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A constitutionally dubious California bill would ban possession of AI-generated child pornography

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A constitutionally dubious California bill would ban possession of AI-generated child pornography


Back in 2016, a study found that it was increasingly difficult for subjects to distinguish between actual photographs of people and computer-generated simulations of them. The researchers suggested that development would complicate prosecution of child pornography cases. That concern has been magnified by rapid improvements in artificial intelligence, prompting a California bill that would, among other things, make it a felony to possess virtual child pornography when it qualifies as “obscene.” This provision seems constitutionally problematic in light of the U.S. Supreme Court’s holding that the First Amendment bars legislators from criminalizing the mere possession of obscene material.

Assembly Bill 1831, introduced by Assemblymember Marc Berman (D–Palo Alto) on January 12, aims to expand the state’s definition of child pornography to include “representations of real or fictitious persons generated through use of artificially intelligent software or computer-generated means, who are, or who a reasonable person would regard as being, real persons under 18 years of age, engaging in or simulating sexual conduct.” Since that new definition would pose obvious First Amendment problems as applied to constitutionally protected images, the bill specifies that such representations must meet the state’s definition of obscenity: material that “to the average person, applying contemporary statewide standards, appeals to the prurient interest”; “depicts or describes sexual conduct in a patently offensive way”; and “taken as a whole, lacks serious literary, artistic, political, or scientific value.”

That definition of obscenity tracks the test that the Supreme Court established in the 1973 case Miller v. California. But four years earlier in Stanley v. Georgia, the Court unanimously rejected a state law that made it a crime to possess “obscene matter.” Writing for the Court, Justice Thurgood Marshall drew a distinction between that ban and other obscenity laws: “Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”

Berman evidently did not view the Supreme Court’s reading of the First Amendment as an obstacle to his goals, and he is by no means alone in that. Way back in 1996, Congress tried to ban “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture,” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” The Supreme Court deemed that law unconstitutional in the 2002 case Ashcroft v. Free Speech Coalition, noting that “the literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology” as well as “Hollywood movies, filmed without any child actors, if a jury believes an actor ‘appears to be’ a minor engaging in ‘actual or simulated…sexual intercourse.’”

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Congress tried again in 2003. The PROTECT Act covered any “digital image, computer
image, or computer-generated image” that is “indistinguishable” from “that of a minor engaging in sexually explicit conduct.” Unlike Berman’s bill, it did not require that such material qualify as obscene, making it even more constitutionally questionable. But it did include an obscenity test for another category of proscribed material: “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,” that “depicts a minor engaging in sexually explicit conduct.” And the law applied a less demanding test to any visual depiction of “a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal.” The PROTECT Act made such material illegal if it “lacks serious literary, artistic, political, or scientific value,” dispensing with the other two prongs of the obscenity test.

In 2008, the U.S. Court of Appeals for the 4th Circuit considered the case of a Virginia man, Dwight Whorley, who was charged with violating the PROTECT Act by “knowingly receiving on a computer 20 obscene Japanese anime cartoons depicting minors engaging in sexually explicit conduct.” Whorley argued that the law’s prohibition on receiving obscene images was “facially unconstitutional” because “receiving materials is an incident of their possession, and possession of obscene materials is protected by the holding of Stanley v. Georgia.”

The 4th Circuit rejected that claim. “Stanley‘s holding was a narrow one, focusing only on the possession of obscene materials in the privacy of one’s home,” the majority said. “The Court’s holding did not prohibit the government from regulating the channels of commerce.” The appeals court perceived the provision under which Whorley was charged as “focusing on the movement of obscene material in channels of commerce, and not on its mere possession.” So even though receiving, viewing, and possessing images are all essentially the same thing in the context of the internet, the appeals court concluded that Whorley’s prosecution did not run afoul of Stanley. But even that debatable reading does not seem to help Berman’s bill, which explicitly applies to “every person who knowingly possesses or controls” the newly prohibited images.

Whorley also argued that the PROTECT Act was “unconstitutional under the First Amendment, as applied to cartoons, because cartoons do not depict actual minors.” The 4th Circuit also rejected that argument, noting that cartoons are covered by the law only when they are “obscene” and that obscenity is not protected by the First Amendment.

That point does aid the defense of Berman’s bill, but again not insofar as it applies to mere possession. In other cases involving cartoons, such as manga, Simpsons porn, and “incest comics,” federal defendants have pleaded guilty to possession charges, avoiding a constitutional test.

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As applied to distribution, A.B. 1831’s obscenity requirement follows the approach that New York University law professor Rosalind Bell recommended in a 2012 law review article. Bell argued that the PROTECT Act provision covering digital images “indistinguishable” from the real thing, which does not require a finding of obscenity, is clearly unconstitutional.

In the 1982 case New York v. Ferber, Bell noted, “the Court established that the First Amendment does not extend to child pornography because the state has a special interest in protecting children from harm.” That interest, the Court held eight years later in Osborne v. Ohio, justifies even a ban on private possession of child pornography. But those cases involved actual child pornography, and the Court’s reasoning focused on the injury that its production and dissemination inflicts on the children whose abuse it documents.

“Post-Ferber child pornography regulation and court decisions interpreting this regulation have become untethered from the Supreme Court’s crucial limiting interest in protecting children from physical and emotional harm,” Bell wrote. “Increasingly, congressional action and court opinions reflect concerns about controlling private thoughts rather than preventing and punishing direct harm.”

Bell noted that Adrian Lyne’s 1997 film adaptation of “Vladimir Nabokov’s famous novel Lolita” went “straight to cable” because distributors worried that law enforcement agencies might deem it child pornography. “Writers and artists have explored the theme of adolescent sexuality in countless valuable works,” she wrote. “By banning non-obscene virtual depictions of child sexuality without reference to their social value, we exceed the First Amendment’s crucial dictates and jeopardize these works, including acclaimed films like Romeo and Juliet, The Tin Drum, American Beauty, and Taxi Driver.”

The “serious value” of such material presumably would protect it from Berman’s bill, which is why the obscenity requirement is crucial. But the ban on possession still flies in the face of the Supreme Court’s conclusion that “a State has no business telling a man” what he can look at while “sitting alone in his own house.” Although the Court later made an exception for pornography involving actual children, that exception does not encompass images that can be produced without violating anyone’s rights.

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California

Atmospheric river will bring heavy rain, snow to California-Oregon area this week

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Atmospheric river will bring heavy rain, snow to California-Oregon area this week


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The California-Oregon region is bracing for the first major storm of the season, an atmospheric river that potentially could dump nearly 10 inches of rain on the greater Redding area by the weekend.

And while the calendar still says fall, the storm kicks off with wintry conditions driven by low snow levels.

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“It’s definitely our first significant storm. I would say depending on how you want to define winter, I suppose you could call it the first winter storm,” Sara Purdue, a National Weather Service meteorologist, said on Monday.

When does the storm hit Oregon-Northern California?

Much of the rain and snow that will fall on the area will happen Tuesday and Wednesday, according to the National Weather Service.

The Northern Sacramento Valley, including Redding, is expected to get 6 to 8 inches of rain Tuesday through Friday, according to the National Weather Service.

The heavy rain has prompted the Weather Service to issue a flood watch for the Northern Sacramento Valley from Tuesday evening through Saturday morning.

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There is a winter storm warning for the mountains and foothills of Shasta County that is in effect through Wednesday night. The National Weather Service forecasts 8 to 18 inches of snow above 4,500 feet and 4 to 8 inches above 3,000 feet.

Snow is not expected to fall as low as the valley floor.

For Siskiyou County and the Mount Shasta-Shasta Valley area, there is the potential for 8 to 12 inches of snow Tuesday and Wednesday, said Alexis Hermansen, a National Weather Service meteorologist.

Snowfall accumulations will be higher in the mountains surrounding the city of Mount Shasta.

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“We could see a foot and a half to over 2 feet,” Hermansen said.

Winds also will be a concern in the Shasta Valley north of Mount Shasta, with gusts possibly up to 70 mph Tuesday night through Wednesday morning, the National Weather Service said.

Snow levels will increase to over 6,000 feet into Thursday and Friday.

Drivers on I-5 be prepared; carry snow chains

Mountain travel Tuesday and Wednesday will be especially challenging with the lower snow levels.

Chris Woodward, spokesman for the California Department of Transportation, said chain controls are expected to be in place at the higher elevations of Interstate 5 north of Redding.

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“The most important thing motorists need to know is to be prepared, have those chains when you need to have them,” Woodward said.

Caltrans recommends drivers check their brakes, battery, windshield wipers, defroster, heater, headlights and exhaust system before traveling in the mountains.

In addition to packing chains, Woodward said drivers should have an ice scraper and shovel, flashlight, warm blankets, water, non-perishable food items and a cell phone.

Motorists can check road conditions on the Caltrans’ QuickMap site at https://quickmap.dot.ca.gov.

There is also a chance Caltrans and the California Highway Patrol will screen motorists for chains 10 miles north of Redding on I-5 at the Fawndale exit, Woodward said.

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Screening vehicles allows authorities to meter traffic traveling through the Sacramento River Canyon, which can get treacherous and often is closed temporarily due to big-rig trucks and other vehicles spinning out on I-5 during heavy snowstorms.

“When we need to close the interstate, that screening acts like a kink in the hose, slowing that interstate traffic down and moderating the traffic,” Woodward said.

Thanksgiving travel outlook

This week’s storm is expected to linger through the weekend.

Purdue of the National Weather Service in Sacramento said Monday that it’s still early to get an accurate forecast for the busy Thanksgiving week.

“Potentially, there will be a damp start — I won’t say wet start — but damp start to the beginning of next week,” she said.

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AAA projects 80 million travelers will head 50 miles or more from their homes next week.

The extended holiday forecast, which includes the Tuesday (Nov. 26) before Thanksgiving and Monday (Dec. 2) afterwards, is expected to exceed pre-pandemic Thanksgiving travel levels and set a record, AAA said.

David Benda covers business, development and anything else that comes up for the USA TODAY Network in Redding. He also writes the weekly “Buzz on the Street” column. He’s part of a team of dedicated reporters that investigate wrongdoing, cover breaking news and tell other stories about your community. Reach him on Twitter @DavidBenda_RS or by phone at 1-530-338-8323. To support and sustain this work, please subscribe today.





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California to Start Wiping Racist Term for Indigenous Women

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California to Start Wiping Racist Term for Indigenous Women


California will soon start the process of scrubbing a racist term for Indigenous women from location names. A bill signed by Gov. Gavin Newsom in 2022 calls for the term “squaw” to removed from all of the state’s geographic features and place names, beginning Jan. 1, 2025. Within 180 days of that start date, local governments must submit replacement name recommendations; if they don’t, commissions and advisory bodies will be brought in to do so, CNN reports. The California Advisory Committee on Geographic Names will work to implement new names for nearly three dozen places, which have already been approved, by the first of the year, CBS News reports.

“The names we give to places in California reflect our shared history and culture. These place names should never insult communities or perpetuate discrimination,” the secretary of the California Natural Resources Agency says in a statement. Native American tribes worked with the agency to come up with the replacement names for locations including roads, a bridge, and a fire station. In West Sacramento, for example, the word was replaced with “tebti,” a word and blessing translating to the idea of streams that flow together. The federal government is also working to wipe the term from federal sites, and one iconic California ski resort has already made the change on its own. (More California stories.)

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Two “doomsday fish” spotted on California beaches in less than three months

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Two “doomsday fish” spotted on California beaches in less than three months


A rare deep-sea Pacific oarfish measuring 9.5 feet was recovered last week at Grandview Beach in Encinitas, California, marking only the 21st time since 1901 that this species has washed up on California shores. The discovery was made by PhD candidate Alison Laferriere from the Scripps Institution of Oceanography. The oarfish was found stretched out on the rocky shoreline and has since been moved to the Scripps Institution for further study and an autopsy.

The sighting was reported by New York Post, Asia Economy, among other outlets.

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Oarfish are exceptionally rare creatures, typically inhabiting depths between 200 and 1,000 meters. They can grow to lengths of up to 30 feet, making them the longest bony fish in the world, yet they remain largely unstudied by scientists due to their deep-sea habitat and infrequent appearances near the coast. They are characterized by their long, scaleless, ribbon-like silvery bodies with dark spots and a long red dorsal fin crest extending from the top of their heads.

This recent wash-up offers scientists a unique opportunity to study this elusive species without needing to dive into the ocean. “We took samples and froze the specimen pending a more detailed study and its final preservation in the collection,” explained Ben Frable, Scripps Marine Vertebrate Collection Manager. He added, “Like with the previous oarfish, this specimen and the samples taken from it will be able to tell us much about the biology, anatomy, genomics and life history of oarfishes.” The oarfish will undergo a necropsy to determine its cause of death, providing invaluable data for researchers.

This incident comes just months after another oarfish measuring 12.25 feet was found by kayakers on August 10 near La Jolla Cove, California, only 20 miles south of Grandview Beach. The two discoveries within three months are particularly notable, as only 21 oarfish have been found on California beaches in over a century. Even oarfish bodies rarely float into shallow waters, making these recent events extremely unusual.

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The proximity of these strandings has reignited discussions about the oarfish’s mythical reputation as a predictor of natural disasters. Oarfish have sparked myths and legends for centuries and are sometimes referred to as “doomsday fish.” There is a superstition that their appearance is a precursor to disasters like earthquakes, particularly fueled by the sighting of 20 oarfish washed ashore before the 2011 Great East Japan Earthquake. Notably, two days after the oarfish was found in August, a magnitude 4.4 earthquake occurred in Los Angeles, California, raising concerns about this mythical association.

However, scientists emphasize that there is no confirmed correlation between Pacific oarfish and earthquakes. A 2019 study by researchers in Japan found no solid scientific evidence linking oarfish to earthquakes, leaving the doom they may or may not portend open to anyone’s guess. Experts have declared, “There is no confirmed correlation between Pacific oarfish and earthquakes,” and “There is no scientific basis, so we should not make hasty conjectures,” despite the longstanding myths surrounding their appearances.

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According to researchers, the recent oarfish sightings are much less nefarious. Pacific oarfish are known to come close to the surface when they are sick, dying, or disoriented. Various factors could contribute to these strandings. “We do not know the clear reason for the death of the Pacific oarfish, but changes in the marine environment, population increase, El Niño, and La Niña are variables that may be at play,” explained Ben Frable. He suggested that the sightings could be related to changes in ocean conditions and an increase in the oarfish population in the region. “There was a weak El Niño earlier this year,” he stated.

The recent wash-up coincided with the red tide and Santa Ana winds last week, but many variables could lead to these strandings. The phenomenon of oarfish sightings has sparked researchers’ interest in the possible causes behind these occurrences, with broader shifts such as El Niño and La Niña patterns being considered.

For scientists at the Scripps Institution of Oceanography, these rare specimens present an incredible opportunity to learn more about a species that is largely unstudied due to its deep-sea habitat. The oarfish’s unique biology, anatomy, genomics, and life history can provide insights into deep-sea ecosystems and how changes in ocean conditions might affect marine life.

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The discoveries have also drawn attention to the species’ elusive nature and the mysteries that still surround the ocean’s depths. Oarfish typically inhabit the dark ocean depths, and their long, ribbon-like bodies and rare appearances have historically contributed to sea serpent legends.

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This article was written in collaboration with generative AI company Alchemiq





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