Free Speech Coalition and MMOGs?

Kolby Granville, a law student at Arizona State with an interest in MMOGs and a reader of TN, made an observation off-blog that is worth sharing:

" I was surprised that I was unable to find a reference to a thread discussing Ashcroft v. Free Speech Coalition 535 U.S. 234, 122 S.Ct. 1389 (2002). Considering that so often when people talk about the "magic circle" and the need to keep laws out of games someone stands up and says, "but what about for child porn!"

In fact, I even remember at State of Play III during one of the panels someone mentioning, "What if we had a game where the point of the game was to lure virtual children, naturally the law would want to prevent that..." (Richard Bartle)

However, in Ashcroft v. Free Speech Coalition the court seems to say that may be permitted (at least via my cursory reading).

Perhaps this case is not discussed on the site because it was pre-site creation. Maybe the case was just interesting to me. Just wanted to point it out."

The Supreme Court decision on this can be found here. It concerns the constitutionality of a statute regulating "virtual" child pornography.

Thoughts?

Comments

[Shanoyu]

1.

I only vaguely remember hearing about it on news hour, but I seem to remember a decision that basically stated any form of child pornography, even virtual, was illegal. It wasn't about gaming per se but had to do with visual media and non photographic (i.e. computer rendered) images of children.

i'm not a lawyer but i'm pretty sure the deal is that you can't have say, a game where you play a child molester who lures children into his home and then graphically violates them i.e. hentai, but you could have say, a simulation that evalutes the reactions of children to potential child molesters under specific circumstances, or a child molester as a character in a game who lured children but otherwise was not depicted performing any sexual act with them-- otherwise the producers of Law and Order SVU, Homicide: Life on the Street, CSI, etc. etc. would be in serious trouble for the material they've created over the past decade.

[Billy Arnold]

2.

Shanoyu: you're probably remembering the case that was overturned in the mentioned "Ashcroft v. Free Speech Coalition" supreme court decision.
(read that decision, it's still completely current as far as I know, and it isn't very hard to read and understand)
--
-billy-

[Psyae]

3.

I believe your link is dead. This is an available link to the case: http://supct.law.cornell.edu/supct/html/00-795.ZO.html

I haven't examined the case thoroughly enough to determine satisfactorily whether the example of a computer game designed so that the objective of the player is to "lure virtual children" would be in violation of the CPPA (Child Pornography Prevention Act of 1996). However, one excerpt from the opinion of the Court (written by Justice Kennedy), caught my attention:

"The Government next argues that its objective of eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well. Virtual images, the Government contends, are indistinguishable from real ones; they are part of the same market and are often exchanged. In this way, it is said, virtual images promote the trafficking in works produced through the exploitation of real children. The hypothesis is somewhat implausible. If virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice. . . .

"Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real children. Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down."

One of the primary arguments against enforcing the law against virtual pornography is that the laws against child pornography are there to protect the children used or potentially used in that pornography. Since, the Court opines, no actual children are used in virtual pornography, no actual children are harmed, and thus prosecuting those who create and distribute or view virtual child pornography does not protect those persons the law was meant to protect.

Thus, a game in which the player "lures virtual children" would likely not be covered under such laws, and would probably be protected by the precedent that the Supreme Court has established in this case.

[Peter Edelmann]

4.

For those who are interested, around the same time Ashcroft v. Free Speech Coalition was decided, the Supreme Court of Canada concluded in R.v.Sharpe that the Candadian version of the law (s.163.1 of the Criminal Code) was constitutional, with some minor adjustments. While the two laws are somewhat different, the key aspect of prohibiting "virtual" child pornography in graphic images is encompassed in both the US and Canadian versions. I will spare you the details of Canadian constitutional analysis (which involves a test of whether a law is "rationally connected" to the government's stated objectives) and simply point out that three of the harms cited by the majority would undoubtedly be applicable to "virtual" child pornography:

The first alleged harm concerns cognitive distortions. The Crown argues that child pornography may change possessors' attitudes in ways that makes them more likely to sexually abuse children. People may come to see sexual relations with children as normal and even beneficial. Moral inhibitions may be weakened. People who would not otherwise abuse children may consequently do so. [...]
The second alleged harm is that possession of child pornography fuels fantasies, making paedophiles more likely to offend.[...]
[T]he fourth alleged harm, the use of child pornography to "groom" or seduce victims, showed a rational connection. The evidence is clear and uncontradicted. "Sexually explicit pornography involving children poses a danger to children because of its use by pedophiles in the seduction process" (para. 23). [R.v.Sharpe paras. 87-92]

[Doug]

5.

It's highly unlikely that things such as virtual child pornography will ever be legal for the reasons Mr. Edelmann has quoted. "Real" or not, it feeds into an obsession, and this particular obsession can cause actual harm to someone if acted on. Most pedophiles engage in fantasy encounters before "graduating" to the actual act, and anything that encourages that is dangerous. In such an instance free speech takse a back seat to community safety.

[Eric Random]

6.

This case was closely related to the conviction of an Ohio man on "pandering obscenities involving a minor" in July of 2001 in which a man with a prior conviction of pandering was identified as having a "diary" of pornographic fantasies involving children, was subsequently charged, and plead guilty. This added to the national debate on virtual pornography. In Sep 2003, an appellate court ruled he could change his plea and should receive a new trial. In Mar 2004, a Common Pleas court ruled he could not be retried.

This conviction, albeit indirect, may be why Shanoyu determined such acts as illegal, as the case did get a lot of new attention that was mixed with the virtual child porn debate in late 2003 when the appellate court took it up.

One analysis of this case, which includes thoughts on the Ashcroft 535 case, can be found in the University of Illinois Law Review Vol 2003, No. 3. "Private Writings and the First Amendment: The Case of Brian Dalton" by Matthew Sostrin, located online at http://home.law.uiuc.edu/lrev/publications/2000s/2003/2003_3/sostrin.pdf.

As a further note, although virtual child pornography may not be considered child pornography, it seems it may still be capable of being found as legally obscene, and it may still be in consideration of incitement towards a criminal act. Liabilities of incitement can spill into civil suits, which may be less legally rigorous than criminal courts.

Just some further thoughts for the legal minded...

[Eric Random]

7.

Doug said:
"It's highly unlikely that things such as virtual child pornography will ever be legal"

Is it then your opinion we should just throw Maya Angelou and Oprah Winfrey in jail for such crimes right now? There are many sexual depictions of children in fiction, cinema, theatre, and paintings. The only new aspect of such depictions seems to be the technology used as the medium.

[Lee]

8.

Considering that I'm 20 years old and 16 year old girls are only 4 years younger than me, I don't see it as child porn, I'm sorry.

Just because stupid American laws say child porn is wrong doesn't mean the rest of the world agrees.