the best source material i found was the following link
http://www.law.duke.edu/journals/dlt...2dltr0019.html
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the best source material i found was the following link
http://www.law.duke.edu/journals/dlt...2dltr0019.html
You have as yet not provided any valid reason why any person with a shred of decency would want to do such a thing.
The OP sent me a private message...
Count the excuses, the "it really isn't me" and "you are mean to me because I am a pedophile".
Oh goody.Quote:
dear cyjeff; sorry, i was hurt by your initial assumtion and i included your quote about ignorance in my reply. i have a nephew who asked me this initial question and i was trying to find out some legal information on the subject. young people these days are far more creative (than i was anyway) it seems. he does not disseminate these images in anyway nor does he frequent any cp sites, etc.
i have passed on the information to him that possession of such images, even if purely computer generated is illegal as far as i can ascertain.
•Pedophilia (or paedophilia) is a psychological disorder in which an adult or older adolescent experiences a sexual preference for prepubescent children.World Health Organization, Section F65.4: Paedophilia (online access via ICD-10 site map table of contents)Freund, K. (1981). ...
i am pretty sure his actual sexual preferences in real life are not minors.
my only quarrel with you is your bitterness directed toward me in a public venue.
We are pretty sure that someone that spends hours trying to depict children in sexual poses isn't a pedophile.
Let's just say that my private response was far less restrained...
I got a PM too attempting to justify this disgusting practice on the basis that people's fantasies should not be held against them as long as they don't act on them. Apparently it's okay to exploit children as long as you don't put your demented fantasies into practice.
I have already deleted both his PM's and my response.
I kept mine.
Figured any proof I had to help the cops....
Note: a subsequent SCOTUS decision said that it is okay to make it illegal to try to pass off virtual child porn as real child porn.Quote:
JOHN D. ASHCROFT, ATTORNEY GENERAL, et al.,
PETITIONERS v. THE FREE SPEECH
COALITION . . .
Justice Kennedy delivered the opinion of the Court.
We consider in this case whether the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 2251 et seq., abridges the freedom of speech. The CPPA extends the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children. The statute prohibits, in specific circumstances, possessing or distributing these images, which may be created by using adults who look like minors or by using computer imaging. The new technology, according to Congress, makes it possible to create realistic images of children who do not exist. See Congressional Findings, notes following 18 U.S.C. § 2251.
By prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber, 458 U.S. 747 (1982), which distinguished child pornography from other sexually explicit speech because of the State’s interest in protecting the children exploited by the production process. See id., at 758. As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California, 413 U.S. 15 (1973). Ferber recognized that “[t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children.” 458 U.S., at 761.
While we have not had occasion to consider the question, we may assume that the apparent age of persons engaged in sexual conduct is relevant to whether a depiction offends community standards. Pictures of young children engaged in certain acts might be obscene where similar depictions of adults, or perhaps even older adolescents, would not. The CPPA, however, is not directed at speech that is obscene; Congress has proscribed those materials through a separate statute. 18 U.S.C. § 1460—1466. Like the law in Ferber, the CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the Miller standard. For instance, the statute would reach visual depictions, such as movies, even if they have redeeming social value.
The principal question to be resolved, then, is whether the CPPA is constitutional where it proscribes a significant universe of speech that is neither obscene under Miller nor child pornography under Ferber.
[sections I and II omitted to shorten post length]
III
The CPPA, for reasons we have explored, is inconsistent with Miller and finds no support in Ferber. The Government seeks to justify its prohibitions in other ways. It argues that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children. There are many things innocent in themselves, however, such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused. The Government, of course, may punish adults who provide unsuitable materials to children, see Ginsberg v. New York, 390 U.S. 629 (1968), and it may enforce criminal penalties for unlawful solicitation. The precedents establish, however, that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it. See Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989). In Butler v. Michigan, 352 U.S. 380, 381 (1957), the Court invalidated a statute prohibiting distribution of an indecent publication because of its tendency to “incite minors to violent or depraved or immoral acts.” A unanimous Court agreed upon the important First Amendment principle that the State could not “reduce the adult population … to reading only what is fit for children.” Id., at 383. We have reaffirmed this holding. See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 814 (2000) (“[T]he objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative”); Reno v. American Civil Liberties Union, 521 U.S., at 875 (The “governmental interest in protecting children from harmful materials … does not justify an unnecessarily broad suppression of speech addressed to adults”); Sable Communications v. FCC, supra, at 130—131 (striking down a ban on “dial-a-porn” messages that had “the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear”).
Here, the Government wants to keep speech from children not to protect them from its content but to protect them from those who would commit other crimes. The principle, however, remains the same: The Government cannot ban speech fit for adults simply because it may fall into the hands of children. The evil in question depends upon the actor’s unlawful conduct, conduct defined as criminal quite apart from any link to the speech in question. This establishes that the speech ban is not narrowly drawn. The objective is to prohibit illegal conduct, but this restriction goes well beyond that interest by restricting the speech available to law-abiding adults.
The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct. This rationale cannot sustain the provision in question. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Stanley v. Georgia, 394 U.S. 557, 566 (1969). First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.
To preserve these freedoms, and to protect speech for its own sake, the Court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct. See Kingsley Int’l Pictures Corp., 360 U.S., at 689; see also Bartnicki v. Vopper, 532 U.S. 514, 529 (2001) (“The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it”). The government may not prohibit speech because it increases the chance an unlawful act will be committed “at some indefinite future time.” Hess v. Indiana, 414 U.S. 105, 108 (1973) (per curiam). The government may suppress speech for advocating the use of force or a violation of law only if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). There is here no attempt, incitement, solicitation, or conspiracy. The Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct.
The Government next argues that its objective of eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well. Virtual images, the Government contends, are indistinguishable from real ones; they are part of the same market and are often exchanged. In this way, it is said, virtual images promote the trafficking in works produced through the exploitation of real children. The hypothesis is somewhat implausible. If virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice.
In the case of the material covered by Ferber, the creation of the speech is itself the crime of child abuse; the prohibition deters the crime by removing the profit motive. See Osborne, 495 U.S., at 109—110. Even where there is an underlying crime, however, the Court has not allowed the suppression of speech in all cases. E.g., Bartnicki, supra, at 529 (market deterrence would not justify law prohibiting a radio commentator from distributing speech that had been unlawfully intercepted). We need not consider where to strike the balance in this case, because here, there is no underlying crime at all. Even if the Government’s market deterrence theory were persuasive in some contexts, it would not justify this statute.
Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real children. Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.
The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse. “[T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted … .” Broadrick v. Oklahoma, 413 U.S., at 612. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.
To avoid the force of this objection, the Government would have us read the CPPA not as a measure suppressing speech but as a law shifting the burden to the accused to prove the speech is lawful. In this connection, the Government relies on an affirmative defense under the statute, which allows a defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children. See 18 U.S.C. § 2252A(c).
The Government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful. An affirmative defense applies only after prosecution has begun, and the speaker must himself prove, on pain of a felony conviction, that his conduct falls within the affirmative defense. In cases under the CPPA, the evidentiary burden is not trivial. Where the defendant is not the producer of the work, he may have no way of establishing the identity, or even the existence, of the actors. If the evidentiary issue is a serious problem for the Government, as it asserts, it will be at least as difficult for the innocent possessor. The statute, moreover, applies to work created before 1996, and the producers themselves may not have preserved the records necessary to meet the burden of proof. Failure to establish the defense can lead to a felony conviction.
We need not decide, however, whether the Government could impose this burden on a speaker. Even if an affirmative defense can save a statute from First Amendment challenge, here the defense is incomplete and insufficient, even on its own terms. It allows persons to be convicted in some instances where they can prove children were not exploited in the production. A defendant charged with possessing, as opposed to distributing, proscribed works may not defend on the ground that the film depicts only adult actors. See ibid. So while the affirmative defense may protect a movie producer from prosecution for the act of distribution, that same producer, and all other persons in the subsequent distribution chain, could be liable for possessing the prohibited work. Furthermore, the affirmative defense provides no protection to persons who produce speech by using computer imaging, or through other means that do not involve the use of adult actors who appear to be minors. See ibid. In these cases, the defendant can demonstrate no children were harmed in producing the images, yet the affirmative defense would not bar the prosecution. For this reason, the affirmative defense cannot save the statute, for it leaves unprotected a substantial amount of speech not tied to the Government’s interest in distinguishing images produced using real children from virtual ones.
In sum, §2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment. The provision abridges the freedom to engage in a substantial amount of law-
ful speech. For this reason, it is overbroad and
unconstitutional.
IV
Respondents challenge §2256(8)(D) as well. This provision bans depictions of sexually explicit conduct that are “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.” The parties treat the section as nearly identical to the provision prohibiting materials that appear to be child pornography. In the Government’s view, the difference between the two is that “the ‘conveys the impression’ provision requires the jury to assess the material at issue in light of the manner in which it is promoted.” Brief for Petitioners 18, n. 3. The Government’s assumption, however, is that the determination would still depend principally upon the content of the prohibited work.
We disagree with this view. The CPPA prohibits sexually explicit materials that “conve[y] the impression” they depict minors. While that phrase may sound like the “appears to be” prohibition in §2256(8)(B), it requires little judgment about the content of the image. Under §2256(8)(D), the work must be sexually explicit, but otherwise the content is irrelevant. Even if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that the scenes would be found in the movie. The determination turns on how the speech is presented, not on what is depicted. While the legislative findings address at length the problems posed by materials that look like child pornography, they are silent on the evils posed by images simply pandered that way.
The Government does not offer a serious defense of this provision, and the other arguments it makes in support of the CPPA do not bear on §2256(8)(D). The materials, for instance, are not likely to be confused for child pornography in a criminal trial. The Court has recognized that pandering may be relevant, as an evidentiary matter, to the question whether particular materials are obscene. See Ginzburg v. United States, 383 U.S. 463, 474 (1966) (“[I]n close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the [obscenity] test”). Where a defendant engages in the “commercial exploitation of erotica solely for the sake of their prurient appeal,” id., at 466, the context he or she creates may itself be relevant to the evaluation of the materials.
Section 2256(8)(D), however, prohibits a substantial amount of speech that falls outside Ginzburg’s rationale. Materials falling within the proscription are tainted and unlawful in the hands of all who receive it, though they bear no responsibility for how it was marketed, sold, or described. The statute, furthermore, does not require that the context be part of an effort at “commercial exploitation.” Ibid. As a consequence, the CPPA does more than prohibit pandering. It prohibits possession of material described, or pandered, as child pornography by someone earlier in the distribution chain. The provision prohibits a sexually explicit film containing no youthful actors, just because it is placed in a box suggesting a prohibited movie. Possession is a crime even when the possessor knows the movie was mislabeled. The First Amendment requires a more precise restriction. For this reason, §2256(8)(D) is substantially overbroad and in violation of the First Amendment.
V
For the reasons we have set forth, the prohibitions of §§2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional. Having reached this conclusion, we need not address respondents’ further contention that the provisions are unconstitutional because of vague statutory language.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Wish I'd thought of that, Jeff. I was so disgusted by it that all I could think of was getting rid of it as quickly as possible.
These people make me ill.
leave it to a junior member to be the FIRST to actually provide some legal information on the topic! thank you
soon i am sure we will get more vitriolic responses from the lynch mob......