California
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.’”
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.
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.
A Chino Hills, California man has been arrested for allegedly working as an illegal agent of the People’s Republic of China (PRC) while also serving as the campaign manager for a local politician who was elected to office in 2022.
The U.S. Department of Justice (DOJ) said 64-year-old Yaoning “Mike” Sun was arrested on Thursday and charged with acting as an illegal agent of China as well as conspiring with another man, Chen Jun, who was sentenced to prison in November for bribery and also acting as an illegal agent of the Chinese government.
According to a criminal complaint filed with the U.S. District Court for the Central District of California on Tuesday, Sun served as campaign manager for a Southern California politician who was not named and only identified as “Individual 1” in the complaint. Individual 1 was ultimately elected to a city council position in a city not named in the complaint, in 2022.
Sun and Chen communicated during the campaign to help get the individual elected.
2 NY RESIDENTS ALLEGEDLY RAN SECRET CHINESE POLICE STATION: ‘SIGNIFICANT NATIONAL SECURITY MATTER’
Chen Jun, who Yaoning “Mike” Sun allegedly conspired with, was sentenced to prison in November for bribery and acting as an illegal agent of the Chinese government. (Department of Justice)
The DOJ said Chen allegedly spoke with Chinese government officials about how China could “influence” local American politicians, especially on the topic of Taiwan.
Shortly after Individual 1 was elected to office in November 2022, Chen allegedly told Sun to prepare a report on the election. The report was sent to Chinese government officials, who the complaint says responded positively and expressed thanks.
Nearly a month after the individual was elected, Chen also set up a lunch with Sun and others at a Rowland Heights restaurant. The gathering was described to a PRC official by Chen as a “core member lunch,” the DOJ said. Individual 1 was not reportedly at the luncheon, though Chen told the Chinese government officials the individual was part of the “basic team dedicated for us.”
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Chen told the PRC official the lunch was “successful,” adding that attendees agreed to create a “US-China Friendship Promotional Association.”
In early 2023, Chen allegedly instructed Sun to compose another report for PRC officials about the two of them “cultivating and assisting” with Individual 1’s success.
As the second report was being finalized in February 2023, Sun sent Chen a proposal to combat “anti-China forces” by marching in a U.S. Independence Day parade in Washington, D.C., the complaint noted.
MAN ACCUSED OF RUNNING SECRET CHINESE GOV POLICE STATION IN NYC MAKES PLEA: US ATTORNEY
China’s President Xi Jinping talks after joining a group photo during the G20 Summit in Rio de Janeiro, Monday, Nov. 18, 2024. (AP Photo/Eraldo Peres)
While the two men continued their efforts in the U.S., Sun allegedly asked the PRC to provide them with a budget of $80,000.
The complaint alleges that Chen and Sun spoke about a planned trip to China to meet with “leadership.” It also claims Sun was directed by Chen to set up a meeting with the Chinese consul general in Los Angeles. In August 2023, Sun and Individual 1 eventually traveled to China, the complaint alleges.
Sun could face up to 10 years in prison for acting as an illegal agent of a foreign government if he is convicted.
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He also faces a maximum penalty of five years behind bars for conspiring to commit an offense against the U.S.
Hunter Biden, son of US President Joe Biden, arrives at court for his trail on tax evasion in Los … [+]
Thanks to the presidential pardon from his father, Hunter Biden will no longer have to worry about the federal charges he was facing for failure to pay federal income tax on millions of dollars in earnings. President Joe Biden’s December 1 pardon does not, however, immunize his son from prosecution for failure to pay state income tax. Whether or not Hunter Biden fulfilled his state tax obligations to California is a question now being pursued by a public whistleblower.
Hunter Biden was a resident of California, home to the highest top marginal income tax rate in the country at 13.3%, during the years for which he has pled guilty to federal tax evasion. While media coverage has focused on unmet obligations to the IRS, the prospect of unpaid state tax liabilities is a topic that has never received much attention. In early December, James Lacy, president of the United States Justice Foundation, filed a public complaint (Case Number 12024-14638) with the California State Auditor calling for an investigation of the California Franchise Tax Board in order to determine whether Hunter Biden filed and paid state taxes for the years he has pled guilty to federal tax evasion.
Given the amount of income on which Hunter Biden failed to pay federal taxes, it’s a potentially large sum of money that he also might have neglected to pay to the government of California, a Democrat-run state where taxpayers are on the hook for an estimated trillion dollars-worth of unfunded public pension liabilities and where employers were recently hit with a payroll tax hike triggered by Governor Gavin Newsom’s (D-Calif.) decision to not repay unemployment insurance loans taken out from the federal government during the pandemic.
“Californians who file their tax returns and timely pay their taxes deserve to know whether or not Hunter Biden has received any special treatment from the Franchise Tax Board regarding his tax liability,” said Lacy. “I am hoping my Whistleblower Complaint will draw attention to this issue and bring some transparency to whether our state tax system has acted fairly.”
“If Hunter Biden failed to pay federal taxes, it’s reasonable to suspect he also failed to pay applicable state income taxes for those years,” says Ryan Ellis, an IRS-enrolled agent. Lacy also called on the Governor to act, saying “Newsom should also reveal to California taxpayers whether or not Hunter Biden was secretly ‘pardoned’ from state tax liability and enforcement as well.”
California Combines High Tax Rates With Muscular Collection
Aside from the nation’s highest state income tax rate, California has long been considered the most aggressive state in the nation when it comes to taxing foreign-sourced income. “Unfortunately for the President’s son, not only did he face the highest state income tax rate, he was also dealing with a state whose tax law has the longest and most aggressive arm,” Ellis said. “Comparatively speaking, California is the most litigious state I have seen in terms of chasing people down for money. Only New York rivals them.”
“It doesn’t matter if the income was coming from the former Mayor of Moscow, a Chinese private equity firm, or a Ukrainian gas company, California tax obligations are global and would’ve applied for the years in which Hunter Biden was a Golden State resident,” added Ellis, who runs his own tax preparation business and is president of the Center for a Free Economy.
The Department of Justice noted in a September 5 press release that “Hunter Biden engaged in a four-year scheme in which he chose not to pay at least $1.4 million in self-assessed federal taxes he owed for tax years 2016 through 2019 and to evade the assessment of taxes for tax year 2018 when he filed false returns.” While Hunter Biden won’t face repercussions for skipping out on those federal tax obligations thanks to the pardon from his father, that doesn’t shield him from state level prosecution for failure to pay taxes to California.
Why would a person pay state taxes on income for which it’s known they did not pay federal taxes owed? That question and the desire to answer it is behind the complaint recently filed with the State Auditor. Fortunately for Hunter Biden, California tax authorities and the California press corps have thus far demonstrated little interest in answering that question.
Hunter Biden also doesn’t have to worry about the most recent state wealth tax proposal introduced Sacramento. That’s because Governor Newsom confirmed earlier this year that he opposes the latest wealth tax bill introduced by California legislators. That should be welcomed news for Hunter Biden, who purchased a $142,000 sports car with funds provided by a Kazakh businessman, and who received a 3.16 carat diamond from a Chinese businessman, both of which would be prime targets of the sort of wealth tax sought by some California lawmakers.
In his 2023 State of the Union Address, President Biden promoted his effort to make “the wealthiest and the biggest corporations begin to pay their fair share. That message was echoed throughout 2024 by Vice President Kamala Harris (D), Senator Chuck Schumer (D-N.Y.), and other prominent Democrats. Any politician who wants to continue calling for stricter gun control and higher tax burdens on the rich, however, will have a hard time doing so in the future if they declined to comment when the President’s son was let off the hook for failing to pay taxes on millions in income and violating of gun laws.
California
California man told Wisconsin shooting suspect about plan to attack a government building, gun order says
A California man was detained by the FBI and ordered to have his guns temporarily seized after he allegedly communicated with the 15-year-old shooter who killed two people at her Wisconsin school, documents show.
The gun violence emergency protective order was served to a 20-year-old in Carlsbad in San Diego County on Tuesday, according to the order, which was obtained by NBC San Diego.
The narrative of the order says the California man had communicated with Natalie “Samantha” Rupnow, who police say opened fire Monday at Abundant Life Christian School in Madison, Wisconsin, which she attended, killing two people before she killed herself.
The FBI detained the man “after he was discovered plotting a mass shooting with the Madison Wisconsin shooter,” a Carlsbad police officer wrote in the gun order.
The man “admitted to the FBI agents that he told Rupnow that he would arm himself with explosives and a gun and that he would target a government building,” the Carlsbad officer wrote.
The FBI saw messages between him and Rupnow, the order says. It does not go into further detail about the communication or the alleged plans.
The order was approved by a San Diego County judge and served at the Carlsbad home just before 9 p.m. Tuesday, it shows. A court hearing about the order is set for Jan. 3, the document reads.
The order says guns were reported and searched for, but it does not say police seized any. The order requires someone to turn over firearms and not to possess any guns while it is in effect.
A spokesperson for the FBI’s San Diego field office declined to comment Wednesday evening.
Carlsbad police said the investigation is being led by Madison police. A Madison police spokesperson referred questions to the FBI.
It’s not clear whether there are any criminal charges in the matter. None of the agencies mentioned criminal charges, and a spokesperson for the San Diego County District Attorney’s Office did not immediately respond to a request for comment.
No cases with the man’s name appeared in an online search of criminal cases in the county Wednesday night.
A phone number for the man or his family could not immediately be found in public records Wednesday.
“There is no threat to the Carlsbad community at this time,” Carlsbad police said in a statement.
Investigators in Madison are working to determine a motive in the shooting Monday morning.
Rupnow, a freshman, opened fire at a study hall that had mixed grades, Madison police said.
A staff member, Erin West, 42, and a student, Rubi Vergara, 14, were killed, the Dane County Medical Examiner’s Office said, and other people were injured.
Rubi was in the ninth grade, and “her gentle, loving, and kind heart was reflected in her smile,” the school said in a statement Wednesday after their names were released. “Often seen with a book in hand, she had a gift for art and music,” it said.
West was a substitute teacher who became a full-time staff member. “ALCS is a better school for the work of Erin West,” the school said.
Two students sustained life-threatening injuries, and they remained hospitalized Wednesday, police said. Four other people with minor injuries have been discharged.
Two guns were found at the school, only one of which was used in the shooting, police said in a statement Wednesday. Madison Police Chief Shon Barnes has said the gun that was used was a handgun.
The federal Bureau of Alcohol, Tobacco, Firearms and Explosives has completed its data trace of the guns, but police said more information about the weapons was not being released Wednesday.
Police are looking at Rupnow’s social media accounts as part of the investigation, the police department said.
“Our team is looking to connect to anyone who may have interacted with Natalie Rupnow in the days and weeks leading up to the shooting,” Madison police said in Wednesday’s statement.
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