We find child pornography abhorrent, whether it is real or "virtual." Substituting childlike adult actors or computer-generated characters so lifelike as to fool the eye does not make this brand of smut any less repugnant.
So when the Supreme Court ruled this week to protect free speech in cases where no child is exploited in the manufacture or marketing of child pornography, we nodded in support and winced at the same time.
The Child Pornography Prevention Act of 1996 had over-reached, sweeping into the same gutter the abuse of children for adult entertainment and popular and literary images in which there "appear to be" minors having sex.
It made no distinction between a coming-of-age tale like "American Beauty," a masterwork of art, and a pedophile's video collection. It was interpreted as banning images that offend community standards as well as literature and art exploring all things profound and poignant about teen-age love.
This had to be corrected. Writing elegantly for the majority, Justice Anthony M. Kennedy cited Shakespeare's tragic young lovers to illustrate the difference between protected free speech and obscenity. Romeo and Juliet -- she was only 13 -- make quite wonderful poster children for the First Amendment.
But they are joined dubiously on that pedestal by the cyber-creations that substitute "virtual" children for real ones in twisted adult fantasies. The Supreme Court ruling means that kiddie porn created without the kids is different from that involving harm inflicted on an actual child or the manipulation of a photo of a real child. However, it may well be obscene, and purveyors may be prosecuted under other laws at the Justice Department's disposal.
But the Supreme Court has made clear that it is wrong to draft laws on the assumption that seeing or thinking about these images leads inexorably to a next step of acting them out. That is too much like legislating thought. ...
For Attorney General John Ashcroft and child protection organizations, who saw the ill-fated law as a surefire tool for catching suspected pedophiles and pornographers, the Supreme Court leaves unfinished business. Under the law just overturned, the prosecution did not have to prove whether the children in the pictures were fake or real. What now? ...
In a democratic society where free expression is cherished, discomfort accompanies real efforts to weigh and balance our values and rights. ...
Mr. Ashcroft must make it his priority to find contemporary legal tools to net the abusers without setting traps so extreme that they ensnare people guilty of little more than dirty thoughts.
Honolulu Star-Bulletin
New technology continues to bewilder Congress, so desperately trying to prevent exploitation of young people that it is unable to distinguish between children and "virtual" children. Once again, the U.S. Supreme Court has struck down a law that violated First Amendment protections in quest of child protection.
Prohibiting the portrayal of children by adults or through advanced imagery would result in the First Amendment being "turned upside down," Justice Anthony M. Kennedy wrote in the court's majority opinion: "The statute proscribes the visual depiction of an idea -- that of teenagers engaging in sexual activity -- that is a fact of modern society and has been a theme in art and literature throughout the ages." ...
In defending the law, the government contended that "virtual" child pornography could encourage pedophiles to molest children, but that is mostly conjecture. ...
Congress has tried repeatedly to make it a crime to transmit "indecency" or material "harmful to minors" on the Internet, but the Supreme Court has struck down those laws. The high court now is considering the constitutionality of a law requiring public and school libraries to install filters on their computers.
Despite those attempts to shield children from sexual exploitation, the job remains chiefly the responsibility of parents, not government.
Milwaukee Journal Sentinel
The First Amendment bars government from dictating what you can or cannot see, read, speak or hear. The courts have guarded this principle with special care because it lies at the very heart of American democracy.
Still, the courts have put limits on free speech. Obscenity and child pornography, for instance, don't enjoy First Amendment protection. As Justice Anthony Kennedy noted the other day, the top court has defined obscenity as work that, "taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value." The high court has defined child pornography as the depiction of real minors in sexually explicit activity, whether or not that depiction is obscene.
In 1996, Congress passed the Child Pornography Prevention Act, which went beyond the Supreme Court definition of kiddie porn by prohibiting images that 1) appear to depict children in sexual conduct or 2) are promoted, described or distributed so as to convey the impression that they depict children in such conduct. In either case, a person could go to prison for possessing child porn even though the images in question don't involve real children. The images may be of adult actors pretending to be minors, or they may simply be artistic renderings or computer creations.
This week, the Supreme Court shot down this congressional attempt to widen the definition of child porn. While adding to the anxiety of our high-tech age, the court's 6-3 ruling makes sense.
The sweep of the 1996 law was much too wide. The statute gave authorities the right to haul an individual away for renting such acclaimed movies as "Traffic" and "American Beauty," which feature adult actors simulating teenage love scenes, as Kennedy notes in the majority ruling. He also points out that Shakespeare's "Romeo and Juliet" would be suspect; some movies show the teenage lovers consummating their relationship. ...
But the framers of the Constitution could not have imagined today's high-tech world, which can produce fake images that look like the real thing. That world is evolving - and our understanding of how we apply our democratic principles to that world must evolve, too.
San Francisco Chronicle
The preservation of the First Amendment, and its sacred right to free speech, inevitably requires the defense of thoughts and images that most of us find repugnant. Otherwise there would be no need for constitutionally protected expression. Congress, with its fingers to the wind, could simply criminalize anything that infuriates the vast majority.
And few things anger decent Americans more than the proliferation of child pornography in any form, whether the sexual images are of underage people, carried out by youthful-looking adults or generated by computers.
The U.S. Constitution, however, compels legislators and courts to make these distinctions. Congress did not see the difference between exploitation of real children and criminalization of disturbing fantasies when it passed the overreaching Child Pornography Prevention Act of 1996. Fortunately, the U. S. Supreme Court did recognize the implications of the badly crafted law this week in striking down two of its key provisions.
The justices ruled 7-2 that the government could not make it a crime to use young-looking adult actors to portray children in sexually graphic films. They also ruled, 6-3, against the section of the law that prohibited computer- created images of children engaged in sexual acts. The ruling upholds a U.S. Court of Appeals decision in San Francisco in a case brought by the Free Speech Coalition.
Government attorneys raised, but could not support, the oft-stated argument that such smut incites pedophiles to act out their sick thoughts. ...
Authorities will now have to concentrate their resources on cases in which they can prove that an actual child was exploited in the creation of pornography -- which would seem to be a proper and urgent priority for the Justice Department.
(.) Copyright 2002 by United Press International.
