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Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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Child Porn and the 1st Amendment
May 19, 2008 3:19 PM
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.
May 19, 2008 | Permalink | User Comments (22)
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What about instructional pictures and videos of a mother breast feeding a child? There are numerous pregnant mother support websites that post explicit videos of this nature for instruction. Does that violate the law? What if some pervert started selling these types of videos by passing them off as instructional? Then what? I think this is a valid question to ask, and undoubtedly there will be some pervert out there who will test the law in this fashion.
Posted by: Question | May 19, 2008 3:36:17 PM
A breast feeding video would not be considered pornography unless the distributor and viewer "knowingly" believed they were seeing an actual depiction of "sexually explicit conduct". That would be a stretch.
The statute reads...
"knowingly— “(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains..." etc.
The definition of “sexually explicit conduct” is:
“(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; “(ii) bestiality; “(iii) masturbation; “(iv) sadistic or masochistic abuse; or “(v) lascivious exhibition of the genitals or pubic area…" etc.
The prosicution/defense of any kiddie porn panderer/viewer would be the "knowingly" portion.
Posted by: smartprimate | May 19, 2008 4:13:31 PM
A man sits at his desk, doodling with his pen and draws some stick figures depicting two people in the act of intercourse. One of the figures is a lot smaller. On the caption, he writes "Hey Supreme Court, this child pornography?"
Posted by: Dilberth | May 19, 2008 4:18:51 PM
One question involves imports of comics/manga from other cultures. Japanese Manga contains many stories where a common manga character is the 'ordinary middle school girl' (age 12-16, roughly).
Several of these manga are already popular in this country. Examples being 'Inuyasha' and 'Red River' in which the main (human at least) character is a middle school girl who is thrust into a situation and is often depicted in the bath or (in the later case) as a concubine in sexually tantalizing poses and exposure. Would these be banned under this law and decision?
Posted by: Mark | May 19, 2008 4:28:10 PM
I would doubt it-- the threshold is you have to believe it involves child porn, and the court has previously ruled that images are not child porn. Manga and Anime are obviously not real, and so would not be vulnerable. (with the Caveat that someone can always bring charges and let the Jury sort it out.)
The dicey area will be in the ever more realistic CGI animation we're seeing, which might very well be vulnerable under this ruling as it gets closer to the point where it becomes effectively indistinguishable from live action films.
Posted by: Charles Gray | May 19, 2008 5:11:41 PM
First of all, 'speech' is SOUND issuing from the voice box, or some kind of written representation thereof.
PORN IS NOT SPEECH!
Activities issuing from other parts of the bodies (not meant to represent voice box sounds) IS NOT speech.
Porn, picture/form in motion representing mating, is not speech.
A picture may be worth a thousand words; but it IS NOT speech!
What has happen in the so-called legal system is that there are too many perverts on the bench masquerading as 'experts' in matters of laws governing human behavior!
In a human society, porn is HARMFUL to young/weak minds.
Before the young children are able to get a hold on the management of their natural urges, things like porn will cause or tend to cause the children losing control or never fully gain mastery over their natural urges.
And that is not a good thing, considering the many serious consequences of not being able to manage one's urges.
Sex-addiction, sexually transmitted disease and early death in the age of AIDS awaits the young/weak minds that never grow with the ability of managing urges.
Those judges are frauds who will not 'err on the side' that is against the sexploitation of children, especially.
Posted by: Patriot | May 19, 2008 5:53:40 PM
That makes an interesting hypothetical case: a producer using CGI can make a realistic depiction and, without saying anything, sells it to a distributor who assumes that it is real and sells it to customers who also think it is real.
The distributor and customers could be liable under this law, while the producer may get away with it.
Posted by: SmartPrimate | May 19, 2008 5:56:32 PM
Anyone complaining needs to quit. This has been a problem for to damn long and FINALLY someone has the sense to try to take care of it.
Posted by: angel | May 19, 2008 5:59:32 PM
Thank God they did this. Who in the heck were the dissenting judges. I bet they were liberals. Figures. It's always the liberal states the momst lenient on child porn and child molesters. Disgusting.
Posted by: Jo | May 19, 2008 6:05:52 PM
It is about time this government realized that porn is not speech. Maybe they will eventually figure out that marriage is between a man and a woman. Common sense? Yes!
Posted by: Doug Stanton | May 19, 2008 6:13:50 PM
Child pornography/exploitation was and is still illegal... what the Congress and the Court tried to fix was a problem with "virtual" or perceived child porn. E.g. watching a 21 year-old in pigtails and school-girl outfit perform an explicit act could have been prosecuted under the old law because someone may have "believed" they were witnessing child porn.
The new statute which is deemed constitutional uses the word "knowingly"... so if actual minors were used that still is illegal, but if the depiction is not a minor and everyone knows that the depiction is not of a minor, then it is considered protected “speech”.
While a “depiction” may not seem as “speech” – the Supreme Court has accepted the notion that other forms of expression are considered free-speech, including: wearing arm bands, burning the flag, not pledging allegiance, etc.
Posted by: SmartPrimate | May 19, 2008 6:32:14 PM
I think anyone complaining about this law needs to have their IP number flagged and be reported to the authorities for further investigation. Of course child porn isn't free speech. The 2 justices who voted against this need to be run off the bench.
Posted by: Julia | May 19, 2008 9:57:52 PM
Actually the legitimacy of the Manga and Anime even if they are obviously not real to some may just encourage others and I'm quite sure they will test the courts on this one also. The law reads image and that would qualify as an image, perhaps it needs additional clarification in some cases, mass media image would be a starting place so there is no lines to cross...I'm quite sure there will always be the crossers of the lines just like usual but then again there are a hell of a lot of wackos out there. The ideology is legitimate, do not encourage the behaviourism...It reminds me of finally comprehending where strip clubs developed from. The strip clubs developed from the drug cults which developed from the LOVE cults which developed from the freedom of speech including the phrase **** You from Berkeley. That I did not realize until I saw this nifty documentary just last week, her I always blamed the other sleezoids......and pervs..for mistreatment of children, teenagers and adults. To think it was the FREE LOVE junkies and druggers......that developed the strip clubs which led to lots lots more.....
Posted by: las | May 19, 2008 10:21:47 PM
you know it's so sad that people are even exploiting their own children such as, no one probably realized that on super bowl sunday the number 1 voted commercial was a 14 year old girl in a victoria secret add mostly naked and no one seems to care that she's just a child.....this is only the beginning of the moral decay of our country.how is this even legal to sign your child into such exploitation?
Posted by: tamara | May 19, 2008 11:00:32 PM
Well, I hope this law does not apply to Japanese manga and anime given most characters in those are above 12 or so. Yet anyone under 18 is consider a minor thus a child in the USA, so some people would think these manga and anime characters are children.
Japanese manga and anime are a growing popularity in the USA and can be found easily online. I'm sure most people who love anime and manga are not sexual predators, etc., but it makes me wonder if some prosecutors in this country would use the Federal law to prosecute people who have adult anime and manga, especially if the procecuters think they are seeing child porn.
Posted by: GWP | May 20, 2008 7:41:57 AM
Tamera — Absolutely right. Even a self proclaimed “Dirty old man” like me finds using young girls for lingerie models to be extremely distasteful. Where are their parents and how can they allow that? I would have busted someone’s jaw for suggesting such a thing!
Posted by: Royce | May 20, 2008 9:32:37 AM
I don't care about violating anyone's free speech when it comes to child pornography. Anyone who gets off on watching children engage in sexual activity, whether real or not, should be castrated. I'm not talking about all you perverted old men diddling while watching some girl (over 18) dressed up as a school girl, get off on that all you want. The girls of age and can make her own decision on how she wants to behave. But, anyone who is sexually excited by watching CHILDREN being abused should be elimiated from the plant. Period! No Excuse!
Posted by: hdwidow2007 | May 20, 2008 1:54:10 PM
Why the hell don't we just throw the rest of everyone who is not, in prison? The US has more persons incarcerated than any other country except for Red China. From the mass hysteria I am seeing in a lot of matters, not just porn, I can see why. Prosecutor's jobs are to convict and incarcerate. Who cares if the person is innocent, guilty, deserving or not. One more conviction is just one more feather in a prosecutor's cap. Looks nice on a resume when running for a future political office. Tough on crime. You know the drill. Ladies and gentlemen, you want law and order, you are your way to getting all you want and then some. Enoy your stay in gitmo.
Posted by: Mike | May 20, 2008 3:41:37 PM
No need to imprison them. Pedophiles can not be rehabilitated - they say so themselves. Total Eradication! Works for me! By the way - I'm a liberal, just not where sexual abuse of a child is involved. Guaranteed - if you enjoy watching child pornography and you haven't acted on it - you will, it's only a matter of time. If you say that's not true - you're a liar!
Posted by: hdwidow2007 | May 20, 2008 4:13:44 PM
Shows you how ignorant many Americans are. BREASTS ARE NOT SEX ORGANS!!therefore exposure of same to a child to suckle is not porn. Although it does make me jealous.
Posted by: Wyman | May 20, 2008 6:22:32 PM
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