Legal Commentary

Pedophile Guide Author Arrested on Obscenity Charge

By Eugene Volokh

The AP reports:

A Colorado man who wrote a how-to guide for pedophiles [?The Pedophile?s Guide to Love and Pleasure: a Child-lover?s Code of Conduct?] is being transferred to Florida to face obscenity charges, after deputies there ordered a copy of the book that has generated online outrage....

If the book actually provides useful and nonobvious information about how to more effectively seduce children (or escape detection), then it brings us to the difficult and unresolved issue of crime-facilitating speech (full article here). I doubt there is a currently existing statute under which he could be prosecuted on a crime-facilitating speech theory, but if there were one then there would be an interesting First Amendment question about whether such a statute is constitutional.

But from what I?ve heard of the book, I doubt that an obscenity prosecution would work. The obscenity exception essentially covers hard-core pornography ? material that is not just about sex, or that advocates or gives information about illegal sex, but material that is highly sexually explicit. Specifically, to be obscene, a work (1) must be, taken as a whole, erotically stimulating (in a way that is seen as ?shameful or morbid?) to its likely readership, (2) must depict or describe, in an offensively explicit way, sexual conduct, and (3) must, taken as a whole, lack serious literary, artistic, political, or scientific value.

From what I understand, the book is not, taken as a whole, erotically stimulating; neither its purpose nor its likely use is erotic stimulation. The Polk County Sheriff?s Office says that ?The book contains two graphic stories depicting an adult engaged in sex acts with children,? but I doubt that these two stories suffice to make the work erotically themed when ?taken as a whole.?

And to the extent that ?[t]he book also defends [and] advocates ... illegal sex acts between adults and children? (I again quote from the Sheriff?s Office), it conveys a serious political message, albeit an evil message. That should suffice to satisfy the serious political value prong. In any event, even if I?m mistaken as to one or another of these items, I doubt that it satisfies all three of the prongs. And to be obscene, it has to satisfy all three.

To be sure, in the past advocacy of the propriety of harmful sexual conduct ? at the time, adultery, but the logic would extend even to the much more harmful behavior of sexual molestation ? could be seen as ?thematically obscene.? But the Court rejected that in Kingsley Int?l Pictures Corp. v. Regents (1959), and has not resurrected it since.

Of course, a child pornography prosecution wouldn?t work either. To be child pornography, a work has to depict (in photographs, videorecordings, or audiorecordings) actual children. Text might in principle be obscene, if it?s sufficiently sexually explicit. But it can?t be child pornography.

Thanks to Robert Woolley and Prof. Eric Freedman for the pointers.

Full post as published by The Volokh Conspiracy on December 20, 2010 (boomark / email).