How Serious is the War on Fictional Content in the US?

There are constitutional limitations. But they will and do bring prosecutions in the jurisdictions that have the most conservative prosecutors. Earlier this year a man was convicted of hosting a website with text fiction , where no real child abuse of any kind was involved. His case, which we supported, is subject to appeal.

The Arthur/MrDouble case was preceded by the McCoy case, which undoubtedly served as precedent. McCoy’s Minnesota residence was raided by a seven-strong team of armed US Marshals, complete with battering-ram. He was convicted of transporting obscene material, the aforesaid obscene material consisting of text-ony stories that he had hosted/written/edited. He was convicted, and served close to 2-1/2 years in prison for so doing. His conviction was upheld unanimously in the Court of Appeal.

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well, those laws are also the same laws affecting “normal” material too. The biggest fault of the obscenity decision was its reliance on “community standards” within state borders.

Miller was a reasonable decision for its’ time, but it is long-obsolete in the age of the Internet. I don’t expect that this will change, given that the Chief Justice, John Roberts, doesn’t even use a computer, but instead writes his decisions in long-hand on a lined yellow legal pad.

I’m banking on a successful challenge levied against the doctrine and all of its applications, in much the same way Brown v. Board of Education and Lawrence v. Texas were.

I’d love to see this as well, but realistically, I don’t see it happening. If anything, the rightward cant of the court has become even more pronounced than it was a decade or two ago.

But that requires a better court.
I’m hoping to see the Supreme Court expanded and packed with liberal-minded jurists and objectivists who are receptive to the glaring faults in the decisions and are willing to destroy and discard them for the violations of our freedoms they are.

No chance in hell of that happening. The Republicans will see to that. The courts have been well and truly packed.

There is no way the obscenity doctrine can withstand modern-day scrutiny. It’s simply not possible to justify such a blatant exception to the First Amendment simply because the subject matter happens to be sex and sexual conduct.

I agree with you; the problem is that the Courts don’t. I expect it will be at least 3 decades before things begin to loosen-up.

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Ashcroft v. Free Speech Coalition of 2002 was still a promising step in the right direction, and so was USA v. Stevens. Sure, they reaffirmed Miller, but at least they didn’t support expansion of the bubble of unprotected material. I am not sure about 3 decades. Obscenity is not prosecuted often, and not strictly either. Sure, it is bad when it happens. But they could prosecute as often as they do CP, and things could be worse. Now, if they strictly enforced obscenity laws, that would accelerate the coming of the day of their repeal, and I suspect they know that and are trying to avoid that to milk this cow to death.

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I saw on an article that the prosecution made the point that the stories involved real children, hence why the feds were able to shut down the website before it being officially declared obscene. I also read that several of the people involved in that website were being investigated for child pornography with real children, and that Arthur himself had raped a little girl in the past. I am not too sure about the not a real kid involved part.

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Is the possession of obscene material 100% legal tho? Or can you get charged for amine even if you just possess it (based on it being deemed obscene)

I also wonder why people like OP are so afraid. Almost every Hentai site is hosted in the USA and every JP artist uses Twitter.

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More than likely because some websites are overstating the case that loli is illegal, ignore the complexities of obscenity law, and how often this gets prosecuted, which is not often.
There is a lot of confusion over that law, with some people even thinking that that is the actual child porn law, when it is the chapter 110 of the US criminal code that deals with CP, and not 1466A. I made a post about it titled Two Myths about the PROTECT Act of 2003

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Is the possession of obscene material 100% legal tho? Or can you get charged for amine even if you just possess it (based on it being deemed obscene)

No. Obscene material is illegal to produce and possess, much less distribute. Just look at the case of Mike Diana. He was prosecuted and convicted for creating a zine.

I also wonder why people like OP are so afraid. Almost every Hentai site is hosted in the USA and every JP artist uses Twitter.

The reason people like the OP are afraid is because the consequences of being prosecuted and convicted are life-altering. I believe the OP does not live in the United States – the laws in his country are very strict, and harshly enforced. This is also true of the country I live in.

The number of prosecutions are very low in the United States, that’s true, but that doesn’t minimize the consequences of being prosecuted/convicted, if you happen to be the one that is singled out.

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About possession: I will say that that is an unsettled area of the law. The supreme court has never bothered to untangle the contradictions between Stanley v. Georgia, and all the precedents that followed and criminalized receipt of obscenity. How can you possess something without first receiving it? Receiving means you possess it. Which brings me to the next point: if they decide to revisit the issue, that could spell the end of obscenity law.
Prosecutions are low for various reasons, and I believe one of them is that, should prosecutors decide to aggressively enforce these laws as they do for CP, they will be challenged and seen as the totalitarian bullshit that they are. The government is being careful because they know they would lose this tool should people get up and protest these laws.

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Really? Guess my country is better than I thought then. Our law says that only distribution could be illegal while possession, production and receiving are completely legal. However, since it needs to be pornographic only it’s impossible to enforce since a stylized drawing is, in most cases, considered art and porn at the same time. That’s also what a policeman eventually agreed on with me which explains not a single case existing.

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Strictly speaking, isn’t most fetish porn “obscene”?

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Not true.

Stanley v. Georgia unanimously recognized a right to lawfully possess obscene material in the privacy of one’s home, but later cases found that such a right did not exist for receipt.
Thankfully, what counts as ‘obscene’ is not objective and is decided on a case-by-case, state-by-state basis, even at the Federal level, according to a combination of the consideration of individual state law and community standards.

It’s certainly not perfect, nor is it in any way ideal, but things will be changing in that regard within the coming years. There is no value in retaining the obscenity doctrine, and inquiry into the bipartisan legal scholar consensus will reveal how indefensible the obscenity doctrine truly is, both from a perspective of its practical application in terms of obscenity law enforcement, as well as the very concepts by which the obscenity doctrine is founded, to the precedent that shaped it, as well as the core question as to whether the First Amendment could be reasonably interpreted to delineate protected ‘indecent’ expression and exclude ‘obscene’ pornography from its scope of protection, as well as the way the landscape has changed over the years.

There is simply no value in the obscenity doctrine.
From a philosophical standpoint, it seems to contradict the First Amendment at every possible angle while, from a practical standpoint, it actively undermines, if not wholly invalidates the core function and purpose of the First Amendment by taking an ideological, preferential position on certain types of speech and depriving those who do not share those ideals or preferences their right to express themselves or partake in the marketplace of ideas, all the while imposing draconian penalties on those who commit the heinous and unforgivable crime of having a different opinion, all the while fallaciously passing off matters of opinion and conjecture as though they are that of fact.

If a particular state legislature or Congress were to enact a law that essentially targeted the sale and distribution of child pornography, but defined child pornography as any type of material that catered to pedophilic interests, such a law, despite having valid intentions, would be unconstitutional because such interests are matters of taste or preference, and the First Amendment, as a general rule, prevents the use of such things as a justification for speech regulation or censorship, and such a regulation would not fail strict scrutiny. It’s happened before, and it’s called “viewpoint discrimination” and “content-based proscriptions”, which the First Amendment prevents against.

The obscenity doctrine has all the signs of bad precedent. It’s vague, unjustified, originates from a flawed, dated understanding of facts, and even had its own initial proponents (Justices William Brennan, Thurgood Marshall, and Potter Stewart) turn against it after seeing what type of problem it would come to be, especially in the dawning of the information age.

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It seems relevant that shortly after the Stanley decision, Congress authorized the president’s commision on obscenity and pornography. The research submitted findings after Nixon took office. Nixon and Congress rejected the findings of the scientifically conducted research.

The Roth decision made obscenity very difficult to prosecute. Nixon appointed Justice Burger who wrote the Miller decision.

They rejected evidence and further widened the scope of what could be found legally obscene.

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Yep… It was all crooked.

It’s actually going to be a major talking point, should the issue be submitted again in the coming years, since the obscenity doctrine was HARDLY a good-faith determination of Constitutional precedent, and not an ideologically-charged contingency which blatantly undermined basic free speech principles for their own sake.

It was a weapon to be employed by like-minded belligerents in a culture war.

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That is true, but I can’t imagine that any potential legislation would be worded in such a way, especially considering that it’s completely feasible if not trivial to accomplish the exact the same thing without an explicit appeal to “pedophilic interests”. The UK and Australia have layed the groundwork in that regard with prohibitions on fictional material depicting fictional minors, or pornography wherein a subject has… Small breasts.

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There are 2 threats. One is obviously those who want to take it away, but the other is a bit more insidious, such as changing things for “social progress” and other disgusting modern-day excuses:

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This is just my understanding, others are far more knowledgeable than I.
It largely depends on the state, some states, such as California, have made loli/shota explicitly legal. However, Utah has explicitly banned it. Federally, it’s sort of in a gray area. A lot of people will cite the PROTECT Act as evidence of such content being illegal, though that was deemed unconstitutional in a court ruling.

Again, this is just my understanding.

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The Supreme Court has upheld the Protect Act every time parts of it have been ruled unconstitutional by a lower court, but the Protect Act doesn’t make such content illegal unless it’s deemed to be obscene.

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Isn’t that a low bar anyway?

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depends on who’s judging

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