The_Diggler said:
Won't there always be people who can see cub porn and then have it be removed if they talk to the right people because it is illegal? If I'm not understanding this correctly please correct me. But I'm wondering exactly what is keeping e621 from being shut down for having cub porn?
https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-obscenity
In addition, Section 1466A of Title 18, United State Code, makes it illegal for any person to knowingly produce, distribute, receive, or possess with intent to transfer or distribute visual representations, such as drawings, cartoons, or paintings that appear to depict minors engaged in sexually explicit conduct and are deemed obscene. This statute offers an alternative 2-pronged test for obscenity with a lower threshold than the Miller test. The matter involving minors can be deemed obscene if it (i) depicts an image that is, or appears to be a minor engaged in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse and (ii) if the image lacks serious literary, artistic, political, or scientific value. A first time offender convicted under this statute faces fines and at least 5 years to a maximum of 20 years in prison.
IMO the law is likely to be unconstitutional, but the law is likely to be untested in court, because real child pornography is the real enforcement priority. In cases where the suspect is caught with both real CP and drawn loli, they will take a plea deal, and the constitutionality of the law goes untested. It would take a case where the defendant only has fake porn and is willing and funded to fight the case in multiple courts to strike down the law, since Congress has no reason to pass a bill softening the language of the law.
Kutzner’s counsel, D.C. Carr, told TCJ that he and prosecutor Jim Peters discussed the implications of the statute itself in the course of the plea agreement. “We talked about the first amendment implications at length,” said Carr. “Painfully at length. This statute puts the government in places it shouldn’t be. Unfortunately, in this case, they had the leverage.”
Both the Department of Homeland Security and Immigrations and Custom Enforcement were involved in the investigation, led to Kutzner by the German Federal Police, who reported that his IP address was involved in sharing child pornography on the “eDonkey2000” network. Almost a year later DHS and ICE agents contacted Kutzner at his home, where he allowed them to search his computer. Investigators found more than 8,000 images described in the plea agreement as “Child Erotica,” or, “non nude or semi nude photographs and videos of children in sexually suggestive poses that are not themselves images of child pornography, but still fuel the sexual fantasies of pedophiles and others who have developed a sexual interest in minors.” After agreeing to the plea deal, Kutzner admitted during his court-mandated psycho-sexual evaluation to viewing “child pornography … for approximately eight years.” Although the additional images and admissions were discussed in the sentencing memorandum, they were not directly related to the statute that Kutzner pleaded guilty to violating.
Carr told TCJ that the complicated circumstances gave them a limited set of defensive options. “If this was the only charge, I would have taken this all the way. And this statute needs to be taken all the way.”
The test case has to be perfect. Having images of children, even pseudo-CP, is going to prevent a defendant from succeeding all the way to the US Supreme Court. You might as well take the plea deal and plan out how you want to live the rest of your fucked life.
Take the case of Texas vs. Jesus Castillo. In 2000 Castillo was found guilty by a Dallas, Texas jury for obscenity, i.e. selling an undercover police officer a copy of the second volume of Demon Beast Invasion, clearly marked on the cover as “Absolutely Not For Children.” Texas residents among you are invited to order Demon Beast Invasion through Amazon.com — it’s still available.
It’s this lack of a clear line that is the most insidious aspect of legal considerations of obscenity. Handley’s counsel stated it very clearly in an interview with Wired magazine: “Obscenity is the only law I’m aware of, if a client shows me a book or magazine or movie, and asks me if this image is illegal, I can’t tell them.” In the United States, obscenity is one of the few kinds of speech not sheltered by the First Amendment of the Constitution.
Current laws seem to have been passed in 2003, after that case.
Perhaps more importantly, when a “crime” involves no real people, involves feelings or thoughts rather than actions, is this a crime that the government should pursue? As Carr said, “Where is the victim? People like Jim Peters look at Steve and say, ‘We caught him just in time.’ Come on. A lot of the predators that I represent should be locked up. But we go from 0 to 60 in cases like this. Everything is a fetish. Everything is bad.”
It’s worth remembering that no children were exploited by any of these defendants. At worst, Kutzner may be guilty of harboring pedophilic desires, although there is no evidence that he ever would have acted on those desires. Kutzner is being sent to jail not for the images he possessed, but for what those images suggest about what is in his mind.
I think e621, rule34, and other sites exist because since the images aren't child pornography, other laws obligating the sites to report the material do not apply. If you upload actual CP, you will be reported to law enforcement. Don't take my word for it, it would be better for an admin should answer this question. There are a lot of laws, so I probably missed something.
Updated by anonymous