FC: Summary of Ashcroft "morphed" child porn bill, by Larry Sutter

[Declan McCullagh <declan () well com>]

I asked Larry if he would write a short summary of the Ashcroft "morphed" 
child porn bill for Politech. He was kind enough to contribute the writeup 
below. Larry is general counsel of General Media Communications, Inc., 
which publishes magazines including Penthouse.

Previous Politech message:

"Ashcroft & friends: We'll try again to ban 'morphed' child porn"
http://www.politechbot.com/p-03470.html

-Declan

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Date: Thu, 02 May 2002 13:38:30 -0400
From: Laurence Sutter <lsutter () generalmedia com>
To: Declan McCullagh <declan () well com>
Subject: Re: FC: Ashcroft & friends: We'll try againtoban"morphed"child porn

    Dear Declan:

        When the memo got to three pages I chucked it and am writing
this:

        It's a very complicated set of laws and basically attempts
to track the dissent (Rehnquist and Scalia, and O'Connor to the
extent she would still ban computer images "indistinguishable from"
real children). The first section bans a computer image that "is, or
appears virtually indistinguishable from" a minors, wiping out the
old "is or appears to be of a minor" struck down by the Court. But
Justice O'Connor didn't say "appear to be virtually
indistinguishable", she said are. It also redefines sexual conduct
just for this section, adding the word "lascivious" at all points
and adding that simulated intercourse is child porn if it's
lascivious and the breast is exposed. Men too?

    The next section creates the new offense of Pandering. It
replaces the stricken section criminalizing any sexually explicit
image marketed as child porn. Among the Court's problems were that
since everyone in the chain of distribution of child pornography,
including the ultimate recipient (even a mere possessor), is a
felon, the downstream people could be caught on the basis of a
marketing pitch unknown to them to an upstream person. The new law
criminalizes knowingly marketing or attempting to sell a visual
depiction intending that someone else believe it's child porn.
Nothing need change hands. It also would now be a crime to do
anything if you thought the end result would be your receiving child
pornography. This is not a misprint. Even Rehnquist and Scalia did
not go this far, although they said the panderer--who "conveys the
impression" to another that what he is marketing is child
pornography--could constitutionally be convicted (the majority
disagreed).

    The next new offense is creation, possession or distribution,
etc., of images of or virtually indistinguishable from, a
pre-pubescent child. This appears to go to the majority's discussion
of the possible social worth of many depictions of youthful, i.e.,
teen-aged, sexuality. Who could object to the criminalization of
images of true children, as opposed to minors, engaged in sexual
activity or lasciviously exposed? There is a defense that the
accused possessed less than three images and promptly either
destroyed them or called the cops.

    Next, to support the "enticement" rationale (which the majority
dismissed by noting that molesters use candy and video games to
entice kids, too), the law criminalizes showing or displaying to a
minor under 16 any actual or "virtually indistinguishable" explicit
image of a pre-pubescent child. Also added is a prohibition on
extraterritorial production of child pornography intended to enter
the US, an optional provision for service providers online to report
any instances they see, and the creation of a database of images of
child pornography involving real children for purposes of
prosecution. No doubt the world's largest collection of this
material will soon be residing on the DOJ's computers.

    Will it all pass constitutional muster? It shouldn't. In this
country anything that doesn't involve a live child must pass the
*Miller* test of violation of community standards and lack of social
utility--serious artistic, literary, etc., value. An exception is
made for pornography involving a live child (under 18) because, the
Supreme Court says, this involves the abuse of a real child and its
permanent recordation. As to such material, the social
utility/community standards test goes out the window because the
issue is physical abuse and not literary/artistic content. But when
a real child is not involved  AND the *Miller* test is not applied,
the rationale is neither content-based, nor child-abuse based.
Instead, the law is justified  by the effect of the material on
susceptible people--the molestor, his victims, whatever. But that
completely contradicts our free speech, free thought and First
Amendment principles no matter how despicable the image--and this
legislation is taking pains to define the images as being as
despicable as possible. Ultimately the rationale itself is
contradictory, because to say something is indistinguishable from
hard-core, sexually explicit pornography, implies a judgment that
the material is also socially worthless. If they know it when they
see it, and the computer generated image really is indistinguishable
from real, hard-core, unredeemable obscene depictions of children,
don't the lawmakers have enough faith in the jury to trust them to
recognize this and do the right thing? Evidently not.




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