From: mcb@robbe-grillet.postmodern.com (Michael C. Berch)
Newsgroups: alt.censorship,news.admin.policy,comp.org.eff.talk
Subject: Re: Appeals court declares child pornography law unconstitutional
Keywords: law pornography
Date: 18 Dec 92 02:23:13 GMT
Organization: Postmodern Consulting, San Francisco, California USA

In the referenced article, nagle@netcom.com (John Nagle) writes:
>      The Ninth U.S. Circuit Court of Appeals ruled, in US vs X-Citement
> Video Inc., (CA No. 89-50556), that the sections of the Protection of
> Children Against Sexual Exploitation Act of 1977 that deal with 
> distribution, transportation, and receipt of sexually explicit 
> materials are invalid on First Amendment grounds.  The court let stand the 
> prohibition on the production of child pornography.
> 
>      This ruling needs to be looked at more closely, but it may help to
> remove sysop worries about someone posting such material on their system
> without their knowledge, or about network nodes being liable for 
> material passing through them.  This is a step forward, because it was
> one of the very few real legal risks a US sysop had to face, and now
> it appears to be dead. Do the lawyers out there agree with this analysis?
> 
>      Producing child pornography remains illegal, which is reasonable.

I have not read the opinion, but I am very gratified by the decision.
I am proceeding on the basis of radio news reports (until I can get to
my New York Times) and understand that the key issue was that the
defendants (video store operators?) could not be deemed to have actual
knowledge of the underage status of the performer.  (This was the Traci
Lords case, by the way.)   Presumably the actual producers of such
material could be deemed to have actual knowledge since they could
easily require acceptable proof of age directly from the performers.
(In the case of Traci Lords, though, what should the outcome be when
the performer actively misleads the producer by furnishing false proof
of age?  An acquittal, in my opinion.)

This is likely to be good news for sysops and site admins, since (as
with video distribution or rental/sales) there is no reason to charge
site admins with actual knowledge of the contents of any given article
that passes through (or is stored on) a site.  This even to some degree
reflects the fact pattern of the X-Citement Video case, since these
defendants were manifestly *not* involved in an actual child
pornography "ring" but were simply distributing mainstream sexually
explicit material in which a particular performer, much later, was
learned to have been underage by a couple of years.  Similarly, for
BBS and Usenet sites that simply carry a large number of newsgroups,
including the erotica images groups, there is no implication that the
site is engaged in active distribution of child pornography if a small
number of articles are later learned to contain material unlawful
under the Act.   If upheld, this would seem to indicate that there is
no overall duty to inquire and that knowledge of the status of the
performers/models will not be construed merely from possession of the
material.  

My understanding is that the Dept of Justice plans to appeal to the
U.S. Supreme Court, and it would be a fair bet that they will take the
case since it involves a declaration of unconstitutionality of a very
visible Federal statute.  If another Court of Appeals now comes to a
different point of view it's pretty much a given that the Supremes
would take the case for a full decision and opinion.

--
Michael C. Berch
Member of the California Bar
mcb@presto.ig.com / mcb@net.bio.net
Newsgroups: alt.censorship,alt.feminism