How to Find Child Pornography on the Internet- Part II: a brief history of obscenity

It would be illegal to tell you, even if I knew. That’s right, according to the Supreme Court of the United States of America (SCOTUS), merely telling you how to get it would be against the law. Pandering. How did we as a country get here?

All links are to Wikipedia.

Way back in December of ninety-one (that’s 1791) the beloved Frst Amendment became a part of the bedrock upon which this nation was subsequently built. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” If you go in order of listing and interpret priorities from that, freedom of speech is our most important right, second only to freedom of (and from) religion.

The right to free speech has never been absolute. There are limits. Over the last two hundred-plus years SCOTUS has handed down decisions letting us know exactly what those limits are.

How many limits to free speech can you name? You probably know that it is illegal to yell FIRE in a crowded theater, but only on certain occasions. It is NOT illegal to do that when the theater is on fire.

Defamation, incitement to riot, false advertising- there are a few others, but not very many. SCOTUS has been extremely reluctant to abridge speech. Child pornography is speech, and it is very much abridged. How did we get here? Here is the abridged version.

What is speech? Speech is not just “talking.” Flag burning is speech, and in Eichman the right to engage in this type of speech was affirmed. This decision was in 1990- two hundred years after the right to free speech was ensconced. Eichman not only struck down the Texas law prohibiting US flag burning, it finally codified “expressive content” as speech (burning, e.g., not just talking). Pornography is expressive content.

But if expressive content is protected, what’s the problem with pornography? Well, thanks to Robert Eli Stanley, nothing. You have a constitutionally protected right to privately possess porn, based on the first amendment AND fourteenth (commerce). (Justice Hugo Black even threw in the fourth- search and seizure.) Up until Stanley in 1969, Roth had been the major obscenity case. If something were obscene, it was not protected speech. This obscenity principle will come into play decades later regarding child pornography, which is not protected today even if it is not obscene. But we get ahead of ourselves.

Stanley (remember Stanley?) had been arrested for private possession of rolls of film and a projector, all of which were in his own home, the films resting in a drawer under some socks. They were found on a search warrant for something else. There’s a whole other question of whether search warrants constitute the right of law enforcement to go on a fishing expedition, but that is the topic for some other blog. What was decided in Stanley was that possession of pornography for private use was A-OK.

Remember I said that previous to Stanley, it had been Roth? Roth (the man) published a quarterly journal called American Aphrodite, which included photographic images of nude and scantily-clad women, and sent it out through the mail- the United States Postal Service. Roth (the case) affiirmed that the government could ban obscenity, but narrowed the definition of obscenity from what it had been. In other words it made it more difficult to prove something was obscene, but once proven, it could still be banned- completely. That was in 1957; the last time obscenity had been defined for legal purposes before that was exactly one hundred years. In England. The Obscene Publications Act.

The two things that must be mentioned as part of this ancient history lesson before we rejoin the drama that has been occurring in our (and/or our parents’ lifetimes) are these: Regina v Hicklin and The Comstock Act. The Obscene Publications Act was the greatest thing since the Vagrancy Act. The big test of it came when Hicklin published a pamphlet talking about how Catholic priests were misusing the confessional booth to get women to speak and act in obscene ways. Ironically, the pamphlet was deemed obscene, and Hicklin remained the test for obscenity for a long time hence, carrying over into the Colonies and beyond.

You might remember Comstock as being associated with Birth Control and Abortion. In addition to Obscenity, it outlawed the sending of contraceptives through the mail, or even information about contraceptives and abortion. Comstock was generally understood to uphold the Hicklin Test s the basis for determining if something were obscene, but in Rosen it was made official.

On April 24, 1893, Lew Rosen in New York mailed or caused to be mailed (to George Edwards in New Jersey) a twelve-page booklet of text and pictures about a woman in a cab, the cab, the driver of the cab, and the horse. It was considered so obscene, it wasn’t even admitted into evidence (at least not at the SCOTUS level). So, Rosen v United States reaffirmed precedentially that obscenity existed, and that banning it was legal and for the public good based on the Hicklin test of whether something could “deprave and corrupt those whose minds are open to such immoral influences.” That was historical definition Number 1.

Definition Number 2 was Roth:

Roth repudiated the Hicklin test and defined obscenity more strictly, as material whose “dominant theme taken as a whole appeals to the prurient interest” to the “average person, applying contemporary community standards.” Only material now meeting this test could be banned as “obscene.”

So, it was Rosen that validated Comstock and enshrined the Hicklin test which was based on English Law, but it was Roth that later changed it. We’ve gone from obscenity being anything that could deprave an already weak person to using average people and the standards in their communities as being the best judge.

Enter Miller. (Don’t get me started on Memoirs v Massachusetts.) Fanny Hill.
Miller v California 1973 is a very interesting case. SCOTUS affirmed the lower court, and so held that Miller was guilty of mailing obscenity, but went on to refine the definition of obscenity, thus changing things from then on. The definition morphed once again, this time from “Community Standards” (Roth) to the Miller Test.

The Miller test was a three-pronged standard which built on Roth but included the additional criteria, all three of which needed to be met:

1) Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

By applying greater definition to the “Community Standards”… er, standard, it actually opened the door- some might say floodgates- to a far greater number of prosecutions for obscenity in the years subsequent than had been brought in years previous.

Miller in 1973 brings us up to the Sexual Revolution. Some might say that it drops us smack-dab right in the middle of it. The most popular pornographic film of all time Deep Throat came out in 1972. The Miller Test was used in the obscenity trial of Deep Throat.

Fast forward (about a decade) to New York v Ferber.

Approximately two hundred years after the country’s founding the highest court in the land is specifically addressing child pornography head-on. Finally! (Though not for the final time.) In 1982 SCOTUS says in Ferber that child pornography does not have to be obscene in order to be speech unprotected by the first amendment. States may criminalize the manufacture, sale, distribution, and possession of child pornography even if it is not obscene by the Miller test. Even if a bunch of average people agree- however reluctantly- that a particular work of child pornography has merit, a state may still ban it. The court offered the follwing four reasons why states might want to do so (plus a kicker):

1.The government has a very compelling interest in preventing the sexual exploitation of children.
2.Distribution of visual depictions of children engaged in sexual activity is intrinsically related to the sexual abuse of children. The images serve as a permanent reminder of the abuse, and it is necessary for government to regulate the channels of distributing such images if it is to be able to eliminate the production of child pornography.
3.Advertising and selling child pornography provides an economic motive for producing child pornography.
4.Visual depictions of children engaged in sexual activity have negligible artistic value.
5.Thus, holding that child pornography is outside the protection of the First Amendment is consistent with the Court’s prior decisions limiting the banning of materials deemed “obscene” as the Court had previously defined it. For this reason, child pornography need not be legally obscene before being outlawed.

I find #5 to be a tad confusing. It seems to say that child pornography is not protected because it is obscene, and therefore it does not have to be considered obscene to be unprotected. Huh? (Associate Justice Byron White wrote the majority opinion.)

My cognitive limitations aside, what strikes me about this pentasyllogism is that it explains how merely having and looking at images is harmful. The claim that simple possession is very different from production or distribution (remember Stanley?) does not hold. My inference is that even if adults who acted or posed in adult pornography are harmed by the mere viewing of that pornography by others later, the adult(s) depicted were capable of legally choosing to be depicted.

I’m not done, but we’re going to have to stop there for now. There’s lots more to come. We still have Ashcroft, PROTECT, and Williams to get to, et al. There’ll have to be a Part III.

Let me wrap this up by referencing the Wikipedia page having to do with laws around the world regarding child pornography. Some nation-states criminalize the production, sale, and distribution of it, but not the possession for personal use; they’re legally stanleyfied. It seems that we here in the USA should have figured all this out a long time ago, but it takes as long as it takes.

In Part III we will finish the eighties, cover the nineties and zerozies, and catch up to today in the teens.

But first: Did you notice that child pornography is legal in Uganda? Isn’t that one of the countries where homosexuality is punishable by death? And how about New Zealand? Just clicking on a “YES” button on a page that says, “If you click yes to go to the next page you will see child pornography” is apparently enough to get you busted even if there was no child pornography on the next page! And Russia? It’s legal! Japan, too! Denmark, no, contrary to the reputation it enjoys. Sweden? No; it was illegal, then legal, then illegal again.

And just as no discussion of child sexual abuse is complete without discussing child pornography, so too must child prostitution and sex trafficking of minors be brought into the conversation. You can’t be “against” one and “for” another; they are all abuse, and they are all connected.

This series stops short of condemning all adult pornography and prostitution, though it is hard to make the case that those things are good, and very easy to make the case “con.” For now they must be classified as future post fodder.

And it is not just a problem in some of these United States (all), but it is a worldwide problem. Just as how different laws in different states here sometimes create cross-border migration, clearly the differences in laws among nation-states are creating that on an international scale today as well.

If you are only here to find out how to find child pornography on the internet, my best advice would be to find someone online whom you think has some, and just ask. But before you do that, google “child pornography arrest” and read about the thousands and thousands of people who have been arrested in their homes for having it on their computer. Most of those folks made contact with a member of law enforcement and got a lot more than what they wanted. Some had collected hundreds of thousands of images of child sexual abuse and videos, but others had less than a dozen. It only takes one.

And please check back for Part III; the reason for making this into a series is the phenomenal popularity of Part I (relative to the other posts here- very modest numbers, but still).



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