How is this Child Pornography legal?

[OSTBE]

I was recently searching for an icon for a file that was going to be
titled lol (laugh out loud) and i went to google images and searched
lol icon, i forgot the space and ended up searching lolicon. What i
found next disgusted me there is a child porn like (from my take)
animation site that has 3d images of children being exploited and
abused, Is this legal i asked my self so i went on and forgot about
the icon and i searched 3d animated child porn. This is what i got
from digg.com 20 Years in Prison for Animated Child Porn
Dwight Whorley of Virginia was sentenced to 20 years in prison for 74
counts of child pornography, of which, several consisted of charges
for possession of animated child porn. Under the 2003 PROTECT act it
is illegal to possess 'realistic' drawings of children having sex.

I did further research on the PROTECT act , i got this, Prohibits
computer-generated child pornography when "(B) such visual depiction
is a computer image or computer-generated image that is, or appears
virtually indistinguishable from that of a minor engaging in sexually
explicit conduct; (as amended by 1466A for Section 2256(8)(B) of title
18, United States Code). Now i believe that with all these legal
barriers a computer generated child porn site would be illegal here's
more info...

On 30 April 2003, President George W. Bush signed into law the PROTECT
Act of 2003 (also dubbed the Amber Alert Law)[39] which again
criminalizes all forms of pornography that shows people under the age
of 18 regardless of production. The Act introduced 18 U.S.C. § 1466A
"Obscene visual representations of the sexual abuse of children",
which criminalizes material that has "a visual depiction of any kind,
including a drawing, cartoon, sculpture or painting, that "depicts a
minor engaging in sexually explicit conduct and is obscene" or
"depicts an image that is, or appears to be, of a minor engaging in
... sexual intercourse ... and lacks serious literary, artistic,
political, or scientific value" (the third test of the Miller Test
obscenity determination).

With the depiction of child abuse there also comes those who re-enact
if a sex offender or pedophile was to see this they would (in my
opinion) need to have a realistic experience of what they have seen
and that would only lead to more neglect and abuse.

How Can these sites post the images that by the laws above prohibit it, where is the loophole and why isnt it shutdown? what legal rights do these sites have and why are they also not being shutdown?

Thank you very much for your time

 

[quincy]

And you have directed this plea to FreeAdvice instead of MSNBC because. . .??

 

[OSTBE]

Ostbe

I emailed this to MSNBC but im too lazy to write it all so i copied and pasted, MSNBC did not reply so i came to where i know i can find real answers

 

[quincy]

I see that you edited out of your first post your references to MSNBC and added a rather puzzling comment about "Quincy". Hmmm. And, you didn't ask any questions, so it will be hard for you to find any "real answers" - other than to your "How is this child pornography legal?" It isn't.

 

[OSTBE]

Without you i would look like an ass and a fool, ill ask a question

 

[garrula lingua]

Oste is a 16 year-old asinine fool.

 

[OSTBE]

Why, Because i care about kids

 

[quincy]

It would be easier to respond to your questions if you add them to your most recent post instead of constantly changing around your first post by deleting and adding things.

At any rate, to answer the questions you added to your first post, the reason sites like the ones you mentioned exist is because once they are shut down they pop back up under a different name. They are not legal but they are not always easy to prevent.

 

[OSTBE]

If they are being produced outside the us does that change the way things can be done in the us?, because exploiting children has kinda become iilegal in alot of the world, but cyber 3d porn i dont think has been prohibited outside the us.

And again thank you quincy...

 

[quincy]

The sites that operate outside of the U.S., if they do not have a U.S. host, are difficult to shut down as the U.S. then needs the cooperation of foreign governments - and this is not always a big priority for them.

And you're welcome.

 

[The Occultist]

Actually, courts have ruled that if the images are not of real children but are only animated/computer generated, then they are not considered child pornography, and as such, are not illegal.

 

[quincy]

The Occulist -

Can you provide a few of the cases where sexually explicit or obscene animated or computer-generated images of minors were found to be legal?

I know the various child pornography laws and acts have spawned many court cases, mostly over the constitutionality of placing limits on free expression, and there was a case where the "appears to be a minor" wording in Section 2256 (and one other "vague" phrase like that) were ruled unconstitutional. But sexually explicit or obscene computer-generated or animated images of minors, or images that are indistinguishable from minors, is still illegal, I believe - both under 2256 and 1466A.

I don't question what you wrote - I really have not researched child pornography cases much. Just curious.

 

[divgradcurl]

The Occulist -

Can you provide a few of the cases where sexually explicit or obscene animated or computer-generated images of minors were found to be legal?

I know the various child pornography laws and acts have spawned many court cases, mostly over the constitutionality of placing limits on free expression, and there was a case where the "appears to be a minor" wording in Section 2256 (and one other "vague" phrase like that) were ruled unconstitutional. But sexually explicit or obscene computer-generated or animated images of minors, or images that are indistinguishable from minors, is still illegal, I believe - both under 2256 and 1466A.

I don't question what you wrote - I really have not researched child pornography cases much. Just curious.

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002): http://www.law.cornell.edu/supct/html/00-795.ZO.html

The Government next argues that its objective of eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well. Virtual images, the Government contends, are indistinguishable from real ones; they are part of the same market and are often exchanged. In this way, it is said, virtual images promote the trafficking in works produced through the exploitation of real children. The hypothesis is somewhat implausible. If virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice.

In the case of the material covered by Ferber, the creation of the speech is itself the crime of child abuse; the prohibition deters the crime by removing the profit motive. See Osborne, 495 U.S., at 109—110. Even where there is an underlying crime, however, the Court has not allowed the suppression of speech in all cases. E.g., Bartnicki, supra, at 529 (market deterrence would not justify law prohibiting a radio commentator from distributing speech that had been unlawfully intercepted). We need not consider where to strike the balance in this case, because here, there is no underlying crime at all. Even if the Government’s market deterrence theory were persuasive in some contexts, it would not justify this statute. (emphasis added)

 

[The Occultist]

I had no resources to offer, only that I recall reading an article that expressed my statement that was linked to from this very site. Thank you Div for providing an actual source!

 

[quincy]

Thanks, The Occulist and divgradcurl.

I was aware of the Free Speech Coalition case, which is where the two phrases "appears to be of a minor", and "conveys the impression" it depicts a minor, were found to be overbroad and vague and unconstitutional. Although Section 2256 held, these overbroad provisions were struck down. And then Bush came along with the Protect Act of 2003, which was a response to the Free Speech Coalition decision, and the language of 18 U.S.C. 2256 was changed to read "virtually indistinguishable from an actual minor".

Of course, this, too, is being challenged, as two more phrases are being challenged by the ACLU - "purported material" and "reflects the belief" - which lead to more vagueness and more First Amendment problems.

There must be at least a dozen more bills being discussed in Congress currently to address ways to stop child pornography and "virtual" child pornography without violating First Amendment protections, although a few appear to run into First Amendment problems in my opinion, as well.

But, I still believe that because of the decisions in Miller v. California and New York v. Ferber, courts are allowed to restrict obscenity in any form and the government can restrict child pornography - and the sites depicting "virtual children" can still face court action under 2256. One test to these sites will be if there is any redeeming value to the works as a whole.

In any event, I imagine those "creating" virtual child pornography, under obscenity laws alone, will still wind up in court.