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Ready for comments. | | | In 1996, Congress passed the Child Pornography Prevention Act that criminalized the creation of VCP. Under the CPPA, images that appeared to depict children but do not, including images of youthful-looking adults or images that are computer-generated, were illegal. The CPPA also included a “pandering” provision that stated that any image that has been promoted in a manner that “conveys the impression” that a minor engaging in sexually explicit conduct is depicted, is illegal. | |
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< | The Supreme Court found the CPPA unconstitutional on numerous grounds in Ashcroft v. Free Speech Coalition. Congress then came up with The PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today). Built on the same platform as the CPPA, it contains some important distinctions that avoid the Constitutional pitfalls of the CPPA. The Supreme Court found the PROTECT Act and its pandering provision to be Constitutional because First Amendment protection only extends to lawful speech; offers to engage in illegal transactions are categorically excluded from First Amendment protection. Justice Scalia states that VCP which is marketed as VCP will not be proscribed by the PROTECT Act. The Act proscribes only pandering where the intention is to cause another to believe that the material is contraband. As a result, one who creates VCP – even if it is indistinguishable from real child pornography - and markets it as VCP, is afforded First Amendment rights. | >
> | The Supreme Court found the CPPA unconstitutional on numerous grounds in Ashcroft v. Free Speech Coalition. Congress then came up with The PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today). Built on the same platform as the CPPA, it contains some important distinctions that avoid the Constitutional pitfalls of the CPPA. The Supreme Court found the PROTECT Act and its pandering provision to be Constitutional because First Amendment protection only extends to lawful speech; offers to engage in illegal transactions are categorically excluded from First Amendment protection. Justice Scalia states stated that VCP which is marketed as VCP will not be proscribed by the PROTECT Act. The Act proscribes only pandering where the intention is to cause another to believe that the material is contraband. As a result, one who creates VCP – even if it is indistinguishable from real child pornography - and markets it as VCP, is afforded First Amendment rights. | | |
Should It Be Legal to Market VCP As VCP? | | | 2. Does the work depict in a patently offensive way, sexual conduct specifically defined by the applicable state law? | |
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< | Arguably, there is no criminal more reviled by society than the child molester/pedophile. Any material that aids or incites the pedophile would undoubtedly be repugnant and offensive. According to the Mayo Clinic, studies and case reports indicate that 30% to 80% of individuals who viewed child pornography and 76% of individuals who were arrested for internet child pornography had molested a child. As a result, any depiction of child pornography, even it involved no children in its production such as VCP, would arguably be found to be offensive. | >
> | Arguably, there is no criminal more reviled by society than the child molester/pedophile. Any material that aids or incites the pedophile would undoubtedly be repugnant and offensive. According to the Mayo Clinic, studies and case reports indicate that 30% to 80% of individuals who viewed child pornography and 76% of individuals who were arrested for internet child pornography had molested a child. As a result, any depiction of child pornography, even if it involved no children in its production such as VCP, would arguably be found to be offensive. | | | Often the pedophile uses child pornography as a way of tricking his victim into believing that sexual relations between adults and children are normal. VCP that is indistinguishable from real child pornography is probably just as dangerous as the real thing. The pedophile would be able to utilize the virtual depiction the same way he would utilize the real one. Even if the VCP were distinguishable from real child pornography, what is to say that the child victim is able to distinguish between the virtual depiction and the real one? VCP would be offensive simply because it is a tool utilized by the pedophile. | | | Thanks Nikolaos. However, even after the USA's ratification of the Convention, I don't believe that the criminalization of “realistic images representing a minor engaged in sexually explicit conduct” mentioned in the Convention would be possible in the USA thanks to the narrowly worded PROTECT Act that only criminalizes VCP that is indistiguishable from the real thing. Thoughts?
-- DavidMehl - 22 Apr 2010 | |
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> | David,
I have just a few comments. I marked a few places in the essay in red text where it seems like there might be a typo. To change the color just delete the %RED% text and the %ENDCOLOR% text by the words in question. Also, the essay currently clocks in (on my screen anyway) as 1228 words. I think Professor Moglen is pretty strict about the 1,000 word limit described here.
Substantively, I'm a little confused by the discussion of Miller. The essay describes that "perhaps VCP ought to be obscene and thus illegal under the Miller test[.]" Miller doesn't make anything illegal, right? - statutes do that. Miller just addresses when the First Amendment shields, for better or worse, some content from such statutes. So a quick rewording here would help the essay's persuasiveness I think. Similarly, the statement that the Court "criminalized the mere possession of child pornography" isn't what the Court did, it's what the statute did, right? I think it adds more force to your argument to keep details like these clear.
Also, you might look at Pope v. Illinois about the issue of defining what a "reasonable person" would think and what the relevant community standard is.
Finally, though I don't know that you need to mention it here, I think the hardest question with child pornography is not content made for pedophiles (whether VCP or real) which I think most people would agree is highly problematic. It's drafting statutes that don't capture things made for non-pornographic purposes, like art, movies, cartoons, family pictures, graphic novels, materials imported from abroad (with perhaps different standards than in the U.S.), and so on. There's some discussion of the Court's concerns in this regard in the intro section of Harvard's Violence Against Women on the Internet page here.
I hope these comments are helpful. Thanks for your essay on this difficult topic. | | | |
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