taken as a whole, appeals to the prurient interest –(ii) the work must depict or describe, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and –(iii) the work, as a whole, must lack serious literary, artistic, political, or scientific value •The Supreme Court held in New York v. Ferber that child pornography, even if not obscene, is not protected speech. The court gave a number of justifications why child pornography should not be protected, including that the government has a compelling interest in safeguarding the physical and psychological well being of minors.
Child Pornography Laws •The Child Pornography Prevention Act of 1996(CPPA) sought to apply the Ferber standard to restrict child pornography on the internet, including virtual child pornography. The Supreme Court struck down CPPA in 2002 in Ashcroft v. Free Speech Coalition for being overly broad. –The problem was that CPPA did not condition prohibition on the material being obscene, and the provisions relating to virtual pornography did not involve harm to children in production, which was the primary justification in Ferber •In response to the demise of the CPPA, the US enacted the Protect Act of 2003, 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". Note that the law does not make all simulated child pornography illegal, only that found to be obscene under Miller v. California –Use of the Protect Act in a case involving Japanese anime was upheld by the Fourth Circuit in 2008. Some Americans possessing anime have been jailed for long sentences
Pornography •Anti-Pornography (strange bedfellows) –According to religious (and other) conservatives, pornography promotes general moral decay and undermines traditional social institutionssuch as the family •See -reisman-wants-pornography-outlawed –Some feminists and others believe that pornography promotes physical or sexual violence against women •See Women Against Pornography (Brownmiller; faded in 1990s) •Pro-Pornography –Trends in post-feminist thought see value in pornography (women can express power & self-interests, free to make $) –Many liberals downplay any harmful effects of pornography and see some beneficial effects of sexually explicit material • Research has not resolved the question of pornography’seffects on behavior