Responses to "Leotards and the Law," from The Netly News

Declan McCullagh declan at
Wed Aug 13 17:22:49 PDT 1997

---------- Forwarded message ----------
Date: Wed, 13 Aug 1997 16:11:04 -0700 (PDT)
From: Declan McCullagh <declan at>
To: fight-censorship-announce at
Subject: Responses to "Leotards and the Law," from The Netly News

My own reading of the opinion is that Judge Conti doesn't address the most
interesting aspect of this law, for instance the case of the South Pacific
researcher who wants to create a sexplay animation. To the extent he does,
he substitutes assertion from the Senate report for analysis (I agree with
Prof. Freedman here). He didn't have to go further, really, since the
plaintiffs explicitly said they weren't selling such animations. Conti
only explores this idea in a footnote, which reads:

  "These incidental harms include the depiction of images created within
  the imagination of the artist. If the images depicted are of children,
  albeit imaginary ones, and not of actual adults of imaginary people who
  unequivocally appear to be adults, then the evils associated with child
  pornography cannot be avoided."

This discussion of the imagination of artists strikes me as telling.
You see, Judge Conti would like to ban thoughtcrime.



Date: Wed, 13 Aug 1997 18:19:08 -0400 (EDT)
From: David Greene <dgreene at>
To: declan at
Subject: Re: FC: "Leotards and the Law," morphed child porn lawsuit, from Netly

I read Judge Conti's decision to be more consequential than Professor
Freedman does.  Three of its features are particularly disturbing to me:

1.  Judge Conti held that the law is content-neutral.  As the law is
targeted directly and very specifically against the content of the
depictions, I don't buy his "secondary effects" reasoning (that is, the law
is meant to prevent the unavoidable secondary effects of simulated child
pornography -- namely, the seduction of children into pedophilic situations
-- not the simulated images themselves).  The result of Conti's finding is
that the law was subject to less demanding scrutiny than it owuld have been
had it been found to be content specific.

2.  Judge Conti notes that the statute sweeps within its reach "the
depiction of images created within the imagination of the artist" that are
"of children, albeit imaginary ones."  He acknowledges that the
illegaliztion of these depictions is an unavoidable incidence of the fight
against child pornography.  To me then, not only are Photoshop-synthesized
images of half-naked children and an anthropology professor's
computer-generated movie of the sex play of South Pacific teens be illegal
but so would less realisitic depictions such as cartoons or paintings and
various types of computer art.  Conti tries to bail on this later when he
talks about the affirmative defense written into the statute that exempts
works not marketed as child pornography or in such a way that exploits its
sexual nature as child pornography.  However, this affirmative defense is
avialable only to works that were produced using an actual adult person.

3.  With respect to images of youthful-looking adults, Conti relies heavily
on the affirmative defense as curing any constitutional ills the statute
might otherwise have had.  However, is it really clear when something is
marketed "in such a manner as to convey the impression that it is or
contains a visual depiction of a minor engaging in sexually explicit
conduct"?  Is the affirmative available to anything that does not call
itself KidSeXXXX (or the like)?  It still seems vague to me.

The opinion seems to criminalize serious works that will use real adults or
simulated (computer generated, drawn, etc) children to depict pedophilic
situations in order to discuss pedophilia and admit that that is what they
contain.   Lolita?  A Human Sexuality text book?  National Geographic?

The Supreme Court in the Ferber case and those that followed it was
especially concerned with the harm caused to children that participated in
the production of child pornography (or identifiable children who were made
to appear as though they participated).  Whether the mere viewing of child
pornography was an equally weighty concern was a question on the outside of
the constitutional analysis.  Judge Conti's opinion is consequential in
that assumes that this is the central issue.


Date: Wed, 13 Aug 1997 17:17:44 -0500
From: jc <jch159 at>
To: declan at, fight-censorship-announce at
Subject: Re: "Leotards and the Law," morphed child porn lawsuit, from Netly

suppose somebody alters a picture of a child in an erotic pose into a
mouse, lets say. Or the lower half is of a mouse but the top half a child?
is the person still liable?
suppose a dog looks vaguely like its human owner (hey, there are even
contests to that effect) and the dog is eating the leg of another human.
Would the human most closely resembling the dog be in trouble?
thank god there are judges out there like conti who will save us.
Stupid prick that he is!


Date: Wed, 13 Aug 1997 14:25:54 -0700 (PDT)
From: Joe Shea <joeshea at>
To: declan at
Subject: Law limiting child pornography on Internet upheld (fwd)

	This decision seems, on a preliminary reading. to validate the 
views of those of us who say that existing laws are sufficient to 
prosecute child pornography violations that appear on the Internet.


Joe Shea
The American Reporter
joeshea at

---------- Forwarded message ----------
Date: Wed, 13 Aug 1997 05:31:39 -0700
From: NewsHound <NewsHound at>
To: newshare at
Subject: Law limiting child pornography on Internet upheld

NewsHound article from "NEWSPAPERS" hound, score "92."

Law limiting child pornography on >>Internet<< upheldBY HOWARD MINTZ
Mercury News Staff Writer

A San Francisco federal judge has upheld a year-old law aimed at
restricting child pornography in cyberspace, rejecting arguments that it
violates free-speech rights and chills legitimate art and literature.

In a 16-page decision, U.S. District Judge Samuel Conti  on Tuesday found
that the Child Pornography Act of 1996 is constitutional and a valid way to
deal with the ``devastating'' effect of computer-generated kiddie porn ``on
society and the well-being of children.''

``Given the nature of the evils that anti-child pornography laws are
intended to prevent, the (law) can easily be deemed a content-neutral
regulation,'' Conti wrote.

The American Civil Liberties Union, the adult entertainment industry and
others have challenged the constitutionality of the law, saying it is so
broad that it would criminalize everything from Calvin Klein ads to the
recent movie rendition of ``Romeo and Juliet.''


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