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Is This For Real?

‘Virtual’ Child Porn Ban Abolished in U.S.

KOINOS MAGAZINE #35 (2002/3)

The short history of child pornography laws has been one of unbridled expansion. United States law prohibits depictions of anyone who looks less than 18 who might want to have sex. This includes computer generated images, which one court called "foul figments of technology". But now the U.S. Supreme Court has overturned its country's law, in a defense of culture and freedom of expression. The decision is a sharp departure from past practice. We examine the reasons why.

U.S. Supreme Court, Washington D.C.

For the first time, the United States Supreme Court has overturned a child pornography law. The law prohibited the possession of images of those who appear to be less than eighteen in sexually explicit conduct. The Taliban-like proscription included paintings and depictions of youthful adults.

In a six-to-three ruling, the Court declared the ‘virtual’ child porn ban consistent with neither previous child porn law, since it prohibited expression that does not create victims, nor obscenity law, since it applied to non-obscene images.

The opinion was a defense of culture - a first in a major child porn case. The justice who authored it quoted Shakespeare's observation that Juliet "hath not seen the change of fourteen years." He observed the playwright portrays Romeo and Juliet's relationship "as something splendid and innocent, but not juvenile."

The Court also rejected the claim that virtual child porn encourages illegal conduct. The decision in Ashcroft v. The Free Speech Coalition goes against much of the rationale for prohibiting child porn. It weakens the foundations of repression of children's sexuality. How did this happen in a nation famed for its prudishness about sex?

Obscenity law

In Western countries, obscenity prosecutions date to the early 18th century. In the mid 1970s, in Miller v. California, the Supreme Court devised three tests in order to rule a work obscene:

the dominant theme of the material taken as a whole appeals to a prurient interest in sex;

the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual material; and

the material does not have serious literary, artistic, political or scientific value.

These are broad requirements which are difficult to prove. Child porn law differs from obscenity law because it allows the government to ban images without need of the Miller tests.

A unanimous 1982 decision upholding bookstore owner Paul Ferber's conviction was the first time the Supreme Court considered a child porn law. Ferber had sold two films of boys masturbating. A jury said they were not obscene. Regardless, the law prohibited promotion of sexual conduct by anyone less than sixteen.

Ferber's conviction opened the legal floodgates. During the next decade - and in the midst of a nationwide panic about sexual abuse in day-care centers - Congress passed a tougher child porn law in each new session. The courts expanded on the laws and invited legislatures to go further.

This notwithstanding, Ferber had raised key First Amendment questions. The most fundamental, says New York University law professor Amy Adler, is the breakdown of a heretofore-solid distinction between speech and action.

She quotes First Amendment scholar Thomas Emerson: "[T]he basic principle of a system of freedom of expression would require that society deal directly with the [illegal] action and leave the expression alone."

"The normal First Amendment rule," writes Adler, "recognizes that a photograph of a criminal act is not a crime. If a newspaper captures a picture of a bank robber in the act, for example, we might publish his photograph on the front page...not ban it."

As child porn law developed, it was applied to many more people than the Ferber justices had envisioned, with parents going to jail for photographing their baby in the bath and the studios of fine art photographers such as Jock Sturges being raided.

Child porn law exploded onto the national landscape in the early 1990s. Police seized videos showing extended close-ups of children's clothed genital areas. Graduate student Stephen Knox was convicted of child porn possession, punishable by ten years in prison.

As the Supreme Court considered whether to hear his case, the Solicitor General (who represents the government before the Court) submitted a brief arguing that ‘lascivious exhibition’ in the federal law required the child's genitals be visible. To be child porn, he said, the images must document a crime.

When it appeared a child pornographer might escape prison, the case became the focus of national outrage. Within days Congress condemned the brief and the president called for tougher laws. The Solicitor General reversed his position. Knox' conviction stood.

Judging images as representations

But the Knox case represented more than prohibiting images of clothed children.

Images of sexual children had been judged as documentary evidence of a crime. With Knox, said Wellesley College Art Professor Anne Higonnet, they became judged as representations. The government became the arbiter of their meaning.

Higonnet said an "image of a child, dressed or naked, might arouse many kinds of fantasies and desires." Focusing on Edward Weston's classic photographs of his son Neil, she enumerated different meanings, including "parental passion... Weston had the skills and talent to represent a parental gaze... To me, the Neils look parentally erotic. To me - and I know I am speaking personally - they represent my maternal passion for my son's body... Only censored observation...does not evaluate. Free observation always interprets."


But the law went further than Higonnet had posited. A district court devised a method to determine ‘lasciviousness’. Adopting the viewpoint of an adult attracted to children, the elaborate six-part Dost test gained widespread acceptance. The parental gaze became the pedophile gaze, and lasciviousness its focus. With Dost, says Adler, we must search out whether the child's genitals are the focal point of the picture, whether the pubic area is prominent, if the child is in a setting normally associated with sex, if the child conveys an erotic acquiescence in his gaze, or if there is some suggestion of his "coyness or willingness to engage in sexual activity."

She applied Dost to a controversial Calvin Klein ad, a photo of two boys about five jumping on a sofa in their underwear. Heavily promoted, the campaign ran for a day before being pulled in a storm of criticism. "I went back and looked at the picture... One of the little boy's underpants seem baggy as he jumps in midair. Is that an outline of his genitals I wondered? It was then, as I scrutinized the picture of the five-year-old's underwear, that I realized I was participating in a new order, a world created and compelled by child pornography."

Everything becomes child porn

Echoing an earlier observation by gender theorist Judith Butler, who contends "the putative repression of sexuality becomes the sexualization of repression," Adler said, "As we expand our gaze and bend it to the will of child pornography law, we transform the world into a pornographic place... As everything becomes child pornography in the eyes of the law - clothed children, coy children, children in settings where children are found - perhaps everything really does become pornographic."

As the U.S. law grew more powerful, other countries followed. The Council of Europe adopted a treaty outlawing virtual child porn, written with the FBI's help. The Netherlands, Canada and Japan enacted similar legislation.

Europe has not escaped the U.S. hysteria. Last October, authorities in Cieza, Spain closed a photo exhibition by artist Violeta Gómez. The photographs were of girls just entering puberty, some of whom were nude. The following day, the Guardia Civil raided Gómez’ house, seizing all of her art works. None of it was pornographic. Seven months after the raid, prosecutors had not returned most of her possessions and were keeping the investigation secret.

Obscenity law has long suffered from vagueness, which increases the odds of a successful legal challenge even as it snares more people in its net. Supreme Court Justice Potter Stewart's aphorism "I know it when I see it" is from an obscenity case. The latest child porn law had lost its reason for being: a bright-line standard delineating prohibited material. It had come full circle back to obscenity law. As legal theory, it was failing. The stage was set for a challenge.

‘Foul figments’ of technology

In Ashcroft v. The Free Speech Coalition, the government appealed a decision by a lower appellate court which declared the Child Pornography Prevention Act of 1996 (CPPA) unconstitutionally vague and broad. "To hold otherwise," the judges said, "enables the criminalization of foul figments of creative technology that do not involve any human victim..."

Those who filed briefs with the Supreme Court opposing the CPPA include the adult entertainment industry, academic organizations (the Institute for the Advanced Study of Human Sexuality), a feminist coalition (Feminists for Free Expression), and free speech groups.

At a hearing last year, the Supreme Court justices sounded uneasy about virtual porn. Two reminded Paul Clement, a government lawyer, that Ferber was based on harm to real children.

Clement responded that the law protects "real children from real abuse" because computer-generated images entice children into posing. He argued child porn should be seen "as a tool of the crime of child abuse much like burglars' tools are instruments of the crime of burglary." Unless all child porn is banned, he said, it may become impossible for investigators to tell the difference between virtual and real porn.

H. Louis Sirkin, representing The Free Speech Coalition, barely began before being cut off: "First... all visual messages of adolescent sexuality will be forever barred regardless of their scientific, artistic or educational value. Second, countless visual depictions…"

At that, the Court's most conservative member, Justice Antonin Scalia interrupted: "Excuse me, such as what? Such as what?... [W]hat great works of art would be taken away from us if we were unable to show minors copulating...?" "Lolita," Sirkin replied. Scalia sarcastically exclaimed, "The great work of Western art!... In respect, this is not, you know, the Mona Lisa or Venus de Milo or anything that's lasted more than 30 years." Justice John Paul Stevens: "How about Romeo and Juliet?" Scalia, to courtroom laughter: "Gee, you've seen a different version of that play than I have."

Stevens' question marked the point at which the Court halted the law's expansion. In his opinion, Justice Anthony Kennedy cited Shakespeare and said the ban, "proscrib[es] the visual depiction of an idea - that of teenagers engaging in sexual activity - that is a fact of modern society and has been a theme in art and literature for centuries. A number of acclaimed movies, filmed without any child actors, explore themes within the wide sweep of the statute's prohibitions."

He mentioned several examples, including the Academy-award winning movie American Beauty, which he noted has a scene where "one character believes he is watching a teenage boy performing a sexual act on an older man." He observed, "Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach."

With this as the backdrop, he demolished each of the government's arguments.

The right to think

His opinion noted that the CPPA is "much more than a supplement to the existing federal prohibition on obscenity." It does not conform to Miller. Even if it did, pictures of what appear to be 17-year-olds engaging in sexually explicit activity would not be obscene. This point aside, the images covered by the law, "do not involve, let alone harm, any children in the production process.... [T]he CPPA prohibits speech that records no crime and creates no victims by its production."

Kennedy's strongest language was reserved for the contention that virtual child porn may be used to seduce children. "The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government 'cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts'... First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

He said the government may not prohibit speech because the speech increases the chance an unlawful act will be committed at some point: "The Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse."

And he excoriated the claim that virtual images make it difficult to prosecute porn using real children. "The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.... Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse."

The philosophy underlying Ashcroft reaches back to a dissent by Justice Oliver Wendell Holmes in a celebrated free speech case. During World War I, a federal judge, Learned Hand, urged Holmes to require more than criticism of the government before imprisoning people. Hand rejected the belief - common then as now - that free speech must yield to higher interests in wartime. Free speech, he said, is a higher interest in a democracy.

A democracy requires unfettered expression in order for its citizens to decide what is true and hence best. Holmes adopted this idea: "[T]he ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [citizens'] wishes safely can be carried out... Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, ‘Congress shall make no law ... abridging the freedom of speech’."

The opinion by Holmes in Abrams v. United States became the foundation on which First Amendment jurisprudence was built. As the child porn law began to consider everything child porn, the Ashcroft decision was inevitable.

Paedophile ethnicity

Only the ban on virtual images was struck down. Possession of porn using images of real children remains a crime. British writer and veteran activist Tom O'Carroll says it is used to generate evidence of "paedophile identity, of paedophile ethnicity, one might almost say, such that often entirely harmless people can be registered and henceforth viewed with lifelong suspicion, surveillance and coercion." The government won 97 percent of its child porn cases before the ban on virtual porn.

Days after Ashcroft was announced, angry conservatives, led by the U.S. attorney general John Ashcroft, held a press conference at which they announced replacement legislation. Ashcroft is a right-wing politician who was ridiculed last January when he spent $8,000 to cover up two bare-breasted statues, Spirit of Justice and Majesty of Law, which stand in the Department of Justice's Great Hall.

The proposed legislation labels ‘obscene’ images which are "virtually indistinguishable from that of a pre-pubescent child engaging in sexually explicit conduct," including "simulated lascivious exhibition of the genitals or pubic area."

Larry Sutter, general counsel for the publisher of Penthouse, says the proposed law will not stand constitutional scrutiny because "anything that doesn't involve a live child must pass the Miller test[s] of violation of community standards and...serious artistic, literary, et cetera, value."

Ashcroft's proposal is a cynical effort which Justice Kennedy may have anticipated. His opinion points out the Court's decision in the case which upheld the possession ban had "anchored its holding in the concern for the participants [in its production].... It did not suggest that, absent this concern, other governmental interests would suffice."

In other words, if the child portrayed were not real, the Court would strike down a child porn law banning such a depiction no matter how young the child. Thus Ashcroft's effort is likely to fail a few years from now in a blaze of publicity which the U.S. president can use when it comes time to nominate the next Supreme Court justice.

The Supreme Court has its own statue of a topless woman. She holds a mirror in one hand and a rose in the other. It is unlikely she will be covered up. Her name is Truth.

Sources: see


See also Koinos #34: U.S. Supreme Court limits predator statutes

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