Has The Supreme Court Lost Its Mind?!?!

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#1
This just in.

Does this mean the test goes fromrationale basis to intermediate scrutiny or even strict scrutiny?



Court Strikes Down Child Porn Ban
Tue Apr 16, 1:03 PM ET
By ANNE GEARAN, Associated Press Writer

WASHINGTON - The Supreme Court struck down a congressional ban on virtual child pornography Tuesday, ruling that the First Amendment protects pornography or other sexual images that only appear to depict real children engaged in sex.

The 6-3 ruling is a victory for both pornographers and legitimate artists such as moviemakers, who argued that a broad ban on simulated child sex could make it a crime to depict a sex scene like those in the recent movies "Traffic" or "Lolita."

The court said language in a 1996 child pornography law was unconstitutionally vague and far-reaching.

The court majority, led by Justice Anthony M. Kennedy, found two provisions of the Child Pornography Prevention Act overly broad and unconstitutional.

"The First Amendment requires a more precise restriction," Kennedy wrote for himself and Justices John Paul Stevens (news - web sites), David H. Souter, Ruth Bader Ginsburg (news - web sites) and Stephen G. Breyer. Justice Clarence Thomas (news - web sites) wrote separately to agree with the outcome.

The law was challenged by a trade association for pornographers.

The law barred sexually explicit material that "appear(s) to be a minor" or that is advertised in a way that "conveys the impression" that a minor was involved in its creation.

Justice Sandra Day O'Connor (news - web sites) partially agreed with the majority and partially disagreed. She was joined by Chief Justice William H. Rehnquist and Justice Antonin Scalia (news - web sites). Rehnquist and Scalia also filed their own separate dissenting opinion that went further.

"The aim of ensuring the enforceability of our nation's child pornography laws is a compelling one," Rehnquist wrote for the pair. "The (law) is targeted to this aim by extending the definition of child pornography to reach computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct."

The law was Congress' answer to then-emerging computer technology that allowed the computer alteration of innocent images of real children, or the creation from scratch of simulated children posed in sexual acts.

The law was an expansion of existing bans on the usual sort of child pornography. Congress justified the wider ban on grounds that while no real children were harmed in creating the material, real children could be harmed by feeding the prurient appetites of pedophiles or child molesters.

The Free Speech Coalition, the pornographers' trade group, said it opposes child pornography but that the law could snare legitimate, if unsavory, films and photos produced by its members.

The group did not challenge a section of the law that banned the use of identifiable children in computer-altered sexual images.

A federal judge upheld the law, but the San Francisco-based 9th U.S. Circuit Court of Appeals (news - web sites) decided in December 1999 that the challenged provisions violated the Constitution's free-speech protection.

The appeals court said the government did not show a connection between computer-generated child pornography and the exploitation of actual children.

The Supreme Court upheld the appeals court, finding that the law would ban images that are not obscene as the court has previously defined that term. Neither obscenity nor child pornography involving real children is protected by the Constitution's free-speech guarantee.

The Clinton and Bush administrations defended the law in court, claiming it "helps to stamp out the market for child pornography involving real children."

This case is one of two dealing with children and pornography that the court considered this term. The other, which the court has not yet decided, tests the constitutionality of a separate law governing children's access to sexually explicit material on the Internet.
 
#2
This is a move in the right direction.

I am totally against child pornography which involves children in its production...and those laws are still upheld by the court.

But laws against pornography that merely depicts children having sex *without* any actual children being involved should be unconstitutional.

The notion that such pornography might goad some individual into actually hurting children, if accepted, would demand extension into other realms. Perhaps regular pornography will goad rapists and serial killers into claiming more victims...so outlaw that too. Perhaps movies about drugs will tempt people into using and selling drugs...outlaw those too. Perhaps movies about robbing banks will give would be thieves ideas...outlaw those then.

etc.

In general, laws against media which might cause people to have certain thoughts, which they may then choose to act upon...such laws ignore the *choice* to act, and are operative at the level of thought crime.

Such laws should be viewed as un-American.
 
#3
Rufus, I generally agree with you on the silliness of this slippery slope argument.

But in all other cases, it is society or adults that are the potential victims. These can take care of themselves, either by other laws (criminal and civil) that can be used before or after actual crime occurs.

Plus it may be outweighed by other social values.

For child porn laws, we are protecting our kids vs. pedophiles, real and potential. Our kids need our protection before something happens to them that will turn the rest of their lives upside down.
The catholic church sex scandal cases are just one set of examples that are timely.

In rereading the ap story, maybe congress went too far in two of their provisions, but I hope this is just a signal that the courts are not going to go overboard in regulating, rather than a potential glimmer into the court getting soft on kiddie porn.
 
#4
But there are other laws in the case of sex with minors too...it is a serious rape charge. There is no lack of laws to use to punish pedophiles for their *actions*.

The question is "in the interest of prevention should depictions of child sex be outlawed?"

There are a number of underlying assumptions there, not the least of which is the assumption that the availability of *simulated* child pornography will cause pedophiles to attack children they would otherwise leave alone.

And if the protection of children is reason enough to allow what amounts to censorship, then what about protecting children from other crimes? For example, should it be illegal to depict the sale of drugs to children?

Laws should punish people for what they've actually done, not thought or read about.
 
#5
bravo for the court. the only thing anyone should be regulating is the use of minors in anything. if it doesn't involve a minor or any illegal activity than it should be none of the courts business.
 

Aristotle

Just another girl on the IRT
#6
From now on, when I see someone defend "virtual child pornography," I'm just going to assume that he -- in fact -- consumes the real thing.

Because anyone who makes an argument that would legitimize the sale of, say, "Virtual Sex with Jon-Benet Ramsay" (with the part of Miss Ramsay played by a computer-generated image), deserves no better.

P.S. Some of you guys give dirty thoughts a bad name.

P.P.S. The notion that any one Court decision will "demand" another is absurd. (The Court can't bring itself to be consistent -- much less to follow its own precedents.)

P.P.P.S. Sometimes, rufus, you sound like someone exposed to too much Dostoevsky at an impressionable age. ("If there is no God, everything is permitted.") (BTW, as a Catholic, I think "the protection of children" demands things far more stringent than mere censorship -- which, in any event, in largely of interest to professional civil libertarians, perverts, pornographers, and theatre-going pyromaniacs.)
 
#7
if this would have become LAW than any movie from lolita to fast times at ridgemont high and every other teen age movie that depicts sex with high schoolers would fall pray to this law.......wouldn't they? what was that big movie last year with kevin spacey imagining a sexual relationship with his daughters 16 yr old friend..............american beauty?

whether it's jon benet ramsey or beverly hills 90210.... wouldn't they all be guilty of depicting child porn since both depict minors having sex?

where to you draw the line?
 

justme

homo economicus
#8
Which nails down the problem. It wasn't the intent of the law (which is noble, civil liberty concerns aside), but rather the wording of the law.

(I mean, I wonder how you guys would feel about a child molestor who was in the possetion of a stack of vcp and who honestly believed it was the real deal.)

Still, I think Ari would agree that it would be far better if the government set about preventing sick old fucks from molesting pubescent 15 year olds than debating the merits of photoshop pornographers.
 

Aristotle

Just another girl on the IRT
#10
I don't believe for a minute that Lolita, or American Beauty, or any comparable film would have been affected by the law.

But even if they were, so what?

Suggesting that people aren't sexually influenced by what they see is contradicted EVERY DAY RIGHT HERE.

Suggesting that people aren't motivated to act out what they see in films is contradicted EVERY DAY RIGHT HERE.

How many children are worth a handful of mediocre movies? Five? Twenty? Ten thousand?
 
#11
how about locking the fucks up when you catch them for more than 6 months. making any laws that would infringe on the rights of the innocent without toughening up on the real molesters strikes me as a cop out. How many times do we hear of a recently caught child molester who has a long record for the same crimes many times over…. I’ll tell you…………………….…almost 100% of the time.
 
#12
the same could be said for violence in movies. you can't cut out 90% of entertainment because some people do monkey see-monkey do.


and they would have to include ALL movies that depict minors in sexual relations.



btw............. speaking of mediocre movies...how old was scarlet O hare depicted to be in the early part of gone with the wind when she married her first husband? (there were several sexual overtones).
 
#13
Originally posted by Rufus Moses
But there are other laws in the case of sex with minors too...it is a serious rape charge. There is no lack of laws to use to punish pedophiles for their *actions*.

The question is "in the interest of prevention should depictions of child sex be outlawed?"

There are a number of underlying assumptions there, not the least of which is the assumption that the availability of *simulated* child pornography will cause pedophiles to attack children they would otherwise leave alone.

And if the protection of children is reason enough to allow what amounts to censorship, then what about protecting children from other crimes? For example, should it be illegal to depict the sale of drugs to children?

Laws should punish people for what they've actually done, not thought or read about.

Yes, this has been the government's reasoning in upholding anti child pornography laws in the past. i.e., need to protect children, child porn promotes pedophiles to steal, rape, kill and generally exploit children. Most every pedophile that has been arrested has a stack of child porn in their homes....along with the underlying assumption that availability of child porn either exploits real children or causes pedophiles to think it is ok.

Child porn is not same as other crimes. One is to prevent EXPLOITATION - like keeping the big bad men from seeing something they then will go do (i.e. debasement and harm to children by big, bad men) WITHOUT any redeeming value, like a warning to children to watch out for the big bad men.
... the ohter (portraying drug sales to kids) can be used to inform kids that drugs are bad.
 

Aristotle

Just another girl on the IRT
#14
ozzy --

People are perfectly capable of being violent without the help of movies. (Though one would have to think that Bernie Goetz -- are you out there? -- was inspired in some small measure by Death Wish.)

The question is, how motivated would some large number of sick individuals be to act out on their fantasies absent the stimulus of de facto child pornography?

P.S. If the standard for prurience was Gone With The Wind, we wouldn't be having this conversation.
 
#15
Originally posted by Ozzy
how about locking the fucks up when you catch them for more than 6 months. making any laws that would infringe on the rights of the innocent without toughening up on the real molesters strikes me as a cop out. How many times do we hear of a recently caught child molester who has a long record for the same crimes many times over…. I’ll tell you…………………….…almost 100% of the time.

I agree!
 

justme

homo economicus
#16
Again, the issue isn't whether or not media producers should be allowed to consider the issue of the sexuality of minors, but whether or not people should be allowed to produce simulated dipictions of child sex for the sole purpose of getting pedophiles off. While the free speech and artistic merits of the first might be debateable, even as a liberal I find it impossible to defend the latter. As with all law, the job of interperating which was which would be a task for future courts.
 
#17
Originally posted by Aristotle
ozzy --

People are perfectly capable of being violent without the help of movies. (Though one would have to think that Bernie Goetz -- are you out there? -- was inspired in some small measure by Death Wish.)

Didn't Bernie run for Mayor of NYC last year?
 
#18
i hate to rant on this subject but how can anyone make laws like the one the SC just struck down and yet justify that NAMBLA is allowed exist and to operate a website because they're exercising their freedom of speech?
 
#19
Originally posted by justme
Again, the issue isn't whether or not media producers should be allowed to consider the issue of the sexuality of minors, but whether or not people should be allowed to produce simulated dipictions of child sex for the sole purpose of getting pedophiles off. While the free speech and artistic merits of the first might be debateable, even as a liberal I find it impossible to defend the latter. As with all law, the job of interperating which was which would be a task for future courts.
Whether liberal or conservative, it is easy to argue that fully clothed 13-y.o. children in a movie about a lolita topic is not child porn, while it would be hard to argue that a fully naked 13-y.o. on her knees with some older gentleman's cock sticking out of her mouth is also not child porn.
 
#20
Originally posted by justme
Again, the issue isn't whether or not media producers should be allowed to consider the issue of the sexuality of minors, but whether or not people should be allowed to produce simulated dipictions of child sex for the sole purpose of getting pedophiles off. While the free speech and artistic merits of the first might be debateable, even as a liberal I find it impossible to defend the latter. As with all law, the job of interperating which was which would be a task for future courts.
JM...i totally agree with you but where do you draw the line...


and who has the ability to draw it?





Ozzy...who's still very pissed off at what tipper and the PMRC did to rock music 10 years ago.
 
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