Over the years I have advised straight and gay and lesbian authors and publishers not to include any portrayals of teen sex in their novels.

Even though it’s fiction, some state courts take the view that fictional portrayals of teen sex are illegal because minors cannot legally have sex with each other, let alone with someone 18 or older. Following that logic, a fictional portrayal of gay and lesbian teens having sex would be illegal because states have only legalized sodomy and oral copulation for consenting adults.

Some gay authors and publishers – and even the makers of “Queer as Folk” – have taken a risk by including depictions of sex between teens and teens with adults.

It’s a risk because one of the recurring issues in the war on pornography has been on purely fictional portrayals of sex and sexual violence.

Many anti-pornography advocates have argued that, even fictional portrayals of sex between adults and teens should be illegal. They prevailed upon Congress to pass such a law, but the U.S. Supreme Court ruled it violated the First Amendment because the movies do not actually use a minor having real sex with an adult.

Nevertheless, the issue of sexual portrayals of children with each other or with adults continues to spark litigation.

The latest case concerns Brian Dalton, 24, who served seven years in an Ohio prison for his personal fictitious stories of child torture and molestation.

Dalton maintained a personal journal in which he wrote stories. The stories, which prosecutors conceded were never acted on, were about three children, ages 10 and 11, being caged in a basement, molested and tortured. Apparently the stories were so disturbing that even grand jurors in Ohio asked a detective to stop reading after about two pages.

Dalton pleaded guilty in July 2001 to pandering obscenity involving a minor, which falls under Ohio’s pornography law.

Dalton later discovered that his attorney at his trial had not advised him properly. In fact, there had never been a case where a person was found guilty of a crime involving fictional portrayals of a child.

Vladimir Nabokov’s Lolita involves a young girl’s sexual relationship with an older man. A similar storyline appears in the film American Beauty.

Virtually all legal authorities conclude that purely fictional accounts of children engaged in sex cannot be child pornography.

The First Amendment protects such stories in print. But if a pornographic movie company made a movie with a “real child” based upon the book, it would be child pornography. This is because it would involve a real child performing in a sexual way, regardless of the presence of the adult. This would be child pornography. Federal law prohibits the production, sale and possession of it.

The Supreme Court has said that the First Amendment protects non-obscene material depicting non-children engaged in sexually explicit conduct, whether in the form of printed material, film, telephone communications, computerized images or live performances.

The Dalton case is important because the conservative right has been attempting to outlaw all pornography through restrictive child pornography laws. It has tried to eliminate any depiction of someone under 18, or someone appearing to be under 18, involved in anything that is or appears to be a sexual depiction.

Obviously, with such vagaries, anyone involved in any expressive behavior would be constrained to use minors in any way, for fear that someone from the Department of Justice might find the image too close to a minor.

The court in Ohio v. Dalton found, however, that First Amendment law cannot punish someone for purely private thoughts.

Because no real children were involved, the Supreme Court noted that, unlike real child pornography, child pornography involving fictional children records no crime and creates no victims by its production.

The appellate court in Ohio, in reversing Dalton’s conviction, remarked that Dalton’s depiction of the minors in his journal were fiction. Dalton created the repugnant acts from his imagination.

At least at this point, fictional accounts continue to be lawful.

With the growth of web logs, where gay and lesbian adults not only write fictional accounts of “coming out” in high school, but also write truthful accounts of sexual experiences as children and teens, it is unlikely that the authors of such thoughts will face prosecution for obscenity.