Freedom of Speech: It’s Not Virtuality, It’s Reality

Throughout the history of American popular culture, the pervasiveness of the themes of sex and violence has been unwavering, which has led to the longstanding constitutional war between the principles of freedom of speech and the power of the state to protect children from dangerous content.

Over the past decade, the recent advances in technology have resulted in both the unprecedented enhancement of the graphic quality of sexual and violent images, and the unprecedented expansion of the mediums by which these images are disseminated.  Unsurprisingly, these explosive technological developments have led to a public outcry regarding the potential accessibility of such materials to minors, which many claim corrupts their innocence and harms their moral development, to the detriment of society as a whole.

The recent public outcry resulted in an onslaught of regulatory responses from legislators, which has reinvigorated the constitutional war as judges and legislators battle over where to draw the still-undefined line between constitutional and unconstitutional censorship.  To the dismay of parents around the country, in a landmark decision last year, the United States Supreme Court declared the First Amendment to be the winner of the most recent battle regarding the censorship of video game content.

Before I discuss the Court’s decision, here is a brief overview of the First Amendment’s protection of freedom of speech.  As I am sure you are aware, the government is generally prohibited from restricting expression on the basis of its message, ideas, subject matter or content; however, our freedom of speech is not unconditional.  In Roth v. United States, 354 U.S. 476 (1957), the Court held that “there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.”  Id. at 484.  For purposes of this blog, we are solely concerned with obscenity as a category of unprotected speech.  This category, as it pertains to the regulation of adult content on the internet, will be discussed in-depth below.

In determining whether a statute violates the First Amendment, the court’s determination is based on two questions: (1) Does the expression qualify for First Amendment protection? (2) If so, does the restriction on the expression pass a strict scrutiny test, i.e., is the regulation justified by a compelling government interest and is it narrowly drawn to serve that interest?

Back to the most recent constitutional battle!  In Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011), the Court struck down a California statute that prohibited the sale or rental of violent video games to minors and required the packaging of such games to be labeled “18”.  With regard to the first question of whether video games are protected under the First Amendment, the Court held that “[l]ike protected books, plays, and movies that preceded them, video games communicate ideas – and even social messages – through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).  That suffices to confer First Amendment protection.”  Id. at 2733.

The Court stated that “whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.”  Id. (citation omitted).  In response to the argument that violent video games were obscene and therefore not protected, the Court stated that “the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct’.”  Id. at 2734.  “Violence is not part of the obscenity that the Constitution permits to be regulated.”  Id. at 2735.  Additionally, the Court stated that “new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.”  Id. at 2733.

After determining that video games qualify for First Amendment protection, the Court addressed the second question of whether California’s regulation passed the strict scrutiny test, and determined that the regulation failed to meet the demanding standards.  California claimed that exposing children to violent video games results produces harmful effects on children, e.g., it increases their feelings of aggression.  The Court quickly shot down that argument because California’s “evidence is not compelling.”  Id. at 2739.  In a nutshell, the Court found that the state’s scientific evidence had not adequately shown that exposure actually hurt minors but only showed a correlation.

Additionally, the Court held that the restriction was “wildly underinclusive when judged against its asserted justification,” a justification that “in [their] view is along enough to defeat” the regulation.  The Court pointed out that California had not restricted other violent media, such as “Saturday morning cartoons, the sale of games rated for young children [e.g., Sonic the Hedgehog], or the distribution of pictures of guns”, all of which the state’s own expert testified had “the same effects” as a child’s exposure to violent video games.  Id. at 2740 (emphasis not added).  The Court held that “[u]nderinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.”  Id.

Finally, the Court addressed California’s other argument that the regulation was “justified in aid of parental authority:  By requiring that the purchase of violent video games can be made only be adults, the Act ensures that parents can decide what games are appropriate.”  Id.  First, the Court humorously stated that it doubted that restricting violent video games “just in case [a child’s] parents disapprove … is a proper governmental means of aiding parental authority.” Id.  Then the Court went on to state that “[n]ot all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games.  While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want.  This is not the narrow tailoring to ‘assisting parents’ that restriction of First Amendment rights requires.”  Id. at 2741.

In a nutshell, the Court struck down the regulation because the First Amendment was created to protect unpopular expressions, and a legislature cannot regulate expressions just because that the value of the expression is outweighed by its social costs.  Nor can a legislature regulate expressions because it finds the expression to be disgusting because, as the Court stated, “disgust is not a valid basis for restricting expression.”  Id. at 2738.

Now let’s turn to obscenity.  As I mentioned earlier, obscene expressions involve the depiction of sexual conduct and are not protected by the First Amendment.  This is a unique category of unprotected speech because it is excluded from protection even though there isn’t a causal link between obscene materials and the incidence of criminal offenses or societal harm.  Obscenity prohibitions merely aim to suppress expressions because the majority of society deems the expressions to be offensive.  And what is so offense about obscene materials?  Well, “the material has a substantial tendency to deprave or corrupt its readers by inciting thoughts or arousing lustful desires” and that “offend[s] the common conscience of the community”.  Roth, 354 U.S. at 486 – 490.

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court developed a three-pronged test to determine whether material qualifies as obscene.  The test is as follows:  “(a) [W]hether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest” . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”  Id. at 24.  Notably, the Court held that “the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.”  Id. at 18 – 19.

While all pornography was originally subject to the “Miller test”, in New York v. Ferber, 458 U.S. 747 (1982), the Court held that “[t]he test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity.”  Id. at 765.  The Court held that because the states have such a strong interest in protecting children from psychological, emotional and mental harm, “it is irrelevant … whether or not the material … has a literary, artistic, political or social value.”  Id. at 761.  Thus, the Court found that even if pornographic materials pass the “Miller test”, if they feature a sexually exploited child, then legislatures can regulate and/or prohibit it because it “bears so heavily and pervasively on the welfare of [the] children engaged in its production”.  Id. at 774.

After this decision, a slew of regulations were passed by Congress.  In 1984, Congress passed the Child Protection Act, which among other things, expanded the definition of child pornography to include sexually suggestive images involving actual children.  In 1988, Congress enacted the Child Protection and Obscenity Enforcement Act, which prohibited the use of computers in the transportation, distribution and receipt of child pornography.  In 1990, the Supreme Court upheld a law that criminalized the mere possession of child pornography.  Osborne v. Ohio, 495 U.S. 103 (1990).

With the recent explosion of technology, child pornographers found a way around these child pornography laws.  Since the laws only prohibited child pornography that involved actual children, clever child pornographers figured out that they could use digital imaging and editing to modify pictures of adults to simply look like children.  In response to their clever skirting of the laws, Congress enacted the Child Pornography Prevention Act (CPPA) of 1996, which prohibited this kind of “virtual” child pornography by expanding the definition of child pornography to include computer-generated pornographic images of children the production of which did not involve real children.  The image simply had to “convey[] the impression” that it involved a child.

However, this provision of the CPPA was eventually struck down as overbroad in 2002.  In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court struck down the provision of the CPPA that broadened the definition of child pornography to include “virtual” child pornography because it violated the First Amendment.  In order to distinguish “virtual” child pornography from actual child pornography, the Court emphasized the rationale underlying Ferber.

The Court stated that in Ferber, “[t]he Court [] anchored its holding in the concern for the participants, those whom it called the ‘victims of child pornography’” and held that the regulated “speech [] itself [was] the record of sexual abuse”.  Id. at 250 However, “the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children, as were the materials in Ferber”.  Id.  Additionally, the Court stated that “[t]he mere tendency of speech to encourage unlawful acts is not sufficient reason for banning it.  The government ‘cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.’”  Id. at 254.

Thus, because the rationale behind banning child pornography was to protect the actual children involved, the Court found that the CPPA’s prohibition of “virtual” child pornography, which doesn’t involve actual children, was unconstitutional.  The Court stated that it violated the First Amendment because it “prohibits speech despite its serious literary, artistic, political, or scientific value.  The statute proscribes the visual depiction of an idea-that of teenagers engaging in sexual activity-that is a fact of modern society and has been a theme in art and literature throughout the ages.”  Id. at 246.  The Court said that, under the CPPA, works like Romeo and Juliet and the film American Beauty would be rendered illegal child pornography.  The Court said that these are works “are far removed from the hardcore pornographic depictions that Congress intended to reach.”  Id.  Thus, the CPPA was struck down as being overbroad.

In response to this, in 2003, Congress passed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT Act).  Under the PROTECT Act, the definition of child pornography has been expanded to include any digital or computer-generated image that is “indistinguishable from … that of a minor engaging in sexually explicit conduct” or any image that makes it appears that an “identifiable minor is engaging in sexually explicit conduct.”

Notably, the PROTECT Act also includes prohibitions on the possession, production, distribution, or receipt of “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting” that depicts sexually explicit conduct by a child and which is either obscene or hard-core and which “lacks serious literary, artistic, political, or scientific value.”  Thus, the only difference between the unconstitutional CPPA prohibition and the current prohibition is that the current law requires a showing that the materials are obscene, as defined by the “Miller test”, although .

As of now, the constitutionality of the PROTECT Act has not been challenged.  If it is challenged, do you think the prohibition will be upheld?  Or do you think it would be held to be unconstitutional under the framework of Free Speech Coalition?

And here is some food for thought:  As many of you are probably aware, there is a huge market for “virtual sex” on Second Life.  If two consenting, adult SL users engage in virtual sex that involves “ageplay” (where one adult uses an adult avatar and the other adult uses a child-like avatar), could they be prosecuted under the PROTECT Act for possessing, producing, distributing and/or receiving “virtual” child pornography?

Could virtual sex involving “ageplay” be prohibited as obscene under the full Miller test?


~ by gillianleytham on October 17, 2011.

10 Responses to “Freedom of Speech: It’s Not Virtuality, It’s Reality”

  1. Really thorough analysis. I feel torn on which side to take in this week’s argument on obscenity. I feel like this a very important topic, and an extremely controversial one at that, and my knowledge of it being so limited cautions me not to talk about something I don’t have a firm understanding on. The concept of free speech is very strong in America and especially if these are digitally created pictures where there is no victim, it is tough to articulate the policy argument of protecting children from being exploited that would trump free speech. However, the need to protect children from something that could leave them vulnerable to sexual predators I think should take priority. So if someone can prove that causal link, then I think the regulations will be ruled constitutional.

    I found it interesting that in our readings, it seemed countries in Europe are facing the same issues and are siding in favor of regulation, whereas here in the United States we had the regulation declared unconstitutional. I would have thought America would be stricter in this regard than European countries. Second Life also stated in one of our readings that they have zero tolerance for child sexual images so that would seem to mean “age play” is out if the avatar appears to be 18 or above. We may never have to decide if this should be criminalized if all of the virtual worlds unite and decide they will not allow this behavior on their servers. The “age play” question seems like it would create litigation on what defines someone from appearing to be 18 or older. In general, I think the PROTECT Act will create litigation until publishers get a feel for what the court is going to rule would satisfy the “obscene” element of the Miller test. Maybe not though, because who exactly wants to represent the other side and spend money on litigation to make legalize this type of publication. It would PR suicide, unless you are already in the business in which case the negative PR wouldn’t hurt you.

    As for the video game debate, I never saw how that law was going to stand. It is clearly not narrowly tailored. The government shouldn’t be legislating something like that for lazy parents. These games cost $50. Where are these young teens getting that money and how are they spending hours upon hours playing these games that the parents deem inappropriate without these parents even knowing about it. Stop legislating everything and do your job as parents and actually be involved in your children’s lives.

  2. Addressing the first reading regarding hackers and child pornography, it is a terrifying thought that in the middle of the night I could be awakened to federal agents breaking down my door because my pervert neighbor downloaded child pornography on my WiFi network. I am one of the those people who was too lazy to establish a password for my home internet, and the thought of this happening to me is enough to motive me to call someone to come over and fix this immediately. In this digital age, this is just one more thing to be sensitive about and to take precautions to protect myself.

    Focusing more on how other countries are handling the issue of child pornography, or more specifically, cartoon images of child pornography, I certainly think it is interesting that the United States does not prohibit these images. In the Japanese comic genre, cartoonists are drawing comic-book children engaged in sexual acts, or observing sexual acts. In many European countries, including Sweden, this is classified as child pornography and against the law. While there were attempts in the U.S. to similarly ban this content, the current state of the law is that these cartoon images are prohibited only if they can also be classified as obscene under the Miller test. I think the resistance of the courts to uphold the ban on cartoon images distinguishes the freedoms Americans have under the Constitution, as opposed to other countries. There is nothing more sacred to our country than the rights afforded its citizens; rights that most others around the world do not have. So when it comes to an issue like cartoon child pornography, where no children are harmed, our courts want to uphold First Amendment rights and allow this material, though socially unacceptable. While some argue that allowing this material can lead to pedophiles later acting out these images, others might argue that it is a safe outlet for pedophiles. While I personally do not think pedophiles deserve any outlet, even one in which children are not harmed, my personal preference does not outweigh First Amendment rights.

    In regards to Second Life and “age play,” it is my thought that if people are taking Second Life so seriously that they are emotionally distraught when bad things happen, and also aroused when sexual encounters occur, then a pedophile participating in an “age play” sexual encounter is having the same physical reaction as he or she would looking at child pornography. However, I think it is a similar argument as that of the cartoon depictions – no children are actually being hurt, and it is a matter of freedom of expression. If the “school-girl” fantasy between two consenting adults is not criminalized in real life, how can it be in Second Life. Again, I reiterate that is not my preference that anyone “age play,” but I do see the argument that it should not be criminalized.

  3. Great entry. You raise some tough issues. Its a very awkward position to defend what looks a lot like child pornography. Criminalizing digital content that resembles children involved in sex, when no actual children are involved raises some real concerns, however. Defending children is the stated goal, but stamping out perversity seems to be the true aim of this legislation. That can’t be done, at least it won’t be done in our generation. (I saw a TED video recently that said the average 18 year old male sees 80 pornographic images on the internet every week). We don’t have a system of thought policing, but changing cultural values, or nudging them in a desirable direction, might be what we need. As a society, we accept the prohibition of exploitation against children. That doesn’t mean it doesn’t happen. Of course it does, but it is not a prevalent part of American culture.

    If the purpose of laws criminalizing child pornography are to protect children, they work (maybe not as well as some would like, but they do a pretty good job of deterring that kind of activity). If the goal is to keep people from being perverts, than computer generated images, and cartoons are allowing some people to circumvent that goal. I personally don’t have a problem with laws that try to make Americans act more ethically or morally, as long as it doesn’t conflict with Constitutional rights. And that of course, is the question here. I don’t know what would happen if the new law is challenged, of course. It is hard to see how the new law protects children any more than the old law. People have used computers to cleverly circumvent the prohibitions of distributing images that appear to depict children involved in sexual acts; Congress appears to have used clever language to circumvent the holding in Ashcroft. We’ll just have to wait to see who wins. I’d prefer though that in the future, Congress was more honest about what it was doing: not protecting children, but criminalizing certain sexual desires.

  4. Very good analysis. I am particularly interested in the difficulty of setting the boundaries for a definition of “virtual” child pornography. As you stated in your analysis of Ashcroft v. Free Speech Coalition:

    “[t]he Court found that the CPPA’s prohibition of “virtual” child pornography, which doesn’t involve actual children, was unconstitutional. The Court stated that it violated the First Amendment because it “prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes the visual depiction of an idea-that of teenagers engaging in sexual activity-that is a fact of modern society and has been a theme in art and literature throughout the ages.” Id. at 246. The Court said that, under the CPPA, works like Romeo and Juliet and the film American Beauty would be rendered illegal child pornography.”

    Back when I was in high school, I became fascinated with the Beatniks. The original appeal was the turtlenecks, bongo drums, and poetic image of the nonconformist. It started with Ginsberg’s “Howl” and Kerouac’s “On the Road.” By the time I was in college I was inspired with the Beat Spirit, which drew its foundation from the Transcendentalists like Emerson, Thoreau, and Whitman, as a precedent to the Hippie movement. The Beatniks became a symbol of American freedom of expression and artistic rebellion.

    Some of the works by the Beats are extremely graphic and even obscene. Many works were banned in this country and subject to obscenity trials. In “Desolation Angels,” Kerouac describes sex with a child prostitute in Mexico. “Naked Lunch,” by William Burroughs, nearly fails to establish the essential elements of a Novel, as he literally cut-up words and phrases and reorganized them on the page at random. The resulting passages include graphic depictions of pedophilia and other obscene material. The Mass. State Judicial Court reversed a holding that the book violated obscenity statutes, citing some social value to the work.

    In the case of “virtual” child pornography, I hesitate to offer any personal opinion. Certainly, any work which harms actual children should be harshly criminalized. When entering the realm of the virtual, however, I refer to the assigned reading article, “Cartoons Go Live,” discussing British prohibitions on virtual depictions of children involved in or present at a sex act.

    The article raises the principle that, “there is a natural progression in the expression of pedophilia, with individuals moving from fantasy to acting out of the fantasy. In such cases, images are considered to encourage such a progression.”

    I fear that this progression argument is not well thought out, and acts as a mere excuse to justify the law they want. It reminds me of the gateway drug argument in the War on Drugs. The progression argument when applied to other expressions of controversial speech may criminalize political writings and other speech. It is important to remember that the UK does not have the First Amendment, however, and the British government does not hesitate to ban controversial speakers from England, such as talk radio host Michael Savage.

    In closing, I do not offer any opinion of “virtual” child pornography. It is interesting to note that according to the traditional Islamic sources, Muhammad married Aisha when she was six or seven years old. She was nine when the marriage was consummated. In the book of Genesis, Lot has sex with his two daughters. Any law which bans this “speech” must therefore carve out hefty exceptions for religious documents which form the foundation of our global society.

  5. Great post and analysis. I agree with the Brown holding. In this situation, I think the onus is on the parents to monitor what their kids are doing. The ESRB rates video games (much like movies), which does half of the work for parents. All they have to do is pick up the game, look at the rating, and know their kid’s age. In these situations, it is not the law’s responsibility to compensate for bad parenting or to guess at what parents what their kids watching, playing, or reading.

    It was also interesting to learn about how our child pornography laws developed in response to the child pornographers’ creative ways around the laws. Congress simply kept broadening the law until a court told them it was unconstitutional. It seems like Congress did not learn its lesson or was too stubborn to accept the Supreme Court’s interpretation of the First Amendment because once the Ashcroft case was decided, Congress went back and passed the PROTECT Act. It seems Congress is hoping the obscenity requirement is enough to withstand constitutional challenges.

    It seems that the PROTECT Act would criminalize your age-play scenario, but may be overbroad in light of Ashcroft. Although opponents might argue that this behavior is a victimless crime, I do not mind a little over-inclusiveness in this area of the law because our society is keen on protecting children who cannot protect themselves. Specifically, it may not be a good idea to permit users to engage in virtual sexual acts with minors as it may tend to foster a message of tolerance for such behavior. We have already discussed several examples of cyberstalking, including one example at our law school that we discussed last week. There is obviously some evidence that certain users blend reality and online life. If users could engage in such behavior without committing real-world acts, then there would probably be no need for the law to provide criminal penalties for such behavior. While this behavior would be morally questionable at the least, the real aim here is to protect our children and if there is no real threat, there is no need to criminalize the conduct. I wonder if this situation would be more similar to Ashcroft or to Ferber considering the Ashcroft court stated, “The mere tendency of speech to encourage unlawful acts is not sufficient reason for banning it.” It would be interesting to see whether many of these users engaging in this behavior have past criminal charges.

  6. Gillian, I think you did a great job capturing the feelings of many people about the topic of child pornography. But, I think I’m going to assume the opposite viewpoint of the Supreme Court based on their decision to overrule the Child Pornography Prevention Act (CPPA). Or at the very least, I will have to argue against their rationale for ruling that this Act was unconstitutional.

    I don’t know if it’s simply because I am a staunch supporter of children’s rights and believe that child pornography is absolutely despicable and offensive, or whether it’s just that I don’t approve of the Court’s decision. If the goal of our legislators was to protect our children, then by finding CPPA unconstitutional, the Court certainly undermined this goal. Part of the Court’s rationale finding CPPA unconstitutional played off of its rationale in New York v. Ferber. However, I have to disagree with its argument against CPPA. The Court claims that “the CPPA prohibits speech that records no crime and creates no victims by its protection. Virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children.” After numerous opinions and blog posts to this regard, I still cannot understand how one could argue that online activity creates no real world harm. It’s just absurd to me.

    How can you argue that a child molester, or an adult with tendencies toward viewing youthful pornographic (or other sexual acts, images, etc.) online, would not benefit from images of children, even computer-generated pornographic images of children produced without the use of real children? Do you think the viewer knows this? Probably not. But, I highly doubt that by getting just a snippet or taste of the sweet indulgence will deter them from continuing their search for more. One taste is never enough for these types of individuals. And yes, I can understand how the Court could argue an overbroad reach, but I believe there is a commonality that it’s better to throw the net wide and catch everyone, even those only “possibly” interested, than too narrowly focus your attention so that dozens of potential—or even true—offenders go free. And yes, CPPA does prohibit speech that records no physical real-world crime… yet. And yes, CPPA creates no victims by its production…yet. There is no evidence that proves that individuals are not intrigued, aroused, or encouraged by viewing even this “virtual child pornography”. The motivation and stimulus is just too high.

    You might have to consider the reality of the images being portrayed, though. As it is possible to create pornographic images of child-like cartoon characters engaging in illicit or sexual behaviors, but this is obviously not real. A cartoon is not modeled off a real-world person, nor can it be argued (at least as strongly) that anime or cartoon sex or porn inspires, arouses, or elicits volatile behavior between adults and children. I think this is where you could draw the line. It’s purely fictional and I would argue there is no victim here. This is strongly contrasted to real-world adults portraying real-world children engaging in real-world sexually deviant acts that promote, encourage, or approve of real-world viewers to engage in real-world behaviors.

    The PROTECT Act seemed to address many of these concerns and seems to take my point of view on the issue of children and electronically generated pornography. If PROTECT is challenged, I think a lot of the debate would weigh on those debating. Parents as opposed to single, adult males? (I’m not being sexist, but the statistics often show that men are more likely to view pornographic material.)

    I also found some interesting reports while writing this blog response. Yes, I know this is a Wikipedia search result, but it does provide you some interesting details on what “simulated child pornography is” (ie. virtual pornography). And, it also includes some facts about Second Life and what is commonly referred to as “ageplay”. Take a look!

    And here is an excerpt I found quite entertaining (particularly the message to SL users)…

    In 2007, the virtual world online computer game Second Life banned what its operator describes as “sexual ‘ageplay’, i.e., depictions of or engagement in sexualized conduct with avatars that resemble children”.The ban prohibits the use of child-like avatars in any sexual contexts or areas, and prohibits the placement of sexualized graphics or other objects in any “children’s areas” such as virtual children’s playgrounds within the game environment. Those Second Life residents who are caught ageplaying are given this warning:
    “Dear Second Life Resident: Linden Lab would like to inform you that your land or business is possibly not in compliance with Second Life’s Community Standards. The depiction of sexual activity involving minors may violate real-world laws in some areas, and the Second Life community as a whole has made it clear that it views such behavior to be broadly offensive. Linden Lab chooses not to allow the advertising or promotion of age play or related activities in any public forum — including in-world textures, classified ads, the Second Life forums, or parcel descriptions. Advertisements, promotions, or descriptions of such activities must be removed to avoid account sanctions. Any account asserting an age that does not meet Second Life’s minimum age of eligibility will be closed.” (Duranske 2008)

  7. Well done on the analysis. I’m going to stick to the violent video game half of your post since I’ve been playing bloody video games since Mortal Kombat originally came out in the early 1990s. As someone who has killed his share of virtual enemies, I have to say that video game violence has never even made a violent thought cross my mind, and “FINISH HIM” has been burned into my brain since 1993. I know that graphics are much more realistic in present-day video games, in that they actually look like war scenes rather than video game sprites running around the screen, but my point remains the same. Concurring with the opinion from California, I see no reason that a video game would be censored on the basis of violence or obscenity.

    That being said, there is definitely a balance to strike for parents/guardians. Should your child be playing Call of Duty at age eight with a headset streaming audio of profanity and insults, all the while killing soldiers? Probably not. The ESRB rates video games for a reason, and blatantly violent and sexual games should be held off on, just like R-rated movies. Depending on the child and their maturity level, “obscene” content should be accessible if the child has earned it.

    I would hope that the judges of the world are fully aware that easily by age thirteen, children regularly watch R-rated movies, listen to profanity-laden music, play video games full of graphic violence, and click right past the “I am 18 years of age” screens on pornographic websites. I understand that the court systems are seeking to protect children and keep them away from harmful content, but kids are going to get around any roadblocks put in their way. A court deciding that something is “obscene” is not going to stop them, so unless there is some kind of penalty imposed for viewing graphic content illegally (which would be absurd), it should be up to the parents to monitor their children’s access to inappropriate content.

  8. As a parent, I believe that it is the parent’s responsibility to monitor what their child is exposed to. However, as a parent, I also realize that you cannot be with your child 24-7. In other words, a parent is not capable of knowing the contents of every show, video game or Internet site that their child watches, plays or browse. It is helpful for the legislature to provide guidance for the parent to determine what may not be appropriate for a child. Brown may have been underinclusiveness, but a statute limiting a child’s exposure to violence would be helpful to parents. We have for as long as I can remember had ratings for movies. TV and video game ratings came along later. Knowing that your child cannot buy a violent video game and a label telling the parent the game is violent is beneficial to the parent and the child. Given this information, the parent determine if they feel that their child is mature enough to handle the violence instead of being surprised after the game has already been purchased. The game is not being censored because it can still be purchased by the multitude of grown men still playing violent video games well into middle age or parents. Although the statute in Brown was underinclusive, the purpose and social benefits calls for a similar statute with a broader scope.

    In regards to the “ageplay” question, “ageplay” should be prohibited as obscene under the full Miller test because (i) the average person applying contemporary community standards would find that the image of a child engaging in sexual activities with an adult, even if the image is digital to be obscene; (ii) image of a minor engaging in sexual acts is offensive and the conduct is prohibited under the PROTECT Act (computer or digital image that is indistinguishable from minor engaging in sexually explicit conduct) and (iii) the image lacks serious literary, artistic, political or scientific value.

    However, there are two main flaws in my argument. The first is whether the whole work is SL or just the image. Second, is the image indistinguishable from a minor engaging in sexually explicit conduct? In the question, two consenting adults are engaged in “ageplay.” Can the average person distinguish between the sexually explicit conduct between the 2 consenting adults even if one looks like a child?
    Still further, opening the door to “ageplay” in an environment that prides itself on anonymity is fraught with danger. A minor could pretend to be a consulting adult and engage in ageplay with a pedophile. The image is still of kiddie porn even though the kid may not be identifiable.

    One last comment, in response to Gabriel’s comment regarding Lot and Muhammad, let’s remember that the Miller test’s first prong applies to the entire work and not just bits and pieces. In the case of certain religious text, there may be parts of the work such as the Bible that offend, but skipping to the third prong, is of serious literary value. Further, there are no images or descriptions of Lot’s daughters and Muhammad’s wife engaged in sexually explicit conduct or depicting the minors sex organs, just the mere mention of their circumstances. I feel the same applies to the Ferber court’s reference to Romeo and Juliet. Unfortunately, I have not seen American Beauty, so I cannot comment on the movie. Still further, if these works passed the Miller test, they would also pass any child porn laws because the literary works mention children but do not depict children in a way that illicit a reaction from a pedophile or average person.

    • In the interest of exploring the potential for legal dialogue in the medium of a class blog, I am inspired to make an additional comment this week.

      I am very interested by the use of the Miller test to protect us from obscene material. My discussion of Beatnik literature was to point out that graphic depictions of sexual acts involving children pass the Miller Test because the authors created works “taken as whole” having “serious literary, artistic, political, or scientific value.”

      It seems that the Miller test does not provide serious protection from obscene material. In virtual worlds, every user is a potential content creator. To take Gillian’s “ageplay” scenario (where one adult uses an adult avatar and the other adult uses a child-like avatar), it will not be long before someone creates a literary, artistic, or political work which includes ageplay as a scene or component of the whole.

      Next, I am even more interested by reactions when works which are in the Western Canon of Art are distinguished from contemporary works. I refrain from returning to religious texts, because I was admittedly just trying to provoke argument. “Romeo and Juliet”, however, provides a useful place to conclude.

      Romeo and Juliet is a play which has been performed live and adapted to film. The productions of this play about child “star-crossed” lovers has in many cases involved child nudity. For example, the 1968 Film, the Director “had to get permission for Hussey (Juliet) to appear nude in the film as she was only 15 years old at the time. Leonard Whiting (Romeo), a 17-year-old subject of Great Britain at the time of the filming, was of legal age in Britain and did not need permission.”

      In fact, the Actress playing Juliet, “wasn’t legally able to attend the London premiere of ‘Romeo and Juliet’ because she was under 18 and the film contained a nude scene — even though she was the one who was nude.”

      In conclusion, the point of this exercise is that the Miller Test provides an open door for the creation of obscene material wrapped in literary, artistic, or political work. The test is a filter through which we pick which material is celebrated and which is stigmatized.

  9. It seems that in the context of both video games and child pornography, laws are being premised on morality and not actual harm. Though harm and morality go hand in hand, it also seems when no harm is involved it is harder to pass a strict scrutiny test. As for video games, we deal with the same issue we see with laws and technology; they aren’t as adaptive as they should be. I too am one of those who’s grown up with all sorts of “violent” video games and have yet to go postal on someone because of it. Gaming systems have been developing so quickly that lawmakers do not truly understand them just like senior judges don’t understand the internet as a whole. I could understand the argument of not wanting children to be exposed to violence but labeling of video games to me was just an attempt and forcing parents to see what their kids are playing. Today you see more video game stores than ice cream shops and stores older generations spent their time at. There are more Gamestops in Gainesville than there are Coldstones. Video games are now coming with the option of selecting whether the game will include profanity or not. Kids mature differently and a parent who cares enough about what their kids are watching will realize what their children are playing.
    I was unaware of all the issues that existed with child pornography and was surprised with the case of the Swedish translator finding himself in trouble over the Japanese cartoons. In no way do I condone child pornography or virtual forms of it where children aren’t actually partaking in it, but I feel the PROTECT Act may find problems if it is challenged. Under the Miller test we look at the community standards as part of the determination of obscenity. With the size of the internet and its virtual capabilities how do you determine what the community standard is? If no children are involved or harmed, it seems restricting “ageplay” may be unconstitutional.
    To bring up something Mr. Root mentioned in regards to different cultural beliefs, how should laws apply for Americans who obtain this “obscene” material outside the borders of the U.S. where it may not be frowned upon? I worked on a case with a soldier who was being prosecuted for possessing child pornography on his laptop while deployed. The UCMJ applies to him wherever he’s at but should a regular American be subject to liability too?

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