SCOTUS Overturns 'Crush Video' Law

Discussion in 'Politics, Religion, Social Issues' started by mactastic, Apr 20, 2010.

  1. mactastic macrumors 68040

    mactastic

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    #1
    I suspect there won't be a lot of disagreement among the forum about this decision, but there is an interesting wrinkle to the legal opinion that I think merits some discussion.

    First the news:
    So freedom of speech wins a victory. Nothing terribly surprising there, outside of Alito as the lone dissent on an issue where the gun lobby has an interest. But here's the twist -- and Digby sums it up quite succintly, so I'll let her lay it out better than I could:
    That was exactly what struck me as I read about the decision earlier today. The intellectual inconsistency applied by the court in this kind of thorny situation is troubling to me. Either images of abuse are intrinsically related to the underlying abuse, or they aren't. The subject of the abuse should be irrelevant.

    Personally I would fall on the side that says they are intrinsically related, and that child pornography and crush videos are not protected speech; but still find this law to be overly broad because the way it's written it can be construed to apply to images of a legal activity. Although, not being a legal scholar, I'm not sure if that is an option since the issue in this case was a party producing videos of an illegal activity.
     
  2. skunk macrumors G4

    skunk

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    #2
    Surely then, in view of their acknowledged capacity for misuse, the argument should be that any such laws need to be far more carefully written?
     
  3. chrmjenkins macrumors 603

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    #3
    Indeed. It cannot be that hard to word the law such that it covers depictions of acts of cruelty and/or personal injury to other parties, yet leaves personal actions which did not infringe upon another's rights, regardless of their legality, alone.
     
  4. citizenzen macrumors 65816

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    #4
    I for one can easily see where criminal activity crosses the line beyond "free speech".

    Here's one big thumbs down for this Supreme Court decision.
     
  5. AP_piano295 macrumors 65816

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    #5
    It would be nice if regardless of the wording of laws those charged with enforcing them would utilize a bit more common sense in the course of executing their duties.
     
  6. Shivetya macrumors 65816

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    #6
    WOW, I actually like Scalia here :p


    While I agree with the ruling I would that the localities where the crush videos are made step up their enforcement and penalties.

    Its gross, its not acceptable, and frankly I would not mind subjecting the creators to the same treatment.
     
  7. mcrain macrumors 68000

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    #7
    There is no legal or justifiable way in which to create real child pornography. As a result, there are no 1st amendment restrictions on child pornography that restrict otherwise legitimate and legal speech.

    Here, there are many types of legitimate and legal videos that would be affected by this restriction. As a result, the law is overly broad. A restriction on free speech MUST be reasonable in scope and manner of restriction.

    I would toss my cookies if I saw a video of someone tossing puppies, but that doesn't mean a video put out by an animal rights group on the realities of animal slaughter should be illegal.

    This decision is NOT passing judgment on the videos or animal cruelty. Animal cruelty laws still stand. This is only about the restrictions on the videos (speech). If the law was more narrowly tailored, it might be able to withstand judicial scrutiny. This is not the end of this discussion, only the beginning.
     
  8. Gelfin macrumors 68020

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    #8
    As much as I really don't want to be seen on the other side of this question, consider that right now across the country teens are being arrested and charged with trafficking in child pornography for taking nude pictures of themselves using their cell phones and sending them to other teens. They are having to register as sex offenders for life over this. I cannot say I approve of this behavior in the "responsible adult" sense, but neither can I condone a child pornography charge. From a parental perspective it's not something you want your child doing. From a legal perspective it seems suspiciously like something we would want to call protected speech.

    I must reiterate that I am really not entirely comfortable in this topical neighborhood, but it does illustrate an important point: like mcrain just did above, lawmakers think in positive cases, not negative cases. That's how they create overly broad laws: they are focused entirely on the behavior they do want to stop. Figuring out what other behaviors they might be unintentionally stopping in the process doesn't naturally occur to most people, lawmakers included, and is much more difficult in any case. Thinking of the one thing you want to stop is easy. Now try thinking of everything that is or might ever be and asking yourself if you're affecting any of it.

    Consider a less legal example: You want to write your own spam filter that looks for words you only ever see in spam. You think, "CIALIS, there's an obvious one. If I needed boner pills I sure wouldn't buy them via a sketchy email." So you add that to your list. The problem is the very next day a job recruiter sends you a description looking for a "network specialist" and it goes right into your spam folder. When your weird conservative uncle sends you another dire warning about "socialism" that goes into the folder too, but not for the rational reason. Because you were focused on the context you cared about, you were blinded to the legitimate negative cases.

    You can argue that lawmakers should work harder to craft more precise laws, and maybe that's true, but this sort of blind spot is so normal as to be hard to condemn. You can argue that the laws should be executed with more common sense and compassion, but that isn't what the law is for. Law is where you go to resolve an issue when basic, reasonable human interaction breaks down. You go back to the rules and hope you wrote the rules right. Mostly we do.

    When we don't, unfortunately all the court can do is strike the law. They cannot rewrite the law on legislators' behalf to make it work. Worse, when it happens you get inevitable responses like "damned activist liberal/conservative (take your pick) court actually thinks crush videos are okay!" I am fairly sure the SCOTUS are not a bunch of secret crush video aficionados (well, maybe Scalia), but if the law catches broad swaths of legitimate material in its wake it's got to go.
     
  9. thejadedmonkey macrumors 604

    thejadedmonkey

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    #9
    If I understand this correctly, we're lumping child porn, sexting, fetishism, animal cruelty, and gun control, into a single decision? No wonder why there's discussion LOL

    This quote I would assume is dealing with the ideal situation (ie, an adult taking nude pictures of minors), not sexting.

    I believe sexting will one day have different rules, as it's unimaginable that anyone should be labeled a sex offender for life, because s/he sent their partner a sext when they were 16.
     
  10. obeygiant macrumors 68040

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    #10
    The explanation of why videos of animal cruelty isn't intrinsically related to the underlying abuse seems clear to me. Because of the cross over between the nature of hunting and cruelty to animals. I dislike cruelty to animals just as much as anyone else but this seems plausible to me.
     
  11. Shivetya macrumors 65816

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    #11

    Child porn cannot legally be made in the US. Neither can many animal crush / torture videos. Bull fighting is one of the issues that this case was about, well guess what, it is legal where it was produced. So if what we consider child porn isn't child porn elsewhere how does this decision not apply to it?

    It doesn't except on moral grounds and that is why I agree with the decision but don't like it. To me its not moral to torture animals and I find the existence of crush videos to be worth putting producers under the ground permanently.
     
  12. mactastic thread starter macrumors 68040

    mactastic

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    #12
    This is most certainly one of the problems with child pornography laws. There is a huge difference between an adult filming themselves having sex with a child, and children sharing naked pictures of themselves voluntarily. There is no need to label some kid caught "sexting" as a producer of child pornography. It's an overly broad use of the anti-child pornography law that was likely never intended by the law's authors. And the consequences for such an infraction seem to be grossly disproportionate to the level of offense of the act.

    At it's most extreme, I could probably be charged for the pictures I've taken of my toddler son playing in the bathtub with his friend, or gleefully tearing around the yard sans diaper over the summer when the pool was out. I would suspect that just about every parent has some bare-buns pictures of their child, and quite possibly even ones showing genitalia. Now, no court in the land would likely convict someone of child porn if that's all that was discovered on their computer; but that doesn't mean that a vindictive or otherwise overly zealous prosecutor couldn't CHARGE me with the crime and let me spend my time and money defending myself and my reputation in court.

    Which is why we always return to the question of whether or not you trust government with an overly broad power. Can you trust the government to only listen to the "right" phone calls? Can you trust the government to only stop the "right" immigrants? Can you trust the government to only take guns away from the "right" people?
     
  13. citizenzen macrumors 65816

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    #13
    Could you give me some examples of what you're referring to here?
     
  14. mactastic thread starter macrumors 68040

    mactastic

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    #14
    I view it as intrinsically related because there is no way to make a real crush video without abusing an animal, just as there is no way to make real child pornography without abusing a child. From a legal perspective, depiction of abuse should be agnostic of the subject of the abuse.

    However, I do agree that the law, as written, is overly broad -- and as such must be struck down be the courts. Hopefully legislators will review the Court's logic in this case, and re-write this legislation in a narrower form that will pass Constitutional muster.
     
  15. mactastic thread starter macrumors 68040

    mactastic

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    #15
    Well, let's say someone went undercover at a meat packing plant, and shot undercover footage of animals being abused. Technically, that video is illegal. Or if someone were making a hunting documentary, and filmed a shot that painfully wounded an animal instead of killing it. Or if someone filmed the penning up and slaughter of whales.

    The problem with this law is that it potentially criminalized the production of imagery of activities that are either legal, or made by people attempting to bring illegal or unethical activity to light.
     
  16. mcrain macrumors 68000

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    #16
    Sure, but...

    That is what I was referring to. Animal rights groups, PETA, ***** discovery channel and their exposes on animal cruelty are illegal under the law as written. So, don't give up, just re-write the law! That's the point.

    Ok, yeah, I hate to say this, but it is possible to make a real crush video or child porn video without abusing. Green screen, computer animation and face overlays/costumes.

    The law is overly broad, and should be rewritten to cover the crime, and nothing more. Until then, I'll be in the woodshed filming two worms fighting for supremecy of the floor.
     
  17. mactastic thread starter macrumors 68040

    mactastic

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    #17
    I don't consider that to be a "real" abuse video anymore than I consider George Lucas to have filmed "real" space battles. Sure, it's convincing when you see it on the screen, but ultimately it ain't the real thing.

    You actually allude to a much more grey area of the law, involving the creation of what is ostensibly child pornography wherein no children were actually involved. This can occur through the use of actors who appear to be underage, the video tricks you reference, or through completely animated characters. This is likely to get even more realistic as animation technologies progress, even to the point where it would be possible for someone to act out an entirely realistic child rape fantasy via an avatar in some kind of twisted Second Life-type scenario.
     
  18. mcrain macrumors 68000

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    #18
    You wish. I have a former client who is spending several very uncomfortable years in prison because he cut out a child's face and pasted it to pictures of consenting adults having sex.
     
  19. Sydde macrumors 68020

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    #19
    So if you look across the way, see into your neighbor's house that a molestation is taking place, and whip out your camera to record it so you can show it to the police. At that point, you are in possession of illegal child pornography...
     
  20. mactastic thread starter macrumors 68040

    mactastic

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    #20
    That is where I disagree with the courts. I support criminalizing actions, not thoughts or fantasies.

    And, of course, up until two days ago we could have had this same conversation about depictions of animal abuse, and you could have attempted to end the debate by saying that you had a client in jail for pasting a pandas head on a slaughterd cows body.
     
  21. mcrain macrumors 68000

    mcrain

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    #21
    Child abuse is a crime. The manufacture and possession of child pornography is a crime. The definition of child pornography includes simulated acts.

    Animal abuse is a crime. The manufacture and possession of animal abuse videos is what this law tried to cover, except it also covered other types of speech that would and should otherwise be legal. (Thus, overly broad) The definition of animal abuse and animal cruelty video does not include simulated acts, so my panda head video should be ok.
     
  22. mactastic thread starter macrumors 68040

    mactastic

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    #22
    Which is why I think child pornography laws are a little too broad. If no child has been abused, I find it difficult to justify a charge of child pornography.

    Edit: To be clear, if there is a child involved in simulated acts, that to me is illegal. But if you are filming a guy having sex with a 'barely legal' teen who appears younger, then you are criminalizing creating video of an otherwise-legal activity.
     
  23. mcrain macrumors 68000

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    #23
    The situation that I have seen people get in trouble for is altering images of under-age minors to simulate that minor performing a sex act. I'm not sure I agree with this, but I don't necessarily disagree either.

    Two adults having consensual sex, even if they are pretending to be younger, is different. I'm sure there are some restrictions, but I'm not familiar with them.
     
  24. mactastic thread starter macrumors 68040

    mactastic

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    #24
    I can certainly see some thorny legal issues in such a case, particularly related to defamation and exploitation.

    And what if there are no actual people involved at all? What if it's pure animation? And what if, as time goes by, animation techniques become so sophisticated that it becomes impossible to tell what is animation and what is reality?

    What about re-making the film version of Lolita? What about someone who writes stories about child rape? What about someone who sketches a doodle of a child being raped? What about "sexting" teens?

    I don't have all the answers, I just know that there are some very murky situations where free speech is at issue despite no harm being done to any victim. And I would say that current child pornography laws are broad enough to be abused by law enforcement in the same manner upon which the Court based it's decision to void the crush video law. I just don't think it's right to be able to go to jail for producing a video of something that in and of itself is a legal activity.

    Of course, I also don't think even the SCOTUS is brave enough to overturn laws against child pornography, even on that basis. Imagine the outcry...
     
  25. Sdashiki macrumors 68040

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    #25
    many porn producers, especially the larger ones (hehehehe), would love to see online porn treated in the same way the RIAA and MPAA treat their "stuff".

    yet no legal undertaking has or probably ever will be done because no one on the legal side of the fence wants to defend porn...especially not all the way to SCOTUS.

    Larry Flynt made it (People vs Larry Flynt FTW!), but for entirely different reasons.

    Child porn seems to be the ONLY thing legal minds ever want to work on because its demonized by society on all levels even when logically the laws make no sense...no one is willing to challenge it because one could look soft on "child molesters".
     

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