from the Simpsons movie could arguably fit that definition.

  • by BenEnglishAtHome (449670) on Monday December 29, 2008 @02:06PM (#26259765)

    OTOH, firearms did work for the American revolutionaries, the Afghans against the Russians, and the WW2 vets who fought for fair elections at the Battle of Athens, TN.

    Revolutions are tricky business. You only start them as a last resort and your chances of success are lousy. But they are a basic human right and you need guns to carry them out.

    Any government that restricts gun ownership is trying to preemptively stave off certain problems such as street violence and revolution. The motivation to do that can be good (a genuine concern for public safety) or they can be evil (plans to take over some day may be thwarted by an armed populace).

    I'm not willing to bet everything on the good intentions of my legislators. I'd like to have a bit of a reserve. And I look askance at anyone who would take it away from me.

    As for your sentence decrying the militarization of the police in America - that's a huge problem. Just huge. Don't get me started...

  • Re:Bad Summary (Score:3, Informative)

    by ari_j (90255) on Monday December 29, 2008 @03:17PM (#26260525)
    I love it when people read what I write, say "you are wrong," and then repeat what I wrote in different terms.

    The only way that what you said, about the Constitution restricting the government, means something other than what I said, about the Constitution being a check on democracy, is if the government involved is not a democracy. In the USA, all states are presently run as representative democracies.

    If my prose was unclear as to its meaning, I apologize. However, it is correct, and in fact is not at odds with your own (essentially 100% correct) comment. The central point: The Constitution limits what the government can do.

    But what I was actually writing about was in response to the parent comment, which made the claim that child pornography and obscene material are necessarily illegal. That is up the the states to decide under the Constitution and relevant jurisprudence. In other words, just because the Constitution does not restrict a state from banning something does not mean that a state is required to ban it.

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