Jewish World Review Jan. 24, 2000 /17 Shevat, 5760
On Sept. 16, 1999, a federal jury convicted Naughton of possessing child pornography, though it deadlocked on other charges. Disney fired him. But within hours of the guilty verdict, the 9th Circuit Court of Appeals ruled that portions of the Child Pornography Prevention Act of 1996 are unconstitutional. And so, at least for now (prosecutors plan to retry him), Naughton is a free man.
Because this ruling contradicts those in two other federal circuits, the matter may now proceed to the Supreme Court -- which will have to decide whether the new technology available to perverts lets them off the hook for viewing child pornography. (In another major bust of child pornography peddlers, the FBI found thousands of files on a suspect's computer, including one titled "Lilrape.")
The 9th Circuit court was apparently persuaded by arguments advanced by the Free Speech Coalition. (Nice title -- the Free Speech Coalition is actually a trade association representing manufacturers of "adult-oriented materials.") The Coalition, along with the American Civil Liberties Union, argued that restricting the use of real children in the porno industry is OK, but outlawing computer-generated images of children goes too far. "You really run into a problem of artistic restriction," attorney H. Louis Sirkin told the Copley News Service. Really? Is it so difficult for true artists to create art without inadvertently depicting children in sexual contexts?
Computers are now able to simulate pictures of just about anything. And child pornographers have been quick to take advantage of it. The technology is able to generate pictures that look like real children but are actually computer simulations.
When Congress passed the Child Pornography Prevention Act in 1996, legislators had several goals in mind. They wanted to protect actual children from being exploited by pornographers in the making of these images. That much is uncontroversial. But they were also attempting a secondary goal -- to prevent crimes like molestation by denying to pedophiles the pornography that whets their appetites. Accordingly, the statute banned not only child porn that used real children, but also anything that "appears to be" a child, or "conveys the impression" of children engaging in sex acts. It was this that the court found to be a violation of the First Amendment
To prohibit the viewing of child pornography, the court found, is to restrict the content of speech, rather than the time, place or manner of speech. "(The statute) expressly aims to curb a particular category of expression (child pornography) by singling out that type of expression based on its content and banning it."
Let's review where we stand vis-a-vis the First Amendment. We can and should restrict what advertisers say about cigarettes, because stamping out smoking is worth it. All of the smart people think we are obliged to limit what advocacy groups can say about political candidates in the run up to an election, because campaign finance reform trumps free speech (even expressly political speech). But we cannot limit the distribution or consumption of child pornography because the sanctity of the First Amendment forbids it?
The argument over the First Amendment is not between those who favor limits on speech and those who oppose all restraints. Everyone is in favor of some limits (it is not possible, for example, to advertise for a roommate of a particular race without running afoul of civil-rights legislation). The question is what values one elevates above the value of unfettered expression.
Congress was right to criminalize the creation, distribution and
consumption of child pornography. More is at stake than harming the children
who are forced to perform for the camera. The souls of those who view this
material are corrupted. The founders would spin in their graves if they knew
that the majestic First Amendment was being sullied by association with such