First Amendment Doesn't Protect Virtual Kiddie Porn

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

[Viva Le Dissention]

Why do I need an amendment when the 1st is quite clear? Despite what you said (and as Justice Black was fond of saying,) no law means no law. No matter where the intentions of the framers might have lain, what they wrote is what they wrote. The irony is that you are falling into the well of judicial activism in the name of strict constructionism when you say, "well, when they said 'speech,' they actually meant..." That's judicial activism as well, but at least the "living document" philosophers have the intellectual honesty to call it what it is.

The purpose of the marketplace of ideas is that so each idea can be viewed and digested by the public, and the public can then decide which ideas do or do not have merit. That includes comments on Bush's steel tariffs or a picture of a man with a bullwhip in his butt or a virtual image of a 16 year old having sex with an older man.

Incidentally, I thought Sullivan was a great advancement in libel laws. I think malice aforethought is an excellent addition to the libel law, and it protects people from what are otherwise honest mistakes.

[general_re]

I do not believe that citizens who wish to produce real or pseudo-child pornography have any more protections under the first amendment than those who libel do.

I would simply say that I draw a distinction between those cases. Those who make and consume real child pornography are vile, disgusting people who should be locked up for the harm they do. Those who would make and consume virtual porn are vile, disgusting people who should have their rights to free expression protected by the Constitution. ;)

Thanks for pulling back from the precipice - this is a subject that everyone feels strongly about, and sometimes its easy to lose sight of the fact that even if we disagree about how to get there, we all want to do what's best...

[general_re]

Why do I need an amendment when the 1st is quite clear? Despite what you said (and as Justice Black was fond of saying,) no law means no law.

Black said that, but I'm not sure he supports you as well as you might want - I assume you're familiar with his dissent in Tinker ;)

[DoughtyOne]

Thank you for the discussion.

[Viva Le Dissention]

Absolutely. Despite "no law means no law," he was pretty strict in his definition of speech, which allowed him to get around a lot of things he couldn't otherwise get around.

Now that you mention it, I think he might have been Mr. Southern's favorite Justice!

[Viva Le Dissention]

Mr. General made a comment about Tinker--I had Tinker filed away in my Constitutional Law memory banks and I had as of this moment, forgotten it was there.

He brings up an applicable point that is valid here--in Tinker v. Des Moines, students were suspended from school for wearing black armbands in protest of the Vietnam War. This is quite obviously a political message; I don't think that can be denied. But the tricky part is that it's not speech of any manner. The person is not speaking his beliefs but expressing (there's that word again!) in a silent manner.

Under the strict constructionist viewpoint, I think you would be obliged to find such a policy constitutional, as Justice Black did. The majority of the Court, though, felt that it was protected "speech."

The framers wouldn't have included this in their writings, like the ones you posted, but yet it's clearly an expression of dissent against the government--which is the intention of protection, which basically puts you between a rock and a hard place, and why I think "strict constructionism" is unworkable.

[aconservaguy]

First, I'd like to thank you for a very interesting discussion:). As for your points, if I'm understanding this correctly, there are probably no concrete benefits to protecting pornography? If that's the case, then what's bad about banning it? If there are no concrete benefits to it, by banning porn, no one is losing anything realizable or concrete (sorry to use the word so much). I think some viewable, tenable consequences must exist in order to have a compelling case.

To be fair, I ask you (and any others) what would be the good reasons for protecting "virtual (or any) porn" under the first amendment? What would be the good or bad benefits of banning porn?

As for you "no clear way to draw a line" of separation between those acceptable and not, I don't think that's so hard; i think it's very easy to distinguish between a picture in a Playboy and a scene out of Romeo and Juliet, for example. I really don't think people are going to have a hard time determing which is the piece of literature and which is the... well, you get the picture (no pun intended).

You mention also that "under a strong reading of the law that was struck down, Romeo and Juliet could have become illegal."

First, this a "strong reading" of law; what about "weaker" readings? The "strong reading" isn't the only reading a law could be given. And why "could have" Romeo and Juliet been prohibited? I remember reading it, and it made no mention of anything "pornographic." Or, are you referring to film productions of the play? As for it "could have become illegal": the possibility of it being prohibited doesn't guaruntee that it will be. And even if that law did exist, the chance of Romeo and Juliet being banned doesn't make the law wrong needed repealing. There are other things worthy of prohibition, which by completely repealing a law because it could prohibit Romeo and Juliet wouldn't allow. This possibility doesn't seem a compelling reason to prohibit ban of pornography...

[general_re]

First, I'd like to thank you for a very interesting discussion:). As for your points, if I'm understanding this correctly, there are probably no concrete benefits to protecting pornography? If that's the case, then what's bad about banning it? If there are no concrete benefits to it, by banning porn, no one is losing anything realizable or concrete (sorry to use the word so much). I think some viewable, tenable consequences must exist in order to have a compelling case.

That depends on what you consider a benefit, I suppose. There's the benefit of protecting the principle of freedom of expression of course, but that's not really tangible in itself, of course. Lots of folks will suggest that porn is beneficial in relationships and what have you, but I don't honestly care whether it's good for people or not - people want it, and that's enough for me, so long as the harm of it isn't excessive. Hell, I don't see any benefit at all from those trashy romance novels that they sell at your finer bus stations and airports, but people seem to want them, so who am I to say that they can't have it?

I sort of alluded to cigarettes earlier, and that's an example of what I mean. Cigarettes and Twinkies aren't good for anyone except tobacco companies and the Hostess people, but that fact in and of itself is not enough of a reason to ban them, in my opinion. People want to smoke and eat Twinkies because doing so gives them pleasure, and so long as there's no harm to others, or the harm of it is not excessive, then why should we ban them? Who are we to decide for someone else how they should live their lives? Yeah, they're not good for you, but you're the one who'll be the four-hundred pound lung-cancer patient, not me - I'll be the appropriately-sized cancer patient next to that person ;)

Now, if we can show that all people who view such material molest children afterwards, or even that most people who view it will do so, then we'll have some grounds for talking about banning the stuff as doing more harm than good. But the fact that a few will, or that some will, isn't enough - after all, some people who own guns will definitely murder other people, but the fact that a few abuse those freedoms isn't enough to justify taking them away from everyone.

To be fair, I ask you (and any others) what would be the good reasons for protecting "virtual (or any) porn" under the first amendment? What would be the good or bad benefits of banning porn?

The main benefit I see in protecting it comes about as a result of what we don't do. If it's protected, we have some precedent for not banning what are, in the end, basically bad thoughts. That's the whole thing here - this law declares an idea to be illegal. Looking back on history, it seems pretty obvious to me that this is almost always a bad idea - who knows what ideas will be illegal next?

As for you "no clear way to draw a line" of separation between those acceptable and not, I don't think that's so hard; i think it's very easy to distinguish between a picture in a Playboy and a scene out of Romeo and Juliet, for example. I really don't think people are going to have a hard time determing which is the piece of literature and which is the... well, you get the picture (no pun intended).

Right, I understand. But the trouble is that bad people will always exploit vague laws to advance their own agenda. This law criminalized any sexual depiction of children, or any sexual depiction that appeared to be of children. Well, if you go back and re-read your Shakespeare, Juliet was 13 when she got married, and that makes the love scene in the Zeffirelli version of Romeo and Juliet into child pornography under this law.

And that's why I pointed that out, about strong readings of the law - that decision about Zeffirelli is perfectly acceptable under the law as it was written. There's nothing in the law itself to say that you can't do that to Shakespeare. So what you end up doing is relying on the hope that the authorities will always be good and wise and understand the merits of Shakespeare.

But we believe in limited government for precisely the opposite reason - you can't always trust that the people in charge are going to be good and wise and thoughtful. Sometimes they'll be corrupt or power-hungry or just plain stupid, and so we don't give them any more power than we absolutely have to. Look at the last administration - we just got through the most corrupt, self-serving administration since the Teapot Dome, but the country survived it anyway. Why? Because we limit the powers they have, and try to keep them from doing any permanent damage.

And so we don't give them a precedent that says that some ideas can be crimes, and that way we avoid getting bitten in the ass later on when the next Clinton administration decides that FR is a hate-speech forum that can be shut down for crminal thoughts. You may trust the current administration to mostly do the right thing, but do you trust the next Democratic administration that much? Because I sure as hell don't. ;)

And even if that law did exist, the chance of Romeo and Juliet being banned doesn't make the law wrong needed repealing. There are other things worthy of prohibition, which by completely repealing a law because it could prohibit Romeo and Juliet wouldn't allow. This possibility doesn't seem a compelling reason to prohibit ban of pornography.

Remember, I'm not arguing for actual child pornography, where real children get hurt - as far as I'm concerned, the folks who do that deserve whatever punishment society sees fit, plus a little more besides.

But it's not just Romeo and Juliet we're talking about - it's Lolita, it's all those Michelangelo paintings of naked cherubs depicted as four-year-olds. It's a whole bunch of stuff that gets caught up when you decide that fictional depictions of children are impermissible. Yes, you'll say (I'm guessing, anyway - maybe you wouldn't make this argument), but one has artistic merit, and hardcore virtual porn doesn't.

But then you're back to vague standards again - who decides what art is? The state? Is that the sort of function we really want government to have, telling us what is and isn't legitimate art?

So, my objections are fourfold. One, people should have freedoms unless and until we know that those freedoms are doing more harm than good to others. Two, it's next to impossible to make a law banning this stuff that doesn't also catch stuff that most of us find perfectly acceptable. Which means that there is no standard really, just ad hoc enforcement. Three, it sets a dangerous precedent insofar as it creates a class of what are best described as thoughtcrimes, with all the attendant Orwellian overtones inherent in that. And four, it's not the sort of thing I prefer government be doing in the first place - it's not a legitimate function of the state to tell me which fictional pictures are art and which are crimes.

And that, in a nutshell, is why I think the court did exactly the right thing here.

[Houmatt]

As far as we go, free speech is not quite absolute--we have time, place, and manner restrictions--but that's all.

Uh, nope.

What do the following have in common: Libel, slander, death threats (especially toward the President of the United States), perjury, copyright infringement, yelling "Fire" in a crowded theater, obscene material.

These are all examples of things the free speech clause of the First Amendment does NOT protect. For you to say or even imply otherwise is a deliberate, intentional falsehood on your part.

As far as your last "point," you are substituting your moral judgment for the opinions of society.

Hardly. What I said reflects the opinions of society. If that was not the case, you would be seeing bestality and coprophilia on prime-time broadcast television.

How can we know whether such things like bestality or coprophilia (not illegal) are bad unless we can view them and judge for ourselves?

Good idea. Why don't you post photographic examples on a website, like this one?

I will tell you why: Because if you did, the photos would be deleted and your account closed before you can say Jim Robinson.

Hey! That's censorship!

Guess what? That's tough.

By the way obscenity has a strict legal definition that I doubt bestality or coprophilia would fall under.

While coprophilia may not in and of itself be illegal, its depiction would never make it past state or federal obscenity stautes.

The legal definition of obscenity reads like this:

For something to be "obscene" it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find (1) that the work appeals predominantly to "prurient" interest; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value.

Now, if you can, by chance, find ANY literary, artistic, political or scientific value in the depiction of sexual relations involving excrement, please feel free to inform us. Inquiring minds want to know.

[Houmatt]

That's odd - I was just thinking to myself that it sure is easy to tell who is interested in preserving, protecting, and defending the Constitution on these threads, and who isn't...

ROTFLMAO!!!

What does child pornography, in ANY format, have to do with the US Constitution? They could not be any farther apart than the North and South Poles.

[general_re]

What does child pornography, in ANY format, have to do with the US Constitution?

Ohh, I know, I know! The mere idea of child pornography inspires a certain sort of person to wad the Constitution up and use it for toilet paper.

How's that for an answer? ;)

[Houmatt]

I strongly recommend you read post #68.

[Houmatt]

Ohh, I know, I know! The mere idea of child pornography inspires a certain sort of person to wad the Constitution up and use it for toilet paper.

How's that for an answer? ;)

It wasn't. You wanna try again?

[general_re]

You wanna try again?

Not really. Having any luck crafting a standard that will pass Constitutional muster?

[Houmatt]

Not really.

Big surprise.

Having any luck crafting a standard that will pass Constitutional muster?

Don't need to. It is off topic.

Tell me, what is the real reason you are so staunchly defending child pornography?

[general_re]

Don't need to. It is off topic.

Whatever. You'll just wave your magic wand, declare it illegal, and the Constitution be damned. Why let a 200 year old piece of parchment get in the way of your perfect society?

Tell me, what is the real reason you are so staunchly defending child pornography?

Tell me, what is the real reason you're trying so mightily to destroy freedom of expression?

[aconservaguy]

Sorry for the delay.

no prob;)

By "chilling effect," I mean that a law designed to arrest the producers of porn would have a chilling effect on the production of porn because people would fear prison. It's sort of an end-run around free speech protection--they're not targeting the actual speech, just say, arresting people for child enganderment or whatever.

So this works as a detterent to the production of porn? what's wrong with that? Also, what's wrong with arresting people "for child endangerment"? It's interesting that it's "child endangerment" or some other reason while ignoring any right of "speech": that implies some negative effect of porn and the possibility that "freedom of speech" is not absolute; there must be some bad thing that happens (or thought to happen) through the production of porn. Also, your point of "free speech protection" assumes that porn is "speech" and it is "protected" under the First Amendment.

It is bad in terms of free speech, since it effectively limits speech.

Again, this assumes porn is speech; it also assumes that "freedom of speech" is absolute: is it? so what if it "effectively limits speech?" Is the ban of porn going to be perceived as a ban on "speech?" And is porn that mainstream that a snowball effect will ocurr and more (and less contentious;) "speech" will be limited? I don't think that will happen. I doubt porn is seen to be so mainstream that it's banning will be viewed as that first grave step toward squelching the first amendment.

But, as far as the ends justifying the means, whether this is good or bad is your opinion, and that's exactly the point--it's not the government's to tell you whether you should or shouldn't think this is moral.

interesting. If I may:

But, as far as the ends justifying the means, whether this is legal or illegal is your opinion, and that's exactly the point--it's not the government's to tell you whether you should or shouldn't think this is legal.

Irrespective of that preceeding comment, the government isn't telling you to "think" that something is moral or not by banning porn -- you can still think what you want about it; the law just says that porn is illegal. A similar argument you make can be applied to a 55 mph speed limit: let's say that i don't like the 55 mph speed limit; with that speed limit in place, the government is telling me how to drive; is that right? using your argument, it would seem wrong. Because i "think" that the speed limit is wrong the government is overstepping its bounds.

Also, i think the consequence of such thinking only leads to a moral and practical anarchy: why stop at porn? why not abolish all laws and live in an anarchic society, because in some way or another, it would seem that the government is telling us what "think"; somebody is always going to disagree with a law or an action of the government; that doesn't mean that action or law is wrong (don't get me wrong, i very much believe that the government is too big and many actions are wrong); however, i think in certain instances, especially when involving issues such as porn, some practical reasons are needed for allowing its protection under the 1st amendment.

[aconservaguy]

i had forgotten about that. thanks:)

[Houmatt]

From post #116, my words in italics, general_re's in bold:

Tell me, what is the real reason you are so staunchly defending child pornography?

Tell me, what is the real reason you're trying so mightily to destroy freedom of expression?

You have read it here first: Child pornography equals freedom of expression.

WHY don't we have an ignore function so we can flush mentally, emotionally and morally diseased people like this bleep?

[general_re]

WHY don't we have an ignore function so we can flush mentally, emotionally and morally diseased people like this bleep?

Wow, how brave of you to comment on my post without wanting to call my attention to it. Cry me a river, tough guy.

Isn't there a book burning you're missing somewhere? Maybe your belt buckle needs a little more polishing...