So no one really knows for sure if fictional obscene depictions are more or less likely serves as a “gateway drug” to actual CSAM of hands-on offending against adults, children, and animals, or if they serve as an “outlet”. But let’s engage in a thought experiment. IF it is indeed true that strong evidence points to the “Outlet theory” and could reduce CSAM use and/or hands-on offending, could this be argued that fictional depictions which were once considered “obscene” could have a “political” interest? Is a reduction in crime a “political” interest?
Is it possible it could lead obscenity definition for certain fictional depictions that hinges on where the extreme depiction is distributed on. For example, an extreme fictional depiction posted website dedicated to that kind of content for the purpose of giving an outlet would not be obscene since outlets reduce crimes, thus political interest. But an idiot spamming that exact same image on a random facebook groups completely unrelated to such content would be legally obscene as spamming such material to random people would not have any true political interest.
The Miller test was developed in the 1973 case Miller v. California.[3] It has three parts:
Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions[4] specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
Sure, but we don’t live under a libertarian government by any stretch of the imagination. Our government, especially on criminal justice is very authoritarian on the federal level in comparison to other countries like Denmark. We need to work with the rubbish we got. Supreme court has ruled that obscenity is not protected speech, so we are looking for ways in which extreme fictional depictions would be legal rather than be in this bullshit grey area. If a series of studies and consensus demonstrates outlets overall does reduce crime, and if the supreme court does with that evidence confirm fictional extreme depictions are indeed an outlet and also agrees that outlet-based crime reduction is ruled a political interest. This could then it could lead to exempting drawings, and CGI from obscenity prosecution even if such content is used for what would essentially be entertainment for a small demographic.
This is why I want to know if entertainment outlets to reduce crime, and demonstrated to do so, could such outlets then count as a “political interest” under the miller standard.
Imagine if we kept a law which infringes on expression in place that we know increases crime, but decide to keep it in place… This would be utterly inexcusable and unconscionable.
We’re gonna have to challenge and overturn the precedent set forth in Roth/Miller. I’ve written up college-level essays and counter arguments against the majority opinions and pointed out how the obscenity exception is, by design and effect, antithetical to the American ideal.
This isn’t just a libertarian position. Freedom of speech means freedom of speech. The right to believe and communicate ideas, to convey or impart without fear of state retaliation or suppression, regardless of their apparent or theoretical value, is something that’s become cemented in our identity pursuant to the First, Fifth, and Fourteenth Amendments. All realms of unprotected speech are justified by a degree of harm implicit in their core concepts. Libel, child pornography, “fighting words”, true threats, and to a degree commercial speech is also justified by an illustrated and tangible interest in protecting the rights and safety of the people. Why should sexually explicit materials be excluded from this? We already have time-and-place restrictions on not-yet-obscene pornographic media, in that they can’t be criminalized or suppressed but restricted to adults and consensual purveyors of such media. So long as the participants of such materials are over 18, why should it go beyond that?
When I look at adult obscenity cases, I don’t see a criminal being prosecuted. I see someone who fell victim to a deliberately laid trap. Their “crime” was being at the wrong place, at the wrong time, consuming materials that appealed to the wrong prosecutor, judge, and assumed jury. A kangaroo court, so to speak. No facts have to be established in determining whether materials depict or describe sex in a “patently offensive” way or appeal to a prurient interest, and certainly not when determining whether any ‘serious’ value can be ascertained by said materials. Value is in the eye of the single beholder, not a community and certainly not guided by their presumed subjective, arbitrary tastes and sensibilities.
As an artist by trade, I’ve had to seek out pornography from the 70s and 80s when doing commissions for reference. From old timey black and white reels of film depicting an unshaven, mature, out-of-shape couple enjoying themselves to old playboy magazines, to hardcore fetish material depicting all manner of alternative interests, to sets of images you can find on Google from popular sites. If you go by the way the Miller test is worded, these could get me in trouble with the law should I live in the wrong community, despite using them for artistic purposes!
Even Japanese fictional pornography depicting small, flat-chested and wide-eyed animated characters on imageboards like 4chan. All of this will be offensive to some. They are no different.
This toxic and arbitrary standard places a target on artists who dare look beyond the morality paradigm. These issues are not even remotely “moral” ones. They’re an imposition of taste. And that is a violation of the Constitution.
We’ve already proven that there is no link, be it a casual or correlative one, that non-child pornography causes harm or is likely to drive a person to commit sex crimes against actual minors or partake in the underground collection or trade of CSA materials.
It MUST be overturned! It will be overturned! At the risk of sounding crass, just like “separate but equal” in Plessy v. Ferguson and sodomy laws in Bowers v. Hardwick.
Repealing the miller standard is nice, but won’t happen until 2040s when VR really takes off. Considering how VR works, visual projections whether through neural link into the mind may constitute receipt of an image, and people are not going to be happy if their sex lives in VR are deemed “obscene” because of the depictions projected. We want VR to have more freedoms than physical space, not less due to the nature of VR.
This is a long wait. The issue would be far more urgent if the outlet theory is true. This is why I want to see if it’s possible to challenge some aspects of miller by finding loopholes in it. IF it’s true certain types of fictional obscenity decreases crime, a case could be pointed out that despite how disgusting these creations are, there is political value due to reduction in CSAM and contact offenses.
I want Prostasia and their associates to do quality studies to discover whether fictional character obscenity historically served as an alternative outlet to CSAM possession, trading and contact offending, or whether it’s a gateway escalation. I’m not sure how the best way to do this without breaking the law (we can’t just send them a bunch of fictional obscenity as an experiment for example), but surveys are legal, and perhaps asking both undetected and detected offenders in surveys would be a part of this.
If it turns out the gateway escalation theory is wrong in relation to fictional obscenity, and there currently is a lack of evidence for it, and that the outlet theory is correct, that means these obscenity laws are doing a tremendous amount of harm.
In that case, it is more urgent that exception in obscenity law is passed by the supreme court for fictional characters and we cannot wait for a full miller repeal. But of course, we need to find out whether the outlet theory is true or not, and I want to see good research to determined as to whether this is true or not.
A failure to feel protective of a myth or an object that has no more life than a broom is not morally relevant or harmful.
To the extent that one would be thought loony for feeling protective of an object as lifeless as a broom, punishing for such is punishing for not being loony.
This would have applied in earlier times, but the legal system is changing everywhere to now include laws that try to be preventive. Laws who actually protect real people can only be used after a damage has been achieved while preventive laws are there to punish people who engaged in an act that might lead to an actionable crime. That is why it is not of importance that nobody is being hurt.
This type of legal system is understandable to some degree e. g. preparing a massacre. While nobody is being hurt through the act of preparation alone, it is clear what the intend is. Without an abstract, preventive law covering this action the gov. would basically need to wait for the criminal to kill, or harm someone before being able to arrest them. However, there is a pretty wild trend of such laws without the need of studies proving their effectiveness.
Conspiracy laws are a thing, yes. It’s quite a stretch to claim that purchasing an item that’s designed for personal use is part of planning a crime. What activists seek to ban is private, personal conduct. Second, a failure to feel protective of a doll doesn’t indicate intent to harm. Conspiracy laws focus on intent.
Some narratives frame banning as preventive, using a logical fallacy that’s called an argument from ignorance. Such narratives rely on an inability to prove a risk doesn’t exist. One can claim a paper clip orbits a galaxy far away. An inability to prove such is false doesn’t prove that such is true. No able person can prove they will never commit a crime.
Katya makes some good points, but I don’t know how much politicians are going to listen to these studies. We already know that the existence of porn can lower instances of sexual assault because people have an outlet. It’s no different for those with minor attractions and fantasy outlets. In every subset of people there will be a few that go on to commit sexual crimes, but the majority do not, either because they will never be inclined to, or may be on the edge but sedated with fantasy.
Nothing is obscene unless declared so in a court of law, and even if something in particular is, its progeny is limited to that case and that state.
The problem with obscenity is that no one is authorized to make that arbitrary determination outside a court of law. The Miller Test CANNOT be applied outside a court of law, it’s ultimately just an opinion. Whether or not something has ‘serious’ value (there is no such thing as ‘serious’ value, that determination was never made) is one such example. As a matter of simple fact, pornography is a form of art. It meets the definition of ‘serious artistic expression’ since it meets the literal definition of art, with any and all definitions saying otherwise limited to the context of being a pejorative (with ‘erotica’ being the non-pejorative) with the term ‘pornography’ being regarded as an example of melioration (when a traditionally pejorative term becomes non-pejorative or value-neutral).
This fact alone precludes any and all pornographic depictions from being obscene, but courts tend to make up their own rules, such is life when matters exist in the ‘grey area’. Lolicon is not illegal, and the fact that it’s so accessible within the US on both the Internet and from abroad should signify that, so it shouldn’t be impossible to study the effects of it in a laboratory-controlled study.
Something that should be known about the Miller Test is that nowhere do they actually define what the third prong means. It was written with the presumption that people would just ‘know’ what it means, which is beyond senseless.
No. The obscenity doctrine is a prime example of bad precedent. full stop. We won’t have to wait until 2040, all that needs to happen is another case to get enough support and outrage to pressure the SCOTUS to actually see reason, which will likely require two conservative members to retire from the bench or be removed via impeachment, which, given the particularly egregious nature of the FedSoc scandals involving the two most-senior conservative members, I’m sure it will come down to politics.
I also don’t see Dobbs lasting either.
It’s plainly bad precedent on the simple fact that the finding which protected abortion as a constitutionally protected right was a LOGICAL DEDUCTION based on the Right to Privacy, which although is not explicitly mentioned, is outright implied through a penumbra of Amendments which protect an individual’s personhood from injustified intrusion. If that right means anything, it means that no one could be compelled to give up or sacrifice their health for someone else’s sake, regardless of whether it’s a pregnant woman. The conservative position completely overlooks this precedential finding and supplants it for their own partisan ideals, and that fact alone makes them ideologically unfit to serve, which makes sense considering there is credible evidence to support the contention that they are all corrupt.
This is pretty much the reality we live in. It’s moral panic, and the accommodation of prejudice and paranoia runs afoul of the most presumptions of personal freedom and civil liberty.
If it could be shown that it actually did cause harm, then the arguments are more nuanced, but it doesn’t. At the time of writing this message, the consensus on whether such engagement may escalate risk is not proven but tentatively mixed with regard to particularly high-risk individuals, with some saying it might, and others saying it doesn’t, but the ultimate consensus is that it doesn’t increase risk for those who are not predisposed or high risk.
The argument that obscenity shouldn’t be covered by the First Amendment is an ideological one with no practical or ethical value. It plainly and simply deprives individuals of their rights to self-expression and turns courts into kangaroo critics courts, where facts are supplanted with emotions and conjecture, and the harm caused by it has been plainly evident for all to see who isn’t blinded by their own beliefs or biases against such expression.
Obscenity was never intended to address harm, hence why child pornography is a different matter entirely. The fact that it’s hampering and impeding social progress with regard to the sciences in favor of what are ultimately mere opinions should, in itself, warrant review of the precedent.
I maintain my position that it will be addressed in the coming years.
I would even go as far to argue that excluding obscene expression from 1A protection violates the ‘Establishment Clause’ and ‘Free Exercise’ clauses, in addition to the ‘Speech’ and ‘Press’ clauses, since much of the moralist rationale originates from theistic sentiments and ideals, and if I’m not mistaken, laws which lack secular value or purpose and are motivated by a theological purpose DO presumptively violate 1A, since they’re essentially laws furthering religious views or ideals at the expense of the individual’s.
The more you break it apart, the more evident it becomes that it was wrongly decided. My intuitions tell me that ‘indecency’ laws, which are legal and pass Strict Scrutiny because they merely relegate sexual expression and speech to ‘time and place’ (like laws disallowing the open dissemination of pornographic content in public or prohibitions on public nudity) would and could survive, since they’re not out to outright ban such speech, but all ‘indecent’ speech may rise to the level of obscenity by virtue of being sexual, even if most would argue otherwise. It literally comes down to the judge and jury.
There have been instances where obscenity prosecutions have been dismissed by the prosecution, as well as other cases where the same materials/publications were found obscene, and not obscene in the same state, same laws. etc.
That fact alone questions the integrity of the court system.
I prefer loli sex dolls, but I’m all for anyone’s right to own a shota sex doll of Hellsing’s Schrödinger. I prefer Dies irae’s Rusalka obviously, if we’re talking about members of the same German nation.
