REGULATING PORNOGRAPHY
What should and should not be legal pornography? Many countries and many people all have very different answers. While almost all agree that child pornography should be illegal in real life, what about child pornography between two consenting adults who make child-like avatars in virtual worlds? What about porn that simulates illegal rape? What is too obscene that we must stop the average internet user looking for a thrill?
THE LAW REGULATING PORNOGRAPHY
The First Amendment protects your right to access legal adult content and distribute it to the public. However, our laws forbid distribution of obscene material and child pornography. In the United States, we have additional pornography regulations, currently being challenged in court, under 18 U.S.C. § 2257, that impose record keeping requirements on a broadly defined class of porn producers. When determining what is “too obscene” the US relies on the Miller Test. The Miller test was first given to us in Miller v. California, 413 U.S. 15 (1973), where US Supreme Court held that material is obscene if each of the following factors is satisfied:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
- Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable law;
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Therefore, most pornography portraying regular sexual acts or depicting genitalia would not be obscene under Miller, but community standards can greatly differ.[i]
How do you determine community standards? Under current law, the legal question of whether speech is free speech or too obscene is determined partly by looking at the local community standards.i Federal jurisdiction rules allow an obscenity case to be brought where the speech originated or where it was received.i Internet speech is received in every community of our nation. Therefore, “the ‘community standards’ question must be applied to a nationwide audience and can be judged by the standards of the community most likely to be offended by the message.” Reno v. ACLU, 521 U.S. 844 (1997).i
COMMUNITY STANDARDS ABROAD
United Kingdom is certainly judging their whole internet’s censorship by those who would most easily be offended by the speech- children. The campaign to regulate porn, supported by the Daily Mail, Britain’s most powerful newspaper, is one of many new proposals to help censor the web. The government promised to make it easier for citizens to bring charges against web users who libel them behind the veil of anonymity. The government also offered legal immunity to publishers that cough up identifying information about people spreading defamation on their sites. Publishers have been in favor of this, but many free-speech defenders worry that hastily drafted regulations could make publishers far too eager to hand over private user information. Ian Brown, at the Oxford Cyber Security Centre, cautions that the rules could encourage sites to gather more private data from their users and distribute that personal information.[ii]
This summer, most homes in the United Kingdom had pornography blocked by their internet provider unless they opted to receive it, Prime Minister of England David Cameron announced. [iii] In addition, the PM said possessing online pornography simulating illegal rape would become illegal in England and Wales – as it is with their neighbor Scotland.iii
Cameron cautioned in his address that access to online pornography was “corroding childhood”.iii The new regulations will affect both existing and new customers of the service providers. Cameron also stated other measures will be taken – some “horrific” internet search terms will now be “blacklisted”, meaning they would automatically bring up “no results” on search engines such as Google or Bing. The UK’s biggest internet service providers have consented to the filters proposal, meaning that it should affect 95% of homes in England.iii
Other measures announced by the prime minister include:
- New laws so videos streamed online in the UK will be subject to the same restrictions as those sold in shops
- Search engines having until October to introduce further measures to block illegal content
- Experts from the Child Exploitation and Online Protection Centre being given more powers to examine secretive file-sharing networks
- A secure database of banned child pornography images gathered by police across the country will be used to trace illegal content and the pedophiles viewing it
Cameron also initiated a move to bring pop up pages to guide users to helpline numbers when people try to search for illegal content. He stated: “I want to talk about the internet, the impact it is having on the innocence of our children, how online pornography is corroding childhood.” And how, in the darkest corners of the internet, there are things going on that are a direct danger to our children, and that must be stamped out.iii
CHILD PORNOGRAPHY IN THE VIRTUAL WORLD
Child Pornography has become an issue all it’s own. Distributing child pornography is almost always illegal. But virtual worlds and smart technology have made this issue more gray than previously so. How has the US responded to virtual issues child pornography can bring up? Many legilsatiors have aimed to close loopholes after the Netherlands failed to prosecute Second Life users that were simulating child pornography via their avatars.[iv] “There are possibilities to prosecute because it possibly incites child abuse,” the spokesman for public prosecutor Kitty Nooij, who is in charge of national vice cases, said. ii In Linden Labs home, the United States, the U.S. Supreme Court struck down a law in 2002 which would ban computer-generated images that depict minors engaged in sexual conduct.
Commenting on their failure to prosecute, spokesman E. Boersman of the prosecutor’s office says that they have been investigating a number of cases, but that prosecutor T. Nooij is sure that a judge will never convict their suspects. “[There is only a prosecutable case] if the virtual children are so realistic that you can’t tell whether they are real or not. You have to be thinking there is really a child involved. SL is too much a computer animation.”[v]Dutch forensic psychiatrist J. Bushman commented that “ageplay in SL is a perfect ‘school’ for a pedophile.”iiiHe stated that he is convinced that virtual child porn has real world dangerous for Dutch children.iii
What about recording someone that you are legally allowed to have consensual sex with? This peculiar predicament arose in South Carolina, where the age to have consensual sex is 16, yet recording a minor is illegal. Sidney Myers, a 20 year old from South Carolina, is facing 18 months in Federal Prison and a lifelong tag as a sex offender because he recorded smartphone videos of his girlfriend, who was 16 at the time. He was legally allowed to have consensual sex with her, and he did not distribute the photos, but once he made a bomb threat to her high school so they could cut class, his phone was subject to police scrutiny who pressed charges for the underage videos. His public defender claims that the “facts of this case have never been seen in our jurisdiction and likely will not be seen again,” but in the smartphone age, perhaps the facts no longer seem as unusual as they once would have been.[vi]
[i] https://www.eff.org/issues/bloggers/legal/adult
Criminal Law in the Virtual Context 
I would like to see what the sociologists, therapists, and other professionals say about this issue. Does allowing pedophiles to look at simulated child porn on SL help them to relieve their pent up sexual desires to do harm to kids in the real world? Or, does allowing them to act out sexual acts with children online just build up their desire and confidence to commit those crimes on kids in the real world? I have no idea, but I bet some scientists have studied this.
I think the “opt-in” policy for accessing pornography in the UK is a good idea. I think it is a commendable effort to protect kid’s youth and recognizes the harsh reality that porn on the internet is easily accessible by adults and children alike. I wonder how a similar initiative in the US would be received? I imagine there would be some serious opposition because of the huge amounts of revenue that is generated from pornographers in the US.
Drew I think you do have a really good point. As repulsive as we and the “general community” might find child pornography to be, we are not the normal demographic and do not understand the underlying issues involved. If it has the potential to limit the instances of sexual assaults on children perhaps it should be explored and studied under certain guidelines. However, one of the few things I learned from my B.S. in Psychology is that cathartic release does not work. Think about someone with anger management issues. Punching a blow up doll will make them feel better for a while because it allows them to get out the anger and frustration through a physical act, but it does not altogether satisfy the requisite emotional release and that person is just as likely to act out their aggression in the real world. Moreover, societal acceptance of child pornography (even in this very limited capacity using avatars) would still go to the “community acceptance standard.” From there it is a very slippery slope as to where society will draw the line on this sensitive issue.
I think that in the U.S. the “opt in” policy would result in more back lash than the U.K. saw. Not only from the domestic porn producers and their lobbyists, but also from free speech support groups and even groups like Anonymous which support free information (of all types) for all–which very well may include porn–and attack any law or governing body who attempts to foreclose it. In my own opinion, I don’t think the Prime minister’s reasoning for censoring the internet holds water, particularly in the U.S. The statement, “the impact [child pornography] is having on the innocence of our children, how online pornography is corroding childhood,” reveals the underlying as to why the policy was implemented. It seems to me the British government acted almost paternalistic and felt it necessary to guard children from the evil recesses of the internet–a job that most Americans would see as the realm of the parent. Think of the V-chip for TV’s and how many Americans would be outraged if HBO no longer showed sexy vampire shows because it may not be appropriate for all viewers. The onus is on the parents to put up these safety walls on the TV or the family computer and it should be up to the government acting in a paternalistic fashion to enact it for you.
Drew, you brought up an interesting issue that I had not thought of. Obviously people that are into child pornography have some kind of mental disorder. Could allowing them to actively simulate or watch simulations on SL be an effective tool to prevent their desires from manifesting into real world harm? (I wanted to read more about this and out of muscle memory hastily started to type in google “child pornography simulation as ther—” as then suddenly realized there was no way I was going to search for anything including “child pornography”, I dont want that in my NSA file)
I think the U.K. “opt-in” policy makes sense. When I first heard about it several months, I was initially opposed to it, I think because at first blush any kind of internet censorship instantly reminded of China. But, I like and agree with the intentions of the policy, and anyone can just “opt-in” if they do not want to be censored. It’s kind of like pornography available on TV via cable or satellite, the default position is that you do not get it but if you want it you can specifically choose to receive it. I think a similar idea could get traction in the US, but I think freedom-loving libertarian-types would be vocal opponents. I think a better and more workable model would be for the ISP’s to take the initiative and institute their own “opt-in” policies.
The Sidney Myers case from South Carolina is very interesting. Although I felt a little less empathetic for him when I found out he got caught because he called in a bomb threat to a school. There must be countless instances where people have “child pornography” on their phones.
Perhaps the greatest responsibility of any system of laws is to protect those who cannot protect themselves. Children are among the most vulnerable citizens in any society; I applaud the UK’s efforts to safeguard children from potentially damaging online material. I would support such legislation in the U.S., but as my colleagues have pointed out, I think there would be substantial resistance in the U.S. by those who lobby for minimal-or no-governmental intrusion. I agree that the opt-in nature of the program should appease the opposition-but their argument will be the government should not have the power to mandate those interesting in receiving pornography to take the additional step of “opting in”. I can also foresee the opposition arguing that the government has no right to “know” who opted-in.
As a separate matter, this issue indicates the need for parents to be in-tune with the times and actively monitor the internet usage of their children so that their children do not bear witness to-or become victims of-pornography. Surely, effective legislation would make their jobs easier, but keeping children safe starts at home with the parents.
The Second Life component of the posting was very interesting. The exploitation of children, for various logical reasons, strikes chords immorality almost immediately. But for argument’s sake, what makes a virtual depiction of a “child” engaging in sexual acts any different from a virtual depiction of another illegal activity? There are plenty of video games, for example, which depict characters using drugs, carrying-out mass murders, stealing cars, etc. I understand that generally speaking, an adult has to purchase such games (at least that is how it should be), but who is to say that these types of games will not-and do not- end up in the hands of children? Are these not damaging children? To what extent should the law address these types of virtual depictions? It seems that the difference is that children are being exploited in a different way. With video games, children are being exploited because they are members of a generation that actively consume video games, some of which are very violent. With pornography, they are being exploited to cater to the interest of those who, in one way or another, find such material to be appealing. But does it matter that the child or children in the depiction are not real?
The case of Sidney Myers highlights the breadth of what is deemed to be child pornography. I would venture to say that this type of situation (a video of a 20 year old having consensual sex with a 16 year old) is not what comes to mind when the ordinary citizen hears the term “child pornography”. Be that as it may, the act of recording that encounter had real consequences for the 20 year old.
Interesting comments although I am not certain I have any idea where Ariana stands on any of this even though she is the OP. I do think we should get some data from trained health professionals on whether virtual representation chills physical attempts or encourages. I don’t know if we know enough about the subject. But of course as lawyers we all know the debate would boil down to a battle of the experts. No doubt we would be even less enlightened when all was said and done.
I do always like options that force the person who wants the questionable choice to affirmatively “opt-in.” The reason such a policy can work in the UK is because in Europe they do not privilege free speech above the other human rights as we do. They believe when rights come into conflict with each other government should seek balance. Here in the U.S. we are going to lean heavily towards privileging speech which causes us to face all these seemingly contradictory positions. We want to regulate pornography and access to children but we don’t want to invade individual rights to do so. I do not think the tension is sustainable.
If the stated goal of the United Kingdom’s opt-in policy is to protect children from the dangers of online pornography, the policy would appear to be quite overbroad. It is my understanding that 95 percent of homes in the U.K. will be subject to this regulation – regardless of whether any children even live in the home.
Under the U.K.’s opt-in policy, if an ISP customer does not affirmatively decline the activation of the “family-friendly filters,” adult material will automatically be censored. I believe a better, less intrusive alternative would be to keep the internet uncensored, and allow users to turn the family-friendly filters on if they so choose.
I agree with this. Having the government create a sweeping ban on pornography seems a bit to paternalistic to me. If you don’t want your child accessing the darker corners of the internet, then be a parent and monitor their usage of the internet. I was reading a lot of message boards right before this came out, and there was a lot of concern (shockingly, among teenage boys who lived in their parents’ household) that they would not be able to access the content that they wanted because the person who paid for the Internet was a supporter of the ban while they were not. I can imagine this happening in a university setting as well. One of the other interesting things about this law was that those that opposed it were very easily demonized because they “weren’t thinking of the children!”
In my opinion, if you don’t want to see it, it is very easy to avoid pornography as you actively have to seek it out on the internet. I understand the policy concerns of protecting children, but I think that in this case, an “opt in” policy would be too broad.
I still don’t quite understand, or accept, the logic behind the idea why virtual child pornography is legal. I understand the basic theory behind the prohibition of child pornography is that it is tremendously harmful and abusive to children. But I also believe that there is very legitimate argument to be made that there is the corresponding rational that it encourages illegal sexual behavior with minors. In my opinion someone that watches a virtual representation of child pornography is watching it for the exact same reason that they would watch real child pornography. I get the first amendment arguments that two consenting adults should have right ti engage in this, but I believe given the growing rates of child sexual abuse that government has a pretty compelling reason for prohibiting this type of content.
I agree completely with Prof. Jacobs comments about the way Europeans view freedom of speech. They are much more pragmatic about imposing restrictions of speech, such as Canada prohibition on Hate Speech and Germany’s prohibition on Nazi and White Supremacist content. I spent a month in Germany a year ago. While speaking to some German law students they asked my why we still allow Nazi groups to publicly speak. I had to go into the whole 1st amendment freedom of speech and free exchange of ides lecture. Their response, which I thought was brilliant, “hasn’t Nazism proving that it has no redeeming value or intellectual contribution to make.” I think the same can be said for child pornography in any form. Furthermore, I believe that underlying Europe’s efforts is the growing concern child abduction and sale into the sex trade. I was watching BBC a few nights ago which reported that some 100,000+, if I remember correctly, children in Europe are abducted a year.
This case is somewhat difficult to call. It is my personal opinion that people who like pornography that portrays women/men who look like children is dangerous. Because If that person likes the “look” of a child, what is to stop that person from seeking out an actual child and molesting them? I hear there are sites where two consenting adults can make avatars or (in the real world) dress up like children as apart of some type of sexual role play. I don’t know if there are videos like this but these videos may be okay if and only if there is a disclaimer stating that both individuals are consenting adults. When it comes to avatars and virtual sites, the same should apply as long as there is a way to prevent actual children from viewing the content. When it comes to the grey “statutory” area, its gets pretty difficult. For instance the example in the main post with the 16 year old female and the 20 year old male. In my opinion this is overkill. There is no reason this 20 year old should have to register as a sex offender, the whole nine for video taping his girl friend, especially if she consented. At 16, the girl should have had since enough not to be video taped, but at 16 you’re not thinking of the possible consequences, so law enforcement shouldn’t make a big deal out of the video either. The bottom line they had sex, which was consensual and legal, the fact that it was videotaped is irrelevant.