chadknowslaw

Child porn is an easy test -- was one of the performers under 18 at the time the image was taken? That is a simple yes or no question. If the answer is "Yes" then the material is child porn and is contraband. CP is illegal to make, sell, or possess. CP has a victim too -- the child model. This is an objective test and easy to understand. CP is not legal at any level.

Obscene material is different. The producer and distributor can be convicted but the individual that has it in his home cannot. It is legal to possess obscene material.

What is obscene is not an easy test. Hell, we don't even have a static answer key for that test! Is it obscene? We have to take 12 people [after voir dire as earlier mentioned] and then present the material to them and then those people must deliberate to decide if what they saw was so horrible and offensive that the producer should be put into prison for making it. Since this test is so subjective, it turns on the _opinions_ of the jurors. And that makes it unfair in my mind. I would probably give up my stance if obscenity was clearly defined in the law, for example, if depictions of human defecation and ingestion of fecal matter are defined by law to be obscene. That is a bright line that would probably bring the vast majority [probably over 99%] of webmasters and pornographers to the truce table. However, right now what is obscene is defined by "community standards" -- whatever THOSE are. The DOJ likes to pick conservative jurisdictions to file their cases, knowing that the "community standards" in rural Pennsylvania are different from the community standards of urban Los Angeles. Then rural Pennsylvania community standards are applied to a product that is sold all over the US, to all kinds of communities, yet the standards of a community the producer never even visited are applied to his work. I find that patently unfair!

Could we get a jury to decide if your bathwater is too cold to bathe in ? If there was a federal law that mandated bathwater in commercial baths must be of sufficient temperature to bathe, then deciding if J's BathHouse broke the law would be a subjective test. Maybe a jury in Alaska would think that bathwater that is 28F saltwater [just like the water where the Titanic sank ]is not too cold to bathe in but the jury from Miami would be shocked when you had them slip into that icy cold tub. You can get different results from different juries, and thus that subjective test is not fair and does not apply to everyone evenly. If the law is that bathwater in a commercial bath must be at least 75F then the question is presented as "Was John Doe's bathwater at J's BathHouse below the limit of 75F?" That is an objective test and John knows for sure his bathwater is colder than the mandated standard, even if his customers are members of the Polar Bear Club and want it that cold. Then John is clearly breaking the law and deserves punishment that fits the crime.

I don't believe in "anything goes" because I don't believe those under 18, animals or dead bodies can give consent. I do believe that consensual activities among sober adults that is filmed and sold to adults that _want_ to see it [unwanted spam is _not_ going to consenting adults] should not carry a prison sentence.

I personally do not take on criminal defense cases simply because my heart is not in it. I spent too much time as an elected prosecutor to sit at the other table and put forth an argument that my client did not do something when I know damn well they fucked up. I won't try to bullshit anyone that I would want to represent a defendant in one of these cases -- I may take some shit for this but honestly I want someone else to fight that battle.

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ChadKnowsLaw