I didn't feel like jumping into the mess at MetaFilter so I thought I'd start a discussion here. What do you think about sites that offer fully-clothed, suggestive but not explicit photos of little girls? Is there anything wrong with that? If the parents are complicit in the making of these sites, is that some sort of child neglect? Morally? Legally? Where does the First Amendment come in? (Or where SHOULD it come in?)

What about Jon-Benet style beauty pageants? Moderately squicky, a valid lifestyle choice, or full-on exploitation?

-- Anonymous, July 17, 2001

Answers

While those sites make me wince with the bad judgement of it all, I have to be astounded by the reaction of people at Metafilter - how is this any different than the naked 15 year old girl in the Calvin ads, or the topless 16 year old girl in that Clinique billboard?

Why is it wrong to have pictures of clothed teenagers in provocative poses on the web, but not wrong to have naked teenagers in magazine photos? Who is calling child welfare about these poor kids? Or is it okay, because their parents are making money from it?

Child Beauty Pageants? Child abuse.

-- Anonymous, July 17, 2001

This seems to be more of a karma issue than anything else, like vegetarians who wear leather, or even fake leather. If they're buying into it, they're part of the problem.

If I were absolutely certain that there was no possibility of exploitation or pedophilic thingies, it would be no different from people dressing up as gunfighters and bar girls for those sepia-toned photographs--I wouldn't assume they were actually killers or whores, and I wouldn't assume those kids were actually posing for the sake of pornography.

That's a pretty big "if" at the beginning of that last sentence, though.

-- Anonymous, July 17, 2001

...fully-clothed, suggestive but not explicit photos of little girls...

Before I offer an opinion I'd have to know what they're suggesting. Cuz, if you mean they're suggesting sex then it's a moral no-brainer.

-- Anonymous, July 17, 2001

I think what bothers me the most about these sites is the parental involvement, not the spector of a pedophile getting off on them. Think about our earlier discussion about teen sex: you can have your sixteen year old declared a juvenile delinquent if she has sex with another sixteen year old, but there aren't any laws that prevent you from dressing her nine year old sister up like a hooker and selling her picture to porn sites, as long as she's not naked.

I'm not sure there *should* be such laws; I haven't given it enough thought. But it's icky, no question about it, and I think Rudeboy is right about the morality issue. It's only the legal issue that's complicated.

-- Anonymous, July 17, 2001

Words I never thought I'd hear, "I think Rudeboy is right about the morality issue."

-- Anonymous, July 17, 2001

Oddly, I've been thinking about child pornography. Academically, that is. As in, what is it?

The simple answer is something like a naked child in a sexual situation is child pornography. But why is it wrong? Well, ultimately it's informed consent, isn't it? Anyone too young to understand the implications of what they're doing, can't really consent, can they? And not just for sex, but drugs, medical procedures, and so on. Parents can consent on behalf of their children, but only to a certain extent. There are things a parent is not allowed to do to their children (there's another topic area about circumcision, right? Let's leave it there and just say that's a morally fuzzy area).

So, back to sex and children, and say it's wrong. And photographs (which makes it pornography) are wrong. But then, what about drawings, in which no children are actually involved? Or animations?

This is relevant because of Japan, and its upside-down history of censorship. Relatively strict laws were enacted to appease the American conuqerers at the end of WW II, even though the Japanese culture itself was relatively open about sex (an annual fertility festival even has candy stores selling lolipops for shildren, in the shape of erect penises). As part of these laws, genitals could not be depicted in any way, and even pubic hair was banned (because women have no visible genitals).

The solution for erotic publishers was simply to depict girls who had no pubic hair. As in, too young. And so, Japan became the world's largest producer of child pornography.

And that's not necessarily a bad thing, from their point of view, since sex is just one of those things you get around to sooner or later - might as well get used to it when you start getting interested.

So, there's a lot of comics and animated movies involving children and sex, sold openly. And yet, they're very protective of their children - more so than in North America, I'd say.

If that's child pornography (drawings), what makes it so, since it's ultimately just the thougts of a person, only put down on paper or film? At what point do a person's thoughts constitute child pornography? Is it just sick wierdos who are interested in it?

Remember your first crush, or sexual fantasy? Chances are, it was in high school, well below the accepted age of consent. Chances are, most people's first sexual fantasies would be considered child pornography if they could be read out of their brain and put on tape. Many people's first sexual experiences would be, too. And while it could be argued that at the time they're usually also minors, when you're old enough, you still have those memories - you have fourty year old men with memories and fantasies of sex with minors.

Minds filled with child pornography. Everywhere you look.

So, what makes it wrong? Or is all child pornography wrong?

The only conclusion I've come to is that there is no answer or definition. There is only understanding - only when you understand any individual situation can you judge it.

Actually that's good advice for any topic.

In any case, morally, child pornography is the same, IMHO, whether the children are clothed or naked - Pictures of naked children can be non- sexual (Jock Sturgis), while children wearing clothes can be pornographics (IMNSHO, "child beauty pagents", where children are dressed up to look and act like sexually mature adults - they really turn my stomach). There is also a difference whether the children are real, or drawn, but really they're two different issues - one is how children are treated, the other is what effect the images have on people and society.

They're still not easy questions to answer, but knowing what the questions are is at least a start, I think.

-- Anonymous, July 17, 2001

Very interesting post. Thank you.

-- Anonymous, July 17, 2001

Interesting post, indeed.

Regardless, it reminded me of the recent arrest of a fellow for writing down his own underage-focused fantasies. Regardless of the fact that I can't dredge up much sympathy for the guy, I have to say that this is pretty disturbing.

-- Anonymous, July 18, 2001

If that's child pornography (drawings), what makes it so, since it's ultimately just the thougts of a person, only put down on paper or film? At what point do a person's thoughts constitute child pornography? Is it just sick wierdos who are interested in it?

I can't believe my first post here is on child pornography (that isn't quite). Anyway, I had a conversation about this just last week and decided that, if I trusted mankind at all, the drawings wouldn't bother me as much as they do. Okay, the very fact that they're popular proves that a significant percentage of the population is interested in seeing children in sexual situations. So perhaps those people need something through which to live vicariously. But, seeing as I don't trust people and I often expect them to do sick things, I worry that this type of manga is not so much filling a void, but feeding their desire. Probably even causing it to grow. And that bothers me. Yet, legally, I think I'd want to permit even this type of manga to be made...however helpless and frustrated that makes me feel.

Also, I don't know if it's worth noting that Japanese society does infantize its women (if that's even a word). And I don't know which came first--child pornography through manga or women who think that it's sexy to act and dress like children.

Answering Kristin's questions about magazine photos, yes, it even bothers me to see child models. In my very first women's study class, I remember viewing advertisements in which little girls were made up to look all sexy and pouty. One appeared to be unclothed and was cradling these two shampooo bottles in front of her, resting them in her arms so that they looked like breasts. I don't know that I'd be so disgusted if it was a teenager though. I can't really explain why except to say that I was once a sexual teenager, but never a sexual little girl.

-- Anonymous, July 18, 2001

No, I think that's a good question, Cory. And I don't know the answer. This is a difficult topic.

-- Anonymous, July 18, 2001

I seem to remember a few years ago there being some debate in the House over a bill that would make "simulated child pornography" a crime. I'm not sure if that was the exact language or not, but the example given was that if you took photoshop and pasted children's faces on porn "models" that would count.

I wonder how this would apply to people over 18 who looked young, especially if they were dressed in a way that played upon that look (Catholic schoolgirl outfits come to mind). I assume that's still legal, since I still see Rudeboy tells me he still sees that sort of stuff out there.

-- Anonymous, July 18, 2001

Regardless, it reminded me of the recent arrest of a fellow for writing down his own underage-focused fantasies. Regardless of the fact that I can't dredge up much sympathy for the guy, I have to say that this is pretty disturbing.

Are you saying it's disturbing because it seems that this arrest means that a person's rights to his own thoughts/fantasies are perhaps no longer safe?

Because there's an important fact missing up there. That man was convicted and jailed for child molestation. He was on probation for that crime. Part of his probation was that his home could be searched at any time and, I believe, he was not supposed to have/seek out any sort of child pornography. (The second part is from my fuzzy memory and maybe I made it up because it seems like it should have been part of his probation.) This wasn't Joe Schmoe in his home, writing out fantasies for himself in his journal and the police just bust in, yell "Aha!" and arrest his ass.

This was a man who was on probation and knew that his home could be searched at any time. This is a man writing down fantasies of acts he had previously done. This was an arrest of a man who violated his probation. People on probation do not have the same rights as Joe Schmoe.

-- Anonymous, July 18, 2001

The criminal system cannot provide the only standard for deciding when sexualized images of children are objectionable. As John Bayko notes, we treat kiddie porn as wrong because the models can't give informed consent. Sex with children is unconsensual in the law's eyes, and thus treated as a type of rape. As we will see later, though, informed consent is an artificial and imperfect construct -- the legal crystallization of more intuitive values that we likely all share.

When deciding which sexualized images of children can cause criminal liability, the formal rationale is the heightened risk that a child will be pushed into sexual activity. It makes sense to us all to criminalize possession of a photograph of an illegal sex act with a child, because the risk of such rapes (legally nonconsensual sex acts, whether actually or only theoretically against the subject's will) would obviously increase if a market for photos of them were permitted.

We all become less certain about whether drawings or fictional accounts of sexual acts with minors should be illegal because the link to actual child molestation is weakened. One could reasonably believe that a man who gets sexual gratification from reading stories about child molesters might know better than to become one.

Somewhere along the descending scale of fantasy there comes a point each of us believes it should not be criminal to make sexualized images of children. By the time we reach the "fully-clothed, suggestive but not explicit photos of little girls" that started this thread, we probably all agree that the makers can't be jailed for those pics. But, as the posts here show, most of us are morally repulsed. I think most of us would be morally repulsed by the hypothetical man who gets off on books about kiddie sex. There's something very wrong still there.

Our moral repulsion at the suggestive photos stems from something like, but not exactly like, the absence of informed consent. "Informed consent" is just the name the law gives to a stylized construct it uses to analyze rights and duties. Like all the law's stylized constructs, it is an attempt to rationalize principles we mostly intuit. I think informed consent is the law's crystallization of such concepts as "the dignity of the individual," "self-determination" and "the pursuit of happiness."

I think we feel the child model for suggestive images is having her dignity affronted. She's treated as just an object for some stranger's sexual gratification -- not a little girl with a life to grow into and limitless possibilities ahead. We know that this isn't about give-and-take. We intuit that the model's happiness is not a major concern in the exchange going on between photographer and guardian. Maybe she'll benefit indirectly when her guardian is paid by the photographer, but she's not pursuing her own happiness or determining her own future by posing for these pictures.

This is also why it doesn't trouble me to realize that, as Bayko said, some of my childhood fantasies, if transcribed onto tape, would involve sex between minor children. As I said, "informed consent" is a stand-in for something more visceral. Of course, the 13-year-old me could not legally have consented to a sex act with a classmate. But my dignity as an individual, self determination and right to pursue my happiness were not impaired by the fantasy of it. Obviously, if I used those fantasies now to gratify other adults, I would be doing something different than I was doing then. I think it would involve the same violation of core values, although it's harder to express whose dignity is injured or right to the pursuit of happiness is impaired when a 35-year old tells prurient stories about his 13-year-old self.

-- Anonymous, July 18, 2001

Wow. We are, like, WAY smarter than Metafilter.

(Seriously. Good discussion here.)

-- Anonymous, July 18, 2001

I am not going to go into the Dalton case (where the guy was busted for his private journals), because the muddy waters of that have already been plumbed and discussed very well over on mouth organ, including some opinions from our regular readers who are practicing lawyers. Go have a look, it'll reward you.

As far as child porn is concerned, here is my bottom line: If it involves real children, it is illegal. Children cannot give informed consent to be photographed in sexual or explicit positions. And informed consent - that is, being able to fully appreciate what you're getting into - is my main cornerstone of what is acceptable sexually and what isn't.

But if the porn involves people who are not actually below the age of consent but just look young, then it's allowed. You may disapprove of it - that is your prerogative - but don't try to shut it down. Or I'll have to come after you with a poison pen and a large maul.

You may think the people who get off on that kind of thing are disgusting. Well, probably some of them are. But with the general glorification of youth in this culture, I don't feel comfortable casting the first stone.

-- Anonymous, July 18, 2001

P.S. - Sort of a professional opinion from a working smut-watcher.

I went to two of the sites that apparently spawned some of the controversy on Metafilter. (I won't go to Metafilter, so the URLs were sent second-hand.) The Jessie the Kid site - if you don't have the URL, you don't need it from me - is not illegal, and may have been conceived in utter innocence (although given the site ownership, it's unlikely) It doesn't show a child nude or in a sexually suggestive pose. It's creepy, sure, but creepy in the way child beauty pageants are.

The Teen Tiffany site, on the other hand (which is owned by the SAME people) IS illegal. Even if their "thirteen-year-old" model is five years older than she looks, which is not unthinkable in this game, there is no disclaimer on the site about this anywhere public, and the poses are DEFINITELY suggestive. This site is creepy on an entirely different level. Take heart: Historical evidence suggests that its lifespan will be short.

-- Anonymous, July 18, 2001

Ugh. Yeah, Teen Tiffany is icky. The links from that Child Supermodels site are pretty bad, too. I don't think there is any question about the intent of these sites, including Jessi the Kid and some of the others that may not technically be illegal. If parents *are* knowingly involved, do you think this is a case for Child Protective Services, if not for the criminal courts?

-- Anonymous, July 18, 2001

I must disagree with Columbine here - this company sells these sites as 'modeling portfolios' - and using a child in a sexual manner in advertising is not against the law.

I think these sites are reprehensible, but they are a hundred times tamer than most Calvin Klein ads, which use girls under the age of 16. And he isn't the only offender, just the most obvious one.

-- Anonymous, July 18, 2001

My memory is a bit fuzzy, but those Calvin Klein ads which featured young-ish people in provocative poses in wood paneled backgrounds were targeted a few years back, as being suggestive of kiddie porn. CK, of course, denied it but I do believe a law was passed which prohibited the portrayal of minors engaged in sexual acts, even if the people portraying the minors were of age.

Did everyone here see the documentary a few months ago on HBO about child beauty pagents? I was shocked and stunned and ashamed - child abuse on film, dressed up like something All American and Wholesome.

-- Anonymous, July 19, 2001

I disagree, Kristin. Are you sure the semi-nude girls in the CK ads are underage? Because they could definitely be underweight 18 year olds. It's hard to say. If they're underage, then I don't see how CK got away with that.

As for the little girls, those photos don't thrill me, but I don't think they're in the same league as the child supermodels sites. The first shot -- the drag queen shot -- is more silly and playful than disturbing. As for the other one, I don't think there's anything wrong with little girls wearing bikinis (or even being nude, for that matter) -- I don't think that shot is particularly suggestive or provocative.

The sites on the child supermodels list weren't just catering to people trying to hire models. They were selling memberships to allow people to see more photos of these little girls. Actually, were there even links to hire these girls for photoshoots? Hmm. I just checked. Some of them have an e-mail link for people interesting in hiring the girls as models, but many of the pages don't have any contact info like that. So I don't think that defense holds up at all.

I don't know the law in this area -- the only child porn cases I've had weren't anywhere close to this type of gray area -- but if we're talking about morality rather than legality, I do think there's a difference between the CK ads and the sites linked to by Metafilter. That Jessi the Kid site may be legal, but it's NOT a legitimate modeling site, because there is no link available for anyone who wants to hire Jessi to model their clothing line. That little girl is being used specifically for sexual purposes, and the adults who ought to be protecting her know that. Somehow, I just don't see that as the same moral issue as letting your daughter's photo be used to sell jeans. And when she's 22 years old and having nightmares about the whole thing, I suspect Jessi will see a difference, too.

-- Anonymous, July 19, 2001

The average age of a model in a women's magazine is 15. Think of all the provocative/sexual ads in magazines these days - a large number of those naked girls are not even 16 years old. The last Clinique Ad's campaign featured a naked 15 year old. Many of CK's models are under the age of 16.

I think these sites are awful, but I don't know if they are any more awful than the parents who tart up their little girls to look like cheap whores and tote them around to pageants.

-- Anonymous, July 19, 2001

The (United States) CPPA of 1996 (Child Pornography Protection Act?) had a provision that made criminal any sexuality explicit images 1) using a minor or 2) someone who *appears* to be a minor. To my knowledge, this second provision has been alternately upheld and struck by different federal district courts. I'd have thought that it would at least created a circuit split by now and would be ready for someone to roll it into the Supreme Court. Maybe it has- haven't followed it much (even though it's a gawdawful affront to the Constitution).

(c'mon Beth, brush up on those Shepardizing skills for us . . . )

-- Anonymous, July 19, 2001

I thought I saw something about that being before the Supremes. I'll check after I've had my coffee.

-- Anonymous, July 19, 2001

On the op-ed page of my local paper, this subject is the center of the first editorial. It's titled "Don't allow government to trespass in your mind". The basis of the editorial is that free speech is to be protected to the very last word and that we should not be allowed to arrest a man - no matter what his history - on the basis of something he has written. It acknowledges that the man and his writing are basically vile.

Now. Dalton's prosecutors said that what he wrote qualified as "pandering obscenity involving a minor". Pander, however, is defined as: To act as a go-between or liaison in sexual intrigues; function as a procurer. To cater to the lower tastes and desires of others or exploit their weaknesses. Procurer is defined as: One who procures the gratification of lust for another; a pimp; a pander. (Definitions from dictionary.com)

The only person Dalton was pandering for was himself, so while I agree that what he wrote was vile, the charges appear to be invalid. On the basis of constitutional free speech, that is.

I don't know where the line should be drawn.

We have schools full of zero-tolerance rules, where kids are kicked out for writing down nasty thoughts about other kids. There was an interesting episode of "Boston Public" last year where a weird kid was transferred to another school because a girl turned him down for the prom and he put her name on his "List", which was a list of people who had done him wrong that he fantasized about doing harm to. (Fantasized, he later stressed to the principal - not considered doing seriously.)

Where are the lines to be drawn? How far do we intend to let the government go in policing our thoughts? How far is too far?

Don't get me wrong. I think child pornography is wrong, wrong, wrong, one of the most wrong things that exists. But who's at fault? The photographers who exploit the kids? The parents who are allowing it to happen? The people who buy it? Who's at fault here? Those parents who enter their kids in those beauty pageants make me ill - that's the beginning of exploitation in most cases. Little girls should not be made up like whores. And they certainly shouldn't be allowed to pose semi-nude, or nude. I am also against all advertising that features semi-nude or nude minors.

This is a ramble, and I hope some of my points made it across. The editorial asks if we should bar other pornography, other disturbing private journals, etc. I know that there are journals here on the web that have turned my stomach, things that have made me shudder. Should I have taken that a step further somehow? Should I refuse to have porn in my home (and there is a fair bit) because I am against some kinds of porn?

I know I don't want to be dragged away for the things I think and write. Does everyone have this right?

--Melissa (who has been spending far too much time living with a professor of Constitutional Law who specializes in the First Amendment)

-- Anonymous, July 19, 2001

Pandering has a different definition under the law than it does in common usage, and I believe it's an offense that varies a lot by state. In California it includes the following:

   (1) Procures another person for the purpose of prostitution.
   (2) By promises, threats, violence, or by any device or scheme,
causes, induces, persuades or encourages another person to become a
prostitute.
   (3) Procures for another person a place as an inmate in a house of
prostitution or as an inmate of any place in which prostitution is
encouraged or allowed within this state.
   (4) By promises, threats, violence or by any device or scheme,
causes, induces, persuades or encourages an inmate of a house of
prostitution, or any other place in which prostitution is encouraged
or allowed, to remain therein as an inmate.
   (5) By fraud or artifice, or by duress of person or goods, or by
abuse of any position of confidence or authority, procures another
person for the purpose of prostitution, or to enter any place in
which prostitution is encouraged or allowed within this state, or to
come into this state or leave this state for the purpose of
prostitution.
   (6) Receives or gives, or agrees to receive or give, any money or
thing of value for procuring, or attempting to procure, another
person for the purpose of prostitution, or to come into this state or
leave this state for the purpose of prostitution.
   

But none of those sound anything like what he did. I'm assuming the law of his state was much broader.

-- Anonymous, July 19, 2001

Okay, it was a totally different definition of "pandering," and it specifically involved pandering obscenity. I'm swiping this quote from Mouth Organ, but it appears to be a direct quotation from the Ohio law in question:

§ 2907.32 Pandering obscenity. 

(A) No person, with knowledge of the character of the material or 
performance involved, shall do any of the following: 

(1) Create, reproduce, or publish any obscene material, when the 
offender knows that the material is to be used for commercial 
exploitation or will be publicly disseminated or displayed, or when 
the offender is reckless in that regard; 

(2) Promote or advertise for sale, delivery, or dissemination; sell, 
deliver, publicly disseminate, publicly display, exhibit, present, 
rent, or provide; or offer or agree to sell, deliver, publicly 
disseminate, publicly display, exhibit, present, rent, or provide, 
any obscene material; 

(3) Create, direct, or produce an obscene performance, when the 
offender knows that it is to be used for commercial exploitation or 
will be publicly presented, or when the offender is reckless in that 
regard; 

(4) Advertise or promote an obscene performance for presentation, or 
present or participate in presenting an obscene performance, when the 
performance is presented publicly, or when admission is charged; 

(5) Buy, procure, possess, or control any obscene material with 
purpose to violate division (A)(2) or (4) of this section. 

2907.32.1 Pandering obscenity involving a minor. 

(A) No person, with knowledge of the character of the material or 
performance involved, shall do any of the following: 

(1) Create, reproduce, or publish any obscene material that has a 
minor as one of its participants or portrayed observers; 

(2) Promote or advertise for sale or dissemination; sell, deliver, 
disseminate, display, exhibit, present, rent, or provide; or offer or 
agree to sell, deliver, disseminate, display, exhibit, present, rent, 
or provide, any obscene material that has a minor as one of its 
participants or portrayed observers.

-- Anonymous, July 19, 2001

So unless I'm completely reading that wrong - what he did is not pandering as defined by the law, correct?

-- Anonymous, July 19, 2001

One more comment on the Dalton case and why I'm not sure that it has the grave implications that commentators have indicated it has: he pled guilty. I read a few news reports that said a court had ruled that the material was legally obscene, but that does not appear to be true. He entered into a plea bargain for ten years.

He was facing two pandering charges and one was dropped as a result of the plea, but it's a huge mistake to assume that that was the only reason for the plea. There may have been other charges (i.e., actual child molestation or possession of material that was unquestionably child pornography) threatened and he pled in exchange for the prosecutor not bringing those charges. Or he might have been facing more time on the probation violation, and this plea saved him prison time in the long run. It's impossible to tell. I'm not saying the Ohio law isn't bad; I'm just saying that this isn't a case in which the law is being tested, because he pled guilty. He threw in the towel, and we have no way of knowing why.

-- Anonymous, July 19, 2001

Melissa: yes, it is, under that Ohio law:

(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:

(1) Create, reproduce, or publish any obscene material that has a minor as one of its participants or portrayed observers;

-- Anonymous, July 19, 2001

Duh. After re-reading it I can't see how I missed that the first time.

-- Anonymous, July 19, 2001

Wow. I'm not up on "obscenity" law, but Beth's distillation of the relevant bits highlights that this law is awfully broad. I mean, there must have been sitcoms that dealt with a minor (teenager) walking in on parents having sex ("portrayed observers"). And any juvenile fiction that deals with kids having sex (with each other)... that's probably 'obscene' by someone's community standards.

-- Anonymous, July 19, 2001

Not to mention someone's point in that mouth organ thread that apparently in Ohio, you can have sex with a 16 year old (their age of consent), but you can't write about it until they're eighteen.

-- Anonymous, July 19, 2001

Hi. I'm new. Melissa told me about this thread, and she knew very well that I'd get wrapped up in it instead of working. Damn her.

First, what does "portrayed observers" mean? A court probably would read "participants" to mean actual human beings, not created characters, because of constitutional doubt if nothing else. But "portrayed observers" . . . does that mean portrayed participants are okay? Is Dalton in trouble if he writes a story about a child watching sex but not if he writes a story about a child having sex? What am I missing here? (Also, the Ohio statute requires the material to be "obscene." The portrayal of a child in the material, without more, can't be enough to make it obscene; that would make the provision circular. So that's another thing the state would have to prove in a case like this.)

There seems to be substantial consensus (here) on three points: (1) Where producing sexually explicit material exploits a real child by depicting him/her, the law is right to criminalize the production. (2) Expressive freedom and privacy are extremely important, and the law should be strictly constrained to protect those values. (3) Moral offensiveness, without more, is an inadequate basis for restricting speech. That seems to leave these tough questions (at least) open:

(1) Is the possibility that sexually explicit material might inspire or incite someone to harm/exploit a real child sufficient basis to criminalize it? How strong a causal relationship, and how much evidence of it, is enough? I think this is where the "simulated child pornography" issue may take the Supreme Court.

(2) At what point do we stop worrying about chilling (discouraging) protected speech and start worrying about protecting children? The classic child pornography conundrum is the parent who takes a picture of his naked kid jumping through the sprinkler. It's not tough on its face, but how do you write the law to get the bad guys without sweeping that case in?

(3) Why is the sexually explicit nature of material the line we draw for "exploitation"? A lot of us seem to agree that child beauty pageants are as exploitative as naked pictures of children, just as we might agree that Miss America is as exploitative as Playboy. What do we mean by "exploitation"? Is nudity just a convenient legal line? Do our evolving insights about power relationships render nudity a less credible line?

The correct answers are "c," "b," and "d." I wish.

-- Anonymous, July 19, 2001

Obscenity law is an ungodly mess. As far as I know, all of the relevant legal facts that have been quoted so far in this (very well-informed) thread are true. That is, they have all been upheld in court. Somewhere. The problem is that obscenity law varies from state to state, and what is actually enforced may not be the same as the law, and what is actually enforceable (that is, which can be made to stand in court) is not the same as what is enforced.

I believe the Teen Tiffany site, which shows an apparently 13-year-old girl in sexually provocative (though clothed) poses - the other day when I went, the top page had a picture of her standing with hand on hip, breasts (such as they were) flung out, in white cotton panties and a gold lame top - is illegal in some states' enforcement of obscenity, which means that sooner or later someone is going to put pressure on to shut it down. Many people felt the Calvin Klein ads with the children were illegal - and, by those rules, they were. Heavy pressure was placed on CK, as you might recall, to stop running those ads. (The more explicit ones - the ones I call the Panelled Basement series - were indeed halted, although CK continues to use models of a tender age.)

On the other hand, it's possible to feel that these sites are odious and still dislike the "even if they appear underage" clause of the CDA, which like CDA itself, is mostly moribund at this point. That's about where I am now in my own personal morality.

This has been a very interesting discussion.

-- Anonymous, July 19, 2001

Gabby... I -did- see that HBO doc. and couldn't believe my eyes. It's so nice and cozy in my little world not knowing that monsters like that mother exist. Have you also seen the A&E special called "Competition"? A series that shows different contests, including dog races, et al. along with child beauty contests. Yikes.

You have to wonder... even in the most "innocent" of circumstances, what are the total ramifications of allowing/forcing your little girl to participate in something like that? Sure, I can see lowered/misplaced self esteem, focus on vanity.... but what else? What type of life will attract these girls later on? What type of value system is being formed?

Mostly I feel very, very sorry for these little girls; victims in every sense of the word.

-- Anonymous, July 19, 2001

I think I agree with Colombine - if it's real children being used, it's wrong. If it's people who look like real children, it's not.

I find these sites and the beauty pageants unpleasant, but I find a lot of things in popular culture unpleasant. It seems like a weird attitude for parents to have, that portraying their children as sexually inviting beings is desirable. But I have my own biases and pruderies. I jsut don't know.

If my parents had tried to get me into the child pageant thing I would have hated having to keep clean and stand still and behave and so forth, but I would have loved the attention.

-- Anonymous, July 19, 2001

Curtis wrote: The (United States) CPPA of 1996 (Child Pornography Protection Act?) had a provision that made criminal any sexuality explicit images 1) using a minor or 2) someone who *appears* to be a minor. To my knowledge, this second provision has been alternately upheld and struck by different federal district courts.

The Supreme Court recently granted review of a case, Reno v. Free Speech Coalition, that raises an interesting First Amendment issue. The issue is whether, in addition to banning actual child pornography, the government can also ban "virtual" (or "pseudo") child pornography — pornography that appears to depict children, or conveys the impression that it is depicting children, but does not, in fact, do so. [...] The Ninth Circuit Court of Appeals in California has held that a ban of "virtual" child pornography — embodied in a provision of the Child Pornography Protection Act of 1996 — is unconstitutional. [...] But several other federal circuits have disagreed. Thus, it is likely that the Supreme Court has taken the case in part in order to resolve the uncertainty in the law created by this conflict.

An interesting article that covers most of the important issues, I think. (And was a bear to find. You do turn up the most interesting things in searches like this, though; I just discovered that my HMO has a case being heard before the Supreme Court next term. How ... disturbing.)

The case is to be argued during the 2001-2002 term. It's been renamed "Ashcroft v. Free Speech Coalition", logically enough.

-- Anonymous, July 19, 2001

Thanks, iain. I tried to look that up on the Oyez project this morning but their search engine was down.

-- Anonymous, July 19, 2001

You're fired, Beth. There goes that GA salary.

-- Anonymous, July 19, 2001

I just really didn't want to be looking up child porn cases on my Lexis account when I didn't actually *have* a child porn case at the moment. You know?

-- Anonymous, July 19, 2001

We could cure all the porno addicts by making them read paragraphs and paragraphs about law - it's like rubbing novocaine on your libido.

-- Anonymous, July 19, 2001

I resent that remark. My libido is novocaine-free. The rule against perpetuities makes me hot!

-- Anonymous, July 19, 2001

Yeah, I mean, with all those fertile octegenarians everywhere.

-- Anonymous, July 19, 2001

Melissa wrote: "I am also against all advertising that features semi-nude or nude minors."

I don't know, I think those Coppertone ads were cute.

More seriously, I get the impression that a lot or "moral laws" - especially those involving sex - are made more as a result of distrust than any measurable harm. Pornography "may promote" inequality and objectification of women, child pornography "could incite" a paedophile[1] into molesting a child. Women going topless in public will make ordinary men more likely to commit rape. And so on.

I know someone who likes fantasies of girls (figure skaters generally), but he knows as well as anyone else where fantasy ends, and he'd never even consider moving this fantasy out of his mind. He's a very nice guy. But if you first describe him as "likes child pornography" (even though it might not be considered such by all definitions), you'd immediately distrust him, while if first describe him as "science fiction fan", you get a completely different image.

Same person. Oddly, his honesty is what would make many people distrust him. I'm sure a lot of people have similar thoughts to some degree, but won'd admit them (as I said in a previous message, I'd include memories and thoughts from high school). Dishonesty makes them more trustworthy?

What it comes down to, I think, is actual crimes should be crimes, and things which "could, in some circumstances, provoke some certain types of people to possibly commit a criminal act" (ie. a book entitled "How to Steal Satellite TV For Free") should not be themselves crimes. In other words, a crime isn't a crime until its committed (or attempted).

[1] "pedophile" means "dirt-lover" - gardeners, I'd guess. There's millions of those who go completely unprosecuted, and even practive their philia in public!

-- Anonymous, July 19, 2001

For the most part, I think that crimes should be limited to those things that actually involve a victim. Creating child porn using children is vile and damaging. Writing fantasies about it is still pretty vile, but no real children are involved, so it shouldn't be illegal.

The only real argument I can think of to criminalize it is that it might lead to real child molestation, either on the part of the writer or someone who reads it ... and so it might, but then, so might a violent movie inspire some mentally unstable person to commit murder. Prior restraint is pretty uniformly struck down by courts whenever it is tried, under the principle that writing fiction about crims isn't the same as committing a crime.

But the issues Beth raised at the beginning of the thread are more troublesome. Just where does something cross the line? There was a picture on the front page of the Washington Post last year of a marching band. It was taken from ground level looking up at the musicians, and the ones closest to the camera were girls, about 13 or 14 years old, and the angle showed a great deal of leg that would have been covered by their skirts from the perspective of someone standing or even sitting and watching them. I found it really distasteful and still don't understand why it was published.



-- Anonymous, July 19, 2001

gabby said: The (United States) CPPA of 1996 (Child Pornography Protection Act?) had a provision that made criminal any sexuality explicit images 1) using a minor or 2) someone who *appears* to be a minor.

so my question is this: in movies like american beauty, where there are two scenes of women portraying minors (thora birch topless in the window, mena suvari with kevin spacey,) how is that allowed? don't get me wrong -- i love that movie, but i always wondered how those scenes, pivotal as they were, weren't considered "child porn" because the actresses were supposed to be playing minors.

-- Anonymous, July 21, 2001

That was the big issue with that portion of the law ... that it might apply to things that are clearly legitimate, protected expression -- for instance, film adaptations of Lolita or Romeo and Juliet. I can't see the Supreme Court upholding that kind of application of the law, and probably prosecutors can't, either.

-- Anonymous, July 21, 2001