Child Porn and the 1st Amendment

An interesting and important ruling from the Court today upholding a federal law banning the distribution or solicitation of child pornography. It’s obviously an area of growing concern, with advances in technology and easy transmission through the Internet.

The Court shot down Congress’s first attempt to limit child porn several years ago, ruling that a 1996 law went too far in banning the possession and distribution of any image that “is or appears to be” a child engaging in sexually explicit conduct. That law would have criminalized images of youthful-looking adult actors or computer-generated porn that did not involve actual children.

So Congress went back to the drawing board and passed a more limited law in 2003. It bans a person from promoting, distributing or soliciting images he believes are child pornography--or images that are intended to make another person believe he’s getting actual child pornography. Today’s 7-2 ruling by Justice Scalia concludes that this time, Congress got it right. It strikes me as a sensible decision—especially when you read the concurrence (by Stevens, with Breyer) and half-hearted dissent (by Souter, with Ginsburg).

The Court rejected all the concerns brought up at oral argument and by the federal appeals court that struck down the law.

---What about pictures Grandma snaps of the kids in the bathtub or in their pajamas? No, says the Court. “The prosecutions would be thrown out at the threshold,” the Court says.No reasonable juror would find the hypothetical Grandma believed—and wanted others to believe—the pictures displayed children who were engaged in “sexually explicit conduct,” as the law defines it.

---What about advertisements for mainstream Hollywood movies depicting underage characters having sex? No, says the court, because no reputable film distributor actually believes the movies contain actual children engaging in actual or simulated sex on camera. “The average person understands that sex scenes in mainstream movies use nonchild actors, depict sexual activity in a way that would not rise to the explicit level necessary under the statute or, in most cases, both,” says the Court.

---What about documentaries airing footage of atrocities in foreign countries, such as soldiers raping young children? Perhaps, says the Court—but the makers of such films could argue the law was unconstitutional as it was applied to them, in light of the important educational and public interest in disseminating news about the atrocities.

Here’s the bottom line: “Child pornography harms and debases the most defenseless of our citizens. Both the state and federal governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet," Scalia wrote for the Court. "This Court held unconstitutional Congress’s previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the 1st Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful.”

In dissent, Justices Souter and Ginsburg didn't buy the government’s argument that fake or “virtual porn,” which is generated by computer, will undermine prosecutions for actual child pornography. The Court has ruled that child porn is not protected speech because it obviously harms young victims. But, the argument goes, computer-generated porn (and fake child porn using young-looking adults) doesn’t harm children and therefore is protected speech.

In passing the new law, however, Congress found that fake child porn—while not exploiting children—will harm them nonetheless: Child pornographers will argue that actual porn isn’t real, either, and escape prosecution. So the new law allows people to be prosecuted if they believe they’re distributing or getting the real thing.

Souter argues that the Court, in accepting this argument—and allowing prosecutions where people believe or want other people to believe they have actual child porn (even if they don’t)--is cutting back the 1st Amendment. “True, what will be lost is short on merit, but intrinsic value is not the reason for protecting unpopular expression,” he writes.

And he notes that the government has not cited a single case where a defendant has been acquitted under that defense.

“Perhaps I am wrong, but without some demonstration that juries have been rendering exploitation of children unpunishable, there is no excuse for cutting back on the First Amendment,” Souter writes.

But will this law really do that? If someone is distributing or seeking fake child porn—either computer-generated images or pictures of young-looking actors--they could just say so. The law prohibits distributing or soliciting child pornography that a person believes--or wants another person to believe--is actual, under-aged children.

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