Virtual porn: the court knows it when it sees it

Recently Judge Loose Stone of Manhattan had to decide whether the subjects of alleged child porn were minors and whether the images were real or virtual.  He held a private viewing in camera explaining that he was adopting “the U.S. Supreme Court- endorsed standard for pornography: that a Court ‘can know it when it sees it.'” People v. Labarbera.

That’s not what the Supreme Court said! The famous dictum in Justice Potter Stewart’s concurrence was “I know it when I see it.”  Jacobellis v. Ohio (1964) (emphasis added). He never said anybody else had this magic power. Not even Earl Warren.

Naturally Justice Stewart got tired of having to personally review every blue movie and girlie magazine that came out. “After awhile everybody starts to look like balloons with mouths,” he told the New York Times. “Anyway, what’s so terrible about prurient interests?  Takes people’s minds off overthrowing the government.”

What Justice Stewart also never said was that he could tell a 16-year old from a 17-year old or a virtual image from a real one. We all know what rigorous scientific training state court judges have, but aren’t those questions a teeny bit outside their ken?  Does Loose Stone sniff the cocaine in evidence to see if it’s real or fire the gun to see if it’s operable? Or autopsy the corpse?

Take this simple test below and see if you know it when you see it:

Real or virtual? Only the court knows for sure.

Was a child sexually abused to produce this image?

Was little David old enough to consent?

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
This entry was posted in Civil Liberties, Law & Parody, SORA and tagged , , , . Bookmark the permalink.

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