A brief quote of an article which should explain US law on "virtual porn"
Since there's been some questions on this issue on various LJs that I read overnight:
A few years ago, the US Supreme Court stated that under the first amendment, there is no bar to the creation of virtual porn, or its dissemination among adults.
Justice Anthony Kennedy, writing for a 6-3 majority, said the 1996 federal law "turns the First Amendment upside down" by outlawing protected speech as a way of banning unprotected child pornography. The law, said Kennedy, "prohibits speech that records no crime and creates no victims by its production."
Federal law has long forbidden child pornography that uses real children, but Congress in 1996 expanded the statute to include computer-generated images that "appear to be of a minor engaging in sexually explicit conduct."
Congress and the Justice Department argued that virtual child pornography jeopardizes real children by stimulating the market for illegal materials and makes it difficult for police to distinguish between what is legal and what is illegal.
But the decision yesterday in Ashcroft v. The Free Speech Coalition, No. 00-795, flatly rejected that rationale with wording that is sure to be used in other litigation against government restrictions on speech. "The government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse," Kennedy wrote.
"The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it," Kennedy also said. In cases about zoning, some "secondary effects" cited by government have convinced the high court to allow restrictions on adult businesses and other forms of expression. But the opinion yesterday appeared to foreclose the possibility that this "secondary effects doctrine" would expand beyond zoning cases.
"It was a Brennan-like statement of the importance of maintaining First Amendment protections," said Michael Bamberger, a New York partner at Sonnenschein Nath & Rosenthal who co-wrote a brief in the case on behalf of book, magazine and video publishers. "They are reminding us that just because the goals of Congress were legitimate, that does not validate the law."
Ann Beeson, staff attorney at the American Civil Liberties Union said, "We were all worried that the court would change its mind about Miller v. California and Ferber v. New York, which are getting to be old precedents.
"The court said today it is not going to redraw its line on obscenity. And the fact that it wasn't a splintered decision was a welcome surprise."
The opinion said the 1996 Child Pornography Prevention Act banned substantially more speech than obscenity as defined by the 1973 Miller case. Kennedy said the law also ran afoul of Ferber, the 1982 decision holding that child pornography could be banned because of the damage done to the actual children involved in producing it.
Kennedy wrote that the law "proscribes the visual depiction of an idea - that of teenagers engaging in sexual activity - that is a fact of modern society and has been a theme in art and literature throughout the ages."
A well-known Shakespeare buff, Kennedy noted that the character Juliet had not reached the age of 14. "Romeo and Juliet" has inspired 40 motion pictures, Kennedy noted, adding that "Shakespeare may not have written sexually explicit scenes for the Elizabethan audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene."
Kennedy also cited two acclaimed recent movies, "Traffic" and "American Beauty," that include scenes that could fit the law's definition of virtual pornography - whether or not real child actors actually engaged in sexual acts. "Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young," wrote Kennedy.
"Congress passed an indefensible law that, on its face, would criminalize various scenes in movies like Traffic and America Beauty and make production and possession punishable by up to 15 years of prison," said Joan Bertin, executive director of the National Coalition Against Censorship.
"As the Supreme Court recognized, numerous other laws suffice to protect children from sexual exploitation and predation."
Martha Coolidge, president of the Directors Guild of America, said, "We can all thank the Supreme Court for once again defending the First Amendment freedoms central to our free society, and preserving the creative freedoms that all Americans treasure. Every American would suffer the loss of freedom if this overzealous governmental intrusion into our rights of expression had been allowed to stand."
Find a contemporaneous article here.
So basically, unless there's a significant change in the makeup of the supreme court *and* new legislation passed on a state or federal level, nothing can happen in the US in terms of creating or distributing "virtual" porn. Keep it fictional, and there's no issue.
This, btw, is not legal advice and has *nothing* to do with the current state of the law of any country other than the US's.
A few years ago, the US Supreme Court stated that under the first amendment, there is no bar to the creation of virtual porn, or its dissemination among adults.
Justice Anthony Kennedy, writing for a 6-3 majority, said the 1996 federal law "turns the First Amendment upside down" by outlawing protected speech as a way of banning unprotected child pornography. The law, said Kennedy, "prohibits speech that records no crime and creates no victims by its production."
Federal law has long forbidden child pornography that uses real children, but Congress in 1996 expanded the statute to include computer-generated images that "appear to be of a minor engaging in sexually explicit conduct."
Congress and the Justice Department argued that virtual child pornography jeopardizes real children by stimulating the market for illegal materials and makes it difficult for police to distinguish between what is legal and what is illegal.
But the decision yesterday in Ashcroft v. The Free Speech Coalition, No. 00-795, flatly rejected that rationale with wording that is sure to be used in other litigation against government restrictions on speech. "The government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse," Kennedy wrote.
"The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it," Kennedy also said. In cases about zoning, some "secondary effects" cited by government have convinced the high court to allow restrictions on adult businesses and other forms of expression. But the opinion yesterday appeared to foreclose the possibility that this "secondary effects doctrine" would expand beyond zoning cases.
"It was a Brennan-like statement of the importance of maintaining First Amendment protections," said Michael Bamberger, a New York partner at Sonnenschein Nath & Rosenthal who co-wrote a brief in the case on behalf of book, magazine and video publishers. "They are reminding us that just because the goals of Congress were legitimate, that does not validate the law."
Ann Beeson, staff attorney at the American Civil Liberties Union said, "We were all worried that the court would change its mind about Miller v. California and Ferber v. New York, which are getting to be old precedents.
"The court said today it is not going to redraw its line on obscenity. And the fact that it wasn't a splintered decision was a welcome surprise."
The opinion said the 1996 Child Pornography Prevention Act banned substantially more speech than obscenity as defined by the 1973 Miller case. Kennedy said the law also ran afoul of Ferber, the 1982 decision holding that child pornography could be banned because of the damage done to the actual children involved in producing it.
Kennedy wrote that the law "proscribes the visual depiction of an idea - that of teenagers engaging in sexual activity - that is a fact of modern society and has been a theme in art and literature throughout the ages."
A well-known Shakespeare buff, Kennedy noted that the character Juliet had not reached the age of 14. "Romeo and Juliet" has inspired 40 motion pictures, Kennedy noted, adding that "Shakespeare may not have written sexually explicit scenes for the Elizabethan audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene."
Kennedy also cited two acclaimed recent movies, "Traffic" and "American Beauty," that include scenes that could fit the law's definition of virtual pornography - whether or not real child actors actually engaged in sexual acts. "Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young," wrote Kennedy.
"Congress passed an indefensible law that, on its face, would criminalize various scenes in movies like Traffic and America Beauty and make production and possession punishable by up to 15 years of prison," said Joan Bertin, executive director of the National Coalition Against Censorship.
"As the Supreme Court recognized, numerous other laws suffice to protect children from sexual exploitation and predation."
Martha Coolidge, president of the Directors Guild of America, said, "We can all thank the Supreme Court for once again defending the First Amendment freedoms central to our free society, and preserving the creative freedoms that all Americans treasure. Every American would suffer the loss of freedom if this overzealous governmental intrusion into our rights of expression had been allowed to stand."
Find a contemporaneous article here.
So basically, unless there's a significant change in the makeup of the supreme court *and* new legislation passed on a state or federal level, nothing can happen in the US in terms of creating or distributing "virtual" porn. Keep it fictional, and there's no issue.
This, btw, is not legal advice and has *nothing* to do with the current state of the law of any country other than the US's.