Questions about the legality of simulated images and non-nude photography

Hello. I would like to keep anything that I view online as legal as possible, but US laws surrounding this issue are very confusing to me. I am looking for some clarification so I can sleep soundly knowing that I am not breaking the law.

In plain English, can someone explain to me the laws surrounding the legality of the content I listed below? What is legal, what is illegal, what is a grey area? What laws are strictly enforced with consistent convictions, and which ones are laws that courts refuse to waste their time with? I have already read this topic concerning loli, but I wanted to create this one since I have more specific questions.

If it makes a meaningful difference, please answer these questions in regards to Washington state, if you have information on that.


Here is the content I would like information on:

Fictional Images

  • 2D simulated images (e.g. Loli hentai)
  • 3D unrealistic simulated images (e.g. 3D CGI that is “cartoony” and obviously not real)
  • 3D semi-realistic simulated images (e.g. 3D CGI that has a realistic art style, but you can tell it is not a real person)
  • Realistic simulated images (e.g. Incredibly realistic CGI that is difficult to differentiate from a real person. Also, photoshopped photographs.)

Photography

  • Non-Nude Modeling Agencies (e.g. Consensually taken modeling images of minors that are clothed, and not performing any sexual acts, but that may be wearing outfits or doing poses that arouse a MAP)
  • Minor Photo Sharing Sites (e.g. Images of minors that are clothed, and not performing any sexual acts, often from Facebook/Instagram/etc, but that are compiled on a website with the clear purpose of sharing these photos for a MAP’s arousal)

I also understand that you all are not lawyers, but this seems like the right place to ask. Please only answer if you are confident you can provide a well informed response. Sources are very appreciated! Feel free to give me a huge information dump if you want to. I will read all of it.

Lastly, please be aware that the entire point of this post is to help me understand the law so I can not break it. I do not advocate for any action that harms a child (or any human being), and I do not intend to view content that is illegal or causes harm.

@terminus is a lawyer.

We’ve already gone over the legality of simulated/fictional pornography depicting non-existent minors, but you’ve already pretty much hit the nail right on the head. It’s very confusing hence why the legality of pornography as a whole is left in a “gray area”.

It all boils down to whether the material constitutes as “obscenity” or involves the depiction of real minors in any way.

Materials can be determined to be child pornography if you were to splice a child’s face onto a nude body or alter non-sexual imagery to appear sexual, as that is the exploitation of the likeness of an identifiable minor or are wholly indistinguishable from that of an actual, identifiable minor.

All of these are fine except for the last row. You would likely have to provide hard proof that such things are not real or do not depict an “identifiable minor”, basically show your work. Pixiv and other artist communities which allow loli and other types of works also encourage artists who dabble in 3D materials to be transparent about their creative process as to eliminate any reasonable doubt or to encourage more creative transparency among artists.

This is, in my opinion, where the law becomes more grey, because it really depends on whether the focus of the shot is on the genitalia of the minors depicted are posed in such a way as to convey or arouse sexual interest.

But obscenity law in the US is inherently vague and determinations for what count as obscene are rendered on a state-by-state, case-by-case basis and according to the laws, definitions, and standards of that state.
The most apparent example I could cite is Oregon, wherein their state’s constitution is read to protect pornography, even if it’s “obscene”, so they don’t really have much in the way of active obscenity definitions or precedent to go off of.
Loli is legal there, of course.

It all really depends, but nothing is obscene unless a court of law says so. Pornography is considered by many to be a serious form of art, as it is innately expressive, which helps negate obscenity prosecutions in states where such material may be available, such as California. You would have to check Washington’s state obscenity laws and history to really get a good idea of what flies under that definition, but considering the fact that Valve and several other big names in publishing do in fact sell explicit anime hentai titles which feature fictional minors or loli characters, like Nekopara, Evenicle, etc. then it’s likely that such materials are fine.

Here is a fairly basic answer as ascribed by the US Supreme Court.

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.

US v. Williams (2008)
https://www.law.cornell.edu/supct/html/06-694.ZO.html
But an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means “a protected category of expression [will] inevitably be suppressed,” post,at 13. Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography.

Thank you for the response. I have some followup questions, and if @terminus wants to chime in with his legal knowledge, that would be greatly appreciated.


So to the best of my understanding, the law 1466A prohibits both:

  • Sexually explicit drawings of minors (not necessarily sexual intercourse) that is found to be “obscene”
  • Drawings of minors having sexual intercourse that “lacks artistic value”

I understand that this would be a case by case basis, but can anyone offer any specific examples of cases where simulated pornography was/wasn’t found to be obscene? Or examples where it was/wasn’t found to have artistic value? I doubt that loli has ever been found to have artistic value in the courts, but who knows.

I mainly just want a real life example of how this has gone down in the past. Frankly, I’ve heard a lot of discussion about obscenity, but not as much about this detail on artistic value. The typical site with loli hentai would undoubtedly have both of the aforementioned bullet points: sexually explicit drawings of minors not having sex, and drawings of minors having sex. So obscenity and artistic value would both have to be addressed.


As for the photography of real life minors, the way you describe it, the important detail would be the camera angle and if they’re doing a “sexy pose”? That to me sounds way too far in the grey area for me to feel comfortable with. I’ll probably just avoid going to sites with that content. Of course, if anyone has any more information, like actual cases I could reference, or any important details about the law, that would be helpful.


I admittedly don’t understand how decriminalization works, but if the laws prohibiting fictional content involving minors and/or non-nude photography are not enforced, does that make it decriminalized? I have heard that courts in Washington State have decided not to look at obscenity cases regarding loli in the past, since it would be a waste of their resources, but I have never heard a source for this so as for now it might as well be a rumor. Does anyone have any information about this?

Thanks again.

That law still requires it to be obscene, as do other obscenity laws on the books that have been used to prosecute adult pornography in states where such materials have been ruled obscene.

If the state’s own obscenity laws or standards do not interpret loli, shota, whatever to be patently offensive, then it’s not going to be seen as such.
Otherwise such materials wouldn’t be hosted on US-based websites, or made, sold and distributed in the US by US-based companies.

That specific portion was actually held unconstitutional as applied to fiction because it fails to incorporate the full Miller obscenity test, which is required to proscribe speech that isn’t child pornography.
See US v. Handley, the only case to ever exclusively involve fiction that did not also involve parole violations or accompanying CP/CSAM-related cases.

As I’ve said before, cases of this type are extremely rare. Most states have either done away with their obscenity laws or definitions that gave such laws their teeth (Oregon, South Dakota) while others simply haven’t expressed an interest in enforcing them, either because they have little faith in their ability to obtain a prosecution or because of little interest. I can’t help but assume it’s not the latter, though. But that’s just me.
If I find any, I’ll come forward and post them. I’m sure some exist.

I don’t know the ins and outs of photography involving minors, but I do know that if the genitals are the primary focus of the shot, the child is posing in an ‘adult’ manner, then it’s likely illegal CP.

I would go further to say that this category is best avoided. No matter how well you can “show your work”, there is a good chance some judge, jury or court will reject that claim. The law uses the word “indistinguishable” for this type of image.

Thankfully Japan isn’t as completely stupid as the Western World when it comes to fictional works.

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That’s not decriminalization, that’s prosecutorial discretion. Police can decide not to arrest people, and even if they do get arrested, prosecutors can decide not to proceed with the charges. But because the law is still on the books, it’s not decriminalized. In Texas, there is still a law on the books that bans the use of sex toys (not ones that look like minors; any sex toys). Decriminalization would be repealing that law.

Of course, that law was invalidated in Lawrence v. Texas by the Supreme Court. It thus becomes unenforceable. Or am I mistaken, @terminus?

Yes it’s unenforceable. But there’s a similar law in Alabama which hasn’t been considered by a court yet. Although it’s also certainly unconstitutional, it’s a legal grey area and sex toys are advertised as novelties there.

https://www.seattletimes.com/nation-world/high-court-lets-alabama-sex-toy-ban-stand/

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Interesting topic. It’s impossible to tell if a child is modeling out of coercion/exploitation, or that they have personally decided they wanted a career out of it. But there is also the issue of parents forcing their children to adopt certain hobbies, such as musical instruments. The child may not enjoy it, but does it anyway to appease their parent. I could see modeling end up in this same category of subjective parenting.

It’s difficult to protect children in this case without knowing the exact intent and target audience of why their clothed photo was taken.

I know off the top of my head at least one girl who currently has a serious and successful modeling career because she started with a non-nude modeling agency when she was young about 10 years ago. So as bizarre as it may seem to people, this kind of modeling, even if it seems to be created for MAPs to view, does have its merits for the models if the agency respects their rights and boundaries as human beings, and helps them further their career.

That being said, that’s just one example. You are absolutely absolutely right that it is impossible to really tell if the child is being exploited, especially since even adult modeling could be argued to have a problem with objectification. It’s not a cut and dry case either. Some agencies deal with exploitation, and some sincerely want to help the girls start modeling careers.

Of course, this is all concerning the morality non-nude modeling, which is absolutely important for the well being of the models, but it isn’t the metric that the law operates under. If you were to show a judge/jury that a particular model grew up to have a happy, successful career in modeling as an adult, the law still could convict you for viewing it if she had even a single picture which was a little too risque.

At least, that’s how I understand it with my really low level knowledge on this stuff.

Well it’s also because such contents are not likely to be ruled as ‘obscene’ in those states.
Take the state of Alabama with extremely regressive, conservative and socially-backward views on race, sex, and gender, and imagine a sex shop selling explicit homosexual pornography or BDSM content. Such things you would be extremely unlikely to find in that state as such laws and standards are designed to rule such contents as ‘obscene’.

Now take Washington, where the rules are much less clear or where the state laws regarding child pornography and obscenity are designed to explicitly preclude art, or their legal precedents take a much more liberal stance towards such things. Loli/shota pornography and other materials are likely to slide by those laws because such things do not constitute obscenity, as other things of a similar nature depicting consenting adults might not either. There is virtually no differernece in terms of legality between pornography made using youthful-looking adults, drawings, or CGI to represent a fictional minor engaged in sexual conduct, notwithstanding the obscenity laws or definitions of those states.
Federal obscenity laws have to be enforced on a case-by-case, state-by-state basis, and there’s a great deal of unknwon to it, hence why Prostasia and other organizations, including the ACLU and Comic Book Legal Defense Fund, support the reversal or abolition of the obscenity doctrine, as obscenity laws are not concerned with any legitimate interest and are the product of bad reasoning backed up by emotional antecedents by cultural dissenters, rather than rational minds.

Obscenity law is a very complicated topic, but the bottom line is that the obscenity doctrine is provably and quantifiably anthithetical to the First, Fourth, Tenth, and Fourteenth Amendments and its complex and degenerative history, combined with its inherent vagueness and functional futility are ever evident.
I have faith that the High Court will come around and face the doctrine for what it is and be forced to engage with the arguments against it, and find that the doctrine truly IS bad, reverse it, and we will finally have a First Amendment jurisprudence that is in line with reality and reason, rather than arbitrary post-hoc constitutionalism.

Not sure why it posted that as a reply to @terminus when it was just more of a general post, but whatever. Probably a mistake on my part or a bug in the forum, more than likely the former.

What about the USA v Dean case where it was upheld? I think they were wrong in the Dean case though, because of 2 things:

  1. violates due process: jury or judge must use the full Miller test to prove beyond reasonable doubt that there is obscenity, congress can’t just decide something is obscene, as there are precedents dictating this; and
  2. even though in the Dean case the judge argued it is not substantially overboard, I believe they made some mistakes, as the prurient appeal prong is distinct from the serious value prong, and patent offensiveness depends not only on community, but CONTEMPORARY community standards. There is not just a geographical component, but a temporal one. What is obscene today might not be obscene tomorrow.
    I just want to hear what you think

In US v. Dean, they applied the test laid out in 1466A (a)(2) and (b)(2) towards material that qualified as actual child pornography, so a full finding of ‘obscenity’ was not required, like it would have been if the material he’d been charged under had not involved real children.

Why the prosecution did this, I have no clue. But those parts of the law had not been tried against fiction since they were struck down for failing to properly incorporate the full obscenity test laid out under Miller.

It’s not like it matters, anyway. As soon as the SCOTUS decides to hear anything relating to obscenity again, it’s going to be the death knell to the doctrine. There are simply too many issues with it for it to be overlooked. It violates Due Process and undermines, if not wholly invalidates the protections granted under the First Amendment. The ad-hoc policy of ‘community standards’ and ‘state law’, as well as the vagueness of it all is simply too much.
If an obscenity exclusion is to exist, then it should exist by way of Constitutional amendment. The court in Roth/Miller was simply wrong.

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Thank you for the response.
Why are you sure they will strike down the obscenity exception? It sounds like it is pretty entrenched already. I know you cited vagueness and due process violation, but I imagine you have seen some signs indicating this is likely to happen?

The obscenity doctrine was an attempt by conservatives from the mid-20th century to fight back against burgeoning societal changes which they perceived to be a threat to the social norms that wove the very fabric upon which American society was dependent on. It was not a good-faith determination of Constitutional precedent, rather, it was a weapon to be employed by like-minded statesmen in an uphill culture war they knew, with time, they would lose.
It doesn’t take a college degree or even law school experience to recognize the gaping flaws in the obscenity doctrine. It was controversial during its time, with both centrist and liberal commentators voicing criticism and many conservatives even taking a step back to reconsider their position when they saw the US courts become repurposed to function as literal “kangaroo courts”, where opinions and conjecture, two things the justice system had been designed to gatekeep, were being re-fashioned to function in lieu of objective evidence.

I’ve written up several threads discussing why it’s not a valid precedent, and could be wholly discarded with very little, if any, injurious implication towards other areas of American law.

The obscenity doctrine isn’t “entrenched” nor is it “settled law”.
The SCOTUS has been very concerned over their reputation, especially conservatives, where appearances matter more than policy. Arguments against the doctrine have evolved from simple “it’s vague” and “it’s not free speech”, but rather they’ve evolved to become multifaceted approaches to why the doctrine is actually holding back scientific and social progress, namely in the field of CSA prevention, where stigma is becoming more and more associated with sexual offending.

@terminus would you not agree?

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For the state by state thing: it is true for state law, but for federal law the definition of sexual conduct would be either what was listed as examples in Miller v. California in the case of regular obscenity, or the sexual conduct definition of 2256 for 1466A. That is applied across the board, and then the fact finder must determine patent offensiveness, which depends on the community (district in the case of federal cases). So it does depend on the state, but that’s because it ultimately depends on the community. So even within a state, different communities may have different standards.
Federal law can still be applied to Oregon even though their state obscenity law was repealed, so long as they have jurisdiction. But the same principle as above applies: it depends on the community, in the case of federal cases, on the community of the specific district.
And indeed it is case by case: a set of images might be declared obscene in, say, the northern district of Oregon, but that’s only true of those images and in that district until another case says otherwise. Any other images, even if similar, have to be ruled obscene before being banned in that district.
TL:DR: it depends on the state, because of state law for state obscenity law, and because of every distinct district within each state for federal law has different standards for the community. It is more fine grained.

In a US state where obscenity standards were repealed, the federal obscenity statutes have virtually no substance to base themselves on because those standards need to be articulated in some meaningful way that isn’t simply asking someone if the material is “patently offensive”, which is defined by both state law AND the community standards. That would be complete lunacy, since what is literally “patently offensive” is completely arbitrary and wholly vague.

It’s a very complicated area of law.

For example, many states may define “patent offensiveness” as involving nonconsenting adults or real minors, meaning that even at the federal level, for such things to be obscene, they’d need to meet that burden first.

What case law is there indicating that they base themselves on state law. I remember reading a case law where they said they didn’t for federal law.
So maybe obscenity law is more arbitrary than you thought?