Date: Sat, 13 Dec 1997 13:31:43 -0500 (EST)
From: Justin Schwartz <jschwart-AT-freenet.columbus.oh.us>
Subject: Re: M-TH: Who's afraid of Katie Roiphe?)



The distinction CC makes between the activity of making the movies and
their being movies is close to that underlying the US's child porn laws.
Obscenity may be constitutionally proscribed by the states under the
_Miller_ rule, roughly if taken as a whole it appeals to the prurient
interest and is patently offensive by local community standrads,a s well
as lacking serious artistic or scientific value. Here the concern is more
or less with the effect on the viewer, implicitly referring to the English
standard that the stuff tends to deprave or cirrupt. Officially the
ratioanle is the effect on public life, the stuff lowers the tone of the
neighborhood. _Paris Adult Theater_.

Kiddie porn may be proscribed, although not obscene by under _Miller_,
because of the harm to the child actors, both in being exploited in making
the stuff and in terms of the harm to their reputation in having it out
there, _Ferber_. Federal law (obscenity law by contrast is state law)
prohibits making, showing, or possessing kiddie porn, whether or not
obscene, and kiddie porn is defined in terms of how old the actors
_appear_, so it's no defense to be able to show that they were in fact
of age if a reasonable person would think they are underage. There's no
exception for stuff with serious scientific or artistic value, although
several justices in _Ferber_ thought there should be. What makes it porn
is that it shows children involved in sexual _conduct_, whatever that is. 

The question of whether animation, computer animation, or drawing can be
kiddie porn (certainly it can be obscene) has not been litigated. It might
be proscribable if based on real life models. One wonder what would happen
if you filmed a pornographic but not obscene movie with clearly over-age
actors and then morphed then to look underage with computer animation. It
might be punishable under the law.

Incidentally there's no safe harbor in the home, unlike with obscenity.
Under _Stanley_ you are safe iif you get and keep illegally obsebe
material in your home. Under _Ferber_, if it's kiddie form, you can be
busted. 

I don't know if there are any laws against snuff films. Probably there
are. Depictions of actual or simulated death is not unprotected speech
under the First Amendment, that is, it is protected other things being
equal. It might be regulated to control for secondary effects,
neighborhood tone, etc. You can doi this with near-obscene sexual
material, technically protected. It might beseizable, although not
necessarily punishable, as evidence or fruits of a crime.

Just to bring you up to date on the US law in this area.

--jks    

On Sat, 13 Dec 1997, Carrol Cox wrote:

> 
> On could argue that child pornography and snuff movies, *as movies*,
> should be "allowed," BUT the *activity* involved in making them is
> criminal and ought to be suppressed as completely as possible. Within
> this distinction one could just barely imagine Dr. Kevorkian making
> a "legal" snuff movie, and legal child pornography using adult actors
> small enough to "pass" as children.
> 
> 
> Carrol
> 
> 
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