On the suggestion of Mangetout.
Two questions to consider:
For what it’s worth, my answers are currently “yes” and
“dunno, but leaning towards freedom of expression”.
Child pornography involves the exploitation of a child, a person that cannot meaningfully consent to the acts being imaged and the use of his or her image. I don’t believe there is any meaningful disagreement about the proposition that subjecting a child to sexual abuse and recording the abuse visually is harmful to the child. The harm done to the child outweighs the value of permitting “free expression.” It’s not even a close call.
I don’t think that freedom of expression was meant to apply to physical crimes. I don’t think anyone has an innate right to harm another person and call it freedom of expression.
As I understand it, (I’m not a lawyer) the object of the law is protection of the children involved, and the assumption that children cannot consent to sexual activity. So, pictures of kids having sex are evidence of child abuse. The abuse trumps the freedom of expression. I personally agree with that.
However, if no actual children are involved (written prose or non-photographic images,) no child abuse took place. In my opinion, such material should be allowed, to the extent that we’d allow the same work with over-18 characters. It’s fiction, after all, with no real people exploited.
I don’t think any reasonable person would argue that creating child porn is wrong.
Agreed, child pornography should be banned because the children by law cannot consent to the acts they’re performing or to the recording of them. Now, although it’s extremely disgusting, “virtual” child pornography (such as cartoons or written fiction) that involve no real children should be legal.
I don’t really buy the consent arguement. After all, did Diana consent to having those pictures of her dying being taken? What about the 9/11 jumpers? Pearl Harbour? That picture of that person about to be swallowed by a tidal wave? Or that naked Vietnamese girl with skin dripping off after napalming?
Or perhaps one of the most evocative images of our time: http://www.flatrock.org.nz/topics/odds_and_oddities/assets/wanting_a_meal.jpg
I don’t see how one can call looking at pictures that someone else created to be a form of expression- doesn’t expression require active participation of some type?
Your analogy misses the point the child porn pictures are created at the behest of the photographer. The pictures you mention are of a photographer recording a terrible event, but one he had nothing to do with creating.
Maybe not Diana 
But what about someone trading the pornography?
(BTW, I see myself as something of a devil’s advocate in this thread)
Just to make things complicated, what about if/when technology (CGI, etc.) advances to the point where you can’t tell whether or not actual children were involved?
Is that really what you meant to say, or is there a typo in there?
:smack: yes, typo there…
Well as it stands currently in the US. It is against the law to be in possession of cartoon drawings or computer generated images of child porn. I don’t know about other countries.
There’s a difference between photojournalism and taking planned choreographed pictures of children in poses. The first has a much looser consent requirement, since very often the photos are being taken in public where privacy rights are diminished. The second requires consent from a parent or guardian and also assumes no harm will come to the child.
I really do think this is quibbling. However… to avoid it, suppose someone was raping a child in public and it was filmed by a passer by?
And it still doesn’t address the point about people who copy child porn, rather than orginially creating it.
I don’t think child porn per se should be banned. The problem is entirely one of creating it. A child can’t give consent. That doesn’t just mean the act of creating it itself is wrong, but any products resulting from that creation are invasions of privacy. If you could come up with some situation where consent is given (and by this, I don’t mean by guardians) or is nonapplicable, then yes, it should be legal to own or sell.
Off the top of my head, I can’t think of many situations where that would be the case. I suppose Thudlow Boink’s point of CGI children would be one; as long as they aren’t actually designed to mimic a certain child, then I would be fine with that (though of course anything that realistic looking is worth investigating). Another way might be for a person as an adult to consent to releasing innocently taken photos of themselves as children, though that’s probably not a very high percentage either.
It is? I remember in the Detect Alignment: Illegal Search Or Not? thread I asked a question that assumed that child pornography that involved no real children was legal, and Bricker answered without questioning that assumption.
Similarly, freedom of religion, and all our positive freedoms(things we are allowed to do) actually, end where they cross someone else’s negative freedoms(things we should be free from). The well known saying of “your rights end where my nose begins” sums it up fairly well. For example, even if your religion commands you to beat your wife regularly, you can still be prosecuted for doing so. If I started a religion which said we should dump toxic waste into our neighbor’s back yard, and somehow got it recognized as a religion, following the tenets of my religion would not exempt a believer from prosecution. This is well recognized and probably the most famous caselaw revolves around polygamy, controlled substance use during religious rituals, and the aforementioned “chastising” of spouses/children as part of a religioius tradition.
All of these are pretty much matters of settled law(although people keep trying to get the drug use laws overturned) and the same principles apply to freedom of expression(and most of our freedoms really). You have no right to abuse someone else, without their consent, as part of your expression. Thus the behavior is not protected. It can be, and almost always is, criminalized.
Enjoy,
Steven
