Child Pornographty Gap

Tue Apr 15 13:46:00 PDT 2008

Reading the article, it was not clear to me that the pornographer made
his images to be shared.  If that is the case, on the one hand it is
hard to see the harm to the anonymous child, but it is also not clear
that we are in the First Amendment area.  As disgusting as it may sound,
isn't this more like lower court cases involving possession of sexual
toys -- that have gone both ways?

Jonathan Miller
Southwestern Law School

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Strasser, Mark
Sent: Tuesday, April 15, 2008 1:16 PM
To: Michael masinter; kbergin at stcl.edu
Cc: conlawprof at lists.ucla.edu
Subject: RE: Child Pornographty Gap

I read Ashcroft as suggesting that pornography involving real children
could be criminalized, even if the children had been engaging in
innocent activities when photographed.  See Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 242 (2002) ("Section 2256(8)(C) prohibits a
more common and lower tech means of creating virtual images, known as
computer morphing. Rather than creating original images, pornographers
can alter innocent pictures of real children so that the children appear
to be engaged in sexual activity. Although morphed images may fall
within the definition of virtual child pornography, they implicate the
interests of real children and are in that sense closer to the images in
Ferber. Respondents do not challenge this provision, and we do not
consider it.")

MS

Mark Strasser
Trustees Professor of Law
Capital University Law School
303 East Broad St.
Columbus, OH 43215
Ph: (614) 236-6686
Fx: (614) 236-6956

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Michael masinter
Sent: Tuesday, April 15, 2008 3:48 PM
To: kbergin at stcl.edu
Cc: conlawprof at lists.ucla.edu
Subject: Re: Child Pornographty Gap

Ferber rests on its frequently restated premise that the act of
producing
child pornography harms the physical, mental and emotional health of the
children abused in its production, and that the harm created by their
abusive use as performers is reinforced by its subsequent distribution.

I do not understand how a child whose nonpornographic image has been
pasted into another image can be said to be harmed by that act in any
sense relevant under Ferber; certainly there is no physical harm, and
unless the child knows of the image, how can the child suffer injury to
his/her emotional or mental health?  

If the creator distribues the image is to third persons, the law of
defamation would seem the better basis on which to rest a claim that the
image is unprotected speech -- that is, it is unprotected because it
communicates a false statement of fact and is not speech on a matter of
public concern, and (I'm assuming), has little to no literary or
artistic
value.  That argument would not help a prosecutor defend a criminal
conviction in this case, but might provide the basis for a statute that
criminalized the distribution of such material.

Perhaps the low value of the image will overwhelm the absence of a clear
constitutional basis for criminalizing its creation and possession, but
I
don't think a plausible claim can be made that mere creation and
possession by the creator causes any harm to the child. 

Michael R. Masinter			3305 College Avenue
Professor of Law			Fort Lauderdale, FL 33314
Nova Southeastern University		(954) 262-6151 (voice)
Shepard Broad Law Center		(954) 262-3835 (fax)
masinter at nova.edu			Chair, ACLU of Florida Legal
Panel

On Tue, 15 Apr 2008 kbergin at stcl.edu wrote:

> Last week a court in Alabama returned a guilty verdict against a 55
> year old man charged with possessing and producing child pornography.

> According to this article, the defendant created some sort of visual
> montage by pasting together photos of nude adults with separate
> pictures of nude children.  According to the defense attorney, none of
> the children themselves were engaged in sexual acts, there was no
> sexual assault, and no camera was admitted into evidence.  The
> pictures of the children, taken alone, were "innocent" to use her
> words, and taken from magazines and medical type books. At first blush
> I though this case fell somewhere between Ferber and Ashcroft.  
> Ferber allows the state to prosecute mere possession of child
> pornography, but in this case we don't have children themselves being
> photographed in a sexualized manner.  And Ashcroft protected "virtual
> child pornography" because there were no children involved in its
> making.  A permanent visual record of actual abuse itself could cause
> perpetual harm to children, but no children are actually harmed in the
> creation of computer generated images, says the Court. On
> reconsideration, though, can't the prosecution in Alabama be justified
> on the same premise, that is, unlike virtual child porn, here we have
> real children.  And though they were not harmed in the making of the
> original photographs, having their pictures included in a sexualized
> montage itself results in injury, no?  As an aside, Eugene includes a
> hypo similar to this in his 1A text. 

Kathleen A. Bergin 
Associate Professor of Law 
South Texas College of Law 1303 San Jacinto Street
Houston, TX 77002 p: 713-646-1829 f: 713-646-1766

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