Karen Kraft
29
- Joined
- May 18, 2002
- Posts
- 36,253
First, some background materials for those who may not know the definitions of the terms used here:
The First Amendment to the United States Constitution prohibits both the federal and all state governments, including counties and cities, from abridging the right of the people to enjoy free expression: “speech.”
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Over the years, each of these words has been defined by cases heard by the Supreme Court of the United States and other courts of federal or state jurisdiction; suffice it to say, wearing a tee shirt that says, “Fuck The Draft” is protected speech – now generally called “speech and expression.”
Obscenity is also speech or expression. However, the First Amendment does not protect obscenity, which means the Congress and all state and local authorities may pass laws to prohibit it, which they generally do.
Unlike obscenity, pornography is “protected speech or expression,” just like “Fuck The Draft” is protected, but, like commercial speech, it is subject to reasonable time, place, and manner restrictions to protect society from violations of local community standards.
Child Pornography is not obscenity, but it is treated the same as obscenity in that it is 100% illegal. Any and all federal and state jurisdictions are permitted to outlaw it, and international agreements are reached by many nations to do just that. The initial reason for the ban on child pornography was to protect the actors/ models/ subjects of the child pornography from exploitation by those creating the image(s). That is why so-called “virtual child pornography,” which involves no real children at all, but only computer-generated drawings, etc., are considered pornography (quasi-protected speech), not “child pornography.” Why? No child was involved in the creation of the imagery, and protecting the actors, models, subjects, etc. was the sole purpose of outlawing that kind of material.
However, some law enforcement people confuse the definition of “child pornography” with the definition of “obscenity.” This is where the legal problem lies.
OBSCENITY:
OBSCENE, OBSCENITY - Such indecency as is calculated to promote the violation of the law and the general corruption of morals.
The exhibition of an obscene picture is an indictable offence at common law, although not charged to have been exhibited in public, if it be averred that the picture was exhibited to sundry persons for money.
For something to be "obscene" it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find (1) that the work appeals predominantly to "prurient" interest; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value.
An appeal to "prurient" interest is an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.
The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole, or the prurient interest of members of a deviant sexual group, as the case might be.
The "predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences.
Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the "average person of the community as a whole" is a judgment which must be made in the light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and interest in, sex. Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material.
In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interest of a clearly defined deviant sexual group if the material was intended to appeal to the prurient interest of such a group.
The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals measured against whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of candor as to be clearly offensive.
Contemporary community standards, as stated before, are those established by what is generally accepted in the community as a whole; that is to say, by society at large or people in general, and not by what some groups of persons may believe the community as a whole ought to accept or refuse to accept. It is a matter of common knowledge that customs change and that the community as a whole may from time to time find acceptable that which was formerly unacceptable.
The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct.
All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met the material would not be obscene within the meaning of the law.
CHILD PORNOGRAPHY:
a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or
(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.
Note that while “child pornography” is “treated” as obscenity in terms of its prohibition, the test to see if material constitutes child pornography is quite different from the test for obscene materials. With obscenity, the question is whether the material might appeal predominantly to "prurient" interests. Thus, the fact that someone who is a pervert might enjoy looking at the material is important when it comes to obscenity. But remember, “child pornography” is not obscenity. That’s why there is a more specific definition, having nothing to do with the kind of person who would find the material titillating. The definition of child pornography describes certain kinds of materials – they are unprotected whether they appeal to nobody at all, to everyone, or to perverts. It is very strict in its definition and makes no mention of contemporary community standards, etc. If material meets the definition of child pornography, it IS child pornography – period. The mere possession of such material is prohibited, irrespective of the purpose for such possession or the effect it might have on anybody. For example, it is illegal for some assistant district attorneys to mail such pictures to the Center for Missing and Exploited Children. They must send them through special law-enforcement channels, since the Center is not a public agency, etc.
In summary:
Child pornography is based on what is seen in the material.
Obscenity is based on whether it appears to perverts.
The problem is that police forces and their district attorney counterparts tend to screw this up, (particularly around D.A. election time), due to the overwhelming appeal of a strong stance on protecting children. It's like being strongly in favor of honesty: few would challenge or debate the position.
Thus, many people have been charged with trafficking in child pornography “because picture A or picture B would appeal to a pedophile.” These cases are commonly referred to as “Baby-In-The-Bathtub Child Pornography cases.”
Example:
Federal judge orders nude photos of grandkids returned to grandmother
By The Associated Press
06.20.01
NEWARK, N.J. — Nude pictures an Essex County grandmother took of her granddaughters cannot be considered child pornography and must be returned to the woman, a federal judge has ruled.
U.S. District Judge Dickinson R. Debevoise also found, however, that Essex prosecutors and Montclair police acted in good faith in prosecuting Marian Rubin and cannot be sued for monetary damages.
Rubin's lawyer, Jeffrey E. Fogel, said his client was satisfied with the ruling because she mainly wanted the pictures back.
"The state has no right to engage in censorship when there's no evidence that a crime has been committed," Fogel said yesterday.
An appeal was unlikely, said county lawyer Robert C. Scrivo.
Authorities maintained the photographs were contraband, arguing that the images "would provide considerable interest and excitement for a pedophile observer" in violation of state law.
Debevoise disagreed. "The photographs have been reviewed and it cannot be concluded that they were taken by plaintiff for the purpose of sexual stimulation or gratification," he wrote.
Found at:
http://www.firstamendmentcenter.org/news.aspx?id=4937
The First Amendment to the United States Constitution prohibits both the federal and all state governments, including counties and cities, from abridging the right of the people to enjoy free expression: “speech.”
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Over the years, each of these words has been defined by cases heard by the Supreme Court of the United States and other courts of federal or state jurisdiction; suffice it to say, wearing a tee shirt that says, “Fuck The Draft” is protected speech – now generally called “speech and expression.”
Obscenity is also speech or expression. However, the First Amendment does not protect obscenity, which means the Congress and all state and local authorities may pass laws to prohibit it, which they generally do.
Unlike obscenity, pornography is “protected speech or expression,” just like “Fuck The Draft” is protected, but, like commercial speech, it is subject to reasonable time, place, and manner restrictions to protect society from violations of local community standards.
Child Pornography is not obscenity, but it is treated the same as obscenity in that it is 100% illegal. Any and all federal and state jurisdictions are permitted to outlaw it, and international agreements are reached by many nations to do just that. The initial reason for the ban on child pornography was to protect the actors/ models/ subjects of the child pornography from exploitation by those creating the image(s). That is why so-called “virtual child pornography,” which involves no real children at all, but only computer-generated drawings, etc., are considered pornography (quasi-protected speech), not “child pornography.” Why? No child was involved in the creation of the imagery, and protecting the actors, models, subjects, etc. was the sole purpose of outlawing that kind of material.
However, some law enforcement people confuse the definition of “child pornography” with the definition of “obscenity.” This is where the legal problem lies.
OBSCENITY:
OBSCENE, OBSCENITY - Such indecency as is calculated to promote the violation of the law and the general corruption of morals.
The exhibition of an obscene picture is an indictable offence at common law, although not charged to have been exhibited in public, if it be averred that the picture was exhibited to sundry persons for money.
For something to be "obscene" it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find (1) that the work appeals predominantly to "prurient" interest; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value.
An appeal to "prurient" interest is an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.
The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole, or the prurient interest of members of a deviant sexual group, as the case might be.
The "predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences.
Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the "average person of the community as a whole" is a judgment which must be made in the light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and interest in, sex. Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material.
In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interest of a clearly defined deviant sexual group if the material was intended to appeal to the prurient interest of such a group.
The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals measured against whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of candor as to be clearly offensive.
Contemporary community standards, as stated before, are those established by what is generally accepted in the community as a whole; that is to say, by society at large or people in general, and not by what some groups of persons may believe the community as a whole ought to accept or refuse to accept. It is a matter of common knowledge that customs change and that the community as a whole may from time to time find acceptable that which was formerly unacceptable.
The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct.
All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met the material would not be obscene within the meaning of the law.
CHILD PORNOGRAPHY:
a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or
(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.
Note that while “child pornography” is “treated” as obscenity in terms of its prohibition, the test to see if material constitutes child pornography is quite different from the test for obscene materials. With obscenity, the question is whether the material might appeal predominantly to "prurient" interests. Thus, the fact that someone who is a pervert might enjoy looking at the material is important when it comes to obscenity. But remember, “child pornography” is not obscenity. That’s why there is a more specific definition, having nothing to do with the kind of person who would find the material titillating. The definition of child pornography describes certain kinds of materials – they are unprotected whether they appeal to nobody at all, to everyone, or to perverts. It is very strict in its definition and makes no mention of contemporary community standards, etc. If material meets the definition of child pornography, it IS child pornography – period. The mere possession of such material is prohibited, irrespective of the purpose for such possession or the effect it might have on anybody. For example, it is illegal for some assistant district attorneys to mail such pictures to the Center for Missing and Exploited Children. They must send them through special law-enforcement channels, since the Center is not a public agency, etc.
In summary:
Child pornography is based on what is seen in the material.
Obscenity is based on whether it appears to perverts.
The problem is that police forces and their district attorney counterparts tend to screw this up, (particularly around D.A. election time), due to the overwhelming appeal of a strong stance on protecting children. It's like being strongly in favor of honesty: few would challenge or debate the position.
Thus, many people have been charged with trafficking in child pornography “because picture A or picture B would appeal to a pedophile.” These cases are commonly referred to as “Baby-In-The-Bathtub Child Pornography cases.”
Example:
Federal judge orders nude photos of grandkids returned to grandmother
By The Associated Press
06.20.01
NEWARK, N.J. — Nude pictures an Essex County grandmother took of her granddaughters cannot be considered child pornography and must be returned to the woman, a federal judge has ruled.
U.S. District Judge Dickinson R. Debevoise also found, however, that Essex prosecutors and Montclair police acted in good faith in prosecuting Marian Rubin and cannot be sued for monetary damages.
Rubin's lawyer, Jeffrey E. Fogel, said his client was satisfied with the ruling because she mainly wanted the pictures back.
"The state has no right to engage in censorship when there's no evidence that a crime has been committed," Fogel said yesterday.
An appeal was unlikely, said county lawyer Robert C. Scrivo.
Authorities maintained the photographs were contraband, arguing that the images "would provide considerable interest and excitement for a pedophile observer" in violation of state law.
Debevoise disagreed. "The photographs have been reviewed and it cannot be concluded that they were taken by plaintiff for the purpose of sexual stimulation or gratification," he wrote.
Found at:
http://www.firstamendmentcenter.org/news.aspx?id=4937
hehe
