USA supreme court appeal regarding legality of fictional text stories.

[jamarie722]

While this topic does relate to politics, i beileve that it wont fall afoul of the rule eight of this forum given that the political nature of it is rather relevant to the purpose of this forum. I don't know how important this is, but i think its worht keeping an eye on.

In america in 2021 a man was convicted for running a website distributing obscene text works:
https://www.justice.gov/usao-wdtx/pr/terlingua-man-sentenced-prison-running-child-obscenity-website
(While the owner of the site had sexually abused people he wasn't convicted for that. it seems his victims were only involved in testifying during sentencing came forward after he was arrested or while he was already under investigation.)

The case was appealed to the 5th circuit last year, and they mostly ruled against him:
https://www.ca5.uscourts.gov/opinions/pub/21/21-50607-CR0.pdf

Last month he filed an appeal to the supreme court of the usa. I don't know how likely the supreme court is to take the case, but they will decide whether to take it on the 17th this month:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-6519.html

IANAL (I am not a lawyer). i dont know how likely this is to be granted ceritorari by the scotus, or what their ruling would be if they were to review it. i don't know how likely it is result in new precedent or anyhing along those lines. but even if the the supreme court doesn't take the case, this ruling is still precedent for anyone in the 5th circuit in the usa.

He was sentenced to 40 years in prison, which is a longer sentence than most child pornographers recieve. he was convicted on 5 counts of trafficking in obscene text stories (and 3 counts of distributing obscene drawing), yet the website apparently had 25,000 stories and over 2000 authors. Source:
https://www.kentucky.com/news/nation-world/national/article248700175.html

I don't know what exactly was in the stories. It tis entirely possible that the content of the stories were so beyond the pale that nothing elsewhere is comparalbe to them. I don't know why those 5 specific stories were chosen out of a site with 25000 stories hosted. I do not know if this is likely to affect most literotica websites, but before the case was appealed, the legal team of OTW said that "if it reaches the federal level it will 100% be able to affect AO3".
Source: https://www.reddit.com/r/archiveofo...erlingua_man_convicted_of_multiple_obscenity/

 

[fluxoid]

It's a serious concern, certainly.

Thankfully nearly all online censorship, whether it's cracking down on lese majesty against dictators and billionaires, or offense against eager-to-be-offended political or religious zealots, has the same solution: Move the servers and any official offices into a more-supportive jurisdiction.

There are very good reasons why almost no major porn-video sites are hosted in the USA, despite it being the world's leading porn producer (in quantity anyway). Hint: It is not because of bandwidth or labor costs.

Text-only sites have so far had it easy, but we've had a pedophilia/pornography moral panic brewing since the collapse of the satanic ritual abuse moral panic in the 80's, and it's been growing in strength and scope for years. Lots of countries have already extended strong legal protection to fictional characters (only for sex crimes of course, torture or murder of fictional children is just fine pretty-much everywhere except Germany), and it wouldn't be a great surprise for the USA to follow suit.

After all, you wouldn't want to let a dirty rotten pedo run loose just because they've never shown the slightest sexual interest in children, or any inclination to hurt anyone, would you? Think of the children!

Anyhow the upshot, IMHO is simply this: If a site is even remotely sexual in nature, you shouldn't try to operate it or contribute to it in or from the USA (or the UK, Canada or most of Europe) without taking serious steps to conceal your identity.

 

[Heaven Canceler]

Well this one should be interesting. I am surprised that the guy decided to appeal and ask for it to be brought to the Supreme Court. Normally these cases end with the target just taking a plea deal because they don't have the money and time to do an intensive lawsuit that could go on for who knows how long.

There was a case two decades or so ago called Ashcroft vs. Free Speech Coalition that declared that fiction depicting underage characters should not equal child pornography. For obvious reason this was an important distinction as various historical and modern works depict such things, from Romeo & Juliet, ancient works of art to modern books such as the infamous sewer scene in IT.

There have been a few cases here or there that got hit but they never really reached Supreme Court as far as I understand. Either ending with a plea deal or the Supreme Court refusing to take the case.

One thing I find interesting about this case is that with a quick skim through the document you linked (Second link from above) on it, is that they had a literature expert who apparently studied the material and declared it to possess at least some artistic value overall by comparing it to other materials that are commonly considered to have artistic value. The doctor's statements were seemingl removed due to a disagreement on whether he was qualified to review and analyse the work. Even though it was later agreed that he did in fact have the necessary qualification to say that it had artistic value, it was concluded that the judgement would remain the same as he wouldn't have been able to change the general jury's opinion with his statements regarding the works artistic value.

Obscenity cases were also always different from that as the ruling there pretty much boils down to "If the locals would think its obscene its obscene" which is pretty open to abuse. Combine that with "Lacks Artistic Value" and it pretty much is entirely up to the jury rather than anything else.

Honestly down the line this could be interesting, but somehow I doubt that anyone will hit a place like Ao3 or like, Fakku or Mangagamer who sell lolicon material, in part because these places have a lot of money and a set of lawyers that are likely to defend them much better than this one dude. They generall prefer to go after "soft" targets that have a much more limited ability to defend themselves so to speak.

 

[jamarie722]

Update, the Supreme court denied his appeal today.

Anyhow the upshot, IMHO is simply this: If a site is even remotely sexual in nature, you shouldn't try to operate it or contribute to it in or from the USA (or the UK, Canada or most of Europe) without taking serious steps to conceal your identity.

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I believe QQ is hosted in the usa.

Honestly down the line this could be interesting, but somehow I doubt that anyone will hit a place like Ao3 or like, Fakku or Mangagamer who sell lolicon material, in part because these places have a lot of money and a set of lawyers that are likely to defend them much better than this one dude. They generall prefer to go after "soft" targets that have a much more limited ability to defend themselves so to speak.

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it's possible that they chose this guy because he was a soft target, but I dont know if thats what happened. He apparently earned around ten thousand usd a month, which isnt rich but still a decent amount. Here's the arrest warrant that the FBI issued for him, which could be informative: https://www.documentcloud.org/documents/6548074-Thomas-Alan-Arthur-Criminal-Complaint

i dont know who the FBI prefers to go after, because not many people have been prosecuted for osbcenity. its possible the FBI already know about those sites and don't care. But its also possible that other sites hasn't attracted the FBI's notice yet. The site Mr Double was around since 1996, yet the admin was only arrested in 2019 (over 20 years later). So, i don't know if it could affect other sites, but as mentioned earlier, AO3's legal team said the case may affect them.

 

[Heaven Canceler]

i dont know who the FBI prefers to go after, because not many people have been prosecuted for osbcenity. its possible the FBI already know about those sites and don't care. But its also possible that other sites hasn't attracted the FBI's notice yet. The site Mr Double was around since 1996, yet the admin was only arrested in 2019 (over 20 years later). So, i don't know if it could affect other sites, but as mentioned earlier, AO3's legal team said the case may affect them.

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I would think it relatively unlikely that the FBI knows about this obscure site of that guy and not about the above sites which openly sell imported material from Japan. (i.e. eroge, doujinshi and the like.) I mean Fakku and Mangagamer both have wikipedia article as they are notable companies that sell internationally. Fakku is literally the worlds largest english speaking distributor of adult manga/doujinshi.

Or Gelbooru which hosts a large amount of loli and other contentious content and also has a direct line with child protection services where they give information whenever someone uploads child porn onto the site.

 

[shadowdice]

I would think it relatively unlikely that the FBI knows about this obscure site of that guy and not about the above sites which openly sell imported material from Japan. (i.e. eroge, doujinshi and the like.) I mean Fakku and Mangagamer both have wikipedia article as they are notable companies that sell internationally. Fakku is literally the worlds largest english speaking distributor of adult manga/doujinshi.

Or Gelbooru which hosts a large amount of loli and other contentious content and also has a direct line with child protection services where they give information whenever someone uploads child porn onto the site.

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It is always amazing to me that people always harp about Loli while the sites that use it pretty much have hotlines to the child protective services when that shit actually happens

ones with forum chats become warnings of don't click the link and cps numbers the second those get posted

 

[jamarie722]

Here is a list of the stories that he was charged for: https://www.courtlistener.com/docket/16474360/74/united-states-v-arthur/
The titles seem like some nasty stuff. Sadly, I've probably seen worse greentexts on 4chan. Anywyays, i dont 'know if theres stories on this forum like that; im not familiar enough with qq.

I would think it relatively unlikely that the FBI knows about this obscure site of that guy and not about the above sites which openly sell imported material from Japan. (i.e. eroge, doujinshi and the like.) I mean Fakku and Mangagamer both have wikipedia article as they are notable companies that sell internationally. Fakku is literally the worlds largest english speaking distributor of adult manga/doujinshi.

Or Gelbooru which hosts a large amount of loli and other contentious content and also has a direct line with child protection services where they give information whenever someone uploads child porn onto the site.

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I don't think Fakku has lolicon stuff, it's not listed in their tags; but If they do have it, they dont exactly advertise it. Mangagamer is based in japan. Gelbooru also hides the loli stuff. i also dont know how much those companies actually make, especially gelbooru which only has advertisements and shirts as income. Perhaps they prosecuted the mrdouble website, because it was specifically known for that stuff. or maybe they haven't gotten reports about the other sites.

i have no idea why the fbi hasn't prosecuted any other site, i don't know enough to say why. I do know that obscenity prosecutions aren't common and Obscenity laws are a weird gray area. Theres even actual lawyers who have said that the laws are unclear. Eric chase, the lawyer in US Vs Handley , said "Obscenity is the only law I'm aware of, if a client shows me a book or magazine or movie, and asks me if this image is illegal, I can't tell them."

 

[BetweenTheLines]

I do know that obscenity prosecutions aren't common and Obscenity laws are a weird gray area. Theres even actual lawyers who have said that the laws are unclear. Eric chase, the lawyer in US Vs Handley , said "Obscenity is the only law I'm aware of, if a client shows me a book or magazine or movie, and asks me if this image is illegal, I can't tell them."

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The optimistic part of me hopes it is just to cast a wide net to catch an ever-shifting hydra that drives real victimization. The cynical part of me suspects it is more to give a backdoor to stick people normally protected by the constitution at the state's discretion, while also appeasing moral busybodies despite that power not being exercised too often anyway.

What does this sort of stuff mean for places like QQ and its posters though? I am not really feeling up to scrutinize the writer's portfolio, so does anyone know what got him in trouble?

 

[Heaven Canceler]

I don't know if Fakku has lolicon stuff, it's not listed in their tags. so If they do have it, they dont exactly advertise it. Mangagamer is based in japan. Gelbooru also hides the loli stuff. i also dont know how much those companies actually make, especially gelbooru which only has advertisements and shirts as income. Perhaps they prosecuted the mrdouble website, because it was specifically known for that stuff. or maybe they haven't gotten reports about the other sites.

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Fakku sells lolicon stuff, lots of it. Think they removed the tag a year or two ago for publicity. Mangagamer is based in Japan but sells internationally which is important. US businesses also need to obey say the Data protection rules of the EU if they wanna do business.

Gelbooru only needs an account for its contentious content as opposed to say Danbooru where its premium content to be paid for.

Another one is Nhentai which I believe is set in the US and does not even need an account for its content. And while not possessing a wikipedia entry (probably due to it just being a doujin collecter without much to report) is big enough that "cursed numbers" get shared even outside the specific niche.

Like seriously if Gelbooru and Nhentai don't get reported to authorities at least once a day I would be very surprised.

 

[Drak4806]

From what I've heard the FBI asks people not to report fictional stuff because it wastes their time that they could be using on actual child porn.

Now glancing over the articles the fact he actually abused a kid matches with what else I've heard in that Obscenity charges pretty much are things that get tacked on when you commit other crimes. Wild guess but considering the fact that he was only convicted of 5 counts of trafficking in obscene text stories and 3 counts of distributing obscene drawing makes me think that those were either about the kid he abused or about other real kids that were abused and he knew it since he apparently reviewed each story that was uploaded. Rather than this being something like QQ or Ao3 featuring obviously fictional stuff this could have been a site where actual child abusers would share stories of their crimes.

 

[jamarie722]

From what I've heard the FBI asks people not to report fictional stuff because it wastes their time that they could be using on actual child porn.

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There used to be a separate task force specifically for obscenity, but obama merged it with another in 2011: https://en.wikipedia.org/wiki/Obscenity_Prosecution_Task_Force . I wasn't able to find any fbi statement that fictional stuff shouldn't be reported. But i've heard people say that reporting hentai to child protection NGOs is wasting their time.

Now glancing over the articles the fact he actually abused a kid matches with what else I've heard in that Obscenity charges pretty much are things that get tacked on when you commit other crimes. Wild guess but considering the fact that he was only convicted of 5 counts of trafficking in obscene text stories and 3 counts of distributing obscene drawing makes me think that those were either about the kid he abused or about other real kids that were abused and he knew it since he apparently reviewed each story that was uploaded. Rather than this being something like QQ or Ao3 featuring obviously fictional stuff this could have been a site where actual child abusers would share stories of their crimes.

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The admin of the website didn't create the images or stories he was convicted for, they were user uploaded. the images were cartoons used as user avatars. Since there were apprently over 25,000 stories on the site, I don't think he would be able to know if the stories were real.

obscenity charges aren't always tacked on, though they can be. If they were intended to be tacked on, he would probably have been charged with other things as well to encourage him to take a plea deal.
For example in the case of https://en.wikipedia.org/wiki/United_States_v._Handley , the defendant had no prior legal history and was only charged and convicted of obscenity. In the case of https://en.wikipedia.org/wiki/John_Stagliano#Obscenity_trial , a person was charged with obscenity for rl fetish porn like watersports. There's other cases of this as well.

 

[Heaven Canceler]

Its possible that it was a case of "we cannot get him for the base crimes even though we basically know he did it, so we will hit him for other stuff." Like with Al Capone and the taxes.

 

[jamarie722]

The optimistic part of me hopes it is just to cast a wide net to catch an ever-shifting hydra that drives real victimization. The cynical part of me suspects it is more to give a backdoor to stick people normally protected by the constitution at the state's discretion, while also appeasing moral busybodies despite that power not being exercised too often anyway.

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i dont think theres any sort of secret fbi plan there. i think its just another vague law.

What does this sort of stuff mean for places like QQ and its posters though? I am not really feeling up to scrutinize the writer's portfolio, so does anyone know what got him in trouble?

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to quote the 5th circuit decisions these are the sort of images that were found to be obscene:

images in Counts 8 and 9 are both detailed, color, cartoon-like drawings depicting pre-adolescent girls being forced to perform fellatio on disembodied and engorged male genitalia

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though in the appeal his lawyer contests that:

With respect to the panel below, "being forced to perform" reads into the images an intention or detail not apparent in the images themselves, as is the assertion that the characters depicted there (in cartoon-like fashion) are pre-adolescent.

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Gross but not that extreme in the grand scheme of things online. You can find worse things by accident.



taken from the lists of government exhibits. The stories he was convicted for distributing are:

Story 1 – "A Spectacle to Beat All Others" by babyNpop
Story 2 – "Baby Wank" by Evil Dad
Story 3 – "Buttfucking a 10- Year-Old Girl" by Steven Seven
Story 4 – "Replacing My Wife – She Had it Coming" by BabyRaper
Story 5 – "The Baby Mangler" by Lachurna

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their described by the 5th circuit ruling as:

all of the charged stories describe in detail the repeated and protracted rape and torture of babies, infants, and adolescents, we can easily say that they describe sexual conduct "in a patently offensive way." Miller, 413 U.S. at 24; Ragsdale, 426 F.3d at 781; Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353, 1366 (5th Cir. 1980).
Finally, the charged materials lack "serious literary, artistic, political, or scientific value." Miller, 413 U.S. at 24.
Unlike the works Arthur attempts to compare to, including The Color Purple and Lolita, the charged stories have "only the most tenuous 'plot.'" Kaplan, 413 U.S. at 117. And neither the charged stories nor the images charged in Counts 8 and 9 attempt to be anything other than the "portrayal of hard-core sexual conduct for its own sake."

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[BetweenTheLines]

The admin of the website didn't create the images or stories he was convicted for, they were user uploaded. the images were cartoons used as user avatars. Since there were apprently over 25,000 stories on the site, I don't think he would be able to know if the stories were real.

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Its possible that it was a case of "we cannot get him for the base crimes even though we basically know he did it, so we will hit him for other stuff." Like with Al Capone and the taxes.

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Wait, I am confused. So the one convicted was the person who ran site itself. Was he also the one who was known to have abused kids, or was it the ones who wrote certain stories? I thought I was following the thread, but might have gotten some wires crossed along the way.

 

[jamarie722]

Wait, I am confused. So the one convicted was the person who ran site itself. Was he also the one who was known to have abused kids, or was it the ones who wrote certain stories? I thought I was following the thread, but might have gotten some wires crossed along the way.

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from the DOJ statement Linked in the OP:

Additionally, according to court documents and statements made at the sentencing, Arthur sexually assaulted two females who came forward during the investigation of this case

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His criminal history is not mentioned at all in the arrest warrant, so those victims may have came forward later.
The arrest warrant does mention that other users of the site were under investigation and had criminal history. It also states that the fbi agent

contacted NCMEC and was advised that the CyberTipline has received more than 40 reports involving Website A since 2000

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speaking of which:

Like seriously if Gelbooru and Nhentai don't get reported to authorities at least once a day I would be very surprised.

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The NCMEC does accept reports about hentai: https://report.cybertip.org/ispws/documentation/#file-annotations
If your curious you could probably ask them if theyve ever gotten reports about those sites. Theyve got a general question line.

 

[Heaven Canceler]

Its surprising they got an entire category for that unless its used to filter out trash to throw away stuff immediately. I remember at least one case of child protection services actively asking people to not report fictional content because it clogs up the qeques of their already limited manpower. They had something like 80%+ plus of reports being drawings if I remember.

Edit: Not gonna waste their time with any requests, I don't care that much and these guys are probably overworked enough.

 

[jamarie722]

Its surprising they got an entire category for that unless its used to filter out trash to throw away stuff immediately. I remember at least one case of child protection services actively asking people to not report fictional content because it clogs up the qeques of their already limited manpower. They had something like 80%+ plus of reports being drawings if I remember.

Edit: Not gonna waste their time with any requests, I don't care that much and these guys are probably overworked enough.

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it may not be exactly what you were thinking of, but its stimilar. Rather than an abuse hotline asking it to stop, its other groups asking abuse hotlines to stop accepting reports for fictional content : https://www.article19.org/resources/inhope-members-reporting-artwork-as-child-sexual-abuse/ .

it doesn't seem like the NCMEC throws out hentai reports. It's partners state that they recieve reports about cartoons from them:

In May 2019 the UK's Independent Enquiry into Child Sexual Abuse heard that reports received by the National Crime Authority from the United States hotline NCMEC included large numbers of non-actionable images including cartoons, along with personally identifiable information of those responsible for uploading them. [3] According to Swiss police, up to 90% of the reports received from NCMEC relate to innocent images. [4]

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That 90% figure is similar to the one you remembered.

 

[Heaven Canceler]

That may have been it, it sounds like this hotline may not be proper child protection services themselves, rather they just mass-collect reports and then dump it on the actual groups that have to sort through the stuff, which are naturally miffed if they have to work through huge amounts of non-actionable material to find stuff that actually matters.

Kinda depressing to think about how much time and effort is wasted on this rather than helping actual victims.

 

[jamarie722]

They aren't just an image abuse hotline. The NCMEC does other stuff as well such as help find missing children:
https://en.wikipedia.org/wiki/National_Center_for_Missing_&_Exploited_Children
https://www.missingkids.org/

 

[Heaven Canceler]

Huh interesting, though that kinda makes this even more depressing if they don't just send that shit to other groups but also waste their own resources on this...

 

[Nicodemus]

Huh.

Guess it's time to stop using underage characters for my fics.