U.S. Supreme Court Upholds Penalties for Promoting Child Pornography

FoxNews ^ | May 19, 2008 | Associated Press

[NoKoolAidforMe]

The Supreme Court upheld criminal penalties Monday for promoting child pornography.

The court, in a 7-2 decision, brushed aside concerns that the law could apply to mainstream movies that depict adolescent sex, classic literature or innocent e-mails that describe pictures of grandchildren.

The ruling upheld part of a 2003 law that also prohibits possession of child porn. It replaced an earlier law against child pornography that the court struck down as unconstitutional.

The law sets a five-year mandatory prison term for promoting, or pandering, child porn. It does not require that someone actually possess child pornography. Opponents have said the law could apply to movies like "Traffic" or "Titanic" that depict adolescent sex.

But Justice Antonin Scalia, in his opinion for the court, said the law does not cover movie sex. there is no "possibility that virtual child pornography or sex between youthful-looking adult actors might be covered by the term 'simulated sexual intercourse."' Scalia said.

Likewise, Scalia said, First Amendment protections do not apply to "offers to provide or requests to obtain child pornography."

Justice David Souter, joined by Justice Ruth Bader Ginsburg, dissented. Souter said promotion of images that are not real children engaging in pornography still could be the basis for prosecution under the law. Possession of those images, on the other hand, may not be prosecuted, Souter said.

"I believe that maintaining the First Amendment protection of expression we have previously held to cover fake child pornography requires a limit to the law's criminalization of pandering proposals," Souter said.

[NoKoolAidforMe]

Guess who voted against this? Ginsburg. Not a surprise from a former ACLU lawyer.

[Dilbert San Diego]

And Souter dissented too? Gee, Souter has become increasingly liberal over the years.

[DWC]

Souter always defends child pornagraphy. Hmmmm.

[CharlesWayneCT]

The only part I have a problem with, and this is from a libertarian perspective, not a moral one (morally I love this ruling), is that the new law aims not just at actual child pornography, but also simulated pornography, and in fact this is the part they upheld.

I can understand the part where a computer-generated child sex act should be considered child pornography, even though no children are participants.

The part I have some qualms with is this, from a different article on the subject:

The pandering provision bars soliciting or offering images in a way that ``reflects the belief'' or ``is intended to cause another to believe'' that the depictions are illegal child pornography. The Atlanta-based 11th U.S. Circuit Court of Appeals had said the measure was vague and overly broad.

...

The law was a response to a 2002 Supreme Court ruling that struck down an earlier law. That statute had banned possession of movies or pictures that appeared to contain child pornography yet actually were generated with computers or with adults who look like minors.

Of course, here is what Scalia said about that:

But Justice Antonin Scalia, in his opinion for the court, said the law does not cover movie sex. there is no "possibility that virtual child pornography or sex between youthful-looking adult actors might be covered by the term 'simulated sexual intercourse."' Scalia said.

So I don't know what is true -- does this law say you can't show sex with a 20-year-old actress if you've made her look like she's under age?

[aimhigh]

I can understand the part where a computer-generated child sex act should be considered child pornography, even though no children are participants.

In 20 years, I expect most movie actors and actresses will be computer generated.

[CharlesWayneCT]

From what I understand the difficulty in computer-generated characters is with getting TOO close to reality without being real.

Apparently, so long as we can tell the image is not real, we have no problem with the inconsistancies and unnatural aspects. But at some point, the images get a bit too close to reality. The conscious mind begins to lose the ability to distinguish it from real, but your mind still can tell — and it gets upset.

So for now, those using the fake actors are purposely making them less real. In my opinion a few of the commercials have gone a little too far, because most people I ask about them say they feel a little “odd” after watching them.