United States v. McCoy and it’s implications for fiction

Having been on this forum for around a year now. I’ve heard the name Frank come up on quite a few occasions as part of an example of someone whom the state elected to aggressively prosecute over fictional cp. I was doubtful about the story as it seemed quite unlikely given that it supposedly occurred after the ruling of Ashcroft vs the free speech coalition 2003 and I couldn’t find any reference on the internet regarding it. That was evidently a lack of due diligence on my part however as today I just so happened to stumble on what I strongly believe to be the case along with the corresponding transcription with court opinions. The story as I now realize was not exaggerated whatsoever and it’s implications are honestly frightening. You can find the full transcription below but I’ll give my own highlights (or rather lowlights) for those that aren’t keen on reading though 20 pages of legalese.

“ In fact, a “child pornography” charge against Defendant would have been erroneous under the current facts because child pornography “consists of sexually explicit visual portrayals that feature children,” United States v. Williams, 553 U.S. 285, 288, 128 S.Ct. 1830, 170 L.Ed.2d 650(2008) (emphasis added), and the Indictment alleges that Defendant only wrote non-illustrated stories describing child sex. This, therefore, is strictly an obscenity case.”

The court states that prosecution for literary, artistic, or otherwise fictional child pornography fall under obscenity law as opposed to child pornography law. Frank’s case is a strictly obscenity one.

Nowhere in Ashcroft, however, did the Supreme Court indicate, either expressly or impliedly, that an individual instance of virtual child pornography could not be deemed as obscenity under Miller and thus could not be subject to criminal prosecution. The statute was struck down; virtual child pornography’s susceptibility to prosecution as obscenity was not.”

Ashcroft vs Free speech only prevents fictional cp from being declared de-facto obscene as per the CPPA which it struck down. It in no way prevents any individual instance or even collection of fictional cp from being declared obscene and it’s receiver/distributer from being prosecuted.

“With the Commerce Clause issue fully dispensed, the Court turns to the second question: whether an “obscene … writing” must also be a public nuisance in order to be punishable. The Court finds that no such “public nuisance” requirement exists. As the history of obscenity jurisprudence shows, the federal obscenity statutes are aimed at protecting society’s morals from the corruptive influence of obscene matter, and thus delve deeper than merely prohibiting the public display of obscenity.”

While the court concedes that all previous case law with respect to obscenity involved some public nuisance created by the supposed obscenity whether that though public display or widespread distribution . Public nuisance is in no way a necessary component of a obscenity prosecution. Obscenity law as the court says exists to protect “societies morals” from “corruptive influences”, and this rationale applies even if one would have to go out of their way to find said content. They admit that “ In 2005 and 2006, an undercover agent engaged in email correspondence with Defendant in which Defendant provided links to websites on which his writings could be obtained.”

“If a publisher chooses to send its material into a particular community, this Court’s jurisprudence teaches that it is the publisher’s responsibility to abide by that community’s standards."). The Government’s stance, therefore, is that by aiding and abetting in the continuing offense of transmitting allegedly obscene writings, Defendant is subject to prosecution in this District, wherein the allegedly obscene writings were received.”

Here the court says that by distributing such material, you are obligated to consider the community standards of the location of the recipient. And this is irrespective of whether you know the location of the recipient or if it would even be possible to discover that information. This does not stop at state lines either, and Frank for instance was being charged federally for distributing his stories from Texas and California to Georgia where it was “found” to be obscene.

“The Government’s Response states that Defendant’s arguments are meritless for three reasons: (1) “Defendant had fair warning because the statute itself alerts one to the possibility of prosecution”; (2) “Defendant … made several admissions regarding the criminal nature of his conduct, the possibility of prosecution for his conduct, and his awareness of a recent prosecution for similar criminal conduct”; and (3) “prosecution under the statute does not require a prior finding of obscenity which is a fact question for the jury, or violate ex post fact [sic] law because the charged conduct substantially post-dates the creation of the Miller obscenity test.””

And here the court drops the bombshell in confirming that there need not be any prior finding of obscenity with regard to some materials in order prosecute an individual for receiving/distribution of said material. An individual might have NO CONCEIVABLE WAY of knowing that their material is obscene, but that is apparently completely in line with the principle of ex-post facto because as the court says, miller has existed for some time :man_facepalming:. A courts judgement that the material is obscene as part of a criminal trial RETROACTIVELY makes it so that the material has ALWAYS been obscene (in the eyes of the law) in some sort of causality defying legal fiction. So don’t think you can just create a list of materials already declared to be obscene and simply avoid those to be safe - As the government can always charge you and declare it obscene after the fact.

The lesson to take away from all this is that if you are a MAP, do not get on the federal government or even any state/municipalities shitlist. because they have an incredibly flexible set of tools to throw you in prison for any of your stories, Loli, shota, etc. And the only thing stopping them is a lack of motivation.

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It’s very important that people producing/distributing fictional content, whether that be stories, loli, shota, cub, etc… Do so carefully and separately from their real-world identity. If you’re going to have your own website, use an anonymous hosting provider in a location in which fictional content is legal (and ideally with a hosting provider which is accepting of such content). This way, in the worst-case scenario nothing could be linked back to you, or the effort to link something back to you would be too great for it to be worth it.

Consuming fictional content is not as big of a deal (at the very least, it’s not nearly as risky), but you should still follow best practices like encrypting your hard drives and using strong unique passwords for your accounts.

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100%, this same decision affirmed a constitutional right to possess obscene materials but likewise affirmed the constitutionality of criminal penalties for receiving it. Though If you merely consume fictional CP there’s nothing really to worry about. If you produce it and distribute it like our unfortunate defendant however, it really would be prudent to stay vigilant especially with how volatile the political-legal climate is these days.

Which here in the UK would get you jail time sadly…

Everything’s a nail when you have a gavel.

Can you actually not encrypt your hard drives over there? (legally speaking.)

You can, but you’ll just go to prison until you cough up the password.

Protection against self-incrimination isn’t really a thing here.

Fail to answer police questions? Results in: “SEE, MEMBERS OF THE JURY! HE HAS SOMETHING TO HIDE!”