The future of obscenity law
AAsch at aol.com
AAsch at aol.com
Tue Jun 14 16:39:02 PDT 2005
First, when I referred to the need for some kind of criminal intent as an
additional element to the mere possession or distribution of child pornography or
obscenity, I would include "recklessness" as a level of criminal intent. I
guess reckless possession of obscenity or child pornography could include
something like perusing it on a park bench by a playground full of children. Those
facts would fit a conscious disregard for a likelihood of harm.
Criminalizing mere possession or distribution of obscenity without further
criminal intent, however, is akin to criminalizing the possession or
distribution of an idea. At least regarding the mere possession of obscenity, the Supreme
Court came to the same conclusion in Stanley v. Georgia, 394 U.S. 557, 564
(1969) because "the Constitution protects the right to receive information and
ideas." I do agree somewhat with Eugene Volokh's low appraisal of Stanley v.
Georgia's precedential value, though, not having been explicitly overruled it
could still rise up unexpectedly someday, Korematsu-like.
But, the point I was making vis a vis the impact of technology on the this
old debate is that it's much easier to see text and images as ideas when you
realize they can be expressed as something as morally neutral and completely
conceptual as a long string of ones and zeroes. My further point was that Ashcroft
v. Free Speech Coalition implicitly recognized this problem, in some minor
way, in the Court's differentiation between "virtual child porn" and the real
thing. After all, the indirect harms of obscenity that Eugene Volokh cited (like
the objectification of woman leading to rape, etc.) are the exact kinds of
arguments the Court rejected, writing:
"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."
In fact, in distinguishing between virtual and actual child porn, the Court
even cites Stanley v. Georgia for the proposition that "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.'"
Expressing an image or text as a number only emphasizes it's core existence
is conceptual rather than material. Giving the government the power to ban it
without some direct harm or, at least, criminal intent to harm (e.g., Ashcroft
v. Free Speech Coalition's "attempt, incitement, solicitation, or
conspiracy"), is tantamount to "controlling a person's private thoughts." Hey, maybe the
resurrection of Stanley v. Georgia has begun in Ashcroft v. Free Speech
In a message dated 6/14/2005 11:13:00 AM Pacific Daylight Time,
VOLOKH at law.ucla.edu writes:
> I'm not sure I quite understand. An e-mailed defamatory lie is a long
> string of ones and zeroes, too, but it's constitutionally unprotected, even
> without an intent to do harm (recklessness is enough). Why should it matter how
> the computer stores it? The focus is on the meaning of the speech to the
> speaker and to the recipients, and (among other things) whether the meaning is
> valuable or harmful -- something that was just as true when Miller was decided.
> Or am I missing something?
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of AAsch at aol.com
> Sent: Tuesday, June 14, 2005 11:03 AM
> To: Conlawprof at lists.ucla.edu
> Subject: Re: The future of obscenity law
> >> Ever since the Supreme Court struck down a "virtual child pornography"
>> provision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), I've been
>> thinking about an implication of technology on obscenity law that Eugene
>> Volokh did not mention. Specifically, technology has shown us that any text or
>> image can be expressed as a long string of ones and zeroes. What I cannot
>> figure out is how it can be consistent with the First Amendment to prohibit
>> the mere possession or distribution of a long string of ones and zeros.
>> Now, I suppose the same argument could have been made with older
>> technology, claiming that making it a crime merely to spray ink on paper or film or to
>> make it a crime to possess paper or film with ink sprayed on it should be a
>> violation of the First Amendment. I would even have agreed with that
>> argument making me, perhaps, one of Eugene Volokh's "hard-core libertarians."
>> But, newer technology makes the absurdity even starker. After all, that
>> long string of ones and zeros is a binary number that can also be expressed as
>> a base ten number. That means, there exists a whole bunch of mere numbers
>> that the government can arrest you for possessing or distributing.
>> In my opinion, the only way out of the conundrum is to require some kind of
>> criminal intent as an additional element to the mere possession or
>> distribution of child pornography or obscenity. After all, even the federal statute
>> against counterfeiting requires more than just possession of the paper with
>> the ink; it requires an "intent to defraud."
>> Allen Asch
>> In a message dated 6/14/2005 9:39:02 AM Pacific Daylight Time,
>> VOLOKH at law.ucla.edu writes:
>> >>> By the way, Scott Gerber's question, and my speculation about
>>> how Lawrence might be read in 20 years, made me think: Are we even
>>> going to have obscenity debates in 20 years?
>>> On the one hand, porn has generally become more and more
>>> tolerated; moreover, the Internet makes regulation of porn harder than
>>> ever. That might suggest that 20 years from now, the issue will be
>>> largely dead.
>>> On the other hand, I suspect that technology will make porn more
>>> and more troubling, even to people of moderate sensibilities (neither
>>> hard-core culture warriors nor hard-core libertarians). I have in mind
>>> two likely developments:
>>> 1. Image recognition, generation, and processing technology
>>> will soon, I suspect, make it easy for people to merge generic porn
>>> (whether computer-animated or human-actor) with an arbitrary picture or
>>> voice. People will thus easily be able to make quite realistic-looking
>>> porn "starring" their favorite actor, or for that matter their
>>> acquaintances. This is already doable to some extent with PhotoShop,
>>> I'm told, but I expect that 10 or 20 years from now (if not fewer), the
>>> technology will be much more advanced and plug-and-play, and this will
>>> quickly become the preferred mode for most porn consumers.
>>> I suspect that many people who don't much mind their neighbors
>>> viewing porn might mind more if they (or their wives or daughters or
>>> sons) are the "stars" of that porn. Perhaps there won't be much that
>>> can be done about it, but I think people will get really upset --
>>> especially when the porn is distributed beyond its creators (which could
>>> be actionable under variants of "right of publicity" laws, but may be
>>> practically hard to stop), but perhaps even when it's produced and
>>> consumed in the same home.
>>> 2. Virtual reality setups -- I'm talking here 3D pictures,
>>> sound, tactile sensation, and enough AI-based interactions to emulate
>>> human behavior and speech during sex (an easier matter, I suspect, than
>>> emulating human behavior more generally) -- will make the consumption of
>>> porn an ever more enjoyable and consuming experience. I'm tentatively
>>> skeptical that the use of porn causes a great deal of social problems
>>> today (though I haven't done serious reading on this, so I might be
>>> mistaken). But the use of virtual reality porn might cause considerably
>>> greater problems, as sexual relationships, especially among teenage and
>>> early 20s boys, are increasingly displaced into this cheap, easy-to-get,
>>> emotionally undraining, and infinitely variable (from a visual
>>> perspective, though obviously not from an emotional perspective) mode of
>>> sex. The upside, of course, is that you can't get pregnant or get an
>>> STD from virtual reality sex. The downside is that you can't learn how
>>> to build a romantic relationship this way, either. Plus, as a political
>>> matter, I suspect that a lot of people will be much more upset about
>>> thinking about their 15-year-old boy in a VR booth than about their
>>> 15-year-old boy looking at normal computer porn.
>>> These are all conjectures, of course, based on my generally
>>> understanding of computer technology (and my best guesses about human
>>> sexual interests, and especially male sexual interests). I haven't
>>> looked into where existing specifically pornography-creating technology
>>> is on either of these fronts. But it would shock me if option 1 won't
>>> be available within 20 years, and I suspect that pretty effective
>>> versions of option 2 will be available within 20 years, too. So we
>>> might not be done with obscenity battles just yet.
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