From: Declan McCullagh <declan@eff.org>
Date: Wed, 11 Sep 1996 14:25:10 +0800
To: "Timothy C. May" <tcmay@got.net>
Subject: Re: Child Porn as Thoughtcrime
In-Reply-To: <ae5ae3bd02021004b70c@[207.167.93.63]>
Message-ID: <Pine.SUN.3.91.960910205249.13178F-100000@eff.org>
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>From fight-censorship archives... -Declan


// declan@eff.org // I do not represent the EFF // declan@well.com //


ADDITIONAL ANSWER: Because "child pornography" as defined in the
governing Supreme Court case (Ferber) sweeps far more broadly than
"obscenity" ever did (to the point that even scholars who have supported
controls on the latter attacked what the Supreme Court did with the
former).  For example, although the issues were not resolved, the case
revealed that some members of the Supreme Court believe that medical
doctors, anthropologists, journalists covering wars or working for the
National Geographic, or legislators working on new censorship legislation
might all be constitutionally prosecuted for possessing any photographic
images of naked children. 
   Therefore, we need to be extremely careful about any casual 
acceptance of the proposition that "Of course, child pornography can be 
banned."  What we actually mean is, "Of course, one can outlaw the 
use of children in obscene performances."
    Without wanting to sound too legalistic about all this, if we don't 
stay alert we are going to find that a significant part of the 
suppression work sought to be done by "indecency" can be done by "child 
pornography."
                        *******
                Professor Eric M. Freedman
                Hofstra University School of Law
                Hempstead, N.Y.  11550
                Tel. (516)-463-5167
                Fax  (516)-560-7676
                LAWEMF@Vaxc.Hofstra.edu
                        ********