So why isnt child porn protected by the 1st admendment?
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FelixDeCat
Lifer
- Aug 4, 2000
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Leaving aside the content of your OP, and just addressing the question in the title, because child porn relies on children to be produced, and children cannot legally consent.
So, in a manner of speaking, it is not the concept of the child porn that is illegal, but the participants used in it.
So, in a manner of speaking, it is not the concept of the child porn that is illegal, but the participants used in it.
guyver01
Lifer
- Sep 25, 2000
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The federal government and the states have long been permitted to limit obscenity or pornography.
While The Supreme Court has generally refused to give obscenity any protection under the First Amendment, pornography is subject to little regulation.
However, the exact definition of obscenity and pornography has changed over time.
When it decided Rosen v. United States in 1896, the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin, [1868] L. R. 3 Q. B. 360. The Hicklin standard defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."
The Court ruled in Roth v. United States, 354 U.S. 476 (1957) that the Hicklin test was inappropriate. Instead, the Roth test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest."
Justice Potter Stewart, in Jacobellis v. Ohio, 378 U.S. 184 (1964), famously stated that, although he could not precisely define pornography, "I know it when I see it".
The Roth test was expanded when the Court decided Miller v. California, 413 U.S. 15 (1973). Under the Miller test, a work is obscene if:
Personal possession of obscene material in the home may not be prohibited by law. In writing for the Court in the case of Stanley v. Georgia, 394 U.S. 557 (1969), Justice Thurgood Marshall wrote, "If the First Amendment means anything, it means that a State has no business telling a man, sitting in his own house, what books he may read or what films he may watch."
However, it is not unconstitutional for the government to prevent the mailing or sale of obscene items, though they may be viewed only in private. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), further upheld these rights by invalidating the Child Pornography Prevention Act of 1996, holding that, because the act "[p]rohibit[ed] child pornography that does not depict an actual child..." it was overly broad and unconstitutional under the First Amendment.
Justice Anthony M. Kennedy wrote: "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end.
The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."
In United States v. Williams, 553 U.S. 285 (2008), by a vote of 7–2, the Supreme Court upheld the PROTECT Act of 2003.
The Court ruled that prohibiting offers to provide and requests to obtain child pornography did not violate the First Amendment, even if a person charged under the Act did not possess child pornography.
While The Supreme Court has generally refused to give obscenity any protection under the First Amendment, pornography is subject to little regulation.
However, the exact definition of obscenity and pornography has changed over time.
When it decided Rosen v. United States in 1896, the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin, [1868] L. R. 3 Q. B. 360. The Hicklin standard defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."
The Court ruled in Roth v. United States, 354 U.S. 476 (1957) that the Hicklin test was inappropriate. Instead, the Roth test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest."
Justice Potter Stewart, in Jacobellis v. Ohio, 378 U.S. 184 (1964), famously stated that, although he could not precisely define pornography, "I know it when I see it".
The Roth test was expanded when the Court decided Miller v. California, 413 U.S. 15 (1973). Under the Miller test, a work is obscene if:
(a)...‘the average person, applying contemporary community standards’ would find the work, as a whole, appeals to the prurient interest,...(b)...the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c)...the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Note that "community" standards—not national standards—are applied whether the material appeals to the prurient interest; thus, material may be deemed obscene in one locality but not in another. National standards, however, are applied whether the material is of value. Child pornography is not subject to the Miller test, as the Supreme Court decided in New York v. Ferber, 458 U.S. 747 (1982). The Court thought that the government's interest in protecting children from abuse was paramount.
Personal possession of obscene material in the home may not be prohibited by law. In writing for the Court in the case of Stanley v. Georgia, 394 U.S. 557 (1969), Justice Thurgood Marshall wrote, "If the First Amendment means anything, it means that a State has no business telling a man, sitting in his own house, what books he may read or what films he may watch."
However, it is not unconstitutional for the government to prevent the mailing or sale of obscene items, though they may be viewed only in private. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), further upheld these rights by invalidating the Child Pornography Prevention Act of 1996, holding that, because the act "[p]rohibit[ed] child pornography that does not depict an actual child..." it was overly broad and unconstitutional under the First Amendment.
Justice Anthony M. Kennedy wrote: "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end.
The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."
In United States v. Williams, 553 U.S. 285 (2008), by a vote of 7–2, the Supreme Court upheld the PROTECT Act of 2003.
The Court ruled that prohibiting offers to provide and requests to obtain child pornography did not violate the First Amendment, even if a person charged under the Act did not possess child pornography.
SSSnail
Lifer
- Nov 29, 2006
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What if it was two consenting children that produced this porn? Just blew your mind didn't I?
MagnusTheBrewer
IN MEMORIAM
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Number1
Diamond Member
- Feb 24, 2006
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Who in his right mind doesn't understand this concept. OMG un fucking believable.
Bignate603
Lifer
- Sep 5, 2000
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You have to be fully competent to be able to give consent. Anyone that has spent a decent time around children will realize that they have a piss poor connection between cause and effect. Hell, even by 18 there are plenty that haven't figure that out but you have to draw the line somewhere.
Depends on the state. In MD they can consent to the act with (almost*) anyone regardless of their partner's age at 16, but not consent to create a recording of it until 18.
Not that I like it as a parent, but that is the law.
* Teachers, counselors, step parents, other custodial type relationships, developmentally delayed, etc. excluded.
for the actual text of the law page through this article
Chart of relative ages
Last edited:
schneiderguy
Lifer
- Jun 26, 2006
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mnewsham
Lifer
- Oct 2, 2010
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Age of consent is 16 in maryland yes, in my personal experiences though most people dont wait until then (I didnt anyway).
her209
No Lifer
- Oct 11, 2000
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her209
No Lifer
- Oct 11, 2000
- 56,336
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So do we dismiss testimony given by children since they can't swear to tell the truth?
mnewsham
Lifer
- Oct 2, 2010
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Bignate603
Lifer
- Sep 5, 2000
- 13,897
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You might want to go back and reread what I posted. I said that kids were worse at figuring out cause and effect, not that they were incapable of telling the truth.
Red Squirrel
No Lifer
Amendments only protect you from what the government feels is ok that they protect you from.
For example, free speech. If you badmouth a big corporation, you can get sued for slander. Where's your freedom of speech now?
For example, free speech. If you badmouth a big corporation, you can get sued for slander. Where's your freedom of speech now?
catilley1092
Member
- Mar 28, 2011
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It's just one of those things that we, as adults (us normal ones), shouldn't be wanting to see. Therefore, it makes common sense that viewing porn involving minors is not a protected right.
It's sickening. That's what it is, plain & simple. But that's my opinion, to each his/her own.
Cat
It's sickening. That's what it is, plain & simple. But that's my opinion, to each his/her own.
Cat
her209
No Lifer
- Oct 11, 2000
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