This may be an example of
"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all."
-- Henry Mencken
Message 25222433
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[Eugene Volokh, December 18, 2008 at 4:53pm] Trackbacks
Obscenity Conviction for Adult-to-Adult E-mail About Sex With Children:
A Fourth Circuit panel just upheld the conviction, by a 2-1 vote.
There's more to the case, including actual child pornography, and obscene cartoons that depicted children (which are punishable as obscenity, albeit with a higher punishment because of the subject matter, and not as child pornography, since no actual children were shown). But the constitutional disagreement between the majority and the dissent focuses on the text in the e-mail. The text apparently wasn't an attempt to conspire to have sex with children, or an attempt to seduce someone who the sender wrongly thought was a child; the prosecution was simply based on the theory that the text was obscene, and therefore criminally punishable.
The Supreme Court precedent, I should add, is on the majority's side: Even receipt of text, and not just distribution of material or receipt or pictures, can be punished if the text is obscene — i.e., if
1. "the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest [i.e., a 'shameful or morbid interest in sex,' as opposed to ''good, old fashioned, healthy' interest in sex'],"
2. "the work ... describes, in a patently offensive way [under contemporary community standards], sexual conduct specifically defined by the applicable [obscenity] law," and
3. "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
See generally Kaplan v. California, 413 U.S. 115 (1973). Query whether the precedent is right, either as a substantive matter or as a matter of whether the obscenity definition is too vague to be constitutionally permissible, whether as to pictures or as to text.
Thanks to Damon King for the pointer.
volokh.com
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If you just glance at it the first thought my be "child porn, throw the book at them". But it was not a depiction of actual children, but rather cartoons. It didn't involve sexual activity or presentation of children.
And the prosecution is on the vague standard that the items are obscene because they violate community standards.
20 year prison terms, for violating a standard that isn't set out in law, strikes me as being obscene itself.
As "Monty" says in a comment to that blog post
"Its time we fix obscenity jurisprudence. Community standards is an insane standard for deciding if someone has committed a crime punishable by decades in prison. There is no way you can know for certain if your conduct was legal untill a jury either convicts or aquits you... The only time obscenity should be illegal is when it is unsolicited or sent to minors.
Child Porn is sperate and does not need to rely on obscenity to stay illegal."
volokh.com
and as "Seamus" points out
"Sentenced to twenty years?! Wow.
For a victimless crime, no less. There are rapists and armed robbers serving less time than that. Take, for instance, this guy who only got 10 years for rape of an actual child."
volokh.com
Now certainly these are very unsympathetic defendants, but just look at it as a matter of law. Twice as long of punishment for violating vague community standards in e-mailed cartoons than for actual child rape? |
