This issue came up on Crossfire today, by both the reporter and one of the guests. It doesn’t mean much to me, and allowing a blanket ban like this to go through could set a nasty precident, though not being a lawyer maybe I’m being reactionary. It just seems that we should only ban what we want to ban, and if we cannot do that without overstepping protected speech, then hey: sorry. Laws that itch to overstep their intended bounds (or do, in fact, overstep their intended bounds) just don’t cut the mustard, IMO.
I buy the “but this will incite pedophiles to act on their urges” about as much as I buy the gateway drug theory.
You’ve gone from “it’s possible that children could be harmed” to “we harm children”, which is a complete non sequitar. The availability of virtual child porn might whet the appetite of a child molester, or it might slake his appetite, sparing a child. Possibly both, considering multiple cases. In any case, I doubt that the causal link is that direct.
The upshot of the ruling is that, absent any demonstration of actual harm (and a study proving a link between consumption of child pornography and carrying out the act would suffice), there’s no good reason to ban virtual child pornography. Not only does it infringe on the actual production and comsumption of it, but it gets uncomfortably close to criminalizing any expression of sexuality below the age of consent.
It will incite pedophiles huh? Well, I don’t want my children to be incited to do drugs, so no more showing drug use. (Traffic, American Beauty.)
And I don’t want anybody to be incited to kill anybody, so thta should be gone too. (Traffic, American Beauty)
I don’t want potential speeders to be incited into getting a speeding ticket.
How far can we take this line of reasoning? It would be one thing if someone could provide real evidence that pedophiles may be incited by protrayals of pedophilia in the media, but so far, I haven’t seen any. Are there any case examples? Studies? Stats? If not, I think it’s worth the risk. Pedophiles will be out there doing the evil things they do whether or not I make a movie that may include sexual acts with teenagers.
I’ve only really given it a cursory read, but I didn’t see Justice Kennedy as accepting this argument. He mentions whetting the appetite as a rationale that Congress gave for passing the law, but he does not really endorse the view. He then goes on to say:
So, he’s basically saying that in the absence of real evidence that fake child porn leads to abuse all the government has is an argument that it might lead to abuse. The First Amendment prohibits suppressing speech unless the “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
I’m with erislover on this one. You ban real CP as the criminal act it is – and work on that. Ya gotta fight it hard, fight it aggressively(*). But don’t try to make it stupidly easy on you-- these “virtual CP” laws make it so you don’t have to actually look closely at the evidence and see what is really there, but just go on and prosecute based on what it looks like.
(* Or maybe fight it at all – the stuff is supposedly still all around, they’re even spamming WITH PICTURES. “Virtual” CP is hardly likely to make much inroads, if so much of the real stuff is still in circulation.)
Besides, we know that the authors are saying “We’re not thinking of stuff like American Beauty, we’re thinking about FILTH!” Well, they did not make that clear enough for 2/3 of a generally conservative-to-centrist SCOTUS. Back to the drawing boards, boys. (And I know they’ll try again) (And anyway, the oversexualization of the image of the child and teen is hardly the province of the child pornographers – I can think of Jon-Benet-type kiddie beauty queens; of Brittney’s 10-12 y/o fans dressing up like a 20 y/o tart; of Brooke’s Calvins; etc)
There have to be better reasons to legislate against something, than “the EWWW! factor”, or fear of what is the absolutely worst most horrible case scenario that could conceivably be thought of possibly happening. If for that we must “accept limitations” on protected speech… then what the heck does “protected” mean?
And apparently, photomatipulating pictures of actual people and morphing them into CP remains illegal. I can see that, because it’s using actual people’s likeness.
JRDelirious: “Besides, we know that the authors are saying “We’re not thinking of stuff like American Beauty, we’re thinking about FILTH!” Well, they did not make that clear enough for 2/3 of a generally conservative-to-centrist SCOTUS. Back to the drawing boards, boys.”
Exactly. If they wanted a law to do X, then they write a law to do X. They don’t ban the alphabet and then write it off as “well, hey, X is in the alphabet, right?”
To harm free speech is to harm the constitution itself, the foundation of our nation and it’s freedom. That is worth defending just as enthusiastically as we defend our land. We can’t start making exceptions to the constituion for “mights” and “maybes”, even if they are mights and maybes that scare the heck out of us. Free speech does not guarentee a perfect crime-free existance, but the alternative is much much worse.
And free speech does not harm children. Nor does pornography harm children. People harm children- and we have just laws to deal with those people. I think our laws ought to focus on those criminals, not on people who are harming no one.
Let me restate that I agree with the majority. I think that our rights to free speech outweigh any possible harms that could come from that speech.
Nevertheless, the longer I argue the other side, the less I become convinced that free speech should be the real winner.
We’re talking about children here. Now, granted, no one is going to mistake a 2 year old for a “barely legal cherry popping slut” you get in spams. But those 15, 16, 17 year olds still need protection. They’re the ones statutory rape laws were designed to protect. They legally cannot say “yes” to sex and the government condones that. The government’s intererst outweighs an individual’s. Yet this decision undermines the government’s ability to further protect those it has already determined need protecting.
When the government cannot tell if the model is 18 or 17 (or 14), it cannot determine whether a law has been broken. Now, you can say “a 17 (or 14) year old should be able to decide for herself whether she wants to be photographed like that.” But like it or not, it’s not your decision to make. It’s not the model’s decision to make. The government has decided already and that answer is no.
This ruling undermines the government’s ability to catch child pornographers.
I argue the other side because I think that this is a really strong point that Kennedy just does not address in his opinion.
I agree that “woulda coulda probably maybe” doesn’t = absolute harm to children. We shouldn’t give up our right based on what might happen. But the link between fake child pornography and real child harm probably isn’t as tenuous as one might imagine.
The point isn’t the strength of the link; the point is that it’s a bad idea to legislate on it when we have no sound idea what the link is.
I’ll be the first person to say that virtual child porn should be illegal when someone credibly demonstrates a link. But the harm you’re arguing about is speculative at best.
Remember back in the Edwin Meese '80s, a big argument against regular pornography was that it incites sexual violence? Many studies were done, and it was pretty much proven that there is no connection between pornography & sexual violence.
Can the same argument be made for kiddie porn and sexual crimes against children? Is there any evidence that child porn might cause someone to molest a child?
So if that argument against kiddie porn can be disregarded, that leaves the other major argument against child pornography: It hurts that actual child involved. That’s a very powerful, and in my opinion, accurate argument against child porn.
So…wouldn’t virtual child porn solve that problem? If there are no actual children involved, then no children are directly hurt by it. And if there is no evidence that viewing child porn causes someone to molest a child, what exactly is wrong with it?
When a man is “horny”, he can look at porn, pleasure himself, and is relieved of that desire. If a pedophile can view virtual child porn, relieve himself of his “lust”, wouldn’t that keep him from taking action? Can’t this type of pornography be viewed as a “pressure release” of sorts? If allowing this type of porn to be legal will allow these (sick) men to indulge their fantasies without ever touching a real child…isn’t this a good thing?
Even in a situation with draconian laws, the government will never be able to tell a seventeen year old model from an eighteen year old! A seventeen year old can be made up to look older just as easily as an eighteen year old can be made up to look younger.
The only way that I can see a law solving that problem is if we institute something along the lines of “models must appear to be obviously thirty-five or older”.
I don’t think there is going to be an easy way for law enforcement to tell if an image is critical without actually investigating. It is a good thing that that is what they are there for- finding out who is commiting criminal acts and allowing others to excersize their freedom.
So why didn’t Clinton and Reno lose too? Evidently they felt like it was a case worth pursuing. On all the Boards I’ve been to, and especially not here, I haven’t seen one single liberal admit that the case started under Clinton - it seems to be an embarassing, dirty little secret, and yet another opportunity to portray Ashcroft as the Great Satan in Clouds of Sulfur. Why is that? Aren’t there enough legitimate criticisms of Ashcroft, or must we now invent ones now that more properly should be shared by the two Administrations collectively?
What is the legal truth here? Did the case or did it not start under Clinton? Will any liberals at all on this Board admit the truth, that both Administrations lost, or are we finally ideologically at the end of the line here?
Are you suggesting a causal relationship between viewing pornography and sexual crimes? Because I’m not aware of any evidence that this is the case. One could just as easily argue that viewing pornography provides a release for sexual urges that would otherwise be acted upon, and thus decreases crimes. Without any hard data, one argument is no better than another. To say that pornography causes molestation is like saying acne causes puberty.
It’s not that I’m for pornography, it that I’m against poor reasoning.
even sven: I believe that pr0n sites and companies are currently required to have proof of age of all models on file and to present this to law enforcement upon request.
FDISK, indeed they are. Which is why the whole thing bothers me so much. If they want to write a law, they could put mandatory traceability into films, like any pornography film must register or keep this form filled out etc etc. Of course kiddie porners aren’t going to follow that, but it is something to bust them on when nothing else remains.
As usual, the legal system must resort to making legal life more difficult and filled with paperwork to catch a small population of criminals. But this is clearly more acceptable than a blanket ban, and there is really nothing more to say about it until someone can present compelling interest scenarios which are empirical in nature. We shouldn’t ban first and ask questions later, because after a ban it is that much more difficult to ask the right questions.
If you can’t tell what age is the model, you go to the creator of the image and ask to see her papers. He ain’t got her papers? Take 'im down. Like FDISK said, that law is already on the books. Even more, if someone pulls a Traci Lords on the producer(fake ID), well, that’s still tough luck for the producer when/if her story fails to check out.
The DA can always spend money on experts to determine if the image was manipulated, or if cg could really produce something so realistic
In actuality, neither Administration “lost.” A law affecting free speech was passed by Congress. It was probably signed by Clinton - I’m not sure, but I doubt he would have vetoed it, if only for political reasons.
Regardless, once a law is passed by Congress, the Executive is obliged to defend it from legal challenge, without regard to whether or not they agree with it. Thus, even if Clinton had vetoed the bill and the veto was overridden, his Justice Department would have defended the bill.
Similarly, the Bush Administration was obliged to continue the case after they inherited it from Clinton, regardless of whether they agreed with the law or not.
Nope. It’s a very biased statement.
I just thought it would be funny to type.
And no, everyone, I have no idea how strong the link is between virtual child porn and real child harm. I have no statistics backing me up nor do I know if a link actually exists. That’s one of the reasons I agree with the majority. Why should we give up our fundemental rights based on possiblities or hypotheticals?
Last night I read Cohen v California for Con Law. Their rationale was much the same in 1971. Without a genuine link between violence and someone advertising the word “fuck”, the court would not ban its use on a jacket. “we cannot indulge the facile assumption that one can forbid particular words,” (or images) “without also running a substantial risk of suppressing ideas in the process.”
