Courting Unsafe Speech

It is possible, of course, that computer-simulated images of virtual children having virtual sex may encourage pedophiles to act on their impulses or may assist them in seducing children. There is, however, little or no empirical evidence that these images have such dire effects. Congress criminalized virtual child porn anyway.

The Child Pornography Prevention Act of 1996 (CPPA) prohibits computer images that "appear" to show actual children engaged in sex; it also bans advertising, promoting, or describing any sexually explicit images "in such a manner that conveys the impression" that actual children are depicted. Antiporn activists insist that this ban on virtual porn is essential to protecting children and enforcing laws against actual child pornography, since prosecutors may not be able to distinguish the actual from the virtual variety. Free-speech advocates charge that the CPPA allows for the prosecution of thought crimes, by criminalizing non-obscene renderings of imaginary children engaged in imaginary sex. The federal courts are divided on the constitutionality of this statute: It was struck down by the Ninth Circuit Court of Appeals and upheld by the First, Fourth, and 11th Circuit Courts. The issue is now before the Supreme Court.

Many civil libertarians have long accepted (and supported) bans on depicting actual children engaged in actual sex. Traditional child-porn laws need not rely on speculation about the harm caused by the distribution of sexually explicit images involving minors; they can rely instead on the harm caused by the production of sexually explicit images involving minors.

But laws against depictions of imaginary children can rely only on imaginary evidence of harm. As the Ninth Circuit recently observed in Free Speech Coalition v. Reno: "Factual studies that establish the link between computer-generated child pornography and the subsequent sexual abuse of children apparently do not yet exist." Indeed, in enacting the CPPA, Congress relied on the report of the pornography commission led by former Attorney General Edwin Meese in the l980s, a study that addressed only the suspected harms of pornography involving actual children. In other words, the Ninth Circuit stressed, the CPPA relies on findings that "predate" the technology it targets.

Still, defenders of the CPPA equate actual and virtual porn, simply because they are difficult to distinguish visually. "Both actual and counterfeit child pornography will pass for the real thing and incite pedophiles to molest and children to be victims," according to a brief filed by the National Law Center for Children and Families and several other conservative advocacy groups. "If the pedophile and the child victim cannot tell the difference, there is no difference in the effect conveyed." What's wrong with this reasoning? (Put aside the callous disregard of the difference to real children who are forced to have sex in the production of real pornography.) It assumes its conclusion--that virtual child porn incites pedophilia and creates "child victims"--and it advocates criminalizing speech because of its presumed effect on a particular class of listeners: people inclined toward child abuse.

Courts confront this argument repeatedly in First Amendment cases, particularly in cases involving pornography. In 1985, in American Booksellers Association v. Hudnut, the Seventh Circuit Court of Appeals struck down a local antiporn ordinance that was based on the assumption that pornography leads to the objectification of women and contributes to sexual violence and discrimination. Accepting this assumption for the sake of argument, the appeals court pointed out its inadequacies: "All of these unhappy effects depend on mental intermediation." In others words, the power of speech is collaborative.

Since the ban on virtual child porn relies heavily on the subjective reactions of viewers, speakers are given little notice of precisely what speech is criminalized. When Congress bans sexually explicit material that "appears" to depict minors engaged in sex, you have to ask, "Appears to whom?" A lot of people over 40 have trouble distinguishing 19-year-olds from precocious 15-year-olds. The CPPA could easily be construed to prohibit non-obscene sexually explicit images of young adults. The statute does provide its targets with a defense: that the alleged child porn in fact involved an actual person, who was an adult at the time the image was produced (so this defense does not apply in cases of virtual child porn) and the image was not promoted in a way that "conveyed the impression" that it involved a minor. "Conveyed to whom?" you have to ask.

What are people talking about when they talk about child porn? That depends. Some point to Calvin Klein ads or the movie adaptations of Lolita (not to mention the book). The Tin Drum, a 1979 film based on a novel by Gunter Grass, is considered pornographic in Oklahoma City: A few years ago, local officials confiscated copies of this allegedly dangerous film, which includes a scene suggestive of oral sex between a six-year-old boy and a teenage girl. A court in Oklahoma judged the film obscene.

Some supporters of CPPA will dismiss cases like this as "horror stories," suggesting that they're rare or even apocryphal. In fact, they're fairly common, as anyone familiar with the history of censorship knows. Virtual-porn prohibitions are especially easy to abuse, since evidence of social, scientific, or artistic value is irrelevant to a charge of child pornography. (Speech must be found to have no redeeming value to be considered obscene.) How will the CPPA be applied by a Justice Department led by right-wingers? Senator Jesse Helms includes some sex-education materials in his definition of child porn. Soon speech may be no safer than sex.