1 / 5

Child Pornography – NY v. Ferber

Child Pornography – NY v. Ferber. NY law prohibited knowing use of child under 16 in a sexual performance. Sexual performance = performance involving sexual conduct by child under 16

margie
Download Presentation

Child Pornography – NY v. Ferber

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Child Pornography – NY v. Ferber • NY law prohibited knowing use of child under 16 in a sexual performance. • Sexual performance = performance involving sexual conduct by child under 16 • Sexual conduct = actual/simulated sexual intercourse, deviate sexual intercourse, bestiality, masturbation, sado-masochistic abuse, lewd exhibition of genitals • Performance = play, motion picture, photograph or dance • SCT upheld law even though didn’t meet Miller standards: • State interest in safeguarding children/creation of porn hurts children physically and psychologically (it’s a form of child abuse) • State interest in stopping distribution – which also hurts children (films & photos are permanent record of abuse & must close distribution routes to stop abuse) • Ads/sales of porn provide economic motive and are integrally related to production • Value of child porn is very low if there is any at all • Laws regulating child pornography must: • Adequately define prohibited conduct to be prohibited • Contain scienter (intent) requirement • Only apply to “live performance/photographic/visual reproductions

  2. Ferber and the question of “value” • Majority interpreted the NY law as not applying to works having any serious value. • Note disagreement between O’Connor & Brennan as to whether distribution of child pornography should still be prosecuted if it does have serious value. What is the right answer? • Hypo: A documentary producer filmed the conditions in a state hospital for the developmentally challenged that showed filthy conditions and insufficient care, which also included pictures of poorly cared for and nude teen patients wandering the halls and masturbating.

  3. Ashcroft v. Free Speech Coalition - Background • 18 USC § 2256(8)(B) – prohibits “any visual depiction” that “is or appears to be of a minor engaging in sexual conduct” • 18 USC § 2256(8)(C) – prohibits computer morphing of actual children to make it look as though they were engaging in sexual conduct • Not challenged in Ashcroft • 18 USC § 2256(8)(D) – prohibits “any sexually explicit image that was advertised, promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct.” • State interests in regulating pornography: • Pedophiles may use images to encourage children to participate in sexual activity; • Virtual child pornography makes it harder to prosecute real pornography

  4. Ashcroft v. Free Speech Coalition • Why does SCT have a problem w/ Sec. 2256(8)(B)? • Why aren’t gov’t reasons good enough? • What is the problem w/ Sec. 2256(8)(D)? • What result in the Evan Emory prosecution?

  5. Violent video games & minors – analogy to obscenity/child pornography? • Cal. Civ. Code § 1746.1(a): A person may not sell or rent a video game that has been labeled as a violent video game to a minor. • Exceptions – (1) reasonable reliance on proof of adulthood or mfrs’ failure to label & (2) minor received from parent, legal guardian or related adult • Many, Many definitions. Most important is in § 1746(d)(1): • "Violent video game" means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that . . . [either] (A) Comes within all of the following descriptions: (i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors. (ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors. (iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors; [or] (B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim. • Terms – Cruel, Depraved, Heinous, Serious Physical Abuse, & Torture also defined

More Related