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.
Ironically, i think it's freedom of speech;)
The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The decision has been refined over the years since then (Miller was 1973), notably in Smith v. US, 431 US 291 (1977), and Pope v. Illinois, 481 US 497 (1987), but the basic, increasingly shaky, framework of Miller remains.
Where is that balancing test located within the text of the First Amendment? When does "no law" mean "no law"?
The first Amendment was not created to protect the most popular speech, rather, to protect the least popular speech.
As an amused spectator, I must say you've won this debate without question.
Sounds okay to me ;)
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.
Get a grip. You're being gross. Every one of the items that you listed would be subject to prosecution under the existing obscenity laws.
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).
Now, as you were saying...
It's true. I gather you either didn't read the Supreme Court decision or didn't understand the issue.
. . . we may assume that the apparent age of persons engaged in sexual conduct is relevant to whether a depiction offends community standards. Pictures of young children engaged in certain acts might be obscene where similar depictions of adults, or perhaps even older adolescents, would not. The CPPA, however, is not directed at speech that is obscene [my bold]; Congress has proscribed those materials through a separate statute. 18 U. S. C. §§1460-1466. Like the law in Ferber, the CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the Miller standard [my bold]. For instance, the statute would reach visual depictions, such as movies, even if they have redeeming social value.Read the opinion. Federal and state obscenity laws stand, as do Miller and Ferber.The principal question to be resolved, then, is whether the CPPA is constitutional where it proscribes a significant universe of speech that is neither obscene under Miller nor child pornography under Ferber [my bold] . . .
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