Yesterday John Jakala and I had an exchange over the degree to which Battle Royale #3 does or does not constitute child pornography. Today John writes with information I’d been looking for–the pertinent law. It can be found here, and it’s exactly as troubling as I remember it. To wit:
“child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where –
(A)
the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct
(B)
such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct
Emphases mine.
What’s wrong with this picture? First of all, totally fictional depictions of the acts in question–i.e. drawings, paintings, computer-generated images, and so forth–are legally identical to actual recordings of the actual acts–i.e. photographs, film, and video. Now, I think we can all understand why it’s illegal not just to make child pornography, but to possess it: Unlike with visual documentation of other crimes (the Zapruder film, for instance), the audience is part and parcel of why the crime is committed in the first place. But when the visual documentation in question shows no actual crime being committed, how can that visual documentation itself constitute a crime? I’m just as grossed out by the notion of people whacking off to computer-generated pictures of little girls as the next guy, but being grossed out, or even outraged, cannot of itself be the basis for legal action. And as Battle Royale, the book in question, shows, this definition doesn’t just apply to fake porno–it applies to works with genuine artistic intent and, dare we say it, redeeming social value. And hey, don’t like Battle Royale? Fine! How about A Child’s Life or Diary of a Teenage Girl or The Playboy or even A Contract with God or Blankets? All feature visual depictions of underage people engaged in sexual conduct. And under this law, you can go to prison for owning them.
Problem number two: All that’s required for a given work of art to be considered “child pornography” is for there to appear to be underage people engaging in sexual conduct therein. Once again, no actual crime need be committed for the work in question to be illegal itself. The effect on visual arts here is so chilling it need hardly be enumerated, but just remember the next time you rent Kids or Amarcord or Fast Times at Ridgemont High or American Pie or Lolita that you are now a convictable kiddie-porn user.
If there’s any good news about this, it’s that I remember hearing about these regulations quite some time ago, and have yet to hear of anyone being prosecuted based on its fuzzier aspects. Though I’m not much of a court-watcher, it seems to me that laws in which definitions are this broad are routinely struck down when challenged. But until that happens, I guarantee you that someone will have to spend thousands of dollars and several years defending themselves against spurious accusations that do little to protect actual children and much to undermine First Amendment rights.
Troubling. Troubling indeed.
UPDATE: This is what I get for not following SCOTUS as closely as I should. Turns out that the Supreme Court struck down the ban on “virtual kiddie porn” in April of 2002, despite the best efforts of leading would-be theocrats John Ashcroft and Antonin Scalia. However, the House continues its attempts to reinstate the regulations. Remember this the next time you crack open Blankets.