Why is Child Porn Legal, cont.?

Article 2 out of 5. In 1996, Senator Ted Kennedy sponsored a bill which made the child porn in libraries and schools today illegal. What happened to those protections and to our libraries and schools?

Child holding US Constitution, generated by Perchance.org.

Why is Child Porn Legal, cont.?

Ashcroft v. Free Speech Coalition

Last week, I covered how Miller v. California and the Child Protection and Obscenity Enforcement Act of 1988 created community standards for porn which led to the market for porn. This week, I am covering the Ashcroft v. Free Speech Coalition and federal legal statutes (18 U.S.C. § 2252, 18 U.S.C. § 1466A, 18 U.S.C. § 1470, 18 U.S.C. § 2252A, and 18 U.S.C. § 2252C). 

It is easy to think porn has been ubiquitous since Hugh Hefner and Larry Flint and the 60s and 70s. However, our current world gradually, then suddenly, became flooded with pornographic images in the hands of nearly every person. First, publishers, then libraries and schools, began to include pictures or descriptive texts of naked children being sexually abused by adults or in sexual acts with each other–almost overnight. 

Many parents, faith-based leaders, and politicians were caught off-guard by the sudden influx of porn into what was once sacred ground. We thought, wrongly, porn was an issue regulated to the internet and the back room of seedier establishments. Too many adults thought porn was harmless–some psychologists have been using porn as educational material for couples for decades now. This impulse by psychologists, and then by educators, was to preach the positive benefits of porn. I'll deal with that in a separate article. 

If you held a conservative worldview, you knew porn caused actual harm. However, we had accepted we lived in a pluralist society. We tried to balance the damage of imposing our views on adults versus the harm adults cause to themselves and let it go. Then, the pandemic occurred, and we saw into the classroom when we were all forced to stay home and monitor school work. It was shocking. Not only did we see schools teaching radical transgender theories, the new racism (CRT), and Marxist ideologies (DEI, SEL), but we also saw what books teachers were assigning to our children.

Social liberals will tell you the kids will find this porn anyways and claim it doesn't matter if children find obscene material in schools or public libraries. My answer is, why are kids being allowed to have access to porn anywhere of any kind? I recently met with the Executive Director at the Library near my home. I told her the material was illegal. She told me it was legal, and her smug look of satisfaction let me know I was uninformed. That is why I started this series. I dug into the law and discovered she was right. It is legal. She is morally reprehensible for believing it should be legal, but that's between her and God. 

Clinton Administration 

We have to go back to the Clinton administration to understand why the internet became the unregulated place for porn we have today. For those of you too young to remember, an image file took nearly a week to download when I first went online. Within a few short years, you could watch videos on the internet. As porn had done for the VHS and DVD player, it also spurred the development of the internet from a university curiosity to the megalith it is today. Janet Reno, the Attorney General, whether operating under her own decision or the guidance of Clinton, provided a weak response to the saturation of the internet with porn and the establishment of pornography. 

In 1996, US Congress passed a law titled, "Child Pornography Prevention Act of 1996. The CPPA was a substantial rewriting of federal criminal laws addressing sexual exploitation of children to encompass the new digital age. The CPPA restricted child pornography on the internet, including virtual child pornography, which are images depicting child pornography even if an actual child was not used in the creation of the image. The CPPA also revised the definition of "visual depiction" to include data stored on a computer disk or by electronic means which are capable of conversion into a visual image." This law was sane. If a person created an image of a child engaged in a sexual activity, no matter what kind, that person is guilty of producing child pornography equal to child pornography of an actual child. 

Because of this law, a person could not legally argue obscene images (real or virtual) of a child engaged in a sexual act were educational, literary, or artistic. It was child porn and illegal. Senator Ted Kennedy sponsored the bill, and Bill Clinton signed it into law. Neither men are known for being stellar examples of conservative behaviors or beliefs, but their attempt to outlaw any depiction of child sex, virtual or real, as illegal child porn only lasted for seven years. 

Ashcroft Decision

In 2003, the Supreme Court heard the Ashcroft v. Free Speech Coalition case. At the heart of the case was language in the CPPA and whether lawmakers could limit speech to disallow any virtual images of children nude or engaged in sexual acts. The defendants were Bold Type, Inc. (a magazine) and Ron Raffaelli (an erotic photographer.) Bold Type was a nudist magazine that ended its publication in 2005. Mr. Raffaelli passed away in 2016. It seems to be, though I cannot determine, that the defendants in the case were theoretically worried that if they produced an image that might appear to be a child but was an adult, then they might be arrested for the production of child porn. Whether there were virtual images or not doesn't seem to be the point of the decision. The legal theory behind the case appears to be essential for the Court in its judgment. Virtual Child Porn ceased to be so because of an intellectual exercise rather than any objective world evidence. 

Here is the decision by the Supreme Court. 

The Free Speech Coalition is a trade organization for many pornographic producers, and they have successfully and unsuccessfully sued to stop some laws against porn. In this case, they succeeded in sullying Free Speech with virtual child porn. Each year, they hold awards recognizing Porn actors or people who have fought for the rights of porn producers. Do not let their name fool you. They don't care about free speech any more than they care about freedom of religion. Their interests are not selfless but prurient. The FSC's case was weak, and they tried to argue that the 1968 Romeo and Juliet, with a topless image of an underage actor, Olivia Hussey was child porn by the 1996 CPPA's standards. In 2023, Olivia Hussey and her co-star sued Paramount for child abuse but lost. On a personal note, this exact movie was shown to me in school as a teenager, without parental consent, and I saw the scene in question. Schools have not been safe for children for a long time–nor has Hollywood.

Supreme Court

The Court allied with the FSC, helping them create arguments despite rejecting the original FSC argument. The Court ruled artists should be allowed to create art of nude children as long as it was virtual/drawn and as long as it wasn't only for obscene purposes. Instead of rejecting the case based on its own merits, the Court acted as the lawyers for the FSC.

I'm not a legal expert, but as I read article after article, they all speak about the Court rejecting the FSC argument and then finding for FSC anyway. This partnership with the FSC to go against common sense and decency seems like legal malfeasance and makes the entire decision suspect.

The majority opinion was reached by Justices Kennedy, Souter, Ginsberg, Stevens, and Bryer. Justice Thomas was in Concurrence (meaning he sided with the majority, but for his reasons), and the dissenting opinions were Justices O'Connor, Scalia, and Rehnquist. Don’t beat up on Thomas. By giving a concurrent opinion, he was attempting to show the faults in the Major opinion by grounding it in a better legal grounding than what was provided by the five in the majority opinion. He goes on to say that the government does have an interest in preventing virtual child pornography against the court whose majority opinion was simply, “The Government may not suppress lawful speech as the means to suppress unlawful speech.” He did not think this was an adequate grounding for their majority opinion, but rather, as I argue above, the majority engaged in speculative legal theory because these five were more concerned with scoring points in an academic argument rather than protecting children from real or virtual pornography. May those five burn in hell for the real harm they have caused children in the last twenty years.

George H.W. Bush was responsible for David Souter but did give us Clarence Thomas. Clinton flipped the Court to a more liberal court when he appointed Ruth Bader Ginsburg and Stephen Breyer, appointed by him in 1993 and 1994, respectively.

Considering what we know now about how compromised so many people in DC are, it begs the question, "Was the Supreme Court compromised?" Or was this just an intellectual exercise for them–an attempt to demonstrate how much brighter they are than everyone else? Egotism is its own type of compromise. 

 So to be clear, I am listing what are the legal statutes for illegal child porn below. The only difference between the images that are outlawed and the images that our children are encountering in their assigned texts in school and that publishers are filling libraries with is the term virtual. Look at the list. Ask yourself if the image is substantially different for a child or adult encountering the image based solely on whether it is a real child or a virtual child. At the start of this article, I have an image of a child holding the Constitution. One has to ask the question if the Constitution protects the rights of children or protects the rights of people who want to harm children (such as the producers of child porn)? It may be begging the question, but the Supreme Court decided against children in 1978 in a theoretical decision, Roe v. Wade, with little evidence. Is Free Speech so absolute a right that we can harm children? 

At the end of the article is the legal advice given to Child Porn producers and possessors. Look through it also. Look at all the ways they can protect themselves. 

US Code Title 18 §2256

For the purposes of this chapter, the term—

(1)“minor” means any person under the age of eighteen years;

(2)

(A)Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—

(i)sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii)bestiality;

(iii)masturbation;

(iv)sadistic or masochistic abuse; or

(v)lascivious exhibition of the anus, genitals, or pubic area of any person;

(B)For purposes of subsection 8(B) [1] of this section, “sexually explicit conduct”means—

(i)graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

(ii)graphic or lascivious simulated;

(I)bestiality;

(II)masturbation; or

(III)sadistic or masochistic abuse; or

(iii)graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any person;

(3)“producing” means producing, directing, manufacturing, issuing, publishing, or advertising;

(4)“organization” means a person other than an individual;

(5)“visual depiction” includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format;

(6)“computer” has the meaning given that term in section 1030 of this title;

(7)“custody or control” includes temporary supervision over or responsibility for a minor whether legally or illegally obtained;

(8)“child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A)the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B)such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

(C)such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

(9)“identifiable minor”—

(A)means a person—

(i)

(I)who was a minor at the time the visual depiction was created, adapted, or modified; or

(II)whose image as a minor was used in creating, adapting, or modifying the visual depiction; and

(ii)who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

(B)shall not be construed to require proof of the actual identity of the identifiable minor.

(10)“graphic”, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted; and

(11)the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.

(Added Pub. L. 95–225, § 2(a), Feb. 6, 1978, 92 Stat. 8, § 2253; renumbered § 2255 and amended Pub. L. 98–292, § 5, May 21, 1984, 98 Stat. 205; renumbered § 2256, Pub. L. 99–500, § 101(b) [title VII, § 703(a)], Oct. 18, 1986, 100 Stat. 1783–39, 1783–74, and Pub. L. 99–591, § 101(b) [title VII, § 703(a)], Oct. 30, 1986, 100 Stat. 3341–39, 3341–74; Pub. L. 99–628, § 4, Nov. 7, 1986, 100 Stat. 3510; Pub. L. 100–690, title VII, §§ 7511(c), 7512(b), Nov. 18, 1988, 102 Stat. 4485, 4486; Pub. L. 104–208, div. A, title I, § 101(a) [title I, § 121[2]], Sept. 30, 1996, 110 Stat. 3009, 3009–26, 3009–27; Pub. L. 108–21, title V, § 502(a)–(c), Apr. 30, 2003, 117 Stat. 678, 679; Pub. L. 110–401, title III, § 302, Oct. 13, 2008, 122 Stat. 4242; Pub. L. 115–299, § 7(c), Dec. 7, 2018, 132 Stat. 4389.)

Legal Statutes

18 U.S.C. § 2252 

18 U.S.C. § 1466A - Obscene visual representations of the sexual abuse of children

18 U.S.C. § 1470 - Transfer of obscene material to minors

18 U.S.C. § 2252A - Certain activities relating to material containing child pornography

18 U.S.C. § 2252C - Misleading words or digital images on the Internet

Legal Advice Given to People who Possess or Create Child Porn

This next section highlights what is illegal for people who produce child porn. Eisner Gorin, LLP has published some definitions for potential clients who are found to possess child porn. 

Showing Minors in Sex Acts

• The next section specifically describes deceiving minors into viewing material that is harmful. The language of this subsection differs from the previous one in that it does not require the content to meet the aforementioned level of obscenity. Instead, it only requires the showing of the content is harmful to minors

It describes “harmful to minors” as communication that contains nudity or sex that appeals to the interest of minors and is offensive to adult standards in the context of what is suitable material for minors.

Sex is defined here as any act of masturbation, sexual intercourse, or physical contact with a person's genitals for sexual stimulation or arousal. The legal penalties can range from a fine to federal imprisonment up to 10 years, or both.

As you can see, if you are facing federal child pornography allegations, you need an experienced federal criminal defense attorney to protect your rights even before the court process begins.

Virtual child porn was held protected by the first amendment by SCOTUS in Ashcroft v. Free Speech Coalition, which is why the federal statutes all include the provision about actual depiction now.

Under 18 U.S.C. § 2252, the legal penalties are described as whoever violates, or attempts, conspires to violate federal child pornography laws will be:

fined and receive a prison sentence of 5 to 20 years in a federal prison 

However, it's important to note that subsequent violations could result in a sentence of up to 40 years in federal prison.

If you are convicted of just mere possession of child pornography, you could receive a sentence of up to 10 years, but subsequent offenses can carry up to 20 years in federal prison.

However, if the child pornography images portray children under 12 years old, you could receive a sentence of up to 20 years.

Copyright © 2024 by David Rice