1466A a(2) and b(2)

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To my knowledge, the abridged Miller test section of the obscenity statute was lastly enforced in 2012, in the Christian Bee case, which was a guilty plea to avoid a child pornography charge. It’s been 10 years since it was enforced to the best of my knowledge.

What are the chances this section will be struck down as unconstitutional? The Handley case declared it unconstitutional, and Handley only had fiction, whereas the Dean case only involved real CP and declared it constitutional on its face due to Dean not showing a substantial overbreath.
My understanding is that this section is unconstitutional for the following reasons:

  1. It is substantially overbroad. Even assuming that images of minors engaged in BDSM, bestiality, and sexual intercourse are per se obscene, the requirement under Miller for appeal to prurient interest ensures that images that are offensive, have no serious value, but are nevertheless intended for non-pornographic purposes are protected. The section has no requirement to prove appeal to prurient
    interest in sex. Nevertheless, patent offensiveness is to be determined by a jury or judge. You can’t just assume some images are patently offensive.

  2. As stated above, patent offensiveness and prurient interest are questions of fact to be determined by a jury. Defendants are entitled to go through this whole process of the Miller test to satisfy substantive due process. Congress cannot legislate patent offensiveness.

It is also suspect that the section was only used in 1 conviction, which involved real material, and the other one was a guilty plea.

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These parts of the law are toothless with regard to their application towards fictional materials. They’ve never been successfully prosecuted against any form of pure fiction/fantasy material because they do not incorporate the full Miller obscenity test, yet they are still read to cover a substantial amount of unprotected speech, namely child pornography, which prevents any court from striking these parts of the statute because overbroadth has to be ‘substantial’ invalidate a law or part of a law ‘on its face’, rather than by way of precedent. Handley is considered to be valid precedent in this respect.

I suspect that, had Handley’s defense been given the appropriate amount of time and resources, they could have actually made it to the SCOTUS and perhaps limited the applicable scope of the obscenity doctrine, if not outright discarded it. Justices Ginsburg, Stevens, Souter, and even Justices Thomas and Scalia (to a degree) all were critical of the doctrine and acknowledged what are severe flaws in its formulation and execution.

The issue of obscenity is that it’s impossible to justify on practical or even philosophical grounds. There’s no concrete evidence to support the claim that pornographic materials of any kind will incite subsequent criminal acts in their viewers, and literally none of the alleged “social harms” that the majority in Miller harped about would come to materialize, as evidenced with the rise of the Internet and the rapid proliferation of all manner of ‘degenerate’ content and expression, including virtual/simulated child pornography.

The only way the obscenity doctrine could feasibly justify itself, in some way, is if it can’t be de-coupled from materials involving exposure or distribution to minors, which is its own separate category of unprotected speech.
The classic justification, at least by the average layperson’s standards, is that an obscenity exception and definition is necessary to ensure that the nonconsenting adult or minor exposure or public display of sexually graphic or pornographic acts or materials can remain prohibited. This rationale, however, is wrong. All (and I mean ALL) pornographic materials that do not involve the use of actual children are protected by the First Amendment unless ruled obscene in a court of law on a case-by-case, state-by-state basis, and these forms of speech are regarded as ‘indecent’, and regulations against such materials do not violate the First Amendment if they’re limited to the effect and intention of ‘time and place’, rather than broad prohibition.

The enforcement of crimes where the distribution or exposure of sexually explicit/pornographic materials to minors are justified by a practical, evidenced-backed harm-based rationale, in that even if, by some chance, that it can’t be empirically proven that exposure to such materials are inherently harmful, the act of an adult knowingly doing so is more often than not predicated with intent to sexually exploit, coerce, or manipulate the minor-recipient, hence why such laws are called “Harmful to Minors” laws.

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I think that it is far more realistic to expect a striking down of the abridged sections as they are clearly unconstitutional under Miller, Ferber, and Ashcroft. Whether the SCOTUS will declare the obscenity doctrine invalid I am not too sure. I have yet to see more indications of that. I do see them striking down 1466A a(2) and b(2) because of what I mentioned above, plus the case of USA v. Stevens, where a similar statute was struck down.
My fear is that prosecutors will get bold and use a(2) and b(2) to prosecute fiction so that they don’t go through the trouble of proving obscenity under Miller.

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Not at all likely.
There was an internal document that was released by the DoJ sometime in 2008 which stated that such sections were not likely to withstand scrutiny, so they advised against bringing charges around them. If I find it, I’ll link it.

It’s beginning to seem like that obscenity as a whole, even with respect to pedophilic expression and no real children are involved, is losing ground especially among liberals.

In Congress, there were two bills with identical language that had the express intent of banning child-like sex dolls. They are the “CREEPER Act” and the “JUSTICE Act”.

The “CREEPER Act” was initially submitted in 2017 by a Republican Congressman from New York and passed GOP-controlled House before dying in the Senate. It was re-submitted and called the “CREEPER Act 2.0” in 2020, and again in 2021 by US Rep. Vern Buchanan (R-FL) after a story that a real child’s likeness was used to make a sex doll being sold on Amazon circulated, a questionable story whose facts, characters, and claims would be investigated and proven to be fabricated.

The “JUSTICE Act” was submitted by a Republican from South Carolina in 2019, and is identical to the “CREEPER Act”, albeit with a more ridiculous name. It was read once and never made it past the House Judiciary Committee and, like the other, died. It was re-submitted in 2021 by the same Congressman, and will likely suffer the same fate.

Both bills have managed to rack up a considerable number of co-sponsors, unsurprisingly with Republicans making up the considerable majority (5-1 or 3-1), or the sole unanimity of these sponsorships. Hardly a bipartisan effort, one would hope, and for good reason, as bans on child-like sex dolls are not about preventing abuse, but rather in harming their users and consumers. What else would one expect from a bill named after a juvenile pejorative or with a name that is empirically, factually antithetical to its intended effect?

There is absolutely zero evidence that would suggest that the dolls will encourage or incite users to perpetrate contact abuse offenses, and the majority consensus is that the use of such outlets is not at all likely to be the catalyst or ‘tipping point’ of what provokes a predisposed, high-risk individual to offend.
A recent study into that very question actually failed to conclusively demonstrate causality among a sample of pre-disposed offenders.
The authors concluded that their findings could be read to support the “catalyst/causation” hypothesis among pre-disposed individuals with respect to BOY OFFENDERS, but not GIRL OFFENDERS.

Even child pornography consumption can’t be shown to function in such a way, as studies into those who use it have revealed key typological differences between CP offenders, Contact Abuse offenders, and Mixed Offenders. But unlike child-like sex dolls, CP/CSAM materials are rightfully and justifiably illegal because they pose an actual, provable risk to the safety and well-being of children, in that a child had to be exploited/abused for such materials to exist and we as a society have an obligation to snuff out the market that relies on such abuse. Not because of some empirically unfounded, paranoid assumption that’s more in-line with panic, prejudice, and stigma, rather than any form of critical or rational thinking. It should come as no surprise that such a push would come from conservatives, as conservatism has been shown, throughout history, to consistently support civil liberties and human rights violations, often with the same motivations.

Even the United State’s own written opposition to the UN’s 2019 advance to include fiction into the legal definitions of “child pornography” or “child sex abuse material” echoes concern over the distinction between real life and fantasy.

Paragraphs 61 to 63 should be qualified to indicate that States parties should define their laws or prohibit those activities “consistent with their national legal systems.” In the United States, we can only criminalize activity related to drawings, cartoons, etc., if they are obscene as defined under our law. Anything that does not meet the obscenity standard is protected speech under our Constitution, and therefore cannot be the basis of criminal prosecution.

• Paragraph 62: “… urges States parties to prohibit, by law, child sexual abuse material in any form … including when such material represents realistic representations of non-existing children.” In the United States, federal law provides that it is illegal to create, possess, or distribute a visual depiction of any kind, including a drawing, cartoon, sculpture or painting, that depicts a minor engaging in sexually explicit conduct and is obscene. However, visual depictions (CGI, anime, etc.) where there is not a “real” child are typically protected by the First Amendment (unless the visual depictions are obscene) and the United States’ obligations under the ICCPR.

We suggest editing the paragraph as follows: “… urges States parties to prohibit, by law, consistent with their national legal systems, child sexual abuse material in any form … including when such material represents realistic representations of non-existing children.”

It can be safely assumed that the material targeted by the UN’s push isn’t read to include works that are not pornographic which feature fictional ‘minor’ characters. They’re clearly hyper-focused on materials such as realistic CGI, manga, anime, and other artistic depictions that do not fall into the definition of CP/CSAM, so for the US, Austria, and Japan to voice opposition to this is very telling.

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