# Child Pornography in the Supreme Court. **URL:** \ **Category:** Great Debates\ **Created:** [October 31, 2001, 8:29pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779 "2001-10-31T20:29:07Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![RoboDude](https://avatars.discourse-cdn.com/v4/letter/r/bbe5ce/32.png) [@RoboDude](https://boards.straightdope.com/u/RoboDude)\ **Post date:** [November 1, 2001, 3:22pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/21 "2001-11-01T15:22:33Z")
> [@](#): > > If the recording of child pornography is not illegal, then why is it illegal to possess it? Only part of the problem deals with the children that were harmed in the manufacture of the pornography. By procuring live child porn, you are promoting the live child porn industry, and therefore encouraging the rape that it entails. ---
**Author:** ![Ike\_Witt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ike_witt/32/283_2.png) [@Ike\_Witt](https://boards.straightdope.com/u/Ike_Witt)\ **Post date:** [November 1, 2001, 3:46pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/22 "2001-11-01T15:46:52Z")
> [@](#): > > \*Originally posted by RoboDude \* > \*\* > > > [@](#): > > > > If the recording of child pornography is not illegal, then why is it illegal to possess it? Only part of the problem deals with the children that were harmed in the manufacture of the pornography. > > By procuring live child porn, you are promoting the live child porn industry, and therefore encouraging the rape that it entails. \*\* I understand that. The question was directed to **rushtopher** because I got the impression that he doesn’t understand that. ---
**Author:** ![rushtopher](https://avatars.discourse-cdn.com/v4/letter/r/e47774/32.png) [@rushtopher](https://boards.straightdope.com/u/rushtopher)\ **Post date:** [November 1, 2001, 4:22pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/23 "2001-11-01T16:22:20Z")
> [@](#): > > \*Originally posted by adam yax \* > \*\* > > > [@](#): > > > > \*Originally posted by RoboDude \* > > \*\* > > > > > [@](#): > > > > > > If the recording of child pornography is not illegal, then why is it illegal to possess it? Only part of the problem deals with the children that were harmed in the manufacture of the pornography. > > > > By procuring live child porn, you are promoting the live child porn industry, and therefore encouraging the rape that it entails. \*\* > > I understand that. The question was directed to **rushtopher** because I got the impression that he doesn’t understand that. \*\* No I understand just fine, however by purchasing it you are still financing the industry that occurs. I still don’t see that as a free speech issue, more like aiding and abetting a felon. (spelling? Something doesn’t look right). The example from the 1900’s may not be realistic, but I think its more valid. However I’m sure much of what we have in our museums today might be considered child pornography by our standards, although I admit I don’t have any evidence for this assertion yet other than common sense. I don’t believe we will be arresting collectors or museum curators any time soon. [sub]will gladly look this up, but really shouldn’t at work[/sub] So yes **adam yax** I understand that. Again, if we are looking at where the Supremes have ruled in the past (constitutional law/precedent/etc.) I may have to bow out of this discussion because of my lack of expertise. The way I understand the OP is as more of a discussion of the ideal situation, independent to some extent from reality. (Ex., the sedition acts of the early 1800s were not overturned by the coursts as I understand it, however that does not make them right.) ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [November 1, 2001, 4:48pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/24 "2001-11-01T16:48:28Z")
:shrug: **Jodi** , you’re right–my response was a bit of a red herring. But it wasn’t intended as the solution to all life’s ills, either. It was intended as one of many possible responses to one of several points raised by the OP. Since **Hamlet** did not deign to reply, I’m very thankful that others have chosen to instead. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 1, 2001, 5:54pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/25 "2001-11-01T17:54:00Z")
> [@](#): > > - Originally posted by rushtopher\* > Live child pornagraphy is not free speech, this is a red herring. Live child pornagraphy hurts a child, it is rape. It’s not the recording of child porn that makes it illegal, but the act committed in the tape no less. The sexual abuse happened, but is a separate crime and separate issue. The speech part of it is the taping of it, the distribution part of it, and the possession of it. It is the recording of the sexual assault that is both the speech part and the illegal part. Speech isn’t any less speech when it records illegal activity. > [@](#): > > Just because I support unbridled freedom of speech doens’t mean I think somebody can shoot five people on tape and go unpunished. Child pornography, by definition, is the taping of an act. It is speech, and you can’t say your for unbridled freedom of speech by just defining speech how you want. Saying libel is just lying therefore is not part of “speech.” Take the example of calling in a bomb threat to the Sears Tower (which may fit robodude’s third example). It’s clearly speech, yet it can and should be restricted. The reason I raised those questions to you was to establish that there are limits that can properly be put on speech. I believe that the freedom of speech to create virtual child porn is outweighed by it’s costs. > [@](#): > > however by purchasing it you are still financing the industry that occurs. I don’t think whether or not you bought it or got it for free should define whether or not the harm is real. From adam yax’s post, I think he’s saying that there exists some speech, being live child pornography where the victim can no longer be harmed, that you would want to regulate also. **andros** I thought your example deserved an intelligent and researched answer, so I did not “deign” to answer it immediately. I could’ve posted “Nuh Uh”, but I preferred to actually do research and craft a relevant post. In the interim, Jodi and Sua posted very good responses. I could rephrase what they said, if you like. I also thought my post describing the Congressional findings would would show some of the concrete differences I see between violence and virtual child pornography. I also think that the immediate “reward” for using child pornography (either using it in molestation, or pleasuring oneself to it), is a huge step from the immediate “reward” for using violent films. The immediate reward is a big part of the conditioning of the users of child pornography. I also think think that the acceptance of portrails of violence has led to a more desensitized, violent society in America. ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [November 1, 2001, 8:10pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/26 "2001-11-01T20:10:59Z")
:shrug: It sounded to me that you suggested my reply was not thoughtful and that I wasn’t interested in a debate. I’m down with that. ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [November 1, 2001, 9:07pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/27 "2001-11-01T21:07:09Z")
What I want is to allow things like the movies I mentioned above, but not allow graphic child pornography, real or computer generated. The ‘they use it to seduce the child’ arguement makes me a little nervous in that c/m also use candy, toys etc. as means to seduce a child. To refine the argument, the issue isn’t that the molester uses it in the seduction, it is that the child porn will give a visual demonstration that the intended acts might be ‘ok’ or normal. (‘see, others do it and seem to be having fun’) and the child may not be savvy enough to recognize that it’s computer generated, vs. real person, thereby creating a real risk to kids. I don’t necessarily see the same issue with the written word (but am not necessarily rock solid on that). ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 1, 2001, 9:45pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/28 "2001-11-01T21:45:30Z")
> [@](#): > > _andros_ > :shrug: It sounded to me that you suggested my reply was not thoughtful and that I wasn’t interested in a debate. Sorry if it came off that way. I was responding to **Stoid’s** post that your single argument ended the debate and that there was nothing else to say. I thought your post raised an interesting issue (a little off point though), and wanted to look into it. Sorry again for the misunderstanding. > [@](#): > > _Originally posted by wring_ > What I want is to allow things like the movies I mentioned above, but not allow graphic child pornography, real or computer generated. I think my post about the case-by-case analysis found in the Ferber case deals with that. It could be a defense to the charges that the speech in question was a clinical depiction of adolescent sexual activity, or if the speech has “serious literary, artisitic, scientific or medical value.” I’ve never seen Pretty Baby, but it seems to me the others would fit this exception. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [November 2, 2001, 2:26am UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/29 "2001-11-02T02:26:09Z")
> [@](#): > > \*Originally posted by Hamlet \* > \*\* > > > [@](#): > > > > _Originally posted by Robodude_ > > If there existed objective evidence in favor of his argument about its “social cost”. > > When conducting the hearings regarding this bill, Congress made particular findings regarding the effect of child pornography.\*\* Please, I couldn’t let this one go (I worked in a legislature 7 years): Legislative (including Congressional) Committee “findings” are NOT arrived at scientifically. I’d dare say you couldn’t _pay_ to find a legislative committee in the whole land who, tasked with studying even _normal_ porn, would even DREAM of filing a report saying they don’t find a dreadful “social cost.” That this is so does not prove the contrary, impugn the sources nor weaken the argument – but the existence of a “finding” itself proves little. Really, the way I perceive it part of the big deal in the USA is the use of the term, “CHILD” pornography… when a lot of the laws in question refer to sexual portrayal or depiction involving, not a “child”, but a “MINOR,” and even a _purported_ minor and even the _appearance_ of sexual behavior. And that is where we keep running into grey areas and questions of overbroad language. Yes, 99.99% of the population finds it sick for anyone to get arousal from real or virtual video of sex scenes with a _CHILD_ – but you better believe a great big heap of them won’t think that, for instance, if the pornography is a Traci Lords video from 1984 when she was doing skinflicks at age 16 (Underage for any sex in several states, underage for porn in every state, yet in NO way would you call her a _“child”_ if you saw her vids) or if the youthful sexual situation is part of the plot in a movie like _The Tin Drum_ (which DID GET SEIZED under one of those laws in Oklahoma a couple years back). ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [November 2, 2001, 5:08am UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/30 "2001-11-02T05:08:09Z")
> [@](#): > > \*Originally posted by JRDelirious \* > \*\* > I’d dare say you couldn’t _pay_ to find a legislative committee in the whole land who, tasked with studying even _normal_ porn, would even DREAM of filing a report saying they don’t find a dreadful “social cost.” \*\* Ah yes…the lessons of the Meese Commission have been taken very much to heart. Sigh… ---
**Author:** ![Big\_Iron](https://avatars.discourse-cdn.com/v4/letter/b/e36b37/32.png) [@Big\_Iron](https://boards.straightdope.com/u/Big_Iron)\ **Post date:** [November 10, 2001, 12:57pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/31 "2001-11-10T12:57:52Z")
> [@](#): > > \*Originally posted by RoboDude \* > \*\* > > > [@](#): > > > > In an open society like the United States, should ALL forms of speech be allowed? How much speech and of what kinds should be regulated, if any? Beastiality? Any form of obscenity? All open to DEBATE, and I’d be interested in people’s responsees. > > IMO, there are five kinds of speech the government has the right to restrict or prohibit: > > 1. libel/slander > 2. live child porn > 3. speech intended to encourage harmful activity or that has serious and unacceptable potential to cause harm (inciting a riot, etc.) > 4. unauthorized distribution of classified data > 5. false advertising > > Anything else is none of their business. > > As for virtual child porn, I’d be more inclined to agree with Hamlet if there existed objective evidence in favor of his argument about its “social cost”. Until then, it is my firm belief that such material, however repugnant, should be legal. \*\* I have to dissent from the first part of number three above, as what is harmful is a political question, even if we mostly agree on what it encompasses. But of course we don’t always so agree – is it unprotected speech to encourage people to smoke pot or have sex without the bond of marriage, for instance? And what exactly constitutes encouragement (or, more precisely, the intent to encourage)? Liberty does have some costs, mind you. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [November 10, 2001, 1:55pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/32 "2001-11-10T13:55:00Z")
Snipped from the Washington Post article mentioned in the OP: > [@](#): > > Justice Stephen G. Breyer asked Deputy Solicitor General Paul Clement whether Breyer could be prosecuted “if I go to a video store and buy copies of ‘Traffic,’ ‘Lolita’ and ‘Titanic,’ each of which has a scene of simulated sex among 17-year-olds.” > > Such films would not be covered by the law, Clement responded, because they might have been made using body doubles. Let’s see if I understand this. Since pictures of children MIGHT have been made with human stand-ins, this proposed law doesn’t apply because no harm has been done. But if the pictures are CARTOONS, it does? ---
**Author:** ![Lamia](https://avatars.discourse-cdn.com/v4/letter/l/8e7dd6/32.png) [@Lamia](https://boards.straightdope.com/u/Lamia)\ **Post date:** [November 10, 2001, 2:59pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/33 "2001-11-10T14:59:35Z")
One argument against legal virtual child pornography that I don’t think has been mentioned in this thread is that it would make real child pornography more difficult to identify. How would law enforcement officials determine whether a particular digital image was an illegal picture of a real child, or merely a realistic-looking and completely legal CGI or computer-generated composite? ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [November 10, 2001, 11:56pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/34 "2001-11-10T23:56:49Z")
> [@](#): > > \*Originally posted by Lamia \* > \*\*How would law enforcement officials determine whether a particular digital image was an illegal picture of a real child, or merely a realistic-looking and completely legal CGI or computer-generated composite? \*\* Good point. For that matter, how can you tell if the (human) actors are of legal age? Examine the records of the source. I believe there are already strict requirements that records be kept for this purpose. However, if this law stands, that will be a moot point. Someone will have to substitute their _opinion_ about how “old” a drawn figure appears to be. The 4th Circuit Court has already upheld the law [here.](http://laws.lp.findlaw.com/4th/994813.html) ---
**Author:** ![Lamia](https://avatars.discourse-cdn.com/v4/letter/l/8e7dd6/32.png) [@Lamia](https://boards.straightdope.com/u/Lamia)\ **Post date:** [November 11, 2001, 3:46am UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/35 "2001-11-11T03:46:48Z")
> [@](#): > > \*Originally posted by Musicat \* > \*\* > Good point. For that matter, how can you tell if the (human) actors are of legal age? Examine the records of the source. I believe there are already strict requirements that records be kept for this purpose. > \*\* Yes, but real people have real papers. Such records are easy enough to keep and verify. But please tell me if you can exactly what sort of records law enforcement officials could look at in order to determine whether a given image depicted the abuse of a real child or was instead a digital composite made by splicing together seperate images of adults and children? ---
**Author:** ![capacitor](https://avatars.discourse-cdn.com/v4/letter/c/e47774/32.png) [@capacitor](https://boards.straightdope.com/u/capacitor)\ **Post date:** [November 11, 2001, 6:41am UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/36 "2001-11-11T06:41:23Z")
What about babyfaces who happened to be 18 or over? Are they to be prohibited from doing porn because they ‘look like children’? The modeling industry will have to age their models by at least twenty years. ---
**Author:** ![Tejota](https://avatars.discourse-cdn.com/v4/letter/t/958977/32.png) [@Tejota](https://boards.straightdope.com/u/Tejota)\ **Post date:** [November 11, 2001, 7:13am UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/37 "2001-11-11T07:13:38Z")
> [@](#): > > \*Originally posted by Lamia \* > \*\* > > > [@](#): > > > > \*Originally posted by Musicat \* > > \*\* > > Good point. For that matter, how can you tell if the (human) actors are of legal age? Examine the records of the source. I believe there are already strict requirements that records be kept for this purpose. > > \*\* > > Yes, but real people have real papers. Such records are easy enough to keep and verify. But please tell me if you can exactly what sort of records law enforcement officials could look at in order to determine whether a given image depicted the abuse of a real child or was instead a digital composite made by splicing together seperate images of adults and children? \*\* If it was a digital composite, then there will be digital records of the act of compositing, plus records of the photographs used as source material. Where is the difference? If it’s a wholely digial model (ala toy story), then the existence of the computer models themselves would serve as proof that no children were used. The notion that there is no paper trail for digital images is simply false. ---
**Author:** ![Lamia](https://avatars.discourse-cdn.com/v4/letter/l/8e7dd6/32.png) [@Lamia](https://boards.straightdope.com/u/Lamia)\ **Post date:** [November 11, 2001, 2:11pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/38 "2001-11-11T14:11:37Z")
> [@](#): > > \*Originally posted by Tejota \* > \*\* > If it was a digital composite, then there will be digital records of the act of compositing, plus records of the photographs used as source material. Where is the difference? > > If it’s a wholely digial model (ala toy story), then the existence of the computer models themselves would serve as proof that no children were used. > > The notion that there is no paper trail for digital images is simply false. \*\* I have myself created digital images that I would now be completely unable to produce any “paper trail” for. I’d hate for anyone to go to jail just because they lost their negatives or deleted some old files, and I’d hate for anyone to get away with abusing real children because they could claim that they’d lost their negatives or deleted some old files. Even if such problems did not exist, verifying the “paper trail” of digital kiddie porn would require law enforcement officials to investigate _all_ cases of apparent kiddie porn. This is, of course, what they currently do. But it would be a huge waste of their time and a waste of resources that could be used to help protect real children if the Feds had to deal with a bunch of legal virtual pornographers on top of all the people producing real kiddie porn. The Feds have already used similar logic to support the ban industrial hemp: it may be harmless, but its legalization would make it much more difficult for them to enforce the ban on marijuana (see [this SD column](http://www.straightdope.com/classics/a5_131.html)). Now, you may not agree with this argument yourself but there’s certainly precedent for it. I personally consider virtual kiddie porn a lot worse than hemp, and am not at all distraught over its being illegal. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [November 12, 2001, 10:18pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/39 "2001-11-12T22:18:40Z")
> [@](#): > > \*Originally posted by Jodi \* > Apparently, we as a society do not have the same hang-ups about violence that we do about sex, which I doubt anyone is surprised by. What do you mean? Are you saying that if people videotaped a child being beaten or killed and then sold the video, people would not have a problem with that? > [@](#): > > But if we put “protecting children from violence” in one basket and “free speech” in the other, then the scales tend to tip to the “free speech” side. Can you give an example? > [@](#): > > The two are therefore not analogous, and one cannot simply be substituted for the other. Even if what you say is true, it simply establishes that they are not _thought of_ as analogous, not that they aren’t analogous. > [@](#): > > IMO, the answer to this should be “no.” I think the compelling state interest in banning child porn extends to combatting the dissemination of materials that appear to feature children, because the underlying prediliction remains the same – the desire to exploit children or see them exploited. Am I misunderstanding you? Because it really looks to me that you believe that the desire to exploit children- not the exploitation itself, but the desire- should be illegal. Lamia > [@](#): > > Even if such problems did not exist, verifying the “paper trail” of digital kiddie porn would require law enforcement officials to investigate all cases of apparent kiddie porn. This is, of course, what they currently do. But it would be a huge waste of their time and a waste of resources that could be used to help protect real children if the Feds had to deal with a bunch of legal virtual pornographers on top of all the people producing real kiddie porn. So… free speech for everyone, unless it’s inconvenient? ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [November 12, 2001, 10:25pm UTC](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779/40 "2001-11-12T22:25:11Z")
> [@](#): > > \*Originally posted by Jodi \* > Apparently, we as a society do not have the same hang-ups about violence that we do about sex, which I doubt anyone is surprised by. What do you mean? Are you saying that if people videotaped a child being beaten or killed and then sold the video, people would not have a problem with that? > [@](#): > > But if we put “protecting children from violence” in one basket and “free speech” in the other, then the scales tend to tip to the “free speech” side. Can you give an example? > [@](#): > > The two are therefore not analogous, and one cannot simply be substituted for the other. Even if what you say is true, it simply establishes that they are not _thought of_ as analogous, not that they aren’t analogous. > [@](#): > > IMO, the answer to this should be “no.” I think the compelling state interest in banning child porn extends to combatting the dissemination of materials that appear to feature children, because the underlying prediliction remains the same – the desire to exploit children or see them exploited. Am I misunderstanding you? Because it really looks to me that you believe that the desire to exploit children- not the exploitation itself, but the desire- should be illegal. Lamia > [@](#): > > Even if such problems did not exist, verifying the “paper trail” of digital kiddie porn would require law enforcement officials to investigate all cases of apparent kiddie porn. This is, of course, what they currently do. But it would be a huge waste of their time and a waste of resources that could be used to help protect real children if the Feds had to deal with a bunch of legal virtual pornographers on top of all the people producing real kiddie porn. So… free speech for everyone, unless it’s inconvenient? [Previous page](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779.md?page=1) [Next page](https://boards.straightdope.com/t/child-pornography-in-the-supreme-court/90779.md?page=3)