Supreme Court upholds anti-child pornography law

[maddezmom]

Source: AP

WASHINGTON - The Supreme Court has upheld criminal penalties for promoting child pornography.

The court, in a 7-2 decision, is brushing 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.



Read more: http://news.yahoo.com/s/ap/20080519/ap_on_go_su_co/scotus_child_porn

[napi21]

1. It's actually the "innocent" pictures a grandmother may email to

her friends that worry me. About a year ago, I read about a grandmother being arrested for child porn after she had emailed some pics of her granddaughter, age 2, naked in the backyord kiddie pool! I never heard the outcome of that story, but with the damn fools running tings now, it worries me.

[Trillo]

9. While I don't watch much TV anymore,

I seem to recall that infants were pictured with bare bottoms in some commercials for baby products. I recall reading that this depiction is or was considered OK. Why is/was it okay? Because the companies involved are/were outstanding political campaign contributors? Or because some nakedness is considered normal?

[muryan]

11. I think because infants are very rarely seen as sexual objects

child pornography laws usually are enacted when kids have past the infant stage, although I'm not sure its the letter of the law but more the discretion of the prosecutor.

[silverojo]

18. I think it's wrong to circulate even innocent pics of naked kids

Child porn concerns aside, it's pretty embarrassing for someone to grow older, and discover that other not-so-close relatives saw them nekkid when they were younger. Especially teens, who are particularly sensitive and easily embarrassed. Babies are just as cute in diapers, so let the little rugrats have a little modesty. :)

[CoffeeCat]

2. So what is the argument here....

...that we shouldn't uphold criminal penalties for "promoting child pornography" because
some grandma might get in trouble for sending a picture of her grandchild naked in the kiddie
pool?

Child pornography should be legal to avoid that 1 in a gazillion situation?

People are nuts.

[comtec]

3. I think the point is the law needs to be re-written

to include some common sense.
The problem with laws done by this administration are sweeping and don't allow common sense, and there in lies the problem.
It's not the intent of the law people object to, but how it gives the government way too much "freedom" to infringe on OUR freedoms.

[Jim__]

4. While child pornography is despicable, that doesn't mean any law against it is valid.

From the article:

The 11th U.S. Circuit of Appeals struck down the provision. The Atlanta-based court said it makes a crime out of merely talking about illegal images or possessing innocent materials that someone else might believe is pornography.

In the appeals court's view, the law could apply to an e-mail sent by a grandparent and entitled "Good pics of kids in bed," showing grandchildren dressed in pajamas.

It makes a crime out of merely talking about illegal images. I think that gives the government sweeping powers that are ripe for abuse.

And Scalia wrote the decision. That alone gives me pause.

[NJSecularist]

5. And Souter and Ginsburg dissented.

I'll look at this decision more in-depth when I get out of work.

I'd be more inclined to take Souter and Ginsburg's word than Scalia.

[Freddie Stubbs]

12. Which means that Stevens and Breyer went along with the majority

[noonwitch]

6. The law has to be written in a way that doesn't target innocents

I don't think there are many people who think that child porn is okay. Lots of families take pictures of naked babies, it's sort of a tradition-something to show their prospective spouses and humiliate them when they are adults. At least that's why my parents did it.

The law needs to address the differences between pornography and pictures of naked children. They are not the same thing. Unfortunately, what determines the difference frequnetly is the intent of the viewer, not necessarily the intent of the photographer. It's difficult to write a law that addresses that.

[bluebellbaby]

14. Now you can be arrested for your remarks....you are discussing

child pornography...this is how vague the law is...we all can be arrested for even discussing this issue...this is screwy...

[redqueen]

7. I can't help but wonder if the law isn't intentionally vague. (nt)

[Cronus Protagonist]

10. ding ding ding

Vague laws are the lifeblood of fascism. When the lowest level government empoloyees get to interpret a vague law, we have the modern day equivalent of the Gestapo.

[happyslug]

17. See the opinion below, even the dissent does NOT consider it vague

The dissent is more concern about who has the burden of proof that a pornographic picture of someone below age 18 is REAL not computer generated (or otherwise made). The dissent would have been more comfortable if the burden was on the Federal Government to show a picture was NOT Computer Generated as opposed to the Defense showing that it was. Thus the dissent was more over who should have the burden of proof NOT that the statute of vague in itself.

[Freddie Stubbs]

8. Bad news for Bernie Ward

[Mountainman]

13. The law needs to be explicit. The wide range of differences here at DU

as to what is pornography and what is not is huge. Let alone child pornography. Some consider any nude depiction of person under the age of 18 to be child pornography.

[happyslug]

16. And under the decision that is NOT the law

Even Scalia was willing to agree Mere nudeness was NOT pornography. Depiction of children is NOT illegal unless actual children are involved (Adults playing Children is legal, computer drawn children are legal). And that is Scalia's position.

What is illegal? Explicit sexual pictures of children below age 18. Furthermore Scalia clearly points out that INTENT to send pornographic pictures is part of the criminal act. Merely sending a nude picture of someone below 18 is NOT enough the criminal must also KNOW he or she is sending a sexual picture of a person below age 18 (Not a drawing or computer generated picture, but a real picture of a real person below age 18).

[Trillo]

20. What is the difference between "naked" and "sexual"?

I've seen advertising photos of fully clothed females, that while they may be over 18, indeed looked like they were 15 or 16, at most. Fully dressed in "sexy red", with lipstick, eye makeup, and not a single blemish to be found. The pose and look is "sultry", sometimes even including a bead or two of "sweat".

Are photos such as these to be considered "pornography"?

If not, then why? They are clearly intended to be sexually suggestive. We've all seen them in multiple publications such as magazines as well as online in the years after Internet 2. So if the "intent" of the photos are foremost, then shouldn't these also be banned under the banner of protecting child exploitation?

[happyslug]

21. Read the decision, that is up to a Jury to decide.

Was it murder when someone kills someone or self defense? Both involving the death of a person. The difference is one up to a Jury to decide based on the evidence presented to it. The same with your statement, is the picture based on the exploitation of minors as sexual beings (i.e. the models you mention) OR from exploitation of explicit sexual acts (i.e. the sex act itself)? That is why we have juries to decide factual issues. Once the Jury makes a decisions as to the facts, then and only then do issue of law arise. If the jury does NOT find sexual exploitation of actual sexual acts of minors, then the jury must find the defendant NOT guilty. If, on the other hand, the Jury finds that the Defendant had the INTENT to distribute pictures of minors that involve actual sex acts then he or she is guilty. Questions of facts are reserved to Juries in our system of Justice and the Court ruled that INTENT is one such finding of fact.

Thus Juries get to make this decision, and that why we have juries.

[Mountainman]

22. Is a nude picture of a naked child an explicit sexual picture?

Your statements are confusing to me.

"Depiction of children is NOT illegal unless actual children are involved." What is depiction of children? A picture of a child at the beach who is nude, is that a depiction of a child?



"Merely sending a nude picture of someone below 18 is NOT enough the criminal must also KNOW he or she is sending a sexual picture of a person below age 18."

You are saying here that a person sending a nude picture of someone below 18 is a criminal? You are saying here that a nude picture of a person under the age of 18 is a sexual picture?

Rearrange your sentence and I think so.

"The criminal must know that sending a nude picture of someone below 18 is sending a sexual picture of a person below age 18."

[happyslug]

23. That is where intent comes into play, and both the Majority and Consent agrees with that.

Intent is an important part of any crime, no intent, no crime in most cases (There are some strict liability crimes but such crimes are rare, thus even this court has ruled that insanity is a valid defense against most crimes, even if a state abolish the insanity defense).

Thus the content of the picture and the contest where and how it is distributed are important factors. A nude baby on the beach is NOT pornographic, but a nude baby on the beach being sexually assaulted is. What is sexually deprived is up to a jury to decide and that includes the intent on who made the picture, what is in the Picture, and why it is being distributed. Those all all FACTUAL FINDINGS reserved to a Jury. All the Court did here is say leave it to a Jury to decide.

The dissent Agrees with the above, they only dispute is with who has the burden to prove the picture is real, and involves minors. The dissent clearly wants that burden of proof on the Government, the Majority is willing to permit to be on the defense as a positive defense. That is the limit of the dispute between the Majority of the Dissent.

[happyslug]

15. Here is the Opinion

http://www.supremecourtus.gov/opinions/07pdf/06-694.pdf

I hate to say it, but Scalia seems to have the better argument here. Basically he starts that any prosecution has to prove not only that the pictures were illegal but that the person who had them KNEW that. i.e. that there were real minors in the pictures AND the pictures were pornographic and that is WHY the person was sending them. Defenses exist that the people in the pictures were NOT minors, the pictures were computer generated, or that the pictures were NOT pornographic.

Bryer and Stevens Concurred with the Majority Decision, but on the grounds that in this case what was to be banned by the Statute in question was known to most people and as such not vague and thus constitutional. Bryer and Stevens added these two arguments in their Concurrence more than object to the decision of Scalia.

Souter and Ginsburg were the dissent, and their argument appears weak. The dissent fear that unless the burden is on the Federal Government or the State to show that a pornographic picture was NOT generated by computer, a jury would NOT be able to overcome the fact a child sex picture exist and that it may have been computer generated not real.

The problem is both sides agree that computer generated pornographic pictures of Children are constitutional (protected by the First amendment under Free Speech) the dispute is did Congress put enough burden on the Federal Government and the State to show such pictures were real. Scalia say juries can determine intent and if a jury can not find any intent to send pornographic child pictures, that jury would find the defendant NOT GUILTY.

[TechBear_Seattle]

19. I do wish news services would be more careful when using hyphens

At first glance, the Supreme Court upheld a pornography law that was anti-child.

Added: The Associated Press (or at least Yahoo) has changed the headline on the article to read, Court upholds part of child pornography law. Much less ambiguous. :thumbsup: