Date: Tue, 16 Jan 1996 22:37:03 EST From: research central Subject: FAQ: Legalities of Obscenity and Similar Topics Comments: To: the readership [WARNING! This contains explicit mention of children, sexual activity, and similar topics. It is also long. I apologize for trying to be explicit.] For those who are interested, I have recently spent some time digging through the laws and regulations concerning child porn, obscenity, etc. Let me summarize, then include some highlights for those who prefer to read it themselves. As usual, this is just my understanding. If you really want something you can depend on, contact a lawyer or other legal representative. First, as I remembered, it is absolutely crucial that this is an unmoderated list. If I or anyone else controlled the content at all, I could be held responsible (in analogy to "publisher"--several court cases on this). As it is, YOU are the publisher, and any charges of libel, obscenity, etc. would be placed against the originator. In the case of BBS operators and others who performed any regulation at all, that regulation has been used to argue that they are responsible for all material presented. Let me repeat it, because it is an important point. This list is not moderated. To be very specific, I have no control over content. Second, child pornography as currently defined in the United States is impossible on this list. As defined in all states and the pertinent federal codes, child pornography is visual images of actual people--not text. Note that I am specifically talking about the U.S. regulations. There is a possibility that you could violate the current Canadian law on child pornography. It is new, and many legal counsels feel that it will be overturned if seriously challenged, but right now the Canadian law does include "any written material...that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act." I found two interpretations of this section, one being the narrow interpretation of referring to written material that advocates or counsels making child porn (the rumored "sales brochures" of the child pornographer), the other being the more general field of material that advocates or counsels sex with young people. There would seem to be at least a couple of ways for this to involve us--one being that someone in Canada posts such material and is promptly tracked down by the Mounties; the other being that someone outside Canada posts such material and the Mounties again gather up the recipients in Canada. Let's see--penalties apply to anyone who "makes, prints, publishes, possesses for the purpose of publication...imports, distributes, sells, or possesses for the purpose of distribution or sale..." oh, and mere possession, of course. Offhand they have covered the field well. It might be worth noting that "the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose." So the Canadian law has an escape clause, like the obscenity rules in the U.S. Oh, yes--there are various efforts underway to change the U.S. laws that apply to electronic communications. The Exxon bill and so forth may change the whole picture someday. Stay tuned. Third, obscenity is possible. There would have to be a state statute in place describing exactly what sexual acts cannot be depicted, the community must consider the depiction "patently offensive" and an "appeal to the prurient interest", and the material must lack "serious" literary, artistic, scientific, political, or other social value. As long as your main goal is the writing, not the shock, I don't think anyone can object. Fourth, it would be an interesting case if someone forwarded material from this list to a government agency. You see, in forwarding something I have written, you are clearly violating my right to control distribution--one of the rights I hold due to copyright. Making an illegal copy for purposes of incriminating me--on a charge that will fail to hold up in court? I suspect I could file a countersuit in civil court that would make some set of lawyers rich... So, for all of you who were holding your breath wondering whether you can post--please do. Your right of free speech is protected. BTW--I also checked several recent cases. The celebrated FBI raids on AOL members were due to their kidnapping, transport across state borders, and sexual molestation of minors. The California couple were arrested on the basis of IMAGES. And down the line--I could not find a recent case where fictional text was the basis of complaint. (your digger in the bitmines-- uh, lady, could you please not stand on the grating over my head? you're blocking the light...:-) tink =*()*-=*()*-=*()*-=*()*-=*()*-=*()*-=*()*-=*()*-=*()*-=*()*-=*()*-=*()*- Herewith, some pertinent quotations...all are merely selections from longer texts. First, a state law (from Virginia!): X-Url: http://www.state.va.us/dlas/ses19951/fulltext/sb1067.htm SENATE BILL NO. 1067 A BILL to amend and reenact '' 2.1-124 and 18.2-374.1 of the Code of Virginia, relating to child pornography; penalty. (oops--I found the version as passed, but seem to have saved the offered version. That's okay, the wording in this section didn't change...) A. For the purposes of this article and Article 4 (' 18.2-362 et seq.) of this chapter, the term "sexually explicit visual material" means a picture, photograph, drawing, sculpture, motion picture film, digital image or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in ' 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in ' 18.2-390, or a book, magazine or pamphlet which contains such a visual representation. An undeveloped photograph or similar visual material may be sexually explicit material notwithstanding that processing or other acts may be required to make its sexually explicit content apparent. (pictures! what about words...oh, that is NOT covered in Virginia?) Second, the U.S. Customs Regulations: X-Url: http://broadway.vera.org/pub/crimebill/title16.html TITLE XVI-CHILD PORNOGRAPHY SEC. 160001. PENALTIES FOR INTERNATIONAL TRAFFICKING IN CHILD PORNOGRAPHY. (a) Import Related Offense .-Chapter 110 of title 18, United States Code, is amended by adding at the end the following new section: " 2258. Production of sexually explicit depictions of a minor for importation into the United States "(a) Use of Minor .-A person who, outside the United States, employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor with the intent that the minor engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, intending that the visual depiction will be imported into the United States or into waters within 12 miles of the coast of the United States, shall be punished as provided in subsection (c). "(b) Use of Visual Depiction .-A person who, outside the United States, knowingly receives, transports, ships, distributes, sells, or possesses with intent to transport, ship, sell, or distribute any visual depiction of a minor engaging in sexually explicit conduct (if the production of the visual depiction involved the use of a minor engaging in sexually explicit conduct), intending that the visual depiction will be imported into the United States or into waters within a distance of 12 miles of the coast of the United States, shall be punished as provided in subsection (c). (whoops...pictures again? what about words?) Third, the U.S. Mail: http://www.usps.gov/websites/depart/inspect/kid-porn.htm Mailing of Child Pornography It is illegal to send child pornography through the U.S. Mails. Child pornography includes the visual depiction of sexual activities or overtly sexual poses involving children, legally defined as persons under age 18. Pornographic pictures of children that are mailed need not be "obscene" to violate the law. As information, federal law (Title 18, United States Code, Section 1461), makes it a crime to mail "obscene" matter, and the mailing of such matter has been investigated by the Postal Inspection Service for over a century. "Obscenity" was constitutionally defined by the U.S. Supreme Court in its 1973 of Miller versus California decision. To be obscene, material, "taken as a whole," must: * Appeal to a prurient [typified by obsessiveness] interest in sex; * Contain "patently offensive depictions or descriptions of specific sexual conduct," as judged by a local grand jury in light of the contemporary standards in the affected community; and * On the whole, have "no serious literary, artistic, political or scientific value." The problem of child pornography led the U.S. Congress to enact the Sexual Exploitation of Children Act in 1977 (Title 18, United States Code, Sections 2251-2254). The name of the law alludes to the fact that there is no First Amendment (free speech) consideration when evaluating the mailing of child pornography: Pornographic pictures of children are not constitutionally protected speech. Rather, such pictures are evidence of the sexual exploitation of children, a form of emotional child abuse. If sexual intercourse is depicted, the photographs are evidence of physical child abuse. In addition, under the Child Protection Act of 1984 (which amended the 1977 law), child pornography need not be "obscene" to be non-mailable, nor must it be mailed for a commercial purpose or to make a monetary profit. Fourth, from Canada: http://insight.dcss.mcmaster.ca/org/efc/pages/law/cc/cc.163.1.html DEFINITION OF "CHILD PORNOGRAPHY" .. / Making child pornography / distribution or sale of child pornography / Possession of child pornography / Defence / Defences / Other provisions apply. 163.1 (1) In this section, "child pornography" means (a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or (b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act. (6) Where the accused is charged with an offence under subsection (2), (3), or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose. (ah, artistic work is not what they are after...) Fifth, a couple of definitions from an article: X-Url: http://www.ilf.net/eff/Censorship/ Pornography/Child_porn/kids_and_cyberporn_godwin.article (I folded that URL...the document may be from the eff and contain some very slanted rhetoric, but it has some of the clearest definitions...) (2) OBSCENITY. To be "obscene," pornography must meet all parts of a three part test designed by then-Chief Justice Warren Burger in 1973 in a case called Miller v. California. This is normally a question of *content*. The three parts of the so-called "Miller test" are as follows: a) State statute. Normally, there must be a state statute in place that describes with specificity the particular sexual (or excretory) acts that cannot be depicted. (If the state doesn't have such a statute, federal prosecutors can look to the state's prior caselaw, but this doesn't happen often.) b) Community standards. The depiction of the sexual acts must be "patently offensive" and "appeal to the prurient interest," as judged by a reasonable man applying the standards of the community. c) The escape clause. To be obscene, the material must fail to meet the requirements of the Miller v. California "escape clause." That is, it must lack "serious" literary, artistic, scientific, political, or other social value. (3) CHILD PORNOGRAPHY. This is material that is illegal regardless of whether it is obscene. Which means you don't even bother to ask any questions about "community standards." Under federal law, "child pornography" is any *visual* material that depicts a child either engaging in explicit sexual acts or posing in a "lewd and lascivious" manner, when the manufacture of such material involves the actual use of a real child. Thus, verbal material can't be child porn under federal law, although it could be obscene. Similarly, computer-generated material that seems to depict children engaged in sexual activity but in the manufacture of which no child was used would not be child porn, although it almost certainly would be obscene in every community in this country. In short, this category is defined not primarily in terms of *content* ("offensive" depictions) but in terms of *conduct* (the victimization of actual children). (and for my public service...please find and read this document--I found people on both sides of the issue recommending it.) The NCMEC pamphlet "Child Safety on the Information Superhighway" is available on America Online and just about everywhere else in cyberspace. (On AOL, you'll find it at "Parental control" under the "Members" menu.) If you and your children follow those guidelines, the Net is a far safer place for your children than Disney World. =*()*-=*()*-=*()*-=*()*-=*()*-=*()*-=*()*-=*()*-=*()*-=*()*-=*()*-=*()*-