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.
Orange County’s top prosecutor said Amazon has agreed to stop California sales of certain e-bikes that can go faster than state speed limits following a series of fatal collisions.
The announcement, first reported by KCRA, comes on the heels of an April consumer alert by California Attorney General Rob Bonta that highlighted a rise in deaths related to e-bike and motorcycle crashes.
“We are seeing a surge of safety incidents on our sidewalks, parks, and streets,” Bonta said in a statement. “To ride a motorcycle or moped, you need to have the appropriate driver’s license and comply with rules of the road.”
Bonta’s alert stated that pedal-assisted e-bikes cannot exceed 28 mph. Throttle-assisted e-bikes are limited to 20 mph.
Amazon had continued to sell e-bikes with speeds over 40 mph. Amazon did not immediately respond to a request for comment.
Electric bikes and motorcycles have become increasingly popular in the last few years, particularly among teens. But the surge has been shadowed by a spate of deadly crashes.
Orange County Dist. Atty. Todd Spitzer has charged at least three parents with allowing their children to ride electric motorcycles illegally, calling the vehicles a “loaded weapon.”
Spitzer noted in a post on X that Amazon said it removed e-bikes advertised with speeds over 40 miles per hour after KCRA contacted the company.
“The company said it has removed the examples provided and is investigating compliance for similar products,” Spitzer wrote.
That includes an Orange County mother, who faces an involuntary manslaughter charge after her son allegedly struck an 81-year-old man with an electric motorcycle. The 14-year-old boy had been doing wheelies on an e-motorcycle
A 13-year-old boy on an e-bike in Garden Grove died earlier this week after veering into the center median and hurtling onto the roadway. The boy was traveling at around 35 mph on a black E Ride Pro electric motorcycle, authorities said.
Amazon’s new sales limits come as the Los Angeles City Council pushes to keep electric bikes of off most city recreational trails, arguing they are a threat to hikers. E-bikes would still be allowed on designated bikeways, such as along the L.A. River.
Daniel Felix, 10, looks out from atop a gargantuan stump of an old-growth redwood on his tribe’s ancestral land. Once, this forest on California’s North Coast was replete with the ancient behemoths that can live beyond 2,000 years.
Only a fraction are left now, depleted by a logging company before the state acquired the forest in the 1940s.
This is unique public land, Jackson Demonstration State Forest, spanning 50,000 acres. Trees are plentiful here, but they might not live a millennium. California’s 14 demonstration forests are required to produce and sell timber to show — or “demonstrate” — sustainable practices. Money from logging — roughly $8.5 million a year — pays for management of the forests by the California Department of Forestry and Fire Protection, or Cal Fire.
Daniel’s tribe, the Coyote Valley Band of Pomo Indians, has pushed to rein in the cutting — spearheaded by his late great-grandmother, Priscilla Hunter. They’re part of a diverse coalition that includes environmental activists, local politicians and other tribes.
Now they may finally get their wish. Assemblymember Chris Rogers (D-Santa Rosa) has introduced a bill that would nix the forests’ logging mandate, instead prioritizing values such as carbon storage, wildfire resilience and biodiversity.
The bill represents the latest chapter in a region legendary for fierce battles over logging, and it marks an uncommon alliance between tribes and the environmental movement.
Under Assembly Bill 2494, there could still be logging, but it would have to support those new principles, and the forests would be funded differently.
And it proposes another significant change. It would pave the way for giving tribes a say in managing the lands for the first time since they were forcibly evicted more than a century ago, and for integrating Indigenous knowledge — like cultural burning — into the forests.
“It’s what we dreamed of,” said Polly Girvin, Hunter’s former partner and a retired lawyer focused on Native American issues. “And to have it come true? I’m used to movements that sometimes take 30 years in Indian Country to get to the justice you’re seeking.”
Kids play in the stump of an ancient redwood during a potluck held after the spirit run in Jackson Demonstration State Forest last month.
(Paul Kuroda / For The Times)
Some backers say the bill offers a new economic path forward for communities behind the so-called redwood curtain. With the decline of logging and cannabis, they see tourism driven by ultramarathons, mushroom foraging and other outdoor activities as a financial savior.
“If we had an increase of 10% of visitors coming to our county because of recreational opportunities, that would more than surpass all of the timber tax in our county,” Mendocino County Supervisor Ted Williams said, projecting an increase in money from a lodging tax.
But the push to reshape forest management is fiercely opposed by loggers and mill owners, who say their work is sustainable and provides blue-collar jobs in a region where they’ve dwindled. Already California imports most of its wood from Oregon, Washington and Canada.
“California has the most rules and regulations of anywhere in the world so all they’re doing is exporting the environmental impact to somewhere else, still using the product,” said Myles Anderson, owner of a logging company in Fort Bragg founded by his grandfather. “It’s pretty disgusting, really.”
Anderson believes the bill will greatly reduce logging, even stop it altogether. In his office, with photos of him and his father at a logging site decades ago, he points out it’s sponsored by the Environmental Protection Information Center. Why else would they and other environmental groups “support it if they didn’t see the same thing that I’m seeing?”
Last month, activists who have sought to rein in logging at Jackson held their first major gathering in about four years, galvanized by the bill that they see as a significant step in the right direction.
(Paul Kuroda / For The Times)
A new but old fight
About five years ago, community members caught wind of plans to chop down towering redwoods within Jackson, near the coastal town of Caspar. Priscilla Hunter would come out to the forest “and could hear them crying — it was our ancestors,” said her daughter Melinda Hunter, the tribe’s vice chairwoman. “Then she had to protect [the trees].”
Environmental activists and Native Americans, not historically allies in the region, joined forces to fight it. “Forest defenders” camped out high in the canopy and blocked logging equipment with their bodies. Some were arrested.
The uprising harked back to the 1980s and 1990s, when iconic environmentalist Judi Bari led Earth First! campaigns against logging in the region. Many of the old tree sitters — white-haired and brimming with stories of Bari — have come out of the woodwork for the latest battle.
For them, it was a win. Cal Fire paused new timber sales and, citing public safety, halted some that were underway — including one expected to generate millions of dollars for Myles Anderson’s logging company.
“We were left with nothing,” Anderson said.
Then, last year, Cal Fire approved the first harvest plan since that hiatus. It riled up the sizable, ecologically minded community.
Jessica Curl, 47, remembers growing up nearby “in a terrain of trunks” as trucks carried out logs. Now the redwoods are regrowing, “gorgeous” and gobbling carbon, she said.
“We’re so lucky to live in an area where we have this amazing climate-change mitigation tool, that if we would just leave it alone would do this amazing work that we’re trying to think of all these cool, inventive things to do.”
Isidro Chavez receives burning sage, or smudging, after a run in Jackson Demonstration State Forest. Smudging is a ritual used to cleanse spaces and individuals of negative energy, promote calm and improve mood.
(Paul Kuroda / For The Times)
Tears of grief, resolve
A group of “spirit runners” — a Native American tradition of bringing prayer — sprinted through the heart of Jackson forest as rain poured through the canopy. The mid-April event marked activists’ first major gathering since protests wound down in 2022.
Attendees gathered in a circle to wait for them. Misty Cook, of the Sherwood Valley Band of Pomo Indians, read a statement as eyes misted all around:
“All the living things around us, they miss us. They miss the language. They miss our touch, our hands, touching all of the things — the water, the plants. They miss the songs. They miss the beat of our footsteps and our voices, and they miss the children’s laughter and play, which was so important. They want us to gather them, to use them and to share them. Otherwise they will get sick and possibly die.”
Cal Fire launched a tribal advisory council to bring Indigenous perspective into Jackson. But some local tribes say it’s not enough because they lack decision-making power.
When the runners arrived, the circle absorbed them. Then they continued on to the site of a controversial proposed harvest, Camp Eight. They wrapped a bandana that belonged to Priscilla Hunter around a small tree — a quiet, somber act where she took her last stand. Runners took turns embracing the trunk.
Redwoods at the Capitol
In March, Rogers’ bill cleared a committee and is now in the Assembly Appropriations Committee’s suspense file. A hearing is set for Thursday.
Funding is a major point of contention. Environmentalists say funding these forests with timber operations incentivizes cutting bigger trees. Cal Fire maintains decisions are driven by forest health, not industry demand.
AB 2494 would fund the forests through a tax on lumber and engineered wood products. The shift could create “[o]ngoing state costs and cost pressures of an unknown but potentially significant amount, possibly in the low millions of dollars annually,” according to a legislative analysis.
The California Forestry Assn., a timber industry trade group, says the idea is a nonstarter.
Cal Fire declined to comment on pending legislation but Kevin Conway, the agency’s staff chief for resource protection and improvement, said its nearly 80-year history managing Jackson reflects “care and attention.” Since the state acquired the forest, “we have more trees on the landscape, more habitat and those trees are trending larger,” he said.
For the tribes who have rallied and prayed, a burning question is whether the land will again reflect their vision, or remain shaped by decisions made by others.
Buffie Campbell, executive director of the InterTribal Sinkyone Wilderness Council — co-founded by Priscilla Hunter and one of the groups supporting the bill — said young people wouldn’t be able to fathom the significance of the legislation passing. Maybe that’s a good thing.
“Maybe they don’t need to know about all the fighting that we have to do before they get to go out and enjoy and be tribal guardians stewarding their land.”
BAKERSFIELD, Calif. (KBAK/KBFX) — Two Republican candidates seeking California’s top office were back on the campaign trail and made a stop in Bakersfield on Saturday.
The California Young Republicans and Kern County Young Republicans co-hosted a forum featuring Chad Bianco and Steve Hilton. The event follows two gubernatorial debates last month in which both candidates appeared alongside several Democrats.
The forum happened on Saturday afternoon at the Liberty Center on California Ave.
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The forum came as mail voting is underway ahead of California’s June 2 primary, where the top two vote-getters will advance to the November general election regardless of party.
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