Child Porn as Thoughtcrime

Q: Is a drawing of a child engaging in a sexual act an illegal item?

Q: Is an image of Raquel Welch morphed to make her look like a 15-year-old
illegal?

Q: Is writing a story about a child having sex illegal?

Q: Is a collage of images of little girls (or boys, one presumes) in
swimsuits, with apparent salacious intent, illegal?

Q: Is accessing a Web site having nude or sexually-related images of
children who are of legal sexual age in the site's country--but not in the
accessor's country--illegal?

Q: Is it legal to have photographs of one's own children in a nude state?
(E.g., playing in a backyard pool, at the beach, etc.) Does it become
illegal to let others see these photographs? How about putting them on a
Web site?

Q: Is a crime committed if a teenaged girls takes a photograph of _herself_
and shows it to others? To adults? Or if she writes a salacious story about
herself or her friends? Or if she just invents it all?

Whom is exploiting whom? Which acts are crimes? I submit that the various
child porn laws we have in the United States are about the clearest
examples of "thoughtcrime" one can find, where the _thought_ is what is
being criminalized.

First, a caveat, which ought to be clear, but which is necessary to state
anyway (never know what search engines will find my words and take them out
of context). I have no unusual interest in little children. Surely some
teen girls can be sexually attractive, even if technically underage.
Nothing surprising in this, surely? But, no, I am not an advocate of "child
porn," merely wondering about the many constitutional and moral issues
involved in the panoply of laws and precedents involved.

Anyway, we have on this list various comments about "child porn" and why it
should be illegal:

-- consumption of child porn "creates a market"

-- it harms the children

-- it's disgusting

-- etc.

Clearly the first argument applies to many other things. Why not outlaw
pro-drug speech? Pro-drug speech "creates a market" for an illegal product.
Shut down "High Times," seize copies of books by Aldous Huxley and William
Burroughs, ban mocking comments about the War on Some Drugs.

The second argument, that children are actually harmed, is vitiated by the
fact that much so-called child porn comes from countries where the actors
are of legal age. How can a 14-year-old Thai girl be "harmed" when what she
is being paid to do is perfectly legal in Thailand?

(It's parallel to the situation with, say, Arab countries. Porn videos in
Saudi Arabia are of course illegal, with roughly the status of child porn
videos in the U.S. (maybe worse, as I'm sure the punishment could be
death). Are the American and European actresses in such videos being
harmed?)

And the case of morphings, drawings, stories, etc., clearly involve no
actual children, so the argument that children are harmed is empty.

(Catherine MacKinnon and Andrea Dworkin, amongst others, have argued that
"women as a class" are injured by pornography. I won't get into the issues
of this here. Suffice it to say that if speech or nonviolent acts begin to
be suppressed on the basis of "class action" cases, we're in a heap of
trouble.)

As to me argument that the images, stories, etc., are disgusting, amoral,
inappropriate, etc., well, perhaps. But what is the legal and
constitutional basis for restricting such things? Many opinions and actions
are vile and disgusting, but are not illegal.

Under what interpretation of the Constitution is the creation of a drawing
depicting, say, a 7-year-old girl having sex with someone or something a
criminal act? The obscenity laws?

(And as to the obscenity laws, which part of "Congress shall make no law"
did the readers of the First Amendment miss? I realize this is a
longstanding topic of discussion, with various famous cases (Miller,
Hustler, etc.), but it remains a mystery to me.)

My point is this: For anyone who claims that "thoughtcrime" is something
the Evil Empire specialized in, i.e., totalitarian communist regimes, look
to the enforcement of laws about what can be viewed or accessed from the
United States. Thougtcrime.

--Tim May


--
[This Bible excerpt awaiting review under the U.S. Communications Decency
Act of 1996]
And then Lot said, "I have some mighty fine young virgin daughters. Why
don't you boys just come on in and fuck them right here in my house - I'll
just watch!"....Later, up in the mountains, the younger daughter said:
"Dad's getting old. I say we should fuck him before he's too old to fuck."
So the two daughters got him drunk and screwed him all that night. Sure
enough, Dad got them pregnant, and had an incestuous bastard son....Onan
really hated the idea of doing his brother's wife and getting her pregnant
while his brother got all the credit, so he pulled out before he
came....Remember, it's not a good idea to have sex with your sister, your
brother, your parents, your pet dog, or the farm animals, unless of course
God tells you to. [excerpts from the Old Testament, Modern Vernacular
Translation, TCM, 1996]

I'll try to respond to some of Tim's questions. Keep in mind it's late; 
I'm about to go to sleep; I don't have my references here. I welcome 
corrections.

-Declan



On Tue, 10 Sep 1996, Timothy C. May wrote:

> Q: Is a drawing of a child engaging in a sexual act an illegal item?

Under the original Hatch bill, yes. Certainly under the revised one. Of 
course, Hatch's proposal goes even farther. There's no "sex act" requirement.
Judy Krug from the ALA testified about this, opposing Bruce Taylor.

> Q: Is an image of Raquel Welch morphed to make her look like a 15-year-old
> illegal?

Even under the original Hatch bill, yes.

> Q: Is writing a story about a child having sex illegal?

Probably not.

> Q: Is a collage of images of little girls (or boys, one presumes) in
> swimsuits, with apparent salacious intent, illegal?

Under the Knox decision, yes. (Dancing girls in leotards are verboten.)

> Q: Is accessing a Web site having nude or sexually-related images of
> children who are of legal sexual age in the site's country--but not in the
> accessor's country--illegal?

If you're in the U.S. and are accessing photos from Sweden, yes. But child
porn laws have been harmonized, so this may be an unlikely scenario. There
is also a treaty I talk about in my August Internet Underground cover story: 

 Not so, says Bruce Taylor, the chief architect of the CDA and a
 professional cyber-scaremonger. The former Federal porn-prosecutor
 believes that "not all censorship is bad."

 "Foreign countries have an obligation to restrict obscenity and child
 pornography on the Internet by the treaty of 1911," says Taylor. "It's
 an agreement between the states to cooperate and to use international
 laws to prosecute obscenity." And to Taylor, books and copies of
 Penthouse magazine can be obscene.


> Q: Is it legal to have photographs of one's own children in a nude state?
> (E.g., playing in a backyard pool, at the beach, etc.) Does it become
> illegal to let others see these photographs? How about putting them on a
> Web site?

You can be harassed by police for it -- reference the Cambridge case
linked to from http://joc.mit.edu/. I think, though I don't have cites,
that other parents have been prosecuted for this. 

> Q: Is a crime committed if a teenaged girls takes a photograph of _herself_
> and shows it to others? To adults? Or if she writes a salacious story about
> herself or her friends? Or if she just invents it all?

Not sure. Perhaps others can help?

> (And as to the obscenity laws, which part of "Congress shall make no law"
> did the readers of the First Amendment miss? I realize this is a
> longstanding topic of discussion, with various famous cases (Miller,
> Hustler, etc.), but it remains a mystery to me.)

Ah. "Obscenity" isn't speech!


// declan@eff.org // I do not represent the EFF // declan@well.com //

Declan McCullagh wrote:

> > Q: Is a collage of images of little girls (or boys, one presumes) in
> > swimsuits, with apparent salacious intent, illegal?
> 
> Under the Knox decision, yes. (Dancing girls in leotards are verboten.)

Is this going to have some implications for broadcast of the women's
gymnastic events in the next Olympics?

______c_________________________________________________________________
Mike M Nally * Tiv^H^H^H IBM * Austin TX * For the time being,
       m5@tivoli.com * m101@io.com       *    
      <URL:http://www.io.com/~m101>      * three heads and eight arms.

>From fight-censorship archives... -Declan


// declan@eff.org // I do not represent the EFF // declan@well.com //


ADDITIONAL ANSWER: Because "child pornography" as defined in the
governing Supreme Court case (Ferber) sweeps far more broadly than
"obscenity" ever did (to the point that even scholars who have supported
controls on the latter attacked what the Supreme Court did with the
former).  For example, although the issues were not resolved, the case
revealed that some members of the Supreme Court believe that medical
doctors, anthropologists, journalists covering wars or working for the
National Geographic, or legislators working on new censorship legislation
might all be constitutionally prosecuted for possessing any photographic
images of naked children. 
   Therefore, we need to be extremely careful about any casual 
acceptance of the proposition that "Of course, child pornography can be 
banned."  What we actually mean is, "Of course, one can outlaw the 
use of children in obscene performances."
    Without wanting to sound too legalistic about all this, if we don't 
stay alert we are going to find that a significant part of the 
suppression work sought to be done by "indecency" can be done by "child 
pornography."
                        *******
                Professor Eric M. Freedman
                Hofstra University School of Law
                Hempstead, N.Y.  11550
                Tel. (516)-463-5167
                Fax  (516)-560-7676
                LAWEMF@Vaxc.Hofstra.edu
                        ********