In 2016, a study found that it was increasingly difficult for subjects to distinguish between real photographs of people and computer-generated simulations. Researchers suggested that the development would complicate the prosecution of child pornography cases. This concern has been amplified by rapid improvements in artificial intelligence, which have led to a California bill that would, among other things, make it a crime to possess virtual child pornography when it qualifies as “obscene.” This provision seems constitutionally problematic in light of the U.S. Supreme Court’s decision that the First Amendment prohibits lawmakers from criminalizing simple possession of obscene material.
Assembly Bill 1831, introduced by Assemblyman Marc Berman (D – Palo Alto) on January 12, seeks to expand the state’s definition of child pornography to include “depictions of real or fictitious persons generated through the use of artificially intelligent software or computer-generated means, who are, or who a reasonable person would consider to be, actual persons under the age of 18, engaging in or simulating sexual conduct.” Because the new definition would pose obvious First Amendment problems if applied to constitutionally protected images, the bill specifies that such depictions must meet the state’s definition of obscenity: material that “for the average person, applying contemporary state-level standards, appeals to lascivious interest” ; “depicts or describes sexual conduct in a patently offensive manner”; and “as a whole, it lacks serious literary, artistic, political, or scientific value.”
This definition of obscenity follows the test established by the Supreme Court in the 1973 case Miller v. California. But four years earlier Stanley vs. Georgia, the Court unanimously rejected a state law that criminalized possession of “obscene matter.” Writing for the Court, Justice Thurgood Marshall made a distinction between that ban and other obscenity laws: “Whatever the justifications may be for other statutes regulating obscenity, we do not think that they reach the privacy of one’s home. If the First Amendment means nothing, it means that a state has no right to tell a man, sitting alone in his house, what books he can read or what movies he can watch. Our entire constitutional heritage revolts at the thought of giving the government the power to control the minds of men.”
Berman evidently did not see the Supreme Court’s reading of the First Amendment as an obstacle to achieving his goals, and he is by no means alone in this. Way back in 1996, Congress attempted to ban “any visual depiction, including any photograph, film, video, image, or computer-generated or computer-generated image” that “is, or appears to be, of a minor engaged in sexual activity” explicit.” The Supreme Court found that law unconstitutional in the 2002 case Ashcroft v. Coalition for Free Speechpointing out that “the literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology” as well as “Hollywood films, filmed without child actors, if a jury finds that an actor ‘appears to be’ a minor engaged in ‘actual sexual intercourse’ or simulated….”
Congress tried again in 2003. The PROTECT Act covered any “digital image, computer
image, or computer-generated image” that is “indistinguishable” from “that of a minor engaged in sexually explicit conduct.” Unlike Berman’s bill, it did not require such material to be characterized as obscene, making it even more constitutionally questionable. included an obscenity test for another category of prohibited material: “a visual depiction of any kind, including drawings, cartoons, sculptures, or paintings,” that “depicts a minor engaged in sexually explicit conduct.” challenging test for any visual depiction of “a minor engaged in explicit bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal.” if it “lacks serious literary, artistic, political or scientific”, dispensing with the other two prongs of the obscenity test.
In 2008, the U.S. Court of Appeals for the 4th Circuit heard the case of a Virginia man, Dwight Whorley, accused of violating the PROTECT Act by “knowingly receiving onto a computer 20 obscene Japanese cartoons depicting minors engaged in sexually explicit behavior”. .” Whorley argued that the law’s ban on receiving obscene images was “facially unconstitutional” because “receiving materials is an incident of their possession, and possession of obscene materials is protected by the possession of Stanley vs. Georgia.”
The 4th Circuit rejected that claim. “Stanley“The Court’s decision was narrow and focused only on the possession of obscene material in the privacy of one’s home,” the majority said. “The Court’s decision did not prohibit the government from regulating channels of trade.” provision under which Whorley was accused of “concentrating on the circulation of obscene material in commercial channels, and not on the mere possession of it.” So, even though receiving, viewing, and possessing images are essentially the same thing in the context of the Internet, the appeals court concluded that Whorley’s claim fell flat. Stanley. But even this questionable reading doesn’t seem to help Berman’s bill, which explicitly applies to “every person who knowingly possesses or controls” the newly prohibited images.
Whorley also argued that the PROTECT Act was “unconstitutional under the First Amendment, as applied to cartoons, because the cartoons do not depict actual minors.” The 4th Circuit also rejected that argument, pointing out that cartoons are covered by the law only when they are “obscene” and that obscenity is not protected by the First Amendment.
This point helps the defense of Berman’s bill, but again not to the extent that it applies to mere possession. In other cases involving cartoons, such as manga, Simpsons porn and “incest comics,” federal defendants have pleaded guilty to possession charges, avoiding a constitutional test.
Applied to distribution, AB 1831’s obscenity requirement follows the approach recommended by New York University law professor Rosalind Bell in a 2012 law review article. Bell argued that the PROTECT Act provision covering images digital “indistinguishable” from real ones, which do not require a finding of obscenity, is clearly unconstitutional.
In the case of 1982 New York vs. Ferber, Bell noted, “the Court has held that the First Amendment does not extend to child pornography because the State has a special interest in protecting children from harm.” The Court deemed this interest eight years later Osborne v. Ohio, even justifies the ban on the private possession of child pornography material. But those cases involved actual child pornography, and the Court’s reasoning focused on the harm that its production and dissemination causes to the children whose abuse it documents.
“Send-Ferber The regulation of child pornography and court decisions interpreting that regulation have become independent of the Supreme Court’s crucial and limiting interest in protecting children from physical and emotional harm,” Bell wrote. “Increasingly, the action of the Congressional and court opinions reflect concerns about controlling private thoughts rather than preventing and punishing direct harm.”
Bell noted that Adrian Lyne’s 1997 film adaptation of “Vladimir Nabokov’s famous novel Lolita” went “straight to cable” because distributors feared that law enforcement might deem it child pornography. “Writers and artists have explored the theme of adolescent sexuality in countless treasured works,” he wrote. “Prohibiting non-obscene virtual depictions of children’s sexuality without reference to their social value, we exceed the crucial dictates of the First Amendment and jeopardize these works, including acclaimed films such as Romeo and Juliet, The tin drum, American beautyAND Taxi driver.”
The “serious value” of such material would presumably protect it from Berman law, which is why the obscenity requirement is crucial. But the possession ban still conflicts with the Supreme Court’s conclusion that “a State has no right to tell a man” what he may watch while “sitting alone in his house.” Although the Court later made an exception for pornography involving real children, that exception does not include images that can be produced without violating anyone’s rights.