Our national nightmare continues.
I couldn't get trackback to work, but I cited this post on AlterNet Reality
Thought crime was invented (attributed to) God and Moses (10th commandment).
I'm not sure that all it has to do it "cause" someone to believe something. The focus of the law is on the distributor's intent - this means that you have to prove he intended to cause another person to believe something. Hypothetically, a person could distribute fake child pornography that everyone would agree appeared to be real (the cause element) yet the person could only be prosecuted if it was shown that he had the actual intent to cause this belief. In other words, DA Biblebeater will have to show-beyond a reasonable doubt for criminal charges-that the shop owner intended to cause customers to believe that Girls Gone Wild was child pornography. He cannot simply go to court and say that some people might see it that way - he has to show that the shop owner personally held that belief, and distributed the videos with that specific intent. Thus, the shop owner can argue that he did not intend to distribute child pornography, and that defense will work unless the DA can prove he had the requisite intent.
This kind of intent requirement can be a significant hurdle to prosecution. The shop owner will probably be able to get off because of it (keep in mind that his belief that Girls Gone Wild is not child pornography does not even have to be reasonable, the key fact is simply whether or not he believed it). Where this intent requirement will be easist for the DA to overcome is in cases where the distributer has personally altered images to make the people in them look younger-obviously, much easier to establish intent in that case. I'd imagine that's why the law was written this way in the first place, to get around the "but its not actually children" defense. While it could have been worded better, I think the bar for prosecution is much higher than most people currently think. The accused will have actually had to have done or said something explicitly indicating that he intended to distribute child pornography.
I beg to differ. The courts have been very lenient in such matters. In one case a man was convicted of child porn even though there was no sex nor nudity in the photos. He had someone take photos of boys without shirts on. The court ruled that the man found it arousing therefore it was pornography even if no one else would see it that way.
If it is not actually children then no violation of rights has taken place. If there is no violation of rights then no real crime has taken place. The "defense" you refer ought to be a legitimate defense.
Films from HOllywood may portray very realistic murders. Should they be arrested for appearing to kill people? This idea that something ought to be a crime because some people think it is is a very slippery slope.
And you miss the main point I make. I said that even if the courts found in favor of people this gives prosecutors a new tool to harass people out of business who are not violating the law. I predicted that this law will be used more against producers of legal products than those who produce illegal products.
Let me begin by saying that I'm not in favor of this law - its sloppy legislating created to overcome the 1st Amendment issues fatal to earlier laws. The Supreme Court narrowed it mean that: "a person offering material as child pornography can be convicted on either of two grounds: for believing that the material depicts real children, or for intending to convince a would-be recipient that it does."
I happen to agree with Justice Souter in that the distribution of material as one thing when in fact it is another ought to be considered fraud, not pornography.
The problem here is that you are correct in that there is not an actual violation of a child's rights. However, the Court does not look at whether there is a violation of a victim's rights when deciding to strike down a law, but rather whether the law infringes on the rights of the accused. Previously, the Court has held that as long as you know the pictures are not of children, then they are protected under the 1st Amendment. This current law was interpreted as meaning that if you actually pander the images to others as child pornography, then the 1st Amendment protection no longer applies.
Will this law be used to harass legitimate businesses? Probably. Unfortunately, that was not the issue in this case and really wasn't up to the Supreme Court to decide (the case arose out of a man pandering non-existent pictures of his 4 year old daughter). Congress could fix this, but they won't, because no one wants to be the champion of child porn in the next election cycle.
I would also note that this is slightly different than the Hollywood action violence example. While people may get emotionally involved in the latest Rambo movie, no one actually thinks (nor do the film makers intend to make them think) that Sly is actually killing scores of Burmese soldiers. While Congress could make that illegal to harass the film industry, they probably won't. This may illustrate that plenty of people will argue on the merits for violence in film - you're not going to see many people extol the virtues of child pornography under any circumstances.
So while I agree with the basic premise that this is a poorly written and ill conceived bit of law, I don't share your pessimism that this will be a slippery slope, though I will admit its possible (see the video game industry, for example).
Will; You don't share my pessimism. Can you name one law where sloppy writing such as in this bill didn't lead to such malicious prosecution?
I'm not sure I can even give you an example of a well written law that hasn't been abused by a DA somewhere. Any law opens the door to malicious prosecution in some sense - see the Duke Lacrosse case, for instance, in which a fairly typical and well-defined sexual assault statute was used in an attempt to prosecute what now appears to be three innocent people. My point is that a statute is not unconstitutional simply because it can be possibly abused.
I think the point you are making is that this bill is different because even if there was no child pornography actually in existence, a crime can still occur (unlike the sexual assault case in which the admitted absence of an assault precludes prosecution). The argument seems to be that a malicious prosecutor can use this statute to beat law-abiding citizens over the head with a thought crime.
My point is that this does not necessarily make it much easier to harass someone. A DA could basically do the same thing with a statute that required actual evidence of child in the material. Couldn't he simply haul someone in for pandering child pornography? There is certainly a defense that the people in the material were adults or that it was altered pictures of adults. But the defendant will still need to show that in court. The DA could challenge birth certificates, etc., and in general harass the defendant over every issue. Such a process can last months, if not years. So it's easy to see how a defendant in this case could eventually be found innocent of actual possession or pandering (even before trial), and yet still be harassed out of business.
This new statute could add an extra layer to the defendant's problems, but it will not be that substantial. Keep in mind that the DA has to prove all of this. Before, he had to prove that there was actual child pornography. Now, he can additionally try to prove that you thought, or tried to convince others, that it was the real thing. Again, though, that can be hard to prove without some specific evidence indicating the fact. Furthermore, it's not much of an additional burden on the defense - much of the argument is exactly the same as it would be under the previous laws, but now you get to sit through another few arguments with DA failing to demonstrate the alternative intent requirement in the new law.
The fact is, this new law doesn't really give the DA a new tool for harassment as he could do that already under existing law. The only time this additional provision is going to make much of a difference in case is when a DA has solid evidence that there was intent (see the SC case itself, with the pandering of non-existent pictures of a 4 year old). If he does not have that evidence, then the "intent" count is going to be dismissed along with the regular possession count. If there is evidence that a violation of the new law has occurred (marketing the material as child pornography for instance), then I would suggest its
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