It could be better written, but that’s not necessary for our purposes.] Nathaniel Burney may well have something to say about the required culpable mental states—intent for the posting, but strict liability for the lack of express consent.
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But what is obscene when distributed to children is not necessarily obscene when distributed to adults; what is obscene in Ogden is not necessarily obscene in San Francisco; and as the Court said in 1996 in Denver Area Educational Telecommunications Consortium, Inc. For example, publishing Lucrezia’s selfie next to her employer’s name and phone number might be more offensive to the community than just publishing the picture but not identifying her.
It might be argued that if Giovanni’s republication of Lucrezia’s image is obscene, current obscenity law (for example, Texas Penal Code Section 43.23) already forbids it.
For a work to be obscene, it must: appeal to prurient interests; depict sexual conduct in a patently offensive way; and lack serious value. C.: [W]hat is “patently offensive” depends in part on context (the kind of program on which it appears), degree (not “an occasional expletive”), and time of broadcast (a “pig” is offensive in “the parlor” but not the “barnyard”).
The test refers to “a work,” so you might assume that the test for obscenity relates to inherent qualities of the work. Since obscenity is context-sensitive, an image that is not obscene when Lucrezia publishes it to Giovanni might well be part of an obscene publication when Giovanni distributes it in a different context.
To meet that challenge, we have to define the crime so that there is little chance that someone whose distribution of images was not obscene will be convicted.