Line between obscenity, expression, and illegal pornography

[Bojack Horseman]

In a class, the topic of pornography and the line between obscenity and expression came up, and some research came a previous SCOTUS case, Sunshine Book Company V. Summerfield, from 1957, in which the Supreme Court ruled that pictures of nude children are protected by the First Amendment, so long as they do not show graphic depictions of children engaged in sexual acts, though other pictures of adults depicted in the magazine at hand were obscene, and therefore the magazine could not be sent through the mail.

An excerpt from the entire decision (Found here: http://www.leagle.com/decision/1955692128FSupp564_1594/SUNSHINE%20BOOK%20COMPANY%20v.%20SUMMERFIELD)

First of all, nudity is not, per se, obscene, as the case of Parmelee v. United States, from our own circuit, reported in 72 App.D.C. 203, 113 F.2d 729, was clear to point out. However, we must steer a course, in the clash of these legal interests, between what is art on the one hand, pornography on the other; what is decent on the one hand as against what is indecent on the other; and what is conformity to the mores of the District of Columbia, the State of New Jersey and America in general. Accordingly, we must first consider the definitions which have been handed down in interpreting the mandate of Congress...

Where children are photographed in a frontal view which reveals the diminutive and undeveloped genitalia, that is not obscene as a matter of fact.

Another case on the matter is United States V. Nance, in which a man appealed his child pornography conviction, stating that he was looking at pictures of nudist children and therefore should have his conviction reversed. His appeal was denied, as he had downloaded over a thousand illegal images that did not fit anywhere into the First Amendment exception. An excerpt from the decision, "Nance used his laptop to access the website (website redacted) at a time when he claimed his laptop was inoperable. Nance objected because the content of the (website redacted) website, pictures of naked children, is not pornographic, and the government does not contend that it is."

I think this opens a pretty scary loophole, don't you? But of course, when a precedent set for obscenity is "I know it when I see it," it leaves open a lot for interpretation.

[True Federalist (진정한 연방 주의자)]

Pornography has an inherently subjective standard in that it consists of whatever stimulates erotic feelings. As such, context matters. A picture of a nude child in a book or website about childhood development can reasonably be presumed to not be appealing to prurient interest, notwithstanding Rule 34. That exact same photograph when downloaded from a porno site can be presumed to be appealing to prurient interest despite its innocence in other contexts.

[Mr. Reactionary]

Pornography has an inherently subjective standard in that it consists of whatever stimulates erotic feelings. As such, context matters. A picture of a nude child in a book or website about childhood development can reasonably be presumed to not be appealing to prurient interest, notwithstanding Rule 34. That exact same photograph when downloaded from a porno site can be presumed to be appealing to prurient interest despite its innocence in other contexts.

Not to mention the whole "Community standards" rabbit hole.