Cuties should absolutely be recognized as child pornography purely on the basis that real children are used by the film. It should be outlawed and every copy of the film destroyed.
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Do you feel the same about the classic films Pretty Baby and Taxi Driver?
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Donât forget Blue Lagoon, Lord of the Flies, Pollyanna, Tom Sawyer, Genesis Children, Robby, The Possession of Joel Delany, Now and Then. Not to mention many European films where underage nudity is more accepted.
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So⌠there seems to be some confusion in the comments. Mere nudity is in on itself not illegal even if it involves under 18s. But recordings of engaging in sexually explicit conduct is. intentional engagement in sexually explicit conduct for the purpose producing a recording, if such recording involves the use of a minor would violate the production offense. Sadly, the texas case which explained by other users does not include a production offense.
While there is no child nudity in cuties, nudity in on itself is not sexual by itself, the problem is sexual exploitation. There are scenes which a reasonable jury could say that it violates the dost test. And if it does, Netflix is guilty of a very serious offense of the production offense. Personally, I would love to see Netflix stock tank and crash to 4% of their current value and I certainly would agree with massive restructuring in the company is absolutely needed.
My legal advice to you is this: Stay away from that movie, donât possess it, donât watch it, definitely donât rewatch it if you already have. Itâs legally in a grey area with a tilt towards very dark grey. If I had to give odds, Iâd say 90% chance this movie technically violates federal law (as it should).
Case law has repeatedly stated nudity is not a requirement even though it does make it more likely to be illegal. The lack of nudity does not, in any way, let Netflix off the hook!
Again, would you condemn the classic films Pretty Baby and Taxi Driver? Both of them have actresses (the same age as those in Cuties) playing prostitutes. Both have scenes far more âsexually explicitâ than the commonly seen middle school cheerleader type routines from Cuties (you can find countless videos on YouTube taken at team rallies that are just as âexplicitâ as anything in that film). So are all the home video retailers who have ever sold copies of those films guilty of a crime? Are the theaters and television channels that showed them? Is everyone who watched them?
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The test for obscenity in the US is the Miller test, not the Dost test. Dost only addresses one part of a three part test. Therefore, even if Texas rules it obscene, it can easily be overturned on appeal, unless they also deal with the rest of the requirements.
But thatâs the issue. The Miller Test isnât whatâs used for evaluating child pornography. SCOTUS in Ashcroft clearly stated that the obscenity doctrine wasnât designed to deal in harm or exploitation, hence why the child pornography and DOST standards exist.
I donât know if a single upshirt shot in a film about twerking fits the definition of the DOST test, but thatâs not for me to decide. Trying to link something like Cuties to the obscenity doctrine is both problematic and patently incorrect.
The Miller Test isnât whatâs used for evaluating child pornography. SCOTUS in Ashcroft clearly stated that the obscenity doctrine wasnât designed to deal in harm or exploitation, hence why the child pornography and DOST standards exist
This would be correct. Obscenity and Child Pornography are two different and separate types of unprotected speech. Yes, there is considerable overlap, but the two are not the same.
Many people bring up twerking as the reason why this film is likely illegal, but itâs actually the zoom ins into the pubic region that is likely to make the film illegal.
Twerking itself wouldnât fit the definition of dost since it does not involve lascivious exhibitions of the pubic region, genitals nor anus, but certainly, there are some scenes, zoom ins into the pubic region, and such that might be far more likely to. Twerking might be considered a lascivious exhibition of the buttocks but lascivious buttocks isnât prohibited by dost test, genitals, pubic region and anus is.
The likely illegal portions to the best of my knowledge represent only a small portion of the film. They should do the right thing and remove out all those sections of the film. Those portions do nothing but subtract from the filmâs message, exploit REAL minors, as well as make millions of subscribers potentially guilty of a federal offense needlessly.
Check out this ruling. Obscenity and child pornography are two separate types of unprotected speech. So it need not be ruled obscene to be illegal. New York v. Ferber - Wikipedia
Again, would you condemn the classic films Pretty Baby and Taxi Driver? Both of them have actresses (the same age as those in Cuties) playing prostitutes. Both have scenes far more âsexually explicitâ than the commonly seen middle school cheerleader type routines from Cuties (you can find countless videos on YouTube taken at team rallies that are just as âexplicitâ as anything in that film). So are all the home video retailers who have ever sold copies of those films guilty of a crime? Are the theaters and television channels that showed them? Is everyone who watched them?
I donât know if any of those films display anything that violates the dost test. Simply casting a minor as a highly sexualized character would not automatically mean the dost test is violated, even if itâs unethical. The specifics of the depiction would make or break it. But if those films do contain anything that violates the dost test, than yes, tens of millions, and the theaters and channels would technically be in violation of the federal statues under us code 2252a.
For CP, with real children, the relevant section is 18 USC 1460-1466. It is based on the Miller test for virtual pornography. Dost has only been used in some circuit courts and has not been reviewed by SCOTUS yet. 18 USC 1466A deals with virtual pornography and has a 2 part test.
18 USC 2252 deals with real children or those indistinguishable from real.
(A)the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B)such visual depiction is of such conduct;
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For us code 1466, yes, you need it to be ruled obscenity, but most people busted for sharing actual CP are tried under USC 2252 which does not require obscenity.
1466A is problematic because the language specifically allows for the prosecution of sharing fiction with other adults. But at some point in the future, the supreme court may rule that portion unconstitutional. Ultimately any useful aspects of 1466A that exist within this law already exist in US 2252A, so 1466A should be repealed on the basis that itâs a duplicate law, once the harmful aspects of 1466A, the aspects which criminalize fiction, are ruled unconstitutional.
Ruled inapplicable with regard to fiction in US v. Handley since it doesnât incorporate the whole Miller test, which is required to meet the burden since no real kids are used.
It CAN be used to go after depictions of real minors, though, since CP isnât required to be obscene.
My question was a rhetorical one. Itâs obvious that nobody is going to be convicted of a crime in a US court for distributing or viewing those classic films. They are an established part of our culture. A competent defense attorney could use this as precedent to have any case against the far less âexplicitâ Cuties dismissed.
Can you clarify, Dagger, whether you have seen it or are talking through your speculative hat based on skewed news feed from moral panic sources?
Not being an American, Iâm not up on this thicket of obscenity details at all, but one thing I do recall from previous cases is that uncertainty about whether material passed or failed a Dost test, or belief that it reasonably would not be illegal under Dost, is not a viable defence - - some of the naturism related cases made that clear. So, since anyone subscribing to Netflix (including my boyfriend) may be determined at any moment to have financially underwritten the dissemination of âDost in the wind,â so to speak, shouldnât all subscribers be arrested? Theyâve had plenty of notice that this controversy existed, but even if they knew nothing, under the principles operative in the naturism cases, like Spade, they will have knowingly supported dissemination of material that was (albeit retrospectively) determined to be illegally pornographic. Perhaps their homes should all be raided looking for Netflix connections on their television as well as all other indications of CSE content in dresser drawers and computer files.
Since any decision not to be crazy in this topic seems to be controversial, might as well maximize the madness and satisfy the Torquemadas.
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The 2 part test of 1466A is also unconstitutional because it violates due process. The Miller test must be used to prove beyond reasonable doubt that the material is obscene.
That is very unlikely. SCOTUS is stubborn with obscenity. They might chip away at it little by little, first making it unconstitutional to prohibit transfer between adults, and then going from there.
The obscenity provision under 2252A only applies to materials made with real children, as governed by 2256. The only way that portion has been enforced is if an actual child was involved, typically by way of âsplicingâ the faces of actual minors onto the bodies of otherwise legal pornographic materials.
No. They know that the obscenity doctrine is indefensible in a proper review of the facts. Even the most stalwart of conservatives cannot and will not justify the doctrine once it is properly deconstructed.
Miller/Roth and all accompanying precedent which further defined or expanded the doctrine could be safely discarded in their entirety without any sort of negative consequence, and the US would be a better country for it. Any âvalidâ applications of the doctrine could be dealt with by other means, like the âharmful to minorsâ doctrine which established an âobscenityâ standard as it applies to communications with children. Such a doctrine is grounded by the need to protect children from coercive/abusive communications with adults, as well as how such communications may affect them.
No such rationale exists or was even articulated as a justification in Roth/Miller as applies to adults.
The moment a big case happens and goes through the appeals process, the SCOTUS will have no choice but to grant certiorari, should the appropriate arguments be made, and take up the issue once more. Even the most conservative justices, such as Alito, or even âliberalsâ, like Breyer, cannot ignore the simple wrongness of the obscenity doctrine. Iâve read their arguments and points about the doctrine, and the logic their support for it are about as flimsy as those offered by Congress to justify censoring âindecentâ speech.
As a matter of objective fact, no rational, well-reasoned argument can be made for why âobsceneâ materials can be excluded from the protections of the First Amendment. Such an arbitrary, unfounded exclusion demeans the protections offered by the First Amendment. They commit the crime of undermining, if not wholly trivializing its purpose, and blatantly ignoring the history by which this radically liberal principle, the free speech principle, was not only formed, but necessitated.
The historical argument at play here acknowledges that certain ideas or speech could not be expressed in areas where such ideas were not tolerated, either by the government or by the assumed will of the people (which were incidentally codified by the laws in question). Many different ideas, be they religious, political, artistic, cultural, etc. could not be made, and the societies which held them in such high regard suffered greatly as a result. Hell, then the Nazis fell victim to their enforcement of antisemitic prejudice when they discarded atom theory as âJewishâ, and told their scientists to investigate ancient Norse mythology and other superstition, like how symbols could make them more efficient soldiers, rather than develop proper technology.
It should be noted that, aside from being stupid, these scientists would later be smuggled out of Germany to develop the atomic bomb for the United States, which would later end WWII.
The fact of the matter is that actual scientific progression which would have helped Nazi Germany in the war was shafted in favor of indulging their ideological vices, the same way that conservatives and prudes did with pornographic materials and other forms of sexual expression.
The United Kingdom has experienced a severe uptick in CSA perpetration as a result of their censorious policies on virtual child pornography, as did Australia, while Japan, Denmark, and others, including the US, have less sex crimes per capita.
These statistical correlations are nothing new, and were actually discarded by Congress when the first initial Congressional report on the effects of pornography came to light, where the commission urged the REPEAL of all obscenity laws that did not implicitly target distribution to unconsenting adults or minors, citing a lack of harm from such materials, and even positive effects. Dissenters of the commissionâs findings and recommendations, like the Nazis, invoked religious arguments, categorically stating that âno argument against pornography should be necessaryâ for those who âbelieved in Godâ. This commission and its findings would later be rebuked and discarded and a new one formed later, organized by Republicans under the Reagan administration in response to the SCOTUS decision Stanley v. Georgia, stacked with non-academics and other social conservative pundits with ties to anti-porn religious groups and the Dept. of Justice, and other ideologues to essentially âfixâ the study to claim that âviolent pornographyâ was âpositively correlatedâ with instances of sex abuse, despite also admitting that âno causal connection could be shownâ but positing that empirical proof of such a connection was not required and that laws against pornography as a whole were âjustified by our common senseâ. A patently unscientific conclusion found by an objectively political move.
The bottom line is that if all ideas are not on even footing, even those which are considered by an assumed majority to have little to no, if any value, then what is considered free speech is not really free, but still governed and decided by a majority.
This is inherently problematic if those exclusions are unreasoned. The freedom of speech can very reasonably and logically justify excluded categories if those categories can be proven to have intolerable harmful effects. Child pornography is a prime example, because for CSAM to even exist, a child had to have been abused in order to make it. Similar logic can be found with âtrue threatsâ or âincitement to imminent lawless actionâ, because threatening to cause physical harm against someone or shouting âFIRE!â in a crowded theater will incite unjustified and unwarranted injury against someoneâs rights or person. These exceptions are grounded by a degree of objective truth that exists irrespective of preference. But to arbitrarily decide such excluded categories out of an emotional, ideological or preferential opposition to their utterance rather than harm, then such an exclusion is inherently contradictory to the purpose of that freedom to begin with, because preferences themselves are themselves ideological and a consequence of that freedom. To make such preferences the target of, or justification, of an exclusion, by the very nature of a preference, erodes the underlying rationale of such a âfree speechâ principle in the first place. This is shown by the way the obscenity doctrine âchillsâ speech, because the level of discomfort grounded by an intrinsic danger of legal, rather than social retribution, to put it simply, makes objective engagement with the subject matter surrounding that exclusion a logical impossibility.
We see this even now, in the area of CSA prevention where practitioners are afraid to study the effects of âvirtualâ child pornography in jurisdictions or regions where such materials are illegal.
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