Free-speech advocates who cheered the recent Supreme
Court decision striking down portions of the Child Pornography Prevention Act
(CPPA) should not have been surprised when Attorney General John Ashcroft and
members of Congress quickly announced their intention to enact another, similar
child-porn law for the courts to consider. Congress and the White House (under
both Bill Clinton and George W. Bush) have not been deterred by concerns about
constitutional liberties in their campaigns against speech presumed to be harmful
to children. After the Supreme Court struck down the obviously unconstitutional
Communications Decency Act, which banned "indecency" online, in 1997, Congress
quickly enacted the Child Online Protection Act (COPA), which banned commercial
speech deemed "harmful to minors." A federal appeals court struck down COPA, but
the Supreme Court recently sent it back to the lower courts while continuing to
enjoin its enforcement.

Maybe Congress and the White House don't care whether laws like these
are constitutional or likely to withstand judicial scrutiny. Maybe they care
mainly about getting credit for their passage (while draining the resources of
free-speech organizations by forcing them to challenge unconstitutional laws).
Consider the similar constitutional flaws in the CPPA provisions struck down
April 16 (in Ashcroft v. Free Speech Coalition) and the new child-porn bill
offered by the administration and Congress.

The invalidated sections of the CPPA criminalized "virtual" or apparent child
porn -- computer-generated images that "appear" to be actual child porn and
sexually explicit images of youthful adults who "appear" underage. It prohibited
the promotion or distribution of sexually explicit material in a way that
"convey[ed] the impression" that it was actual child porn, and it also banned the
mere possession of such images. [See Wendy Kaminer, "Courting Unsafe Speech,"
TAP, June 18, 2001.] In a strong defense of the First Amendment, Justice
Anthony Kennedy's majority opinion in Ashcroft pointed out that the ban on
porn that only "appears" to involve minors was essentially a ban on ideas: As
opponents of the law have argued, the CPPA established thought crimes. Fantasies
about children having sex are repellant to most of us, but the First Amendment is
intended to protect repellant imaginings. As Justice Kennedy stressed, it
"draw(s) vital distinctions between ... ideas and conduct."

Of course erasing those distinctions has long been the goal of antiporn
activists, right and left, and in defending the CPPA, the government argued that
virtual child porn "whets the appetite" of pedophiles and causes abuse. That's a
popular assertion, but there's no proof of it -- and even if there were some
truth to suspicions about the effects of fake child porn, the Court observed that
"the mere tendency of speech to encourage unlawful acts is not a sufficient
reason for banning it." The majority also dismissed the government's claim that a
ban on virtual child porn was necessary because it is often indistinguishable
from actual child porn. Kennedy characterized this argument as "implausible" (it
was also unsubstantiated), and he wrote that, in any case, "The Government may
not suppress lawful speech as the means to suppress unlawful speech."

These statements of principles in Ashcroft are strong but not
groundbreaking. They should be familiar to anyone with a rudimentary
understanding of First Amendment law. As Kennedy stressed, the Court long ago
allowed the prohibition of obscene material (in the 1973 Miller v. California
case), but the definition of obscenity excludes material with some redeeming
social, literary, artistic, political, or scientific value. Twenty years ago (in
New York v. Ferber) the Court upheld laws criminalizing actual child porn
regardless of any redeeming value, in order to protect children harmed in its
production. The CPPA could not be upheld as a ban on obscenity under Miller
because it made no allowances for redeeming social value; it could not be upheld
as a ban on child porn under Ferber because it targeted the content of virtual
child porn, not the harmful production of the real thing.

The new law proposed by Ashcroft and his congressional cohorts shares the
obvious constitutional flaws of its predecessor. Because the Court struck down
the CPPA ban on sexually explicit images that "appear" to depict actual minors,
the new bill includes semantic cover: It bans any sexually explicit image that
appears "virtually indistinguishable" from a sexually explicit image of actual
minors. The Court struck down the CPPA ban on promoting, distributing, or
possessing virtual child porn that is promoted as real, partly because it would
have applied to people who acquired the porn without knowing how it had been
marketed. So the new bill makes it a crime to knowingly solicit actual child
porn, whether or not the solicitation is successful. In other words, it makes you
criminally liable for merely writing an e-mail expressing an interest in child
porn. The bill also criminalizes exposing children to virtual child porn.

It is likely that some version of this proposal will be enacted. (Republican
Orrin Hatch and Democrat Patrick Leahy, who is generally sympathetic to civil
liberties, have introduced another similar, less grievously unconstitutional ban
on virtual child porn in the Senate.) A reasonable effort to prosecute active
pedophiles has morphed into a nutty crusade against the idea of pedophilia. As
Republican Congressman Mark Foley nonsensically remarked, "Pedophiles do not have
a First Amendment right to gawk over exploited children, real or virtual." Don't
bother to ask how anyone exploits a virtual child. Antiporn feminists once
protested the sexual abuse of actual women and children by images. (Pornography
is rape, they proclaimed.) Now lawmakers target the abuse of imaginary
children by actual women and men.

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