From: Stanton McCandlish <mech@eff.org>
Date: Tue, 12 Oct 93 17:36:32 PDT
To: cypherpunks@toad.com
Subject: Re: EFF GIF recall/Duncan's question
Message-ID: <199310130035.AA07326@eff.org>
MIME-Version: 1.0
Content-Type: text/plain


Forwarded message:
From ssteele Tue Oct 12 17:19:10 1993
Date: Tue, 12 Oct 1993 17:19:08 -0400
Message-Id: <199310122119.AA05257@eff.org>
To: Stanton McCandlish <mech>
From: ssteele (Shari Steele)
Subject: Re: EFF GIF file recall n (fwd)

Hi Stanton.

Duncan asked:

>Didn't the 9th Circuit Court of Appeals decide that the transport and sale 
>provisions (unknowing posession) of the federal kiddie porn law were 
>unconstitutional?  Wouldn't a warning like yours risk converting unknowing 
>to knowing posession.

The case to which Duncan is referring is U.S. v. X-Citement Video, Inc.,
decided last December in Pasadena, CA.  The Ninth District Court didn't
hold that the transport and sale provisions of the federal child porn
statute were unconstitutional.  What it did hold was that the statute was
unconstitutional in that it did not require knowledge by the prosecuted
individual of the age of the depicted youth.  The court was clear to
distinguish the lack of a knowledge requirement of the age of the depicted
youth (which was unconstitutional) from the lack of knowledge that the
files were sent (in this case mailed, which the court held was not really
an issue.)  My warning to sysops simply said that these files were listed
on a federal indictment, so the "lack of knowledge of the age of the
depicted people" defense remains -- I did not identify the people depicted
as being under the age of 18.  (I couldn't have done so -- I haven't seen
the files.  I was only passing on the info contained on the indictment.)

In addition, provisions of a federal statute are not officially
unconstitutional in all jurisdictions until the U.S. Supreme Court declares
them to be so.  (In other words, the court's decision is only binding on
the 9th Circuit.)

Shari

P.S. Say hi to the 'punks for me.  I really enjoyed the list, but the
volume was just prohibitive.



-- 
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Stanton McCandlish     Electronic Frontier Foundation Online Activist & SysOp
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