Posted on 04/24/2002 3:56:03 PM PDT by TLBSHOW
Whenever a Supreme Court opinion is bristling with references to Renaissance paintings, classical mythology, and "art and literature throughout the ages," you know the court is about to invoke the First Amendment to protect "Bisexual Schoolgirls' Porn Pictures."
Writing for the court, Justice Anthony Kennedy struck down a perfectly sensible federal child porn law last week. Though you might think the attorney general was preparing to rip "War and Peace" off the shelves, the law simply extended the reach of the federal child pornography laws to computer-generated "virtual" images of minors engaging in sexually explicit conduct. Without this law, it will be impossible, in practice, to prosecute any child pornography cases.
In order to prohibit, say, "Youngest Teen Sluts in the World!" while leaving the Federalist Papers unmolested, the law carefully defined "sexually explicit" conduct as: "actual or simulated ... sexual intercourse ... bestiality ... masturbation ... sadistic or masochistic abuse ... or lascivious exhibition of the genitals or pubic area of any person."
In response to this law, Justice Kennedy expounded on William Shakespeare's "Romeo and Juliet" – "the most famous pair of teen-age lovers." He continued: "The right to think is the beginning of freedom, and ... speech is the beginning of thought."
Oh, cut it out.
The last smut prosecutions for works with any redeeming value whatsoever took place almost four decades ago. Since then, pornographers have been running amok, producing the most degrading pornography imaginable – and then running to the Supreme Court to whine about threats to Shakespeare and "Lady Chatterley's Lover."
Some of the more respectable titles taken off the Internet include: "Preteen Pedophilia XXX," "Kiddie Pix," "Mary's Pictures of Young Nude Girls," "Lolita Angels," "Preteen Nudist Camp," "Naked Little School Girls," "Kiddie Porn Lolitas," "Rape Lolita," "Preteen Incest Rape."
Remember: I'm not the one who says "Preteen Sluts" is protected by the Constitution. Pornography defenders always insist on describing this particular constitutional right in vague euphemisms, such as "material dealing frankly with sex" and "sexually themed material." If I have to endure Justice Kennedy's pompous platitudes when we're talking about "Lolita Angels," then I'm not politely avoiding the topic.
The nation is swimming in pornography. You can't turn on TV without seeing simulated sex scenes. And Kennedy is worried that a law banning computer-generated photos of children engaging in sexually explicit acts will put Shakespeare at risk?
If judges pretended to be this confused when interpreting other laws, there could be no laws about anything. Indeed, Depends undergarments would be a necessity on the high court, as justices struggled with whether that feeling in their bellies meant they had to go to the bathroom or needed to burp. Is it "Othello" or is it "Kiddie Pix"?
In addition to Shakespeare, Kennedy claims that if Congress were permitted to outlaw virtual images of children in explicit sex scenes, movies like "Traffic" and "American Beauty" might be made differently. "[L]egitimate movie producers," Kennedy anxiously warns, might not "risk distributing images in or near the uncertain reach of this law."
Justice William Rehnquist points out in his dissent that both "American Beauty" and "Traffic" were made (and given awards) while this precise child porno law was on the books. Not only that, but during that time, four of five federal appeals courts were upholding the law. As Rehnquist says: "The chill felt by the court ... has apparently never been felt by those who actually make movies."
Moreover, the actress who played a teen-age girl in the crucially important simulated sex scene in "Traffic" was not, in fact, a minor. (Why does no one ever say, "'Casablanca' was a good movie – but what it really needed was simulated sex scenes with kids"?) Even high-priced lawyers for the porno industry couldn't come up with more than one "legitimate" Hollywood movie that might possibly – theoretically – fall under the virtual child porn law.
Here is a description, courtesy of an Internet rating service, of just some of the sex scenes from "American Beauty": "a couple has sex with thrusting, her legs up in the air ... a man is seen from behind masturbating in the shower ... a man masturbates next to his sleeping wife in bed ... a girl stands in front of boy, then takes her bra off and we see her breasts ... a man thinks a male couple is performing fellatio (they are not) ... a father kisses his daughter's teen-age friend, caresses her clothed breasts and pulls off her jeans until she's down to her underwear, and opens her shirt, exposing her bare breasts ... a man has several daydreams of a girl in a bathtub with rose petals covering her; he reaches his hand under the water at her crotch level as she puts her head back and moans."
So Congress can't ban virtual kiddie porn because the law might make producers think twice before making movies with scenes like that? This is the doomsday scenario? A little chilling might lead to "virtual" watchable movies.
Sorry, but we have a clear historical record of what the phrase means. Your attempts to emit a cloud of Clintonesque semantic obfuscation are unavailing.
The Founders of the American Republic clearly rejected such notions in favor of a rule of law which bound the majority as firmly as it bound any individual.
What, exactly, do you think ought to happen if 50%+1 of the electorate votes for a blatantly un-Constitutional infringement of the rights of the other 50%-1? Should the Constitution be ignored? Should there be armed revolt? What?
But the phrase "privileges and immunities" does not appear solely in the 14th Amendment - it also appears in body of the text itself. To wit, Article 4, Section 2:
"The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."
If the phrase is "meaningless", why would the founders have seen fit to include it at all? Isn't it really more likely that they understood it to have some meaning, even in the absence of a complete and exhaustive definition of what those privileges and immunities are? Are the rights listed in the Bill of Rights not among the privileges and immunities enjoyed by citizens?
And by the way, take off the name of the speaker and tell me why you disagree? Come on, I know you can defend "the purpose of art is to wallow in dirt for dirt’s sake," etc. It’s right there in the Constitution, right?
...which indicates a central problem with this whole issue: the word "virtual" and references to "computers".
The term "virtual reality", properly used, has nothing to do with this discussion. ("Virtual reality" technology involves replacing what you see with computer-generated images fast enough to generally convince you that you're somewhere else. In the best forms, two monitors cover your entire field of view, a head-tracker detects which way you're looking, and the computer draws what you are supposed to see when you look in a given direction.) Unfortunately, the term was a lot more exciting than the actual technology, and subsequently got completely mangled by a woefully ignorant society. Most people who use the term "virtual reality" have no idea what they're talking about.
The word "virtual" in this whole argument is a buzzword which ONLY refers to "photorealistic" images. Such believable images can also be created with paint or pencils or clay; computers simply make the artistic process more efficient.
The whole point of SCOTUS's ruling is that under the Constitution the gov't cannot ban an activity which is legally indistinguishable from painting or drawing without a model doing what is depicted. The law in question banned an activity which is no different from drawing a picture of someone being mugged, or using "special effects" to make a movie showing someone being murdered.
(Again, let me reiterate: I am just as appalled by the subject matter in question as anyone else. The point of "the opposition" in this thread is that there is no way to legally differentiate between making such pictures and making equally "virtual" (i.e.: photorealistic depictions of non-existant people, places, and/or events) pictures of other illegal or legal activities. If I/we are somehow wrong, PLEASE explain how such a differentiation can be expressed IN LEGAL TERMS.)
It is clear from the historical record that whatever it means, it does not mean "The Bill of Rights". Language that clearly applied the 1st eight Amendments to the states was removed from the 14th Amendment.
You cannot rely on what some Senator said in committee when the language he was referring to was deleted from the final joint resolution.
Incidently, the historical record indicates that the 14th Amendment was never constitutionally adopted.
It takes a 3/4 majority of each house of the Congress to propose an Amendment. The backers of the 14th Amendment refused to allow the members from the southern states to take their seats. Even then, they could not get a 3/4 majority -- so they illegally expelled a Senator from New Jersey who was prepared to vote against the amendment.
Even then, the Amendment was rejected by enough states to block ratification -- including a number of northern states. The legislatures of the southern states were summarily replaced and order to ratify the Amendment.
The Secretary of State declined to enter it as an Amendment, so Congress merely declared it ratified.
It appears from the historical record, that you are pinning your hopes on a broken reed.
No, he is wrong. Dead wrong.
As Coulter pointed out CPPA didn't stop (or even slow down) the garbage from Hollywood. No one was arrested under CPPA for filming Traffic or American Beauty, for example. CPPA had been around since 1995. Coulter is right. Rehnquist is right. Rush is being a fool. The FBI didn't target Hollywood, did it?
The pornographers went whining to the courts about first amendment rights when their speech was never threatened. The law was not written to harass Hollywood, but to close the loophole child pornographers and pedophiles were using. Re-read law and take this out: "or appears to be." There was no point in writing a law to cover virtual child porn without "or appears to be." It would be meaningless.
What, exactly, do you think ought to happen if 50%+1 of the electorate votes for a blatantly un-Constitutional infringement of the rights of the other 50%-1? Should the Constitution be ignored? Should there be armed revolt? What?
No. I do not think the Constitution should be ignored. But I don't think it is some sort of "living document" that changes at the whim of a judge. The fact that no one on earth can say what the "priveleges and immunities" are, means that we have a choice.
We can let the judges apply any meaning they want to the phrase and overturn any law they don't like. Or we can say it cannot be used to overturn any law.
Personally, I'd rather the people make the laws -- not the judges.
So get out a pencil and paper and start drawing. There is no difference other than the tool used to create the image, a difference which is legally and practically irrelevant. (And a movie is just a sequence of images; animations are just a series of drawings.)
Article. XIV. [Proposed 1866; Ratified Under Duress 1868]
Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Bill Of Rights is law, and all citizens are equally protected by those rights as recognized in law.
Well, then, you shouldn't defend the evasion of the Privileges and Immunities Clause by judicial whim.
What real children were protected by the "or appears to be" clause of the CPPA?
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