First Amendment Doesn't Protect Virtual Kiddie Porn

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

[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.

[general_re]

Viewing adult porn creates a desire for adult partners. That desire can be facilitated, the desire extinguished through real life sex acts with adults. Where is the release for viewers of child porn? The fact is there is no release for this pent-up desire short of abusing a family member or kidnapping and abusing a stranger's child.

The problem is, there's no clear one-to-one correspondence. Combine that with the fact that it's next-to-impossible to craft a standard that doesn't also toss speech that we currently accept as valid and worthy, and the cure becomes worse than the disease.

As described above, there are real victims. A demand is created for which there is no fulfillment. Sooner or later the users of child porn are very likely to act out their desires in ways very harmful to others.

There are no specific victims. There's simply no child you can point to and say "that child right there was harmed by the production of this material". "Society" doesn't have rights, individuals do, and general claims of collective harm cannot outweigh the infringement on the rights of individuals.

You have made the case that child porn cannot be made illegal without seriously damaging the first amendment. I have given you an example of expressions that were limited without doing serious damage to the first amendment. In reaction you have tried to dismiss the validity of my arguement.

I don't say your argument is entirely invalid, merely that this particular analogy you use is inapt. The reason those things are outlawed is because they harm actual people when they are done, just as real child pornography harms real children when it is produced. But in the case of "virtual" material, there's no victim involved in the creation of the material. Thus, the analogy is a false analogy.

Once again, the two examples "automobile deaths" and "gun deaths" are associated with issues that do have positive aspects to them. And yes, I would concur that the analogy should be obvious to most. Your examples: positive aspects, child porn: no positive aspects.

What are the positive aspects of cigarettes? Should we criminalize them?

You're still trying to make someone prove that something has "positive aspects" in order to justify having them. "Positive aspects" are not how we evaluate what freedoms people should and shouldn't have. Instead, we weigh the harms caused by having a thing against the harms caused by banning a thing. In this case, I think that the harm of banning it, in the form of the unintended consequences, is more severe than the harm of not banning it.

Okay. Then I appoligize for the comments. However, I use gray because I want the current comments to stand out.

LOL - well said. And I plead guilty to trying to tweak you just a little bit ;)

[Viva Le Dissention]

Although not directed to me, please let me submit my two cents:

I believe Mr. General would have been better served to say that the concept endangers free speech, not the Constitution, because as you rightly stated, we have a few laws that DO place limits on speech--specifically, you point out libel laws.

Here, though, is the reason that porn laws damage free speech and libel laws do not:
the issue at hand is that slander or libel can only be punished after it is spoken--that is, I can't sue to stop someone from printing something that I know to be untrue--I can only sue them after it has been printed, and after the message has been distributed to society.

While libel wasn't the issue, whether the government could stop someone from publishing materials was the major issue in the Pentagon Papers case, which the NYT and Post eventually won. The Court has (rightfully, in my opinion) viewed laws that prevent speech with a much more skeptical eye than a law that punishes speech--since the message has already been delievered.

With libel or slander, I can deliver my message faithfully, even it isn't true. Not true here--the government seeks to quash the message before it is delivered, making such laws much more dangerous to free speech than libel or slander law.

[general_re]

You've made the case that you are defending the Constitution against those who wish to destroy it. I and others reject that arguement based on the fact that perjury, slander and defamation laws did not damage the constitution, therefore child porn laws wouldn't either.

Those who think along the lines I do are unmoved by your claimed defense of the Constitiution. We see it as a read hering issue.

Good point. Mind if I borrow it?

You've made the case that you are defending children against the harms that might come about from such material. I, and others, reject the argument that laws against slander, libel, and defamation constitute an appropriate analogy to this case.

Those who think along the lines I do are unmoved by your claimed defense of the children. We see it as a red herring issue, designed to paper over violations of the Constitution by claiming that the ends justify the means.

[biblewonk]

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...

This topic has nothing to do with the constitution. You are hiding your stash behind the constitution and everyone can see right through it.

[general_re]

This topic has nothing to do with the constitution. You are hiding your stash behind the constitution and everyone can see right through it.

This topic has nothing to do with child pornography. You are hiding your fascist desire to control everyone else's life behind the children, and everyone can see right through it.

Big smile, Herr Biblewonk, big smile....

[Southern Federalist]

"Strict construction" of the Constitution does not mean taking a word or phrase out of all context and making it mean anything that might come to mind. Strictly construing the Constitution means using every means possible to discover what was intended by the framers of the Constitution and its amendments. We are bound by the Constitution as the codified intention of We the People of the United States, as enunciated by their representatives, and ratified by their several state governments.

So it won't do to sit atop the First Amendment like a parrot and squawk "No law! No law!" as if that settled the question. It's necessary to ask what the First Congress intended when it framed the First Amendment and under what understanding it was ratified.

Every piece of information we have, as far as I know, says clearly that freedom of speech and of the press were intended as the guarantee of free political debate, discussion, and contention. It's no good saying "But it doesn't say that!" It does too say that, because that is what "freedom of speech and of the press" meant in that context, amongst 18th century Whigs. Every discussion of the subject from that period is deeply entangled in a long-running British discussion of the common law and the various attempts of British rulers to control public speech by prior licensing and/or post-publication prosecution. There's not a word about "expression."

That this was the intent of Congress can be seen already in the debates on the First Amendment. It's clear from the debates that in the original intent of the amendment "the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" formed a unified whole, whose concern is the freedom of the people to express their views to the government.

Therefore, Madison, in objecting to a proposal that the people should have the right to formally and bindingly instruct their representatives, says this:

The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government; the people may therefore publicly address their representatives, may privately advise them, or declare their sentiment by petition to the whole body; in all these ways they may communicate their will.

The freedom of speech and of the press, together with freedom of assembly and petition, is cumulatively the freedom of the people to "communicate their will," their political will, to their elected officials.

This was also the understanding of the Amendment in the early commentators on the Constitution. For example, the strict Jeffersonian St. George Tucker, summarizing the arguments of the opponents of the Sedition Act:

Every individual, certainly, has a right to speak, or publish, his sentiments on the measures of government: to do this without restraint, control, or fear of punishment for so doing, is that which constitutes the genuine freedom of the press.

James Kent has the same reading exactly:

The liberal communication of sentiment, and entire freedom of discussion, in respect to the character and conduct of public men, and of candidates for public favour, is deemed essential to the judicious exercise of the right of suffrage, and of that control over their rulers, which resides in the free people of these United States. It has, accordingly, become a constitutional principle in this country, that "every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right, and that no law can rightfully be passed to restrain or abridge the freedom of speech, or of the press."

Justice Story says the same thing:

That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man.... No one can doubt the importance, in a free government, of a right to canvass the acts of public men, and the tendency of public measures, to censure boldly the conduct of rulers, and to scrutinize closely the policy, and plans of the government. This is the great security of a free government. If we would preserve it, public opinion must be enlightened; political vigilance must be inculcated; free, but not licentious, discussion must be encouraged. But the exercise of a right is essentially different from an abuse of it.

These commentators all have differences among themselves, particularly about libel laws and the question of whether any circumstances can justify post-publication sanctions on libelous attacks on public figures. But they all agree about the object of the First Amendment. All these reference can be found in The Founders' Constitution.

What's happened in the twentieth century is that the First Amendment has been twisted to become a guarantee of "expressive" freedom rather than political freedom, and expressive freedom has with further absurdity been stretched to include virtual child porn. (The truth is that virtual child pornographers on the internet are not engaging in artistic expression; they're offering a particularly nasty product for interstate sale.)

This isn't "strict construction"; it's classic "living Constitution" bilge. "Yes, yes, the framers may have meant political speech but isn't it great that we've found a phrase on which we can hang a constitutional sanction for our growing understanding of tolerance" (or maybe, "our libertarian ideology"?).

At the same time, real freedom of political speech and publication has been constantly wittled down. Some time ago I posted this article, which is a good overview, though written before the passage of the recent McCain Incumbent Protection Act.

[Southern Federalist]

In post #86, the passage from St. George Tucker is not actually summarizing the views of the opponents of the Sedition Act; I started out with a different quote and the forgot to change the intro to it when I changed it. This is Tucker's own statement further on in the commentary. Just keeping i's dotted and t's crossed.

[Viva Le Dissention]

An interesting post, but the problem is that it's just impossible to view the Constitution as an unchanging document that we MUST return to the founder's views. While all very intelligent people, it becomes impossible to predict societial changes 200+ years into the future.

For example: if we go by strict constructionism, as you deem it, would our conversations on this BBS (or the web in general!) be protected from the government? Our content is most definitely political, but it is neither "speech" nor "press" in the truest sense of the words--as would be necessary in a strict constructionist philosophy. The founders could not have possibly meant "speech" to cover typewritten words that appear in space, no where in particular--but is it still "speech?" The answer the courts give, and the obvious answer, is that "Yes, of course this is speech--this is protected." This extends way past the 1st Amendment, of course, but it's best illustrated here.

Moreover, although you attack "free expression," what more is speech and type than expression in a particular form? We are guaranteed free speech but not free expression? I'm not sure how you can help but connect the two.

Besides, the founders were smart people, but I'm not prepared to commit government strictly to their thoughts. They knew they could be wrong: they created an amendment process--I'm not sure why some folks want us to tie ourselves to the mast of that ship for all eternity with a "strict constructionist" viewpoint.

So, incidentally, if I publish a photo of a political leader with a bullwhip in his butt, is that political speech? it sends a politcal message--or is it obscenity?

[DoughtyOne]

To: DoughtyOne

Viewing adult porn creates a desire for adult partners. That desire can be facilitated, the desire extinguished through real life sex acts with adults. Where is
the release for viewers of child porn? The fact is there is no release for this pent-up desire short of abusing a family member or kidnapping and abusing a
stranger's child.

The problem is, there's no clear one-to-one correspondence. Combine that with the fact that it's next-to-impossible to craft a standard that doesn't also toss speech that we currently accept as valid and worthy, and the cure becomes worse than the disease.

No there is not a one-to-one correspondence.  And while I'll concede honestly that not all viewers of child-porn in the graphic format are going to commit sex-crimes, you must concede that there is no natural release valve for desires stoked by pseudo-child porn.  While I am biased, I do believe it's more reasonable to conclude that damage does result to some children, than that it never does.

As described above, there are real victims. A demand is created for which there is no fulfillment. Sooner or later the users of child porn are very likely to act
out their desires in ways very harmful to others.

There are no specific victims. There's simply no child you can point to and say "that child right there was harmed by the production of this material". "Society" doesn't have rights, individuals do, and general claims of collective harm cannot outweigh the infringement on the rights of individuals.

Well here you and I differ.  I do not believe that individuals have the right to pursue this act of deviency.  While I'm willing to accept that I am not the end-all when it comes to public or private opinion on this topic, I am convinced that most people do not want child porn or pseudo-child porn to be available.

You have made the case that child porn cannot be made illegal without seriously damaging the first amendment. I have given you an example of expressions
that were limited without doing serious damage to the first amendment. In reaction you have tried to dismiss the validity of my arguement.

I don't say your argument is entirely invalid, merely that this particular analogy you use is inapt. The reason those things are outlawed is because they harm actual people when they are done, just as real child pornography harms real children when it is produced. But in the case of "virtual" material, there's no victim involved in the creation of the material. Thus, the analogy is a false analogy.

Actually, I think you've moved off center here.  Victim status is not the issue.  You stated that child porn could not be outlawed without damaging the first amendment.  You didn't hinge that on there being a victim.  You couldn't.  Either way, victim or not, the first amendment would be damaged according to you.  You can't argue that the first amendment would be damaged if there was no victim, but would not be damaged if there was.  It doesn't work that way.

I have given you a valid precedent.  That precedent shows that freedom of speech laws can and have been implemented in a manner that did not damage the first amendment.  Once again, that there is a victim or not, is not significant.  The significance is that laws carved out an exception to the first amendment without damage to it in total.

Once again, the two examples "automobile deaths" and "gun deaths" are associated with issues that do have positive aspects to them. And yes, I would
concur that the analogy should be obvious to most. Your examples: positive aspects, child porn: no positive aspects.

What are the positive aspects of cigarettes? Should we criminalize them?

The smoking of cigarettes is a self-inflicted act.  The victims of those carrying out their fantasies which were enhanced by the utilization of pseudo-child porn, are not the victims of their own actions.

You're still trying to make someone prove that something has "positive aspects" in order to justify having them. "Positive aspects" are not how we evaluate what freedoms people should and shouldn't have. Instead, we weigh the harms caused by having a thing against the harms caused by banning a thing. In this case, I think that the harm of banning it, in the form of the unintended consequences, is more severe than the harm of not banning it.

I'm willing to address the harm aspects of this.  Using the perjury, slander and defamation example, it is clear that there is no reason to claim the first amendment would be harmed.  It is possible to extrapolate a real harm to children being abused or killed due to the enactment of acts depicted in pseudo-child porn.  No I can't claim an emphatic connection, but then you can't completely dismiss that connection either.

Do the rights of individuals to access pseudo-child porn outweigh the likely harm to certain children due to the pent up desire created by that porn?  I don't believe they do.  On this I believe we disagree.

Okay. Then I appoligize for the comments. However, I use gray because I want the current comments to stand out.

LOL - well said. And I plead guilty to trying to tweak you just a little bit ;)

And that's okay.  I should be tweaked occasionally.

81 posted on 7/17/02 9:57 AM Pacific by general_re

[breakem]

If I can take a couple of pot shots.

Some therapists believe that viewing the porn does not create a desire, that it satiates the desire. Why is you opinion on this better than theirs?

In virtual porn there is no victim. The kid is not real. Unless you can show a direct correlation to viewing virtual porn and causing sexual assaults on kids, you have no victim and thus no crime.

[DoughtyOne]

I think you raise a valid issue, the one of penalizing after the fact vs before the production, but I'm not sure it holds up under scrutiny.

The liable example is only judged to be illegal after review.  But in the same way, child porn would only be deemed illegal after a similar review, thus allowing the production before adjudication.  Does the produced material constitute slander?  Does the produced material constitute child-porn?

Do you disagree?

[DoughtyOne]

To: DoughtyOne

You've made the case that you are defending the Constitution against those who wish to destroy it. I and others reject that arguement based on the fact that
perjury, slander and defamation laws did not damage the constitution, therefore child porn laws wouldn't either.

Those who think along the lines I do are unmoved by your claimed defense of the Constitiution. We see it as a read hering issue.

Good point. Mind if I borrow it?

You've made the case that you are defending children against the harms that might come about from such material. I, and others, reject the argument that laws against slander, libel, and defamation constitute an appropriate analogy to this case.

Those who think along the lines I do are unmoved by your claimed defense of the children. We see it as a red herring issue, designed to paper over violations of the Constitution by claiming that the ends justify the means.

83 posted on 7/17/02 10:02 AM Pacific by general_re

The arguement has been made (not necessarily by you) that the viewing of these materials does not portend a threat to children.  I would ask the male members of this forum to answer this for themselves.  Does the viewing of adult pornography aleviate the desire to participate in sex acts, or enhance that desire?  I would also throw in the caviot of self-gratification and whether that fully extinguishes the desire to participate in the real thing.  I believe it is reasonable for folks to say that viewing adult pornography does not necessarily contribute to rape etc., because the real thing does exist and is accessible.  But in the instance of kiddy porn, there is no real thing to fall back on within the confines of the law.

For this reason, I think it's wishful thinking to assume that child-porn, pseudo or otherwise, is not harmful to children.

Now, if laws can and have been instituted that limit free speach without doing actual harm to the first amendment, why would the implementation of child-porn laws be an instance of "the ends justifies the means"?  I don't think this applies.

[Viva Le Dissention]

I would agree if that were the law; however, our law allows the government to stop production of child porn when it is taking place--they can arrest a person that they suspect will produce child porn (with good evidence, of course!). Both of these attacks the "speech" before it is disseminated.

Of course too, a small but noteworthy difference is that libel, et al., is a civil matter; you're not penalizing the "speech," per se, you are recouping the damages to your reputation from the lies or misstatements that took place. Sort of like, "well, my reputation can never be whole again after you printed that I like to molest collies, but $100,000 will make it a whole lot better."

While we're beginning to split hairs, such is life. :-)

[DoughtyOne]

To: DoughtyOne

If I can take a couple of pot shots.

Some therapists believe that viewing the porn does not create a desire, that it satiates the desire. Why is you opinion on this better than theirs?

In virtual porn there is no victim. The kid is not real. Unless you can show a direct correlation to viewing virtual porn and causing sexual assaults on kids, you have no victim and thus no crime.

90 posted on 7/17/02 11:12 AM Pacific by breakem

The arguement has been made that the viewing of these materials does not portend a threat to children.  I would ask the male members of this forum to answer this for themselves.  Does the viewing of adult pornography aleviate the desire to participate in sex acts, or enhance that desire?  I would also throw in the caviot of self-gratification and whether that fully extinguishes the desire to participate in the real thing.  I believe it is reasonable for folks to say that viewing adult pornography does not necessarily contribute to rape etc., because the real thing does exist and is accessible.  But in the instance of kiddy porn, there is no real thing to fall back on within the confines of the law.

Look, I can only reference my own human experience.  I think that therapists are off base if they make the claim that stimulation without release lessens the desire for enactment.  Self-gratification could and may be the answer for many of these people.  I am not convinced it's the answer for all of them.  And I'm not going to say that all of the non-satisifed group actually act anything out.  But I am convinced that some of them do.  Is this something we wish to support at any level?

[general_re]

Just when I think this thread is unsalvageable and about to decline into me and someone else giving each other the finger, you come along to prove me wrong by making a reasoned case. Thanks ;)

No there is not a one-to-one correspondence. And while I'll concede honestly that not all viewers of child-porn in the graphic format are going to commit sex-crimes, you must concede that there is no natural release valve for desires stoked by pseudo-child porn. While I am biased, I do believe it's more reasonable to conclude that damage does result to some children, than that it never does.

And I'm honestly inclined to agree with you. Some damage will probably result. The question for me is whether the price for banning it is worth paying, and I don't think it is.

I'm not fooling myself here - I know what sort of mouth-breathers this stuff will appeal to. That's why it's so easy to go with the gut instinct to ban it and to make it go away. But I think it's important to stop and think as clearly and rationally as we can about the precedent this sets, and what the potential long-term consequences are. The people who want to take your rights away never do it by appealing to reason - they want to scare you into giving them up voluntarily.

Well here you and I differ. I do not believe that individuals have the right to pursue this act of deviency. While I'm willing to accept that I am not the end-all when it comes to public or private opinion on this topic, I am convinced that most people do not want child porn or pseudo-child porn to be available.

Probably, but one's rights are fortunately not subject to majority opinion. If the First Amendment is a matter of popular vote, then having an inalienable right to speak means nothing.

Actually, I think you've moved off center here. Victim status is not the issue. You stated that child porn could not be outlawed without damaging the first amendment. You didn't hinge that on there being a victim. You couldn't. Either way, victim or not, the first amendment would be damaged according to you. You can't argue that the first amendment would be damaged if there was no victim, but would not be damaged if there was. It doesn't work that way.

Wait, wait. You point out that we've carved out certain exceptions to the First Amendment, which we obviously have. But I'm asking you to look deeper and see why we've made those exceptions. And it's because the harm of slander is greater than any benefits that might accrue. The reason slander is an exception is because people are directly harmed by it, not just because we think we can get away with making that exception.

It's not enough to just say "Well, we've made exceptions in these other cases, so we can make any exception we like." We have to look at why we made those exceptions, and see if that reasoning applies to this case as well. And I just don't think it does - the reason we forbid slander is not the same reason we'd be forbidding this stuff.

The smoking of cigarettes is a self-inflicted act. The victims of those carrying out their fantasies which were enhanced by the utilization of pseudo-child porn, are not the victims of their own actions.

Punish the act, not the thought. That's really what this is about - creating a class of bad thoughts that are going to be illegal. And I find that to be a most dangerous precedent - thoughtcrime doesn't discriminate. Today it's some disgusting, vile part of society that is having its thoughts criminalized. Tomorrow, it might be you and me. And how will we object? What will we say when our opinions are crimes?

Do the rights of individuals to access pseudo-child porn outweigh the likely harm to certain children due to the pent up desire created by that porn? I don't believe they do. On this I believe we disagree.

Reasonable people will disagree. I don't claim a superior understanding of either the Constitution or human nature, I just have an opinion, as you do. You are of the opinion that banning this material is worth the price of any collateral damage that may ensue, and I am not. That's the great thing about free speech - we can disagree like that ;)

[DoughtyOne]

In the instance of stopping production, I would concede that it is preemptive and designed to make sure children are not harmed. That is an aspect I had overlooked.

I concede the definition you have provided, but find it reasonable to avoid the production of at least real child-porn before the fact.

[Southern Federalist]

Most of your post is nit-picking. As for your word-game with "expression," I don't really think it' all that hard to distinguish rough dissent from Bush's steel tariff from, say, a "virtual" image of a dog raping a three year old. Of course there will be hard cases - but as you may have heard, they make bad law.

The United States used to have working libel laws. We had more freedom of political speech then than we do now.

As for the rest, if you think you know better than the Framers, use the freedoms of speech, press, assembly, and petition guaranteed you in the Constitution to launch a movement towards an amendment. But don't encourage unelected judges to invent "constitutional rights" that have no basis in the Constitution. The same kind of jurisprudence can take those freedoms away from you, as has in fact happened with campaign finance laws, etc., as detailed in the article linked to in my original post.

[general_re]

I believe it is reasonable for folks to say that viewing adult pornography does not necessarily contribute to rape etc., because the real thing does exist and is accessible. But in the instance of kiddy porn, there is no real thing to fall back on within the confines of the law.

As someone else has said, it may be the case that the image itself is enough to satisfy the desire. I don't know that any of us know for sure that this is the case, but it would certainly be worth finding out more in order to help us in our reasoning.

Now, if laws can and have been instituted that limit free speach without doing actual harm to the first amendment, why would the implementation of child-porn laws be an instance of "the ends justifies the means"? I don't think this applies.

Well, that "if" in there is an awful BIG "if" in this case, isn't it? That is, that's pretty much the crux of our disagreement in the first place, don't you think? ;)

Like I've said, if one can craft a standard that bans this sort of material without also catching a whole lot of other stuff, I might look upon all this more favorably. But I just don't think that one can create such a law that doesn't harm the First Amendment more than it protects people. And if it turns out that I'm right, and such a law does great damage to the Constitution, what else have you got to argue but that the damage is justified by the goal of the law, that the ends justify the means?

[DoughtyOne]

Rather than continue this indefinately, I'm going to reduce this to one issue and bow out. I appreciate the conversation.

The issue for me is whether freedom of speech can be limited in any manner without doing serious damage to the first amendment. I am convinced that freedom of speech has been limited without doing damage to it. I believe that it can be done again.

Now the rights of the individual do outweigh the popular opinion of the whole. But that test was also overruled with regard to libel laws.

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.

[Southern Federalist]

As to whether internet communication is "speech" since the Framers didn't know about the internet: every early interpreter of the First Amendment interprets "freedom of the press" as the right to "publish" or "communicate" one's sentiments beyond the audience that could be reached by the voice alone. They already knew then that there was more than one way to "publish" (= make public) one's sentiments. They were intentionally using "press" in a generic way, which is demonstrably not the case with the terms "freedom of speech" and "freedom of the press."