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 theseare constitutional or likely to withstand judicial scrutiny. Maybe they caremainly about getting credit for their passage (while draining the resources offree-speech organizations by forcing them to challenge unconstitutional laws).Consider the similar constitutional flaws in the CPPA provisions struck downApril 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 childporn -- computer-generated images that "appear" to be actual child porn andsexually explicit images of youthful adults who "appear" underage. It prohibitedthe 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 themere 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 antipornactivists, right and left, and in defending the CPPA, the government argued thatvirtual child porn "whets the appetite" of pedophiles and causes abuse. That's apopular assertion, but there's no proof of it -- and even if there were sometruth 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 sufficientreason for banning it." The majority also dismissed the government's claim that aban on virtual child porn was necessary because it is often indistinguishablefrom actual child porn. Kennedy characterized this argument as "implausible" (itwas also unsubstantiated), and he wrote that, in any case, "The Government maynot 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 theobvious constitutional flaws of its predecessor. Because the Court struck downthe CPPA ban on sexually explicit images that "appear" to depict actual minors,the new bill includes semantic cover: It bans any sexually explicit image thatappears "virtually indistinguishable" from a sexually explicit image of actualminors. The Court struck down the CPPA ban on promoting, distributing, orpossessing virtual child porn that is promoted as real, partly because it wouldhave applied to people who acquired the porn without knowing how it had beenmarketed. So the new bill makes it a crime to knowingly solicit actual childporn, whether or not the solicitation is successful. In other words, it makes youcriminally liable for merely writing an e-mail expressing an interest in childporn. The bill also criminalizes exposing children to virtual child porn.
It is likely that some version of this proposal will be enacted. (RepublicanOrrin Hatch and Democrat Patrick Leahy, who is generally sympathetic to civilliberties, have introduced another similar, less grievously unconstitutional banon virtual child porn in the Senate.) A reasonable effort to prosecute activepedophiles has morphed into a nutty crusade against the idea of pedophilia. AsRepublican Congressman Mark Foley nonsensically remarked, "Pedophiles do not havea First Amendment right to gawk over exploited children, real or virtual." Don'tbother to ask how anyone exploits a virtual child. Antiporn feminists onceprotested the sexual abuse of actual women and children by images. (Pornographyis rape, they proclaimed.) Now lawmakers target the abuse of imaginary children by actual women and men.
