rs at robertsheridan.com
Tue Apr 7 09:23:45 PDT 2009
After a bit of mental processing, I took the question to be asking, in
effect, whether there was, or could be, a legitimate FA defense to
(ultimately) a charge of illegal possession of contraband obscene
material, say "kiddie porn," where the justification for the prohibition
is the harm done to minors in the manufacture. In a recent state court
defense effort in such a case, the prosecution required viewing of the
discovery material at the police department rather than provide CD disks
containing the material, since possession of the material would be a
criminal offense, there not being a statute legitimizing possession for
purposes of legal defense. In other contraband cases, 'momentary
possession' for innocent purposes is deemed a defense (California: Peo.
v. Mijares from the early '70s). Thus a person who had picked up drugs
to take to the police station was held to have a good defense. Police
are legally privileged to possess contraband, as are courts, for the
purpose of law enforcement and legal review (picture the justices
sitting back to view yet another porn film in the days of Roth, etc.).
Defense attorneys are not so privileged as a general matter. I wonder
whether the discovery material could have been made privileged by court
The question that arises is whether the possession for study of kiddie
porn for academic purposes, or intellectual curiosity, is a legitimate
defense. And what if some of the downloaded material contains 'kiddie
porn' where where the KP is contained or concealed in some less
offensive, legally, material? And what happens if Prof. A, deciding he
needs to consult with Prof. B, emails the material onward. Or worse,
posts it to this list and it winds up in the mailbox on our hard drive
and on-screen just as the police arrive. Possession is one thing,
It seems to me that there are, or should be, defenses to possession of
"intellectual" contraband, but I'm not sure which cases squarely so hold
other than the private possession of obscene material in the Stanley v.
Georgia case. In short, it's risky business to download and especially
to forward kiddie porn, innocently or not, since the liability is far
Here's an example: The accused is a sick old man who sits in front of a
computer for much of the day where he downloads porn, including kiddie
porn, some of which he forwards to one or more like-minded individuals
across the country, people he met in a chat room devoted to this. One
reports the forwarding, and the material, to a monitoring group in the
Midwest which contacts a police agency in Silicon Valley which contacts
San Francisco PD which obtains a search warrant. Police are monitoring
the man's computer as the raiding party approaches his apartment door.
Police knock and announce and the man leaves his computer and opens the
door. Police enter and on his screen, what do they see? More
evidence... They seize his computer with its damning hard drive.
In state court, in view of age, poor health, etc., this was good for a
relatively light probationary sentence and no public attention. Had it
been prosecuted in federal court where they make a business of making
examples of people, complete with issuance of press releases after
convictions, I've seen reports of sentences into the double digits.
Mark Graber wrote:
> Here's a good constitutional law outside of courts question that I faced yesterday.
> At 9:00 AM, I was asked to participate in a panel discussion later that day on the University's decision to cancel a showing of "Pirates II" in response to pending legislation cutting off all funding to the university if we showed porn films.
> Two sets of issues. First, there are the obvious constitutional issues. is the film pornographic under relevant definitions, does the president have the right to cancel under Kuhlmeier, is the funding cutoff constitutional, is there an overbroad issue here, and what about academic freedom.
> Second, some personal issues. I did not have the time to go home. Having never heard of the film (at first I thought we were talking J. Depp), I went on line and discovered that I could download some scenes. Should I have done so? Did I have academic reason to do so, or could I have answered all of the above questions without knowing much about the film. Should I have contacted my dean a) as a friend or b) to get permission.
> I came to the conclusion that there was no need to see the actual film. Curious what others think.
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