California Senate VS Supreme Court
Law On Obscenity
Sen. Elaine K. Alquist (D-Santa Clara) introduced the bill, which (unlike similar federal legislation) doesn't have a name. If it passes, it would make it a crime in California to "possess or control matter that depicts a person under 18 years of age engaging in or simulating sexual conduct," and make "matter depicting a person under 14 years of age engaging in or simulating sexual conduct" either a misdemeanor or felony, though the bill doesn't spell out what criteria would indicate which level of charge would be applied.
Trouble is, the United States Supreme Court has already ruled on that issue, in the case of Free Speech Coalition v. Ashcroft: Adults who "appear to be" minors, and advertising that "conveys the impression" that minors are appearing in a sexually explicit movie, are protected by the First Amendment (unless found to be obscene for other reasons).
But California lawmakers seem to be in love with the term "depict," which means, according to the Compact Oxford English Dictionary, "to represent by a drawing, painting, or other art form." So an adult performer doesn't have to be under 18; he or she merely has to be playing a character that represents someone under 18 to be charged with a crime.
The Supreme Court doesn't see it that way. In the landmark child porn case, New York v. Ferber, the court held that, "[I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative." The Court reaffirmed that holding in FSC v. Ashcroft, and such decisions are binding on California law.
It should be noted, however, that even the existing California laws that use the term "depict" have never been challenged under FSC v. Ashcroft, mainly because no one's been busted on them since that decision, but there is every reason to think that, were they to happen, those laws would be ruled unconstitutional.
Another major problem is that this law would make it entirely optional for either the prosecution or the defense to "introduce expert testimony to establish the age of the person, or that the person depicted, which is the subject of the prosecution, is a real or actual person." What that means is, the defense to this "pseudo-child porn" charge can bring in a busload of experts who can examine the image or video to their heart's content and opine, for dozens of reasons, why the "person depicted" either isn't real or isn't under 18, and the prosecution can simply say, "Jurors, use your common sense and your eyes" – and both of those arguments will be given equal weight under law!
Read the entire article here.
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