First Amendment Doesn't Protect Virtual Kiddie Porn

The Claremont Institute ^ | July 31, 2000 | John C. Eastman

[DoughtyOne]

This article captures my thoughts on the subject. It does barely touch on one issue important to me. The production of this material can only lead to the development of desire in individuals who view it for pleasure. Where is the release for that desire if not to inflict acts on real children? These materials should not be legal.

[BikerNYC]

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.

Where is that balancing test located within the text of the First Amendment? When does "no law" mean "no law"?

[Viva Le Dissention]

Very true: no law means no law. Lost on lots of folks.

More importantly, though, I'm struck by the good professor's repeated emphasis of his idea that "it is immoral, so it ought to be illegal."

The key issue, though, is without discussion, debate, and viewing of such materials, society cannot judge accurately whether it is or is not immoral. That's the purpose of the 1st Amendment. In the "marketplace of ideas," the false and meritless ideas will be rejected by the public, leaving them to languish with such a small minority it is of no interest.

Let *anything* be distributed to the public; we will be the judge.

[BikerNYC]

Agreed. If this material is so bad, what will it do to those who view it in order to determine whether or not it is immoral and hence should be illegal?

I don't trust anyone else to make that decision for me.

[aconservaguy]

The "balancing test" isn't located in the First amendment. "no law" means no law. But, I think first a question must be answered of is pornography "speech." The First Amendment protects speech; imo, one has to show that "kiddie porn" -- or pornography period -- is "speech" in order for it to be considered for protection under the First Amendment. Does the protection of "speech" extend to pornography and other such things? Are there any points from the Framer's that could put it in perspective of the First Amendment? And even if it can be determined that it is "speech," I think his point of good benefits vs. bad benefits is a good measure that can be (i'm sure one of many) considered when judging it.

[aconservaguy]

let me also clarify that i'm not necessarily for the federal outlawing of porn, but i'm not necessarily for porn's protection under the First Amendment, either.

[Undivided Heart]

I agree. I wonder if the intention of the First Amendment was to allow for the free exchange of ideas to persuade in terms of public policy. There's nothing persuasive about pornography. But isn't it funny that where persuasiveness counts, like in front of abortion clinics, that speech is quelled?

[BikerNYC]

If it isn't speech, is it a use of the press? True, you don't speak pictures, but you do publish them via the press, an the "no law" clause of the First Amendment applies equally to the press.

I've always wondered what words a law or constitutional provision should contain if you really wanted to prevent the government from making any law regulating speech or the press.

Isn't "Congress shall make no law..." sufficient? and if not, what more could you say?

[ThinkDifferent]

I wonder if the intention of the First Amendment was to allow for the free exchange of ideas to persuade in terms of public policy.

Well, the Constitution doesn't include any such limitation. You can try to say that it's "implied", but then you're using the same argument liberals use when they say the 2nd Amendment doesn't protect an individual right.

Excellent point on liberal free speech hypocrisy regarding abortion protestors, the same also applies to campaign finance "reform".

[Badray]

"More importantly, though, I'm struck by the good professor's repeated emphasis of his idea that "it is immoral, so it ought to be illegal.""

With adult porn, I absolutely agree. With kiddie porn, using real kids - in photos, videos, or in real life - it's a different story and those involved should be punished.

But, my concern is the 'virtual' part of this. When do we cross the line from "thought crime" to a real crime. This troubles me as much as the concept of "hate speech". Again, I'm limiting this to when NO real child is involved in any aspect of the production or use.

[goldstategop]

I hope the U.S Supreme Court will overturn the 9th Circuit here. This is not like the Congressional attempts to outlaw the viewing of adult erotica. To the contrary, this law is intended to protect children from harm in order to serve the basest passions of a few perverted adults. By definition, such conduct on the part of adults is not free speech but rather the manifestation of behavior considered morally repugnant to the order and values of society. Given the compelling governmental interests served here, it should be a no brainer for the SCOTUS to reinstate the ban on virtual child pornography. No one should be able to hide behind the excuse of the First Amendment to exploit children in the service of perverted ends.

[Enterprise]

Here is a scenario I still haven't received an answer to in this debate.

A very talented artist creates a painting from his own imagination depicting juveniles engaged in sexual intercourse or other sexually explicit activities or poses. Remember now, these juveniles DO NOT EXIST except in the mind of the artist, and now only exist as paintings on a canvas. By producing these paintings, what law has the artist broken? If he shows them to other adults, can he be arrested? If he sends them to another adult on the internet, can he be arrested? Why? Who makes the decision that someone who creates something from only the imagination can be arrested and imprisoned?

[general_re]

Actually, to clarify this, this article is two years old. The Supreme Court has already ruled on this, and upheld the 9'th Circuit's opinion that "virtual" porn is protected by the First Amendment.

Just to clear up any confusion - it's all over but the shouting, the tenses of this article notwithstanding ;)

[BikerNYC]

Good example. What if the artist made a painting of imagined children, instead of a sculpture? What if Picasso did it and it was conceptual, but he claimed that it was a painting of a child being fondled? How "realistic" does it have to be?

[goldstategop]

LOL! I just noticed it. Oh well now its ok to produce kiddie porn as long as you don't use real children to do it. Its progress.

[Viva Le Dissention]

I don't disagree, but there is a whole array of charges that the State can levy against the producers of child porn that doesn't include attacking free speech.

Sort of like the concept behind prohibition: you don't attack the drinkers--you made a law that prohibited producing, shipping, or selling.

Here the same concept applies. Get the producers for child endangerment or whatever. That solves the problem without endangering free speech--well, endangers it to a lesser extent, I suppose; there would definitely have a chilling effect on production, but still. I think you get what I'm saying.

[sirchtruth]

More importantly, though, I'm struck by the good professor's repeated emphasis of his idea that "it is immoral, so it ought to be illegal.

Why are you struck by this when every law ever made is founded on a moral basis?

[Undivided Heart]

Well, the Constitution doesn't include any such limitation.

Could such laws be enacted locally (state/city)? I heard recently that Michigan enforced a profanity law when someone left a message with some colorful language on an answering machine. You could say that the caller was just trying to be persuasive in communicating hate . : )

Slightly off topic, and I've posted this a few times, but why is it that when we interpret the Constitution with external documents to see what the founders intended, the liberals like to dismiss the Declaration of Independence (because it's not the Constitution), but for some reason Jefferson's letter to the Danbury Baptists is so weighty. In fact, those words "wall of separation" have somehow been infused in the 1st Amendment. I'd bet if we did a Sean Hannity "Man On The Street" poll and asked a bunch of liberals where in the Constitution the words "Separation of Church and State" were written, 95% would gleefully respond, "The First Amendment!"

[aconservaguy]

the press: interesting point. However, does "kiddie porn" fall under "freedom of the press"? frankly, i don't think congress should make a law prohibiting porn; i don't think they have the right. the states or localities are different, however.