What are the potential negative consequences and implications if the court had ruled in the opposite direction?
There is absolutely no compelling reason why anyone ought to have access to child pornography, virtual or otherwise. It is a fairly simple thing to specifically prohibit such "speech" (and I use that term loosely) while having absolutely no impact on political, religous, or other speech which is, and forever ought to be, protected under the First Amendment. There is plenty of historical precedent for this, in the anti-pornography laws which were held to be Constitutional until the 1970s. Nobody is suggesting that we ban all pornography, but there is no reason to not ban any imagery which depicts unlawful sexual activity with minors.
Why do you believe that this narrowly defined class of speech ought to be protected?
I cannot help but point out that this hardly answers my question as asked, unless it is your intention to indicate that you see no negatives at all in banning such things. And I must also point out that the laws held to be constitutional have always been anti-obscenity laws, not simply anti-pornography laws. In any case, let me try to address your points individually.
There is absolutely no compelling reason why anyone ought to have access to child pornography, virtual or otherwise.
There are few things on this earth that there is a "compelling reason" for anyone to have. There is no particular compelling reason that you ought to have access to chewing gum, yet we allow you to obtain it and use it, even if it is bad for your teeth. Simply saying that there is no compelling reason to have it is not enough - people want it, and in the absence of any serious and compelling reason for them not to have it, they should.
It is a fairly simple thing to specifically prohibit such "speech" (and I use that term loosely) while having absolutely no impact on political, religous, or other speech which is, and forever ought to be, protected under the First Amendment.
I think not. This claim is often advanced, but I submit that the difference between political and non-political speech is much less clear than is implied.
There is plenty of historical precedent for this, in the anti-pornography laws which were held to be Constitutional until the 1970s.
As I said, the statutes that have been in force, and continue to be in force, are anti-obscenity, not anti-pornography. If I may be permitted to quote myself from post #117, "You may be of the opinion that there is no difference, and that pornography is obscenity by definition. However, neither the law nor public opinion support you in that position." Roth discussed the difference between obscenity and simple indecency, and that was 1957.
Nobody is suggesting that we ban all pornography, but there is no reason to not ban any imagery which depicts unlawful sexual activity with minors.
I think you mean to say that there is no reason that you find compelling. Needless to say, I disagree. The reason that child pornography has been banned in this country is because the production and dissemination of it is a direct result of the abuse of children. "Virtual" pornography needs no such harm to be produced, by definition - the people depicted aren't real, and cannot be harmed. and...
Why do you believe that this narrowly defined class of speech ought to be protected?
...there's more. I have little use for such material. I neither consume it nor produce it, as I have no interest in it whatsoever. What I object to most strenuously, however, is the precedent set in banning such material. It is, as Nick Danger so insightfully pointed out, the proverbial camel's nose under the flap of the tent.
The people/children depicted in such virtual pornography are not real. They are not real. They cannot be injured. They cannot be killed. They cannot be humiliated, degraded, insulted, or offended. They are not real. The only existence they have is as a result of someone's twisted imagination. They are an idea, a thought, as intangible and fleeting as smoke on the wind. They exist only in the minds of their creators, on a sheet of paper, on a computer monitor, on a videotape.
This is thought, in virtually its purest essence. No one is harmed in creating it, just as no one is harmed by you simply saying "kill the Jews," or whatever. Saying it hurts no one, even though doing it would.
But we find this thought, this expression of thought to be offensive, just as many find the statement about the Jews to be offensive. And rightly so - it is offensive. So the cry goes up to Ban It, And Right Quick Too.
But the price is too high. We are not criminalizing actions when we ban this - abusing children is already illegal, as it should be. Instead, we have criminalized a simple idea, criminalized a thought, by punishing its expression.
We have already crossed the line into the creation of thoughtcrime in this country once, with the liberal's abortion that is a "hate crime" law, where those who do bad things are punished, but those who do bad things and have bad thoughts get a little extra turn of the screw from the state. And I have no desire to see conservatives try to one-up liberals in criminalizing "bad" thoughts, in an orgy of eventual self-destruction.
And that's my fear. People who commit "hate crimes" are a tiny minority of retrograde mouth-breathers, that everyone feels good about reviling. And the same is true of those who would consume and produce such trash - they are a tiny minority of perverts that everyone feels good about reviling. But what thoughts will be illegal tomorrow? And the day after that?
You see, you and I are a minority too. Simply by virtue of being reasonably conservative, we have marginalized ourselves - we are outnumbered, even if we are not outgunned. And we are giving them, those who hate us and feel good about reviling us, a tool to use against us. We are outvoted, when push comes to shove. What will happen when FreeRepublic is illegal, because our thoughts and ideas are hurtful and hateful to the dummies over at DU?
Ashcroft and W will not be in power forever. The Republicans will not control Capitol Hill forever. Someday someone who hates you and hates me for what we believe in will be in power up there, and we will have thoughtfully given him everything he needs to simply wish us out of existence.
And that means blood in the streets, and on the sidewalks. I do not want that, and I will avoid it by accepting what others say, even though I find it offensive and perverse. Because, you see, if I accept what they say, I will have set the stage for some measure of reciprocity.
"I hate what you say, and I find it sick," I will say. "But I will protect your right to say it, and you will protect my right to say what I think, no matter how hateful and sick you find it to be, because we are both better for it." And this is the very essence of the social compact.
Mark it well - some odious and disgusting fraction of society's underbelly will find its thoughts criminalized today. But it will be yours tomorrow. And you will have helped them to do it.
Why should sex be considered "speech" at all? Did the Founding Fathers cosider it speech?