Tag Archives: Supreme Court

Child Porn, Evan Emory, and Free Speech

Is this child porn? Eh, why not.

Oh how many laws have been passed under the rubric of: “Won’t somebody please think of the children?!”

From drug laws to pornography, all the fun things get banned because of concern for children. Claim to be protecting children, and you can basically justify a cutout exemption from the First Amendment. The most recent cutout under this scheme is probably child pornography. As the Supreme Court held in US v. Williams, the harm to children from child porn is so severe that is justifies criminalizing any and all parts of the process involved in child porn, from solicitation to creation to delivery to consumption. There is no other sort of expressive act that is so regulated out of fear of harm, except maybe national security concerns (see: Wikileaks). In US v. Williams, the majority even recognized that the PROTECT Act was overbroad and would regulate protected speech. However, the overbreadth doctrine dictates that there must be substantial overbreadth for a statute to be constitutionally overbroad, which the court said didn’t exist in that case.

In the end, the law punishes anyone who:

advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct.

Which brings us to recent news in the world of aspiring YouTube comedians. Recently, Muskegon County prosecutor charged one Mr. Evan Emory with “manufacturing child sexually abusive material,” which carries a penalty of up to 20 years in prison and 25 years on the sex offender registry. His crime? Singing fun songs to elementary school kids, and then recutting it so it looked like he was singing them a song with graphic sexual lyrics.

Evan Emory making child porn

Is it illegal to recut a video to make it look like kids are singing along to sexual lyrics and then being titillated by that? Let’s look at the letter of the law. From what I can discern, Emory is being charged under Michigan Penal Code, XX, §750.145c(2): Child sexually abusive activity or material:

A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child.

That is a lot to swallow, but basically if someone makes or allows a kid to engage in sexually abusive activity for the purposes of making material from that, or somehow oversaw its creation, they go to jail for up to 20 years.

But what does “child sexually abusive material” mean? Luckily, the statute defines that in 750.145c(1)(l), as “means a child engaging in a listed sexual act.” And boy do they list the sexual acts, in 750.145c(1)(h): “sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity.”

Those are pretty broad terms. What do they mean? Well the statute describes those too.

(f) “Erotic fondling” means touching a person’s clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breasts, or if the person is a child, the developing or undeveloped breast area, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved. Erotic fondling does not include physical contact, even if affectionate, that is not for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.

(g) “Erotic nudity” means the lascivious exhibition of the genital, pubic, or rectal area of any person. As used in this subdivision, “lascivious” means wanton, lewd, and lustful and tending to produce voluptuous or lewd emotions.


(i) “Masturbation” means the real or simulated touching, rubbing, or otherwise stimulating of a person’s own clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breasts, or if the person is a child, the developing or undeveloped breast area, either by manual manipulation or self-induced or with an artificial instrument, for the purpose of real or simulated overt sexual gratification or arousal of the person.

(j) “Passive sexual involvement” means an act, real or simulated, that exposes another person to or draws another person’s attention to an act of sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, sexual excitement, or erotic nudity because of viewing any of these acts or because of the proximity of the act to that person, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.


(o) “Sexual excitement” means the condition, real or simulated, of human male or female genitals in a state of real or simulated overt sexual stimulation or arousal.

(p) “Sexual intercourse” means intercourse, real or simulated, whether genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between a human and an animal, or with an artificial genital.


(n) “Sadomasochistic abuse” means either of the following:

(i) Flagellation or torture, real or simulated, for the purpose of real or simulated sexual stimulation or gratification, by or upon a person.

(ii) The condition, real or simulated, of being fettered, bound, or otherwise physically restrained for sexual stimulation or gratification of a person.

So do any of these describe what Emory did? Well, first let’s address exactly what happened. There doesn’t seem to be any nudity or actual sex in the video. It was apparently clean enough for YouTube to keep up until Emory himself removed it. No children were directly harmed, or made to listen to the lyrics. However, the lyrics themselves are certainly dirty.

“See how long it takes to make your panties mine”

(wide shot of the children)

“I’ll add some foreplay in just to make it fun”

(close up of girl laughing)

“I want you to suck on my testes until I spurt in your face”

(close up of girl covering her mouth)

“I’ll lick on your chewie”

(close up of two girls covering their mouths)

“I want to stick my index finger in your anus”

(close up of boy making a shocked face)

“I’ll be the bus riding your ass up and down my town”

(close up of boy with grossed-out look on his face)

“I’m gonna use my sausage to make fettucine, then for dessert have a Harry Houdini”

(close up of girl laughing and rocking)(Link)

Furthermore, according to another description, he also mimed getting off in front of them. Then again, I haven’t seen the video, so I’m relying on other peoples’ descriptions. But taking these at face value, do they fall under the law? I can’t find any cases that analyze the meaning of the descriptions, so this analysis will have to go on the text itself.

He didn’t touch any of the kids, real or simulated, so it wasn’t erotic fondling. There was no nudity, so it wasn’t erotic nudity. There was no sadomasochistic abuse either, at least from the descriptions. There is not sex, real or simulated, so sexual intercourse doesn’t seem to count. However, the law’s description of sexual intercourse does include “oral-genital” and “an artificial genital,” so it is possible that Emory miming a blowjob or such could fall under this description. Sexual excitement may fit here, but the language in the law focuses on the state of the genitals themselves, and Emory doesn’t seem to actually sport a boner, real or simulated, at least according to the descriptions of the video. Masturbation does include real or simulated masturbating, so his faked self-enjoyment, if that was in the video, could fall under that section. However, it wasn’t forcing masturbation upon the kids, but merely himself. Rather, passive sexual involvement seems more applicable.

“[A]n act, real or simulated, that exposes another person to or draws another person’s attention to an act of […] masturbation, […] because of viewing any of these acts or because of the proximity of the act to that person, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.”

This may be where Emory gets caught. His video did, according to some descriptions, simulate the exposure of the children to an act of masturbation.  If these descriptions of the video are correct, then Emory may be guilty under 750.145c(1)(j).

However, the key point is that children were not directly involved in the end result. A good metaphor would be CGI child pornography. In Ashcroft v. Free Speech Coalition, the Supreme Court distinguished between CGI child porn that used actual children to create it and CGI porn that did not use actual children. Indeed, pure CGI porn records no crime and creates no victim. And while Congress argued that pure CGI child porn still encourages acts that harms children, the court held that was not enough to past First Amendment scrutiny:

The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct. This rationale cannot sustain the provision in question. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.

However, CGI porn that originates from an actual child creates a visual record that can embarrass or harm the child in the long run. And if the people and parents are pissed about anything in this whole scenario, it is that their children were involved and clearly identifiable in Emory’s video:

“One visibly angry man expressed his displeasure with Muskegon County 60th District Court Visiting Judge Robert A. Benson’s decision to allow Emory to go free on bond.

“He got our kid on video!,” one angry Beechnau father shouted.

Another upset father, Charles Willick, of 1100 N. Ravenna, told reporters that “it’s ridiculous” what Emory did with the video.

“I’m disgusted by it,” Willick said. “It was totally uncalled for.”” (Link)


“I was very upset that my child’s innocence was exploited on TV and made fun of,” Cox said, waiting outside a Muskegon County 60th District Court room for the arraignment of Evan Daniel Emory. (Link)

If the parents seem to be angry about anything, it is what the court identified as the difference between the two categories of CGI porn: one involves actual children and can affect them in the long run, and the other does not. The statute itself makes this distinction, recognizing that the porn involved must not use part of an actual person. If a child is actually involved, then the end result cannot have redeeming value.

(a) “Appears to include a child” means that the depiction appears to include, or conveys the impression that it includes, a person who is less than 18 years of age, and the depiction meets either of the following conditions:

(i) It was created using a depiction of any part of an actual person under the age of 18.

(ii) It was not created using a depiction of any part of an actual person under the age of 18, but all of the following apply to that depiction:

(A) The average individual, applying contemporary community standards, would find the depiction, taken as a whole, appeals to the prurient interest.

  1. The reasonable person would find the depiction, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(C) The depiction depicts or describes a listed sexual act in a patently offensive way.

Emory’s video was created using a depiction of a part of an actual person under the age of 18. It was a mere trick of visual editing, but so is CGI child porn that incorporates a part of an actual person, and that can be banned. Even if the work has some redeeming value and doesn’t appeal to a purely prurient interest, if it includes part of an actual person, it is illegal under this state statute.

Emory has indicated that he just wants to settle so he doesn’t risk going to jail or being placed on a sex offender list. However, it would be interesting to see this case be argued.  Sure, it may have been a bit of a dick move to make the video without school or kids permission, However, he didn’t pander it as a porn video, but as a joke video. There is no actual porn in it. The children are not exposed. No one actually does anything actually sexual or intended to be actually sexual.  And while child pornography may be universally abhorrent on its face, O’Connor’s concurrence in New York v. Ferber states that porn is not always valueless and thus not always unprotected by the First Amendment.

On the other hand, perhaps parents should be allowed to prevent their children from being featured in videos, especially dirty joke videos, without their consent.

This whole case really raises the question of “What is child porn?” So rather than ramble more about it here, I’m going to write about it for my First Amendment Theory class. Hopefully in a few months I will post a much better analysis about this whole thing.

But for those who like to make dirty jokes on the Internet, it is all a somewhat scary prospect.

[Edit: Under the plea deal, Emory will serve 60 days in jail, two years of probation and 200 hours of community service. He will not have to register as a sex offender.]

Republicans don’t hate Thurgood Marshall because he’s black, they hate him because he’s a hipster

The front page of the Huffington Post recently featured an article about how Republicans are taking the opportunity of Elena Kagan’s Supreme Court nomination hearings to attack former justice Thurgood Marshall.

According to the article, after but the first day of Kagan’s confirmation hearings, Marshall’s name was mentioned 35 times. Why mention Marshall? Well, Kagan clerked for him back when she was a budding lesbian maybe-lesbian she’ll come out a few years after being seated on the court law student.

This should be no big thing. Nominees clerk for justices all the time. Liberals. Conservatives. Whatever Kozinski is. So why is the GOP piling on Marshall? He’s not any more liberal than other supposed liberal judges. He was approved by a 69-11 vote, including several Republicans. And in fact, one could argue that he was distinctly more reserved than his respected colleague Justice William Brennan Jr.

So why go after Marshall.?

One could argue that Republicans are engaging in their tradition dog-whistle politics, specifically bringing up images of black men to invoke subtle and inherent racism that still exists in our society. It happened with Willy Horton and Revolving Door ads. States rights and welfare queen rhetoric.

No way! Republicans aren’t that low, that predictable, that pathetic. The truth is much more acceptable.

Republicans hate Thurgood Marshall because he is a hipster.

Look at this fucking hipster.

Look at him! Those stupid black, plastic glasses. That gross mustache. That wanna-be Mad Men grey suit. Where did Thurgood study law, some fucking coffeehouse in Williamsburg?

And what kind of name is Thurgood? Some fucking hipster name!

And his dissent in Personnel Administrator MA v. Feeney was obviously written ironically.

Don’t believe me? Don’t think Thurgood Marshall was a hipster? Look at this:


A contemporary hipster

Is that a photo of a young Thurgood Marshall if he were Asian? No! It may look strikingly similar, but it’s just an average hipster. A loathable, mincing hipster you just want to punch in the face as he spends daddy’s money on women’s clothing and listens to bands that no one likes ever. No wonder Republicans are skipping no opportunity to wail on Thurgood and tie Elena Kagan to him at all costs. Kagan admires Thurgood so much, she’d probably just spend her whole tenure on the court drinking PBR and listening to oh, you haven’t heard of them yet, but a friend gave me a rec, something with dolphins in the name Animal Collective , skipping out on hearings to go to Bonaroo, just like her hipster hero.

And if all this sounds preposterous to you, if my argument is just silly, then I’m not sure what any other justification is. Because Republicans certainly aren’t bringing up Marshall because he was the first black justice. The only answer is that Thurgood Marshall was a fucking hipster, and this completely justifies any derision of him.

Elena Kagan is a New York, Jewish, left-wing, liberal, intellectual, Central Park West, Brandeis University, the socialist summer camps and the, the father with the Ben Shahn drawings, right, and the really, y’know, strike-oriented kind of, red diaper, stop me before I make a complete imbecile of myself

After long thought, I think the best popculture response to the Elena Kagan nomination is this:

Alvy Singer’s rant against Allison Porchnik in Annie Hall sums up my gut reaction after these past few days. Usually when I reference Woody Allen, its to lend praise to our Jewish alpha dog, who first introduced the idea that the nebbish, neurotic Jewish guy can actually get the girl… kinda. But in this circumstance the line speaks for itself. However, thats not to say that my only opposition is out of some sort of self-loathing or Texan hatred of everything Northeast. Though that may be part of it. Indeed, my strongest reason for opposition (or at least not complete support) is political. She is not liberal enough.

Elena Kagan isn’t simply liberal enough. Despite accusations of her insane socialism, largely based on her Princeton senior thesis, which I have yet to read (PDF: kagan thesis), she has shown a record of middling DLC-style political compromise . There are legitimate arguments to be made for strong liberal positions on the court. Where is the justice arguing for substantive due process protection of medicinal marijuana, not to mention gay marriage? Where is the justice arguing for broader expansion of the equal protection clause, not to mention restarting privileges and immunities? These arguments exist, and in fact have been almost made on the Supreme Court (Cruzan v. Director, Missouri Dept. of Health, Lawrence v. Texas ). But the real person to blame for this isn’t Kagan, who must be honest to herself, but Obama himself for nominating her. Former Justice Joseph Crouch explains how I think lots of people feel:

(BTW, you should totally buy the West Wing box set. It is awesome.)

Now, one could argue that her past positions have not been judicial, but political, and thus her actions should be viewed through a different frame. Or that while she has a short record, Obama can guarantee a strong liberal position. And one could argue while that position may be far out where they should be, the goals now shouldn’t be to expand the liberal agenda, but to maintain the gains made over the past decades. I disagree.

I do not expect a broadening of liberty interests to be the majority opinion, but I want someone on the court to just make the arguments. Young conservatives read the opinions of Scalia and Thomas, and it gives them a drive and inspiration to power their youthful political interests. Liberals have to look back a few decades to really get that inspiration. Even simply considering whether to get involved in the legal field, strong conservatives see that they can go far if they stick to their principles, just as the relatively young Roberts and Alito were rewarded. Liberals get the message that if they want to succeed, they need to keep a clean record and not create a strong record for liberal causes. Democrats seem to view that record as a liability, rather than how conservatives see their own similar recrds as a strength. This merely drives liberal opinion to the center and alienates liberal ideas that are reasonable and rational, yet viewed as too far out. And those views will continue to be seen as too far out by the public, while far-winger conservative ideologies in the form of  justices’ opinions will be thrust into the public sphere as supposedly normal political views, hiding their extremity.

And what is the purpose of opposing this conservative march if those who fight for strong liberal causes get left behind when it comes to choose our best? A functioning political system needs strong opposing parties, with competing ideas, and the Democrats are laying down on their job.

Indeed, it doesn’t just show that Obama has refused to recognize the best and brightest legal mind amongst liberal thinkers, but it shows that he is betraying one of the implicit messages of his 2008 campaign: The importance of grassroots work.

As Obama’s personal origins and the style of his campaign seemed to communicate: greatness can come from anywhere. Whether the small town volunteers who made history or Obama’s humble beginnings and fairytale rise, it was about eschewing the usual power structure and replacing it with people power. But for his supreme court nomination, Obama went with the traditional Ivy League, Upper West Side, Harvard Law School, Clintonista insider, almost as if she were a creation by Mark Penn himself.

There were great candidates with strong liberal opinions, from outside the usual view political realms of influence. Great justices from Texas, Montana, or even California, who could disrupt the usual power patterns and show students all across the country that you don’t need to go to an Ivy League school to make it to the top: Pedigree is not the measure of the day, but talent and achievement. But that is not what Obama is communicating with this nomination.

Even just choosing someone who didn’t go to an Ivy League school would send the message that states are not destiny. We can have smart, educated liberal justices in Red States, just as we can from Blue States. This is something that Obama himself talked about oh so long ago in 2004″

We have Supreme Court Justices in the Red States… or do we? Obama doesn’t seem to think so, with his New York domination. His choices may be fine justices, but it is a sign that liberals from Red States shouldn’t aspire or work hard, because they won’t be recognized. And it sends a message to people in Red States that liberals do not care about them, and when push comes to shove, Democrats will alway choose the Northeast buddy… giving in to Harvard nepotism. There used to be a time when Obama thought it was important to send a message anyone can rise to greatness, that America has a place for a skinny kid with a funny name.

But I guess that idea is old hat. Go back with the tried a true, Harvard educated, East Coast Elite, Smartest Guys in the Room. That’s worked out great for Democrats in the past.

Cornyn Wood (see what I did there?)

I wrote a letter to Senator John Cornyn. You can read it here if you want. It is about the upcoming nomination of a justice to the Supreme Court, and why he should support Diane Wood.

Dear Senator Cornyn,

As a Texas voter, Rice University graduate, and 2L student at the Cardozo School of Law, I encourage you to support Diane Wood for nomination and confirmation to the United States Supreme Court.

As a member of the Senate Judiciary committee, you play a very important role in the nomination of justices, and given the totality of the circumstances, Wood is best candidate Texas can get.

I understand that your political and party allegiances will lead you to oppose Wood, whether due to partisan or policy reasons. However, anyone the President nominates is going to meet some base level of pro-choice, or traditionally liberal, approval. The question then is, given these candidates, which one is the best of all the choices. For any Texan, the overwhelming choice is Wood, the only mentioned candidate from the University of Texas.

Placing Justice Wood on the Supreme Court would send a message that the University of Texas produces legal scholars on par with Harvard, Yale and Columbia, the other only schools represented on the highest court. Indeed, her confirmation could thrust the University of Texas to the very top of law school rankings and send the message that students do not need to leave our great state to get the best possible education.

This is the closest chance since Homer Thornberry’s nomination in 1968 for Texas to have say on the court. At a time when New Jersey and New York seem to be the only acceptable origins for a Supreme Court Justice, a Wood nomination would help emphasize that Texas is a center of intellectual research and modern business, deflecting the traditional, ignorant stereotypes from the coasts. Your colleague and my representative John Culberson likes to say “Let Texans Run Texas.” Well it is time to let Texans judge Texas, not to mention every other state.

One should learn a lesson from the Senate rejecting Thornberry in the wake of the Abe Fortas scandal. After senators filibustered President Johnson’s nomination of Abe Fortas to replace Earl Warren as Chief Justice, and Thornberry to replace Fortas as Associate Justice, the chance was passed to President Nixon, who eventually nominated Justice Burger. While Burger was touted as a conservative, his eventual record could be seen as no more conservative or liberal than Thornberry’s. The main difference is that one was a Texan and one was not. Furthermore, if Johnson had made the nomination rather than Nixon, one could safely assume that he would choose a candidate much more liberal than Thornberry, and certainly one lacking in Texan sensibilities.

With this nomination at hand, you cannot hedge that a Republican will become President if a filibuster were successful. There is simply too much time and too great a Democratic majority, even if you are just waiting for the midterm elections. Obama will get a nominee, but you can influence which one. Go with the Texan.

Furthermore, of all the potential candidates, Wood distinctly has gained the respect of her conservative colleagues on one of the most conservative circuit courts. On the highest court, she would not be some renegade judge to be feared, but an academic sparring partner who would help conservative judges sharpen their own arguments, leading to better decisions and a collegial court that would embody a working bipartisanship severely lacking in today’s political rhetoric.

Even when looking at Wood’s liberal record, she deviates from some of her fellow judicial candidates by taking a position strictly limiting the Executive Branch. At a time when conservatives and Republicans worry about President Obama’s executive authority, Wood could stand as an ally with those who support a small and limited government. All of Obama’s potential nominees will be pro-choice, but not all will support a limited government.

Furthermore, Wood is the only candidate who has balanced her career while raising three children, and that experience has given her a home-town groundedness that would be hard to find from any justice, liberal or conservative.

I do not expect you to loudly proclaim your support for Wood. I do not even expect you to vote for her. However, a leaked word that a Texan nominee would lead to a smoother confirmation from the Texan Senator would be a sign that you are willing to face the facts, recognize the totality of the situation, suck it up and choose the best of all possibilities. And Wood is the best for Texas.

UPDATE: I reposted this at Daily Kos (http://www.dailykos.com/story/2010/4/21/859447/-The-Texan-Argument-for-Diane-Wood) And there was some discussion. But not really.

UPDATE 2: 2Up2Date: Shane brings up that O’Connor was born in El Paso. True, but she went to Stanford for undergrad and law school, and was essentially an Arizonian… Arizonite… from Arizona. Wood went to UT law, which is the main issue.