What do you all think about NCMEC’s claim that most virtual cp would be obscene? They claimed a huge figure of 99.9% or something like that. I think that’s wishful thinking on their part.
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Source? When and where did they claim this?
Myself and others close to me have actually asked the NCMEC about virtual/simulated child pornography, and they implicitly told us that they only triage reports for virtual/simulated pornography if such materials involve the sexual exploitation and abuse of a real child.
They treat it the same way they do adult pornography.
Hell, it’s not even something that ESPs are implored to report, as specified by Federal reporting requirements.
- Facts or circumstances.—
(A) Apparent violations.—The facts or circumstances described in this subparagraph are any facts or circumstances from which there is an apparent violation of section 2251, 2251A, 2252, 2252A, 2252B, or 2260 that involves child pornography.
(B) Imminent violations.—The facts or circumstances described in this subparagraph are any facts or circumstances which indicate a violation of any of the sections described in subparagraph (A) involving child pornography may be planned or imminent.
(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A)
the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B)
such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C)
such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
(9) “identifiable minor”—
(A) means a person—
(i)
(I)
who was a minor at the time the visual depiction was created, adapted, or modified; or
(II)
whose image as a minor was used in creating, adapting, or modifying the visual depiction; and
(ii)
who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and
(B)
shall not be construed to require proof of the actual identity of the identifiable minor.
(10)
“graphic”, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted; and
(11)
the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.
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Oh. I see it. Yeah, I don’t know about this. This is a legal paper from 2006 where the author tries to justify the prohibitions of the CPPA while also praising the obscenity provisions under the Protect Act.
That viewpoint alone is not based in fact, nor is it credible, and I wouldn’t put it past them to fabricate the citation in question.
the vast majority (99-100%) of all child pornography would be
found to be obscene by most judges and juries, even under the
standard of beyond a reasonable doubt in criminal cases. Even
within the reasonable person under community standards
model, it is highly unlikely that any community would not find
child pornography obscene.'9 8
It’s nothing of value or substance, and the author doesn’t even include a proper citation to who, or when they said that. Plus they’re talking about actual child pornography, not simulated child pornography. I feel as though the sexual exploitation and abuse of an actual child would be more ‘obscene’ than a fictitious depiction of it.
Luckily, for both children who are victimized and us as citizens, we don’t evaluate CSAM based on arbitrary, undefinable, and vague standards like ‘obscenity’. We do so under the condition that an actual child is involved/depicted.
I always cringe a little when I read legal scholars try to act like obscenity is something that can be based in fact, especially in the context of law, even when doing so under the guise of the Miller Test.
“Community standards”. What community? What standards? Do you mean communities of sex offenders? Conservatives? Liberals? Civil liberties advocates? Artists? Anime/manga fans?
Or do you mean the ‘community’ as a whole? Like as a sample representative of the populace within that jurisdiction?
I digress.
I wouldn’t worry about this.
As for your initial question, refer to my initial post.
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But the quote was attributed to a letter written by someone from NCMEC.
Do you think virtual would be less likely to be obscene than actual cp? Why would it be relevant that the subject is fictitious vs a real person? If so, would this mean that it’s possible for people’s attitudes to fictitious depictions be loosened with time?
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Oh that’s 198, I thought that was 196. Fair enough, then.
Rest of my point stands, especially since it’s about actual CSAM, not virtual child pornography.
Assuming it has merit, even under the “beyond a shadow of a reasonable doubt” doctrine, absolutely. You can’t equate sympathy for a child being abused with someone’s emotional reaction to the graphic exposure to the subject matter. Such a conflation undermines the vested interest a society has in the safety and well-being of children, which is not at all comparable to an arbitrary interest or opinion or emotional reaction.
The mere fact that those who are in favor of prohibitions against virtual/simulated child pornography tried to link such fictional material with the risk of subsequent abuse shows where the interests truly lie, and they know that such a link is flimsy and indefensible when properly deconstructed.
Moreover, obscenity laws were not designed to ‘protect’ people, but rather to protect notions of social morality, as stated by the SCOTUS.
Ashcroft v. Free Speech Coalition (2002)
https://www.law.cornell.edu/supct/html/00-795.ZO.html
By prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber, 458 U.S. 747 (1982), which distinguished child pornography from other sexually explicit speech because of the State’s interest in protecting the children exploited by the production process. See id., at 758. As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California, 413 U.S. 15 (1973). Ferber recognized that “[t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children.” 458 U.S., at 761.
Like I said in my previous reply, the obscenity doctrine was not a good-faith determination of Constitutional precedent. It was a weapon to be employed in a culture war by like-minded conservative jurists in a culture war they knew they’d lose, in perhaps the most disgusting and nauseating way.
The obscenity doctrine undermined and invalidated the freedoms and liberties granted by the First, Fourth, and Fourteenth Amendments by stripping the people of their right to self-determination, self-expression, and imposes upon them matters of subjective opinion as though they are objective fact. And for those reasons alone, it will be overruled. Even the most staunch, prudish conservative statesman cannot defend the obscenity doctrine, even in the face of whatever obscenity is laid out.
I think it’s more than that. It’s a combination of stringent prosecutorial discretion, changing social mores, and the fact that obscenity itself is defined on the state level and the world has gradually shifted towards a ‘global’ level, so prosecutions are extremely difficult to grab.
Not to mention, that it’s a fact that pornography, for its own sake, IS a form of serious art, as well as an overwhelming desire for the populace to not undermine the civil liberties of their own for the sake of targeting an undesirable, even if it’s done so out of an interest in preventing ‘secondary effects’ as presented by the ‘link’ arguments by prohibitionists.
Even a story depicting a short, graphic tale of a small child being sexually abused, their suffering described for nothing more than the sexual pleasure and gratification of the writer and to excite those of the user, have ‘serious artistic value’ because those desires, emotions, and the implicit function and expressive aspects of the work, for its own sake, simply fall into that objective category of expression. It is awarded ‘serious’ artistic/literary value.
To argue otherwise is to impose your own arbitrary viewpoints of ‘art’ against an objective definition, and this truth is one that is slowly becoming more ingrained in society as a whole.
The phrase “serious artistic value” doesn’t even have any actual meaning, since all art has ‘serious artistic value’.
There exists a degree of security, safety, and confidence in knowing that your own thoughts, speech, interests, and expression can exist as they do, completely unfettered, in spite of those who may disagree or want to punish/impose harm against you for simply having or uttering, especially when such utterances are objectively harmless. And I feel as though the majority of Americans are privy to this fact, especially in a world where everyone’s become so paranoid over the culture wars of the Information Age.
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I agree with you. Cartoons might not be seen as patently offensive even with a young child as they are not realistic (of course they can still be tried and an argument can still be made they are, but the cartooniness can be a factor to consider).
How are changing social mores affecting obscenity? I am asking specifically for lolicon.
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