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.
Bwahahahaha. Good one.
I'm still scratching my head here, but g'nite.
As for distinguishing "public" versus "private", I guess I'd have to know more about what you consider to be public versus what's private before I can go anywhere with that...
I mean by that simply stuff over airwaves (radio or tv), or, if pertaining to actual "speech," (as in words) stuff in say "public" meetings (if there are such things). Stuff in the privacy of a home -- the internet or anything -- i'm not for censoring. And also, if i can again reiterate, I'm not for fed gov censorship -- i find that completely unconstitutional and independent of that something i wouldn't want; local towns, even possibly states, are another thing, however (although i would most likely only desire censorship at the local level). That's why i think of the "community standards" and such -- at the local level at least i think such things would be plausible.
Also, at the same time i argue censorship, i should clarify that it's more out of a question of the SCOTUS and fed courts protecting at all levels something i don't think is constitutionally protected of many things which might not be "speech"; call it courts "granting rights" or some other cliche; those are my main things...
No prob - it's a complicated issue, that doesn't lend itself to simple sloganeering easily.
How right you are... oy, lol
What a mess. What will happen when the educated classes finally give up the willfully ignorant?
It's a case law book, one of several I have - it's the sort of thing you'd use for a textbook in your Con Law class during your first year of law school, so you're not likely to find it on the shelves at Barnes & Noble, although they could surely order it for you.
That being said, I know that Amazon has it available, so if you want to spend $80 for it, it's there. I also have Gunther's book devoted solely to First Amendment law, and it's also excellent. Keep in mind that these are case law books, so there's not much in the way of discussion about how things should be, or what the overall philosophy of the law should be - it's a history and description of how things are, and that's it. If you want polemical discussions of how the First Amendment should be regarded, you'll want to look elsewhere.
Along those lines, since you've read Bork, I'll point you to the other end of the debate. If you're interested in more generalized, less technical discussions of the First Amendment, then Nat Hentoff is excellent. Hentoff is a flaming liberal, but he's actually very even-handed in his approach to free speech - he's a First Amendment absolutist, so he gets very aggravated by people who try to restrict it, whether on the right or the left. His book "Free Speech for Me--But Not for Thee" is out of print now, but it's well worth finding.
And as a background, "On Liberty" by John Stuart Mill should be required reading as part of a decent education (it wasn't part of my publik skool education, so I had to find it on my own) - if you don't have it, get it. And lastly, Richard Epstein's book "Principles for a Free Society: Reconciling Individual Liberty With the Common Good" is worth a look. Epstein's probably one of the foremost libertarian thinkers of today, along with Robert Nozick, but even if you're not a libertarian (I'm not), he makes a powerful and compelling case, which is probably why he's largely ignored by both right and left ;)
If we gave up on everyone who avoided rational thought, there'd be precious few of us left. I'm becoming convinced that there is no such thing as human nature any more - we are mostly animals, who happen to be occasionally capable of rational thought. As Exhibit "A", I submit the masses of people who find it easier to be governed by their fears than it is to understand reality...
Call me an elitist. I plead guilty. ;)
Good. The more the merrier. I was just at the tail end of a bad week.
Excellent question.
When will people wake up and understand children are an asset, and not a commodity?
Dream on General Elitist. "Community Standards" will only die when you get an overly strong central government, populated by elitist libertarian types, dictating to communities.
As a legal doctrine, it's in real trouble, for precisely the reasons I outlined above. The only real question is what, if anything, will replace it. Lay your bets now, ladies and gents - I give it...ten years, at the outside. Maybe they'll find some way of duct-taping it together, but I doubt it.
I'm sort of curious about this notion of yours that libertarians would populate a strong central government, though ;)
You are becoming amusing:-) You've submitted nothing, except a view of yourself as hypocrite and manipulator. You of all people talking about others' fear, and understanding reality. I mean, you're someone who's afraid of not being able to view a legitimate work of art if others' can't see pornographic images of children. ROFLOL.
Call me elitist. Okay, elitist. I'd like to buy your attitude for what it's worth, and sell it for what you think it's worth.
I glad - then the feeling's mutual. ;)
The more I read your posts, the clearer it is you don't know what you're talking about. This notion you have that somehow the court didn't intend for Miller to apply to animations, or that that's somehow a side-effect of this ruling, is just too ridiculous for words. Really, Keri, this ruling has been out for several months - that's really more than long enough for you to have tracked it down and read the thing. The simple fact is that Sandy is right, and you are dead wrong about Miller somehow not applying to such material.
I am sorry, but I think if you'll bother to read the decision, you'll see that Sandy and I are quite correct on this. Miller was not affected by this ruling - the reason the law was tossed in the first place is because it was inconsistent with Miller.
You of all people talking about others' fear, and understanding reality. I mean, you're someone who's afraid of not being able to view a legitimate work of art if others' can't see pornographic images of children. ROFLOL.
Laugh while you can. Yes, I'm talking about your paranoid fears - you, who's spent this thread referring to the court as the "Nazgul" and the "Men In Black". You either haven't read the decision, or you don't understand it, so you let your fears run wild. And that's all you've got. You're dead wrong about the applicability of Miller, and you haven't been able to point to a single word that supports what you want it to say - the best you've been able to do is sort of read between the lines to parse out this tinfoilish hidden meaning.
I hate to say it, but you obviously haven't spent much time reading court cases or studying the Supreme Court - that's just not the way it works. If they didn't want Miller to apply, they would have said so, and if they didn't say so, it applies. It's that simple.
The court found the CPPA to be inconsistent with *both* Miller and Ferber, and that's the important point here. ONLY if it [child porn] is "real" (here I must defer to your and the court's psychotic definition of real and unreal) is it illegal and subject to prosecution. VIRTUAL child porn is subject to nothing but the Ashcroft vs. Free Speech Coalition decision.
Miller was not affected by this ruling - the reason the law was tossed in the first place is because it was inconsistent with Miller.
YES, and I said the ruling doesn't affect Miller, nor does it affect Ferber.
I don't have any paranoid fears, just fear what ivory tower people and those of their stripe are able to foist on the rest of us with their irrational thinking.
You're dead wrong about the applicability of Miller...
Really? Miller, which defined obscenity, and Ferber, which found child porn obscene per se are decisions the CPPA was found to offend (along with the First) because it [CPPA] banned images that "appear to be a minor".
As much as you might pretend general, the court harmed children everywhere by sanctioning a whole new category of child porn called "not real", and putting the burden of distinguishing real and unreal upon the prosecution.
Laugh while you can.
I'm not laughing. Rather the opposite.
If they didn't want Miller to apply, they would have said so, and if they didn't say so, it applies.
Uh, no...they said that a law banning obscene pornographic images that "appear to be a minor" was inconsistent with both the set standard for judging obscenity (Miller) and the fact that child porn is obscene per se. (Ferber) YOU are wrong, and dishonest.
Here's an interesting tidbit from Ashcroft himself:
In light of today's decision, I have directed the Criminal Division's Child Exploitation and Obscenity Section to work with United States Attorneys Offices around the country to ensure that today's ruling affects as few of our pending child pornography cases as possible.To avoid the dismissal of cases brought under the two provisions that the Supreme Court has struck, we will amend where possible and pursue general obscenity charges against those who have victimized children by producing or procuring child pornograph...
One of us will have to say we were wrong, and I doubt very, very seriously it will be me. But hey, I don't mind, do you?
I'm finished with willful and stupid ignorance. Get your own quotes.
No, that’s not what they said. They said that the virtual-child porn ban was inconsistent with Miller, not with Ferber. Ferber was simply a failed argument that the government tried to use to defend the virtual porn ban. But once the SCOTUS established that virtual-child porn is not the same thing as real-child porn, Ferber became irrelevant and had little to do with the gist of the Court’s decision.
So at this point, we’re no longer dealing with child porn, and Ferber is a dead issue. Virtual-child porn is now considered to be speech. That means that any ban on virtual porn must be subject to the Miller test. In other words, virtual porn can only be banned if it is obscene. The reason that the SCOTUS said that the CPPA was inconsistent with Miller was because, not only did the CPPA ban obscene virtual-child porn, it also banned virtual-child porn that was supposedly not obscene (hence the Romeo/Juliet argument and whatnot).
Essentially, the SCOTUS is telling Congress that the law is fixable. It can be narrowed down and directed toward banning the truly obscene stuff. If you look at the link to the bill that I gave you earlier, you’ll see that Congress is currently trying to do exactly that. And SCOTUS will probably not reject it this time around.
As an aside, the main point in Ferber was that the Miller standard doesn't apply to child pornography.
the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography.
So, Miller doesn’t apply to real-child porn. And Ferber doesn’t apply to virtual-child porn. Make sense?
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