It also covers obscene images of minors including ones in a “drawing, cartoon, sculpture, or painting.” (The language warns that it is not necessary “that the minor depicted actually exist.”)
OK, I’m only a law student, but this immediately triggered a WTF? reaction since SCOTUS has recently held that you cannot ban cartoons or rendered images. Indeed, the first amendment requires a showing of ‘actual harm’ to a child in order to overcome the free speech protections. SCOTUS held that that actual harm exists not in viewing the images,but in the taking of them – at the outside, the potential psychological harm to the child that the image is ‘out there’.
Indeed this has presented evidentiary difficulties that nearly require production of the child in the image. Prosecutors have struggled to otherwise prove that it was a real image -with software and FBI experts’ declaration that an image is real and not rendered recently held insufficient. Of course, Thomas’ concurrence in the original holding postulated that the severe evidentiary burden, if it imposed too high a bar to prosecution, could be sufficient a cause to ban fake images. And while the recent problems may lean that way, a statement in one concurrence does not really provide McCain with legs for this bill.
What is he basing this law on? Does he really think that the recent decisions will cause SCOTUS to overturn its holding? Or is he just not paying attention to what the First Amendment jurisprudence? One would think the job of Senators includes RTFM, or at least getting their staff to do so. One would think that if this case was re-testing the holding, this would be articulated somewhere in the platform, in the article. Instead, it seems oblivious to the existence of the precedent.
Supreme Court strikes down ban on ‘virtual child porn’.
FYI – I’m actually behind Thomas’ concurrence. I would go so far as to say that the holding presents an evidentiary hurdle so high that it justifies a ban on virtual child porn. But it troubles me that the senators don’t seem to be paying attention.