6-1-2009 Iowa:
From Crime & Federalism blog:
Interesting case for those of you who follow free speech issues. (UPDATE: Read the comments.) Some dude in Iowa is going to prison for collecting comic book images of cartoon children being molested. At first I thought Ashcroft v. Free Speech Coalition would apply. The law got a head of me. Child pornography now includes:
(a) In General.— Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—
(1)
(A) depicts a minor engaging in sexually explicit conduct; and
(B) is obscene; or
(2)
(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;
18 U.S.C. 1466A (here). I think that provision would be unconstitutional. I wrote a brief a long time ago explaining why. I'll see if I can find it. UPDATE: Or not. It's an interesting issue. New York v. Ferber's child porn exception would not apply, since no children were actually injured due to the comic books being produced. See also, Ashcroft v. Free Speech Coalition. So the law would have to be upheld under California v. Miller's general obscenity review.
This would be a great Con Law final. What better way to see if a student can parse the legal issues?
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