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First Amendment Doesn't Protect Virtual Kiddie Porn
The Claremont Institute ^ | July 31, 2000 | John C. Eastman

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.


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To: general_re; All
are there any benefits of protecting "virtual porn" (or "kiddie porn" or pornography as a whole) under the First Amendment? are there any concrete benefits to such material?
41 posted on 07/16/2002 6:21:08 PM PDT by aconservaguy
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To: jwalsh07
There's a simple way to avoid it all - don't take federal money. If you don't like The Man's strings, don't take The Man's money.
42 posted on 07/16/2002 6:21:37 PM PDT by general_re
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To: general_re
By the way, the 14th amendment does not supercede the 10th. They do overlap but states have been making and enforcing their own obscenity laws for many years now. What is obscene in Kansas may not be in Nevada. Thats freedom General, not a 14th amendment that centralizes power 9 black robes.
43 posted on 07/16/2002 6:23:13 PM PDT by jwalsh07
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To: general_re
There's a simple way to avoid it all - don't take federal money. If you don't like The Man's strings, don't take The Man's money.

That dog doesn't hunt General. You are arguing that virtual child porn is a right guaranteed by the first amendment and the 14th amendment. So is the ACLU, funding be damned.

44 posted on 07/16/2002 6:24:51 PM PDT by jwalsh07
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To: aconservaguy
Probably not, but the problem is that there's no clear way to draw a line separating this stuff from other fictional depictions that are generally considered acceptable. Under a strong reading of the law that was struck down, Romeo and Juliet could have become illegal...
45 posted on 07/16/2002 6:26:44 PM PDT by general_re
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To: general_re
Under a strong reading of the law that was struck down, Romeo and Juliet could have become illegal...

Which would be ridiculous and truly violate the first amendment. But Americans are capapble of nuance and when what seems to be a gray area to some is encountered, then the feds should steer clear and defer to the states and localities.

46 posted on 07/16/2002 6:29:37 PM PDT by jwalsh07
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To: jwalsh07
By the way, the 14th amendment does not supercede the 10th.

Where they conflict, it does, WRT to the BoR. Black-letter law.

They do overlap but states have been making and enforcing their own obscenity laws for many years now. What is obscene in Kansas may not be in Nevada.

Only as a result of SCOTUS's "community standards" doctrine, a doctrine which is increasingly on shaky ground in the wired world.

47 posted on 07/16/2002 6:29:56 PM PDT by general_re
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To: general_re
What is obscene in Kansas may not be in Nevada.

Do you object to this notion?

48 posted on 07/16/2002 6:32:11 PM PDT by jwalsh07
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To: general_re
Sorry, gotta run.
49 posted on 07/16/2002 6:32:55 PM PDT by jwalsh07
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To: DoughtyOne
Sorry no common sense or logic allowed.
50 posted on 07/16/2002 6:34:21 PM PDT by Khepera
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To: jwalsh07
I'm arguing that free speech is a right guaranteed by the First and Fourteenth Amendments. That means tolerating speech that many will find offensive.

I repeat - if you don't like the man's strings, don't take his money. Just because you don't like those choices doesn't mean you don't have a choice...

51 posted on 07/16/2002 6:39:05 PM PDT by general_re
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To: jwalsh07
But Americans are capapble of nuance and when what seems to be a gray area to some is encountered, then the feds should steer clear and defer to the states and localities.

In a perfect world, sure. In the imperfect world in which we live, are you really willing to bet your free-speech rights on the notion that no administration will ever abuse vague laws? Will you be that trusting of the second Clinton administration?

52 posted on 07/16/2002 6:43:56 PM PDT by general_re
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To: All
Well there you have it.  The fate of the republic hinges on the "no rule" clause of the first amendment when it comes to showing the following:

Near real looking animation's of:

Sex with an infant by an adult.
Rape of an infant by an adult.
Sodomy of an infant by an adult.
The genitalia of infants and young children.
Penetration of children by foreign objects.
The depiction of forced sex and pain inflicted on young children.
Snuff films incorporating depiction's of sex and violent death involving young children.

I find that you don't really need to argue with people to defeat their lunacy.  Just let them talk long enough and they'll do that for themselves.

The Thomas Jefferson I envision wasn't worried about blocking the proliferation of such materials.  Neither am I.

53 posted on 07/16/2002 6:57:59 PM PDT by DoughtyOne
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To: general_re
Show me the victim in these cases.

What cases are you talking about??

54 posted on 07/16/2002 7:01:58 PM PDT by Houmatt
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To: general_re
I'm arguing that free speech is a right guaranteed by the First and Fourteenth Amendments. That means tolerating speech that many will find offensive.

Free speech may be guaranteed, but it is not absolute. There are numerous instances where exceptions have been created, either by legislation, or by legal precedent.

Furthermore, while we do not have a right not to be offended, that does not give a free pass to the manufacture and distribution of material that is patently obscene.

A case in point is Mike Diana, a Florida writer/artist who, a decade ago, created a self-published magazine called "Boiled Angel." One particular issue, number 8, contained articles and stories so shocking and disturbing he was once considered a suspect in the Gainesville slayings. While that was eventually dropped, he was subsequently tried and convicted of creating and distributing obscene material. Despite the unusual harshness of his sentence (which included no drawing of any kind, which would be checked periodically, and no contact with anyone under the age of 18), it was nevertheless upheld on appeal.

Therefore, regardless of what you assert, the fact remains free speech is not absolute.

Period.

55 posted on 07/16/2002 7:20:20 PM PDT by Houmatt
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To: Houmatt
Who is harmed by these photographs? If you read Ferber, the rationale was explicit - child pornography may be banned because its production involves the victimization of children, and its distribution continues the harm to them. So, using that reasoning, who's being harmed in cases of "virtual" porn?
56 posted on 07/16/2002 7:58:56 PM PDT by general_re
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To: Houmatt
Therefore, regardless of what you assert, the fact remains free speech is not absolute.

I never claimed otherwise. Now, why not craft for me a standard that criminalizes virtual child pornography, while at the same time not criminalizing Romeo and Juliet? How, specifically, do you intend for the law to distinguish between the two?

57 posted on 07/16/2002 8:01:56 PM PDT by general_re
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To: aconservaguy
It's similar to magazines adjusting the pics to make people look more attractive. Sets an impossible goal: even the models in mags aren't "attractive" enough to just pose.

I don't care what the friggin' Constitution says or what the law states, nobody should be selling/showing child pornography EVER. Obviously the lunies viewing this have yet to figure out their own identities. And anyone viewing and/or showing this stuff should be forced into prison where big bubba/bubbette will show him/her what it's like to be sexually exploited.

58 posted on 07/16/2002 8:24:53 PM PDT by Little Bush
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To: general_re
To: Houmatt

Therefore, regardless of what you assert, the fact remains free speech is not absolute.

I never claimed otherwise. Now, why not craft for me a standard that criminalizes virtual child pornography, while at the same time not criminalizing Romeo and
Juliet? How, specifically, do you intend for the law to distinguish between the two?

57 posted on 7/16/02 8:01 PM Pacific by general_re

How do you equate the romantic encounter between two consenting individuals of approximate age to that of a grown man violating an infant?  Further how do you equate the utilization of pseudo-infants through art in pseudo-sexual snuff films to that of a young woman committing suicide?  There is no act of murder or sexual abuse in Romeo and Juliet?  Are you even familiar with the story?  You don't feel that a law could be written differentiating between the two?  Seriously?

What about the Romeo or Juliet story entices an adult to sodemize a child of five, or for that matter have any sexual relations with such a child in any manner?  What about the Romeo or Juliet story suggests the murder of the victim of a violent sex crime?  Perhaps you can explain all this for us.

Frankly you should try to offer up a better example.  And even if this example was valid, you can count me as one individual who would give up all the Lolita, Romeo and Juliet and other stories involving underage women if it saved even one young child or infant from sexual exploitation, violent abuse or death.

While I hate this type of a statement, with regard to this issue I'm dead serious.  What that five year old little girl went through I wouldn't wish on any living thing.

59 posted on 07/16/2002 11:15:55 PM PDT by DoughtyOne
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To: DoughtyOne
I notice that you have quite a lot to say, but somehow you never get around to actually proposing a standard for a law that would differentiate between the two, and never really do more than sort of elliptically suggest that it ought to be easy to do. If it's so easy, I'm very interested to hear it.

Frankly you should try to offer up a better example. And even if this example was valid, you can count me as one individual who would give up all the Lolita, Romeo and Juliet and other stories involving underage women if it saved even one young child or infant from sexual exploitation, violent abuse or death.

How many of your freedoms will you give up to save two lives? Ten? How many lives would be saved if none of us had the freedom to drive a car? 40,000 a year or so? Ready to give up that freedom to save all those lives? I mean, if you're willing to abandon an entire genre of fiction to save one life, surely not driving is not too much of a sacrifice to save 40,000 lives, right? How many lives would be saved by all of us giving up all our freedoms?

People die as a result of your freedom every hour of every day of every week. Your freedom comes with a price that is paid in blood, and frankly, I find it disrespectful to those who pay that price that you are so willing to cast it aside. People die for freedom all the time - that's what makes it so precious, and something to be cherished, and something to be protected, and not something to be cast aside because you think we can have freedom without paying any price for it. Let me assure you, we cannot.

Freedom isn't free, in more ways than one...

60 posted on 07/17/2002 4:58:29 AM PDT by general_re
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