The Supremes defend free speech

April 16, 2002 9:40 AM

The Supremes defend free speech in what is sure to be a contraversial decision about virtual child porn. I am all for this, but I am very impressed with the court's ability to make the decision in the face of easy moral platitudes like "Kiddie porn is bad, mmmKay?"
posted by McBain (40 comments total)

For what it's worth - the decision itself.
posted by revbrian at 9:52 AM on April 16, 2002

The fact that the decision was 6-3 pleases me. Knowing that this wasn't a partisan event definitely helps me regain faith with the Court.

If they hadn't reversed the decision of the appeals court, however, I would begin to worry about the "thought police". I believe their ruling, in part, claims that it's okay for us to think the unthinkable; just don't act upon those thoughts.
posted by BlueTrain at 9:57 AM on April 16, 2002

This is one of those cases that can make you actually realize that the First Amendment means what it says - free speech all the time, not just when it's safe or palatable, the bitter along with the sweet. I'm glad the Supremes stepped up on this one.
posted by RylandDotNet at 10:01 AM on April 16, 2002

from the article: The 6-3 ruling is a victory for both pornographers and legitimate artists such as moviemakers, who argued that a broad ban on simulated child sex could make it a crime to depict a sex scene like those in the recent movies "Traffic" or "Lolita."

There was child porn in Traffic? Lolita (either version) was a recent movie?

BlueTrain: If they hadn't reversed the decision of the appeals court, however, I would begin to worry about the "thought police".

According to the article, they upheld the ruling of the appelate court.
posted by bingo at 10:03 AM on April 16, 2002

Call me stupid, but after glancing quickly at that headline, all I could think was, "What does Diana Ross have to do with child pornography?"
posted by emptybowl at 10:05 AM on April 16, 2002

bingo, there was a recent made for/straight to cable Lolita remake.

I think the best thing about this ruling is how it limits arbitrary arrest powers. The feds could go through your web cache and pull out any suspicious photos and charge you with a sex crime. For instance, look at the popularity of porn, models, media, etc using the schoolgirl outfit/image to sell their wares. These kinds of photos consisting of 18 and overs could have been used for a conviction regardless if the girls were over 18 or not.
posted by skallas at 10:08 AM on April 16, 2002

That's the gag, emptybowl.

Bingo- Michael Douglas' movie daughter is underage in "Traffic". What does it matter if the Jeremy Irons version of "Lolita" isn't that recent? It came out in the last ten years.
posted by McBain at 10:09 AM on April 16, 2002

In circumstances where the lawfully authorized enforcement organizations fail to or are precluded from protecting citizens (however young, defenseless and, in the view of the Court, without legal rights they might be), the public (a) loses respect for those organizations and the laws they purport to enforce, and (b) takes the defense of those citizens into their own hands. If the Supreme Court won't defend American children from sexual predators - despite the overwhelming evidence that pedophilia is commonplace, that active pedophiles are the primary consumers of child pronography, that pedophiles are sophisticated at hiding their crimes, and that sexual abuse as children in a leading contributory factor to adult violent criminal activity - it is then the responsibility of the citizenry to do so.

Roll that around for awhile while you consider what the realistic end-results of this decision will be.
posted by UncleFes at 10:10 AM on April 16, 2002

"Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violation of the law, not abridgement of the rights of free speech"

I particularly liked the part of the decision that pertained to movies and even romeo&juliet. Well stated, I tend to agree with them. The whole decision is a bit dry but worth the time if the subject is of interest to you.
posted by revbrian at 10:11 AM on April 16, 2002

I haven't read the whole thing, but from the part I have read, it seems to me that the crux of the issue, for the justices, is not simulated vs. real child porn, but rather the fact that the law as written was too broad, and potentially outlawed materials which were not obscene under the Miller test (such as Traffic).

This leaves the door open for a narrower law which outlaws hard-core child porn, even if it's simulated. (Whether that's a good thing or a bad thing I'll leave for the rest of you to debate.)
posted by DevilsAdvocate at 10:19 AM on April 16, 2002

DA: there's no need for new laws: simulated child pornography is almost certainly capable of prosecution under the Miller test. (Historically, most obscenity convinctions were for texts totally lacking in images, in any event).

In recent years, prosecutors and regulators have focused upon pictorial child pornography as much because it is produced through the rape of children, as because of its obscenity, per se.

The recent and farily famous case of that guy in Ohio who confessed and plead guilty to "pandering obscenity" was all from his having written down pedophilliac fantasies in his journal.
posted by MattD at 10:33 AM on April 16, 2002

UncleFes, since the whole decision here revolved around simulated child porn, please explain what takes the defense of those citizens into their own hands means in this context. Lynching Mike Diana, for instance? Where are you going here?

The Lolita remake was released theatrically in Europe, but only made it to the US via Showtime in late 1998; since the law was passed in 1996, I don't think we can call it too out-of-date to serve as an example, and indeed it's been the standard citation in most news articles throughout the entire case. Interestingly, it wasn't cited in the court's ruling, although Traffic, American Beauty, and Baz Luhrmann's Romeo+Juliet were.

The key to both the appeals and high court rulings is not only vagueness of the law, which as noted would nullify the longstanding Miller test from the standpoint of "regular" porn, but the compelling interest test that the court regularly uses to judge whether a given breach of constitutionality or other law is vital to the interests of the larger society. With real child porn, unquestionably, the protection of real children is the compelling interest that allows a ban beyond Miller. With virtual child porn, whether created by pen or by photoshop, the court is arguing the compelling interest is missing.

BlueTrain and bingo: what happened was that the First Circuit ruled for the law, but the general opposition went directly to the Ninth Circuit, which ruled against it. This disagreement is one of the main reasons the court chooses to take cases, as well as the fact that the government had agreed (under Reno) to hold back enforcement while the appeal was active.

Note, however, that the entire law wasn't struck down, only the provisions in question, points (b) and (d). For instance, computer-morphed pictures (e.g. a G-rated child photo with a superimposed penis) apparently remain illegal, because a real child is involved. It was not challenged, and the court did not consider its constitutionality; that may await case law.

DevilsAdvocate, I don't think your assumption is correct. Rehnquist seems to agree with you, but it seems to me that the reasoning used by the majority applies to sexually explicit images as well as to mainstream movies. Whether they would be this brave if the case were before them is another question entirely; they might fall back on Miller's artistic merits tests.

MattD: careful not to muddy the waters. At least since Miller written pornography has been completely legal from a federal standpoint. The child porn laws are explicit exceptions that didn't fall under that test, according to the court's own thinking. This is a law that brought the two tests together in a tricky way. And the Ohio "pandering" case was not a constitutional test, as it involved violation of a judicial probation agreement.
posted by dhartung at 10:55 AM on April 16, 2002

UncleFes, unfortunately, there is no scientific statistical proof that the sexual abuse of children has increased substantially in recent history--we just like to talk about it endlessly because we are in a period of moral panic. Pedophiles are by and large a social construct, initially promulgated by anti-pornography forces after the 1973 Supreme Court decision legalizing adult pornography as a wedge issue much as partial-birth abortions are used by the pro-life groups nowadays. Here is a book that discusses it in depth. Child pornography as a commercial product simply did not exist in the '70s. but does it ever now...

As I've said here before--We march on Frankenstein's castle to kill the monster we constantly create and recreate with these secondhand cautionary horror stories about sexual attacks on children wherein we get to make ourselves right and virtuous and, also, talk nonstop about the rape of children in excruciating detail with a horrified gasp, or two dozen, figleafed at the end of the story. Pedophila is not commonplace--stories about pedophilia are. The true sickness are not these relatively rare attacks on children as much as the way they are over-reported and the way we keep talking and talking and talking about them.

The way to protect children might well be to simply stop talking about these surrogate crimes so endlessly. In order to "save" the children, do we have to destroy their childhoods by terrorizing them with our obsessions?
posted by y2karl at 10:56 AM on April 16, 2002

When is my new goddamned Barely Legal coming?? Barely Weekly more like.
posted by Settle at 11:29 AM on April 16, 2002

another book that supports y2karl's argument:
Harmful to Minors: The Perils of Protecting Children from Sex

as an example of how other places in the world deal with this issue, the book notes that the age of consent in the Netherlands is 12 but that the law both (1) explicitly prohibits 'authorities' like teachers, priests, et al from being part of a consensual relationship with a child, and (2) provides parents with a legal ability to challenge their child's relationships.
posted by donovan at 11:44 AM on April 16, 2002

I also take issue with your unsupported declarations, UncleFes.

>despite the overwhelming evidence that pedophilia is commonplace,

Says who? What percentage of the adult population molests children?

>that active pedophiles are the primary consumers of child pronography,

This would only be meaningful if there was a demonstrable causal link between child pornography and acts of molestation. And molestation has been around long before kiddie porn on the internet. One could just as easily say that child porn satiates appetites that would otherwise be acted upon. But I wouldn't believe that either without evidence.

>that pedophiles are sophisticated at hiding their crimes,

What has that got to do with virtual kiddie porn?

>and that sexual abuse as children in a leading contributory factor to adult violent criminal activity

Again, a causal link between kiddie porn and acts of pedophilia need to be established.

>it is then the responsibility of the citizenry to do so [to protect the children].

Um... the police and courts aren't going anywhere and they should continue with there stings on chat room predators and reported molestation. The main reason real kiddie porn is illegal is because it can only be produced by committing a larger crime, not because we want to punish people whose fantasies may be whacked out.
posted by McBain at 11:49 AM on April 16, 2002

Pedophilia is difficult to discuss in historical terms anyway, given not only changing definitions of "the age of consent," but also the problem of finding concrete documentary evidence. Louise A. Jackson's Child Sexual Abuse in Victorian England (Routledge, 2000) discusses these issues in some detail.
posted by thomas j wise at 11:52 AM on April 16, 2002

UncleFes: No one is going to have any respect for the law untill we end the war on drugs. There's no real reason to worry about it at this point.
posted by delmoi at 12:09 PM on April 16, 2002

With virtual child porn, whether created by pen or by photoshop, the court is arguing the compelling interest is missing.

dhartung, I disagree with your characterization of the decison. From the majority opinion:

While we have not had occasion to consider the question, we may assume that the apparent age of persons engaged in sexual conduct [*14] is relevant to whether a depiction offends community standards. Pictures of young children engaged in certain acts might be obscene where similar depictions of adults, or perhaps even older adolescents, would not. The CPPA, however, is not directed at speech that is obscene; Congress has proscribed those materials through a separate statute. 18 U.S.C. §§ 1460-1466. Like the law in Ferber, the CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the Miller standard. For instance, the statute would reach visual depictions, such as movies, even if they have redeeming social value.

This quote seems to suggest that had the gov't built the Miller test into the statutory language, it would have passed Constitutional muster. Personally, I think its a shame that the majortiy didn't follow Renquist's suggestion and simply read the Miller test into the statute. Child porn, whether "virtual" or not, is not valuable enough to warrant protection under the first amendment. It's debatable that it's even "speech" at all, since its primary purpose is to make money for pornographers, not to advance some sort of artistic understanding.
posted by boltman at 12:49 PM on April 16, 2002

>Child porn, whether "virtual" or not, is not valuable enough to warrant protection under the first amendment. It's debatable that it's even "speech" at all, since its primary purpose is to make money for pornographers, not to advance some sort of artistic understanding.

What I am about to say is going to piss a lot of people off, but in America (in my opinion) you are allowed to fantasize and dream of doing little boys. The scope of the human mind is off limits to government censure and anything drawn or written down or painted on a canvas (be it computer or otherwise) should be protected. Note that I am not talking about doctored photos of real children (which I agree should be forbidden) and that of course, any actual physical sex act with children is rightly a tremendous crime. I simply get very, very sketchy about the idea of a picture someone created on photoshop (from scratch) landing them in prison. It doesn't matter if it is great art or if I am whacking off to it because any such standard is too subjective. Needless to say that I don't agree with the whole "community standard" thing with regard to adult porn either.
posted by McBain at 1:08 PM on April 16, 2002

please explain what takes the defense of those citizens into their own hands means in this context

It means if your simulations lead me to believe that you are going to hurt my child or the children of my neighbors (or anyone's child) and I can stop it, I am going to stop it as effectively and permanently as I can, since I can't count on law enforcement to do so.

Concretely put? If you're writing your simulations about my kid, and you are proximic to him, and I'm proximic to you, I'm going to preemptively stop you from ever hurting him, mostly likely by (a) threatening you, then (b) making good on those threats.

Permanently, if necessary.

What percentage of the adult population molests children?

Dunno. Probably small, but highly active. "According to the FBI, 61% of rape victims are under age 18, and 29% are younger than 11." (italics mine)

demonstrable causal link between child pornography and acts of molestation.

"The link between child pornography and child molestation is strong. "Not everyone who reads porn acts out, but everyone who acts out does read child pornography," Burton says." (again, italics mine) Link

The main reason real kiddie porn is illegal is because it can only be produced by committing a larger crime, not because we want to punish people whose fantasies may be whacked out.

A bit of unsupported declaration all your own, hmm? But this seems true. In the end, I suppose it is OK to have whacked out fantasies, so long as they remain fantasies. But writing about fantasies, altering photos to reflect fantasies, those are steps in the direction of victimization.

I simply get very, very sketchy about the idea of a picture someone created on photoshop (from scratch) landing them in prison.

To the contrary of your first sentence, I agree with most of what you say in this paragraph. However, when we are talking about something as vile as child rape, we have to look at someone's actions in context. Recividism rates are high for child rapists 2; those that are convicted hardly ever serve time; and sexual abuse as a child predisposes the victims to become victimizers as adults, perpetuating the cycle. Subsequently, don't we have a responsibility to do everything we can to stop it? Rather than bullshit ourselves and indulge it?

No one is going to have any respect for the law untill we end the war on drugs.

I absolutely agree. We're concentrating our efforts toward the wrong goal. Legalize drugs, make child rape - better, make ALL rape - a capital crime.
posted by UncleFes at 1:28 PM on April 16, 2002

If the Supreme Court won't defend American children from sexual predators...

But that's not what the decision says, now does it? The court acknowledged the well-settled law that...

depicting actual children can be proscribed whether or not the images are obscene be-cause of the State’s interest in protecting the children exploited by the production process, New York v. Ferber, 458 U. S. 747, 758

...thereby allowing the ban against pornographic images made using actual children contained in 18 U. S. C. §2256(8)(A).

By the way, your note that The link between child pornography and child molestation is strong. "Not everyone who reads porn acts out, but everyone who acts out does read child pornography is a prime example of the post hoc ergo propter hoc fallacy. Dhartung asked you for a causal link, and you showed just a one-way correlation that can best be explained as having an inverted causal relationship to that which you argue.

It is possible that virtual child porn, which involves no actual children in the production, may serve a useful tool as a warning sign for potential real-life pedophiles. After all, you noted the correlation.
posted by mikewas at 1:59 PM on April 16, 2002

in America (in my opinion) you are allowed to fantasize and dream of doing little boys.

certainly, you can think about anything you want. But the question is whether the Constitution protects visual representations of having sex with children, particularly when those representations are calculated to arouse rather than to express an opinion.

feminist legal theorist Catherine MacKinnon makes a powerful argument that protecting pornography is not required by the Constitution because banning pornography facilitates women's right to equal protection under the laws guaranteed by the 14th amendment. Basically, the argument is that the "expressive value" of pornography is negligible compared to the effect it has on subordinating women by degrading and objectifying them, thus, the 14th amendment should trump the 1st amendment. This link provides a good summary of her arguments, which are pretty compelling if you approach them with an open mind. Presumably, one could apply her analysis to porn involving young boys as well.
posted by boltman at 2:00 PM on April 16, 2002

"Not everyone who reads porn acts out, but everyone who acts out does read child pornography is a prime example of the post hoc ergo propter hoc fallacy.

Tell it to USA Today, Mike.

Dhartung asked you for a causal link,

...which he knows will be impossible to prove, because of the linear time nature of the relationship. If a causal link could be proved, it would already have been, and we wouldn't be arguing here. What we can see is that, by and large (or, according to this Burton character as reported), those who are convicted of child molestation overwhelmingly possess child pornography and, while they also likely possess ballpoint and raisin bran, the porn is by it's nature directly related to their crimes. So by it's presence, one can infer the possibility that the possessor is predisposed to commit certain crimes. Sort of like possession of a bong indicates that the possessor is predisposed toward smoking certain herbs. It doesn't necessarily mean that he does, but it certainly indicates desire.

So yes, I'd certainly keep a close eye on anyone in possession of or creating virtual child porn.
posted by UncleFes at 2:12 PM on April 16, 2002

"The link between child pornography and child molestation is strong. "Not everyone who reads porn acts out, but everyone who acts out does read child pornography," Burton says."

The link between ice cream and child molestation is strong, too. Not everyone who eats ice cream acts out, but everyone who acts out does eat ice cream.
posted by five fresh fish at 2:14 PM on April 16, 2002

I'd certainly keep a close eye on anyone in possession of or creating virtual child porn.

To the point that I'd involuntarily place them in a controlled environment, far away from children, where they could be evaluated and, possibly, treated.

Type faster, FFF!
posted by UncleFes at 2:15 PM on April 16, 2002

while they also likely possess ballpoint and raisin bran, the porn is by it's nature directly related to their crimes

Eh?

Sorry, but the statement still completely fails to prove causation. It's an invalid argument, and should be abandoned: there are far, far better arguments against the creation/possession of simulated child abuse.
posted by five fresh fish at 2:17 PM on April 16, 2002

Name some
posted by UncleFes at 2:19 PM on April 16, 2002

Causation is not only uprovable, it's moot - no one's arguing that people who view child porn become pedophiles. What the presence of child porn indicates is the presence of someone who is already a pedophile, Hence the existence of pedophile prior to the existence of child porn.

You guys are arguing the cart before the horse.
posted by UncleFes at 2:24 PM on April 16, 2002

Wait wait wait - are you saying David Hume was a pedophile??
posted by Settle at 2:38 PM on April 16, 2002

legalizing child porn (or "virtual child porn") morally legitimates the consumption of child pornography by the public. It encourages people to view children as sex objects and it vindicates those that already do. It would seem to follow that this will create more child molesters, but even if it doesn't the objectification and sexualization of children is, by itself, bad enough to warrant denying first amendment protection.
posted by boltman at 2:43 PM on April 16, 2002

The daughter in Traffic...that's funny to me. The character may have been underage, but the actress had to be at least 18 to be nude (which she was), and feeling an attraction to her in that scene is a perfectly healthy adult male response. Same for American Beauty and Romeo + Juliet, both of which featured fully-grown young women, and neither of which, as far as I can remember, showed so much as a female nipple or pubic hair.
posted by bingo at 2:51 PM on April 16, 2002

What the presence of child porn indicates is the presence of someone who is already a pedophile

I'll accept that. But that doesn't lead to "by it's presence, one can infer the possibility that the possessor is predisposed to commit certain crimes," just as possession of Carmageddon doesn't infer that the game player is predisposed to running over pedestrians.

Further, you seem to be suggesting that someone in the possession or creation of fictional child pornography should be locked up, although they might very well never have acted on their desire. Guilty of committing a thought crime, are they?

Boltman: the Calvin Klein advertisements must really have cheesed your goat, then.

By the way, is the Coppertone kid pornographic?
posted by five fresh fish at 3:02 PM on April 16, 2002

It encourages people to view children as sex objects and it vindicates those that already do.

I encourage you to see children as sex objects. Do you find kids sexier now? Child pornography is a symptom of a problem, not a cause. As far as I've read, child rape is, unfortuantely, self-propogating: abusers have likely been abused themselves, causing them to deviate from normal attitudes toward children.

Making virtual child pornography illegal seems far more dangerous than the reverse.
Drat. There was a terrific article in Wired a while back that was supposed to do my arguing for me.
posted by yerfatma at 3:05 PM on April 16, 2002

What percentage of the adult population molests children?

Dunno. Probably small, but highly active.

Then why did you say they were common?

Subsequently, don't we have a responsibility to do
everything we can to stop it? Rather than bullshit ourselves and indulge it?

There is a difference between standing up for freedom of
expression unilaterally and indulging those who would commit crimes. I feel sorry for someone who has pederast impulses. They need help, but they can't be persecuted unless they commit a serious crime (physical act).

Feminist legal theorist Catherine MacKinnon...

Sorry, I have never bought anything she has ever said.
posted by McBain at 3:50 PM on April 16, 2002

legalizing child porn (or "virtual child porn") morally legitimates the consumption of child pornography by the public.

No, it doesn't. You'll notice that nowhere in the decision does it say "child pornogrpahy is a moral activity that the Supreme Court cannot legally suppress," or something to that effect. No. The Court is saying that there is a higher moral right to allow people to think (and get off on, sickening though it is) whatever they want in private, as long as they do not harm others.
posted by Yelling At Nothing at 3:53 PM on April 16, 2002

The Court is saying that there is a higher moral right to allow people to think (and get off on, sickening though it is) whatever they want in private, as long as they do not harm others.

if you read the opinion, you would see that the court is saying that the law was overbroad and would result in banning protected speech along with unprotected speech. There's plenty of "speech" that the court would have no problem striking down for being offensive.
posted by boltman at 4:05 PM on April 16, 2002

Your link up there from USA Today, Uncle Fes, is from an activist, a claims maker, and claims makers are the people who throw gasoline on candles with questionable statistics and conclusionswhich are then reified into gospel truth because people want to believe them.

Major media, especially local TV news, love sex abuse stories because they're red meat for current audiences. We can't get enough. Moralizers can puff out their chests for "saving" children and excuse bogus stats as being in the name of the cause, self appointed child saviors like Andrew Vachss can make millions off story after story of child pornography as cautionary morality play and everyone else watches and watches and talks and talks--so I restate my case--as long as we talk and talk and talk about a statistically rare but over-reported crime involving attacks on children, in no small way, we attack children ourselves, teach them to fear and distrust strangers, diminish their experience of childhood.

The real facts about any form of crime is that more go unpunished than not, and for all the people we lock up, the police we put on the street, it all amounts at best to a few points shaved off any given average. People with ideological axes to grind will always present evidence as to why this or that social problem is a burning issue--more methodical social scientists see these as social constructions that reveal more about the times than the problems.

When the McMartin Day Care case was in full bore, Oprah had a posse of children on convinced that they had been molested by Raymond Buckey when they were toddlers. The one child that appeared to defend him had to appear in silhouette behind a curtain and the audience hissed and booed her. Millions of dollars were spent on the trial and millions of dollars made sensationalizing every detail and in the end all were found innocent beyond any reasonable doubt. Yet some of those then children are still convinced they were molested--so who's guilty of molesting them? Their saviors, quite likely.

I go to friends' houses, friends with children and hear some parents talk endlessly and unconsciously in front of their children over the years about day care sex rings--the most bogus scare of all--then playground kidnappers and now these stories about the Catholic church, where no one seems to notice these last are by and large old stories. And they keep talking and talking about it, often in front of their kids, which to me is the most invidious form of virtual sexual abuse of all.
posted by y2karl at 4:47 PM on April 16, 2002

There's plenty of "speech" that the court would have no problem striking down for being offensive.

For what it's worth, offensive speech is protected by the first amendment, while obscene speech is not. In the words of the SCOTUS, "[T]he fact that protected speech may be offensive to some does not justify its suppression" (Carey v. Population Services Int'l, 431 U.S. 678, 701 (1977)). The test for determining whether speech is obscene is referred to as the Miller test. It states that for speech to be considered obscene it must:
A. Appeal to the prurient interest.
B. Be offensive according to "contemporary adult community standards."
AND
C. Lack serious literary, artistic, political, or scientific value.
posted by mr_roboto at 5:01 PM on April 16, 2002

I think the Miller test will eventually go away. It seems rather arbitrary, subjective, and not logically necessary.

A. The problem with pruience is about morality. Humans are sexual beings and occasionally express it rather flatly.

B. Community standards are meaningless in a global internet connected society. A community of NAMBLA members would have pretty odd standards to most people.

C. Literary, artistic, political and scientific value are HIGHLY aribitrary. (One man's "Battlefield Earth" is another man's "Citizen Kane")
posted by McBain at 10:02 PM on April 16, 2002