Posted on 07/16/2002 2:03:35 PM PDT by aconservaguy
The Claremont Institute
This is the print version of http://www.claremont.org/projects/jurisprudence/000731eastman.html.
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First Amendment Doesn't Protect Virtual Kiddie Porn By John C. Eastman Posted July 31, 2000
For more than a quarter century, Congress and state legislatures have been trying to rid our land of child pornography. But with each new attempt, the purveyors of child porn find a loophole or a friendly judge who, relying on a misbegotten First Amendment reading, strikes down the law as unconstitutional.
The latest loophole is the result of technological advances in software that permit pornographers to produce virtual images of children engaged in sexual activity without using live children. These pornographic films are indistinguishable from the real thing, however, and thus cause many of the same harms that "real" child pornography cause by providing pedophiles with a tool to seduce children, titillating child molesters into action and undermining the morals of society. To close this loophole in existing law, Congress enacted the Child Pornography Prevention Act of 1996, which outlaws the interstate trafficking of materials that are, or appear to be of, minors engaging in sexual conduct.
Before the statute could be enforced, a group of pornographers brought a lawsuit in a California federal court to have the act declared unconstitutional as a violation of the pornographers' First Amendment right to free speech. The district court rejected their challenge, but a split panel of the Ninth U.S. Circuit Court of Appeals reversed, with two judges appointed by President Clinton holding that the only governmental interest compelling enough to warrant restricting pornographers' First Amendment rights was the harm to actual children used in making the pornography, an interest not implicated by virtual reality kiddie porn. Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999).
The rehearing was recently denied en banc, and the government will undoubtedly seek review in the U.S. Supreme Court. This should be an easy case.
As Justice Antonin Scalia noted in Barnes v. Glen Theatre Inc., a case in which the Supreme Court upheld a South Bend, Indiana ordinance prohibiting nude dancing, the First Amendment protects the freedom of speech and of the press, but not expressive conduct.
The purpose of the First Amendment is to prevent government from interfering with the free exchange of ideas, an exercise in human reason that was necessary for the perpetuation of our republican form of government. Although courts have since broadened the First Amendment to protect certain forms of conduct that express ideas normally conveyed by speech, the Supreme Court has rejected the notion that a limitless variety of conduct can be labeled "speech" whenever the person engaging in it intends to express some erotic, perverse or hateful idea.
Pornography, and especially child pornography, is the antithesis of the founding ideal of speech as reasoned discourse. It appeals not at all to human reason but rather to the basest of human passions. It is of such slight social value that, like fighting words, libel and obscenity, it constitutes no essential part of the exposition of ideas.
Even if one could credibly argue that there is some First Amendment value to such pornography, any minimal benefit is clearly outweighed by society's interest in order and morality. As a result, the Supreme Court held in New York v. Ferber nearly 20 years ago that child pornography fell outside First Amendment protections. The court's characterization should hold true whether or not real children are used to produce the pornographic materials.
As Judge Warren Ferguson noted in his Free Speech Coalition dissent, child pornography harms not just the children used to make it, but other children whom pedophiles might seduce by showing them virtual images of children engaging in sexual activity. More fundamentally, like the public nudity that was at issue in Barnes, child pornography has since time immemorial been considered an evil in itself.
Even the Ninth Circuit recognized that such images are morally repugnant. The prohibition of virtual reality child pornography is therefore permissible not just because of the harm it might cause others but because it is per se immoral. The Ninth Circuit panel's contrary holding not only ignores the legitimate governmental interests but denigrates the true meaning of the First Amendment.
This is not a case where we need to tolerate hateful speech in order to prevent gradual encroachments on legitimate First Amendment freedoms. Legitimate speech is not threatened by governmental restrictions on child pornography, and we need not suffer such affronts to public decency in order to fully vindicate the First Amendment. Hopefully, the U.S. Supreme Court will reverse the panel decision and uphold Congress's legitimate efforts to bring the virtual kiddie porn to a virtual halt.
John C. Eastman is a professor of constitutional law at Chapman University School of Law and the director of the Claremont Institute's Center for Constitutional Jurisprudence.
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© Copyright 2002, The Claremont Institute.
As is the first word in that sentence: Congress. If a state government or local municipality wishes to make such a law, they can do so.
A common mistake made by the people who follow the "free speech is absolute" myth.
Let *anything* be distributed to the public; we will be the judge.
Uh, no. We cannot allow certain things to be made available to the public, whether it be for reasons of legality (like child porn), or obscenity (bestality, necrophilia, coprophilia, etc.), or stuff that just should not be accessible to children (any softcore or hardcore adult film, e.g.).
That is the way it is, that is the way it should be, and that is the way I prefer it.
Thats right and just as predicted, the ACLU is attempting to force local libraries to make it available on the internet.
Free speech ain't free....
Sure. As long as you're willing to overlook that whole 14'th Amendment thing, and a hundred and fifty years worth of jurisprudence. But that doesn't count, right?
Which neither contains the phrase, "free speech", nor even the word, "speech" on its own.
and a hundred and fifty years worth of jurisprudence.
Like Miller v. California?
But that doesn't count, right?
Of course it does.
Yes. The question is not whether "pornography" can be banned - the answer is "sometimes", although as per Ferber, child pornography can be banned outright.
But remember, that's not the issue here. The issue here is whether "virtual" child pornography can be banned without running afoul of the BoR. This is "virtual" porn, that does not feature actual children - it's an entirely fictional depiction. Actual child porn, of actual children, remains illegal. But fictionalized depictions of children are protected, according to the court. It's a little bit of hair-splitting, but an appropriate distinction, IMO.
Part of the rationale in banning child porn is that actual children are harmed in the production of it, and harmed by its dissemination and distribution. But what are we to make of pictures of non-real children - who is the victim? And "society" doesn't count - "society" has no standing for torts in the Anglo-Saxon legal system ;)
Presenting the 10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In other words, any specific right not addressed by the Constitution (READ: the Bill of Rights) is reserved for the States.
Laws restrict speech in a variety of ways, and have never been challenged on Constitutional grounds. Should insider trading be protected under free speech laws? What about the selling of secret government research? Slander? Planting of deliberately false information? Are all non-disclosure clauses in employee contracts unconstitutional? What about the gag orders judges put on juries and witnesses?
One thing which concerns me is our current concept that only by defending actions which are indefensible can we protect our freedoms. That sounds like saying the only way we can protect our right to drive is to defend drunk drivers and the most reckless forms of driving. It's not popular to say it around here, but the Constitution was written for a moral and religious people. It is wholly inadequate to govern any other.
Previously, such material was not available as much for fear of retribution from the public or censure as because of laws. Today, of course, there are only two sins in America, smoking, and disapproving of anything else anyone does. The really sad thing is that there is a market for this stuff.
Do you support a powerful central government ordering local tax payer funded libraries to make child porn, virtual or otherwise, available on their local tax payer funded computers?
In any case, there are plenty of non-technical ways to prevent porn in the library - one of the most effective is the tactic of making everyone's monitor visible to the librarian. Some folks may want to see such material, but very few are bold enough to do it in full view of the entire world...
See post #28.
Sorry General but, like we discussed a while back, that is exactly what's happening. The ACLU is all over that decision and local control is being usurped by the federales. Either you support it or you don't.
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