I guess the issue here is the interpretation of "appears to be". The text should be able to get him for something different (conspiracy to rape? I don't know of any specific laws but it seems like there should be something there). I'm pretty sure there are laws against distributing any kind of pornography to minors, which is perfectly fine to convict him under. Sending it to her and the text have nothing to do with whether or not it's child pornography. He seriously violated the law produced and distributed. (B) lacks serious literary, artistic, political, or scientific value (A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex and That's a depiction too, even if it's not a very good one. In that case, the stick figure argument made earlier applies. It doesn't matter that the artist (again using the term loosely) was not capable of representing their body more accurately and had to fall back on their collage skills, the intent is clear. I think it's fair to say that someone's face can be used to represent that person's identity, and attaching that face to another body is meant to imply them in that circumstance. But it communicates the idea to the viewer just fine. I mean, seabirds are often represented with two curved lines forming a letter m.
Art (using the term loosely) is full of representations that are meant to evoke a particular idea, yet not accurate in terms of how they actually look. It's not a picture of an apple in the sense that you photographed an apple, but it can still be a depiction of an apple. This is worrisome and disturbing enough to take actions in my opinion and a line must be defined here. īut he did more than that by sending pornography to a child and is almost irrelevant what kind of porn that was.
The balance of "depiction", as in art, weights more in favor of free speech than anything else and no real child was subject to sexual activities. Still, the world is not black and white and child pornography is not the same as children having sex. If you define pornography as depiction of sexual acts then this could easily pass the child pornography tests. What the guy did is pretty much depiction. If I a picture of an orange, manipulate it to make it red, and call it an apple, it doesn't make it a picture of an apple. You can't separate the parts of the whole here.īut it's not her being depicted (beyond her face).
Her face, plus the fact he sent it to her, and the fact he said they would act it out, strongly implies that it is in fact her being depicted. The laws exist to prevent children from being abused and exploited, not to prevent teens from sexting and certainly not for reasons like this.īut looking at it this way, can the image be said to be depicting the girl in a sexual act if the actual parts involved in the actual act aren't hers? Seems pretty weak to me. I feel like courts are missing the point of child pornography laws. You can't convict someone for murder if they jaywalked on their way to kill someone. I'm pretty sure what you call the crime matters. (Though he could provably be brought up on charges for distributing sexual material to minors regardless of whether the content was porn or child porn.) And if a child it's injured, then the first amendment is also going to protect charges or civil suits for things like defamation. Now the Supreme Court stepped in and said that you can't criminalize speech where no minor was actually harmed, so this isn't as sweeping as it sounds, but it's not at all clear that Congress' intention was anything other than outlaw things that are offensive.Īs for actual children being hurt - the court held that a child is hurt when an identifiable child-head appears on a pornographic image. Yes it's to protect children from sexual abuse, but the law, as written outlaws /simulated/ sexual images. If, however, it is unprotected speech, then it can be criminalized, and what you call that crime doesn't really matter.Īs for the "point" of child porn laws - the "point" if there is one, is to make icky things illegal. The real question is whether this is protected speech. Many commentators are mixing issues by focusing on the child porn charge.