IF fictional obscene does indeed deter real crimes

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

People should never defend them on the grounds that they could be used as outlets.

They should be defended because they’re not real. The fact that people use them as an outlet is nothing more than a bonus.

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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.

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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.