The following article is from Free Inquiry magazine, Volume 22, Number 1.
What does a society do about people who have evil thoughts? If it's a religious society, it punishes them. Our secular society, however, in its most essential document recognizes the importance of both freedom of religion and freedom of speech, and the link between them. Congress shall make no law, says the First Amendment to the Constitution, establishing a religion or prohibiting its free exercise—or abridging free speech in general. In this society, we do not burn those with heretical opinions, nor hunt down those who practice witchcraft.
We have had some lapses from this idea during our history, but in general, the record has been good. State laws against blasphemy have been struck down; a law that required schoolchildren to pledge allegiance to the flag was disallowed, even in the midst of World War II; we finally repudiated laws against that most heretical of opinions, communism.
We had one serious lapse when we outlawed the distribution of material embodying evil sexual thoughts about women (that is, obscenity) in the mid-to-late twentieth century, but even there, the Supreme Court said that, to be forbidden, material must affect an average person offensively when judged by community standards (not merely affect members of a special audience) and cannot be banned if, when taken as a whole, it shows redeeming "literary, artistic, political, or scientific value." Previously, sexual material had been deemed censorable if it "tended to corrupt" its audience, or those who might be especially susceptible. No more.
In 1982, in a decision called New York v. Ferber, the high court examined a state child-pornography law that forbade material that didn't fit the definition of obscenity. Even here, the Court outlawed the photographic representation of actual children engaged in sexual conduct, not because it was offensive, but because its creation involved violating the rights of the actual children being used. The justices were very sensitive to First Amendment issues, and several concurring opinions pointed out that such laws should not be applied to works of serious "redeeming value"; that they should not be triggered by "clinical pictures of adolescent sexuality" or those "engaging in rites widely approved by their cultures"; and should not be invoked by the use of an otherwise-offending work for serious research, artistic, or educational purposes.
The federal child-pornography law was amended in 1984 to conform to the Ferber decision, and failed to include an affirmative "taken as a whole" serious-use defense solely because the Department of Justice testified that Ferber had made it unnecessary.
But since that time, some in our society have become more concerned with the danger of evil thoughts. In 1996 Congress threw out all this careful reasoning and enacted the Child Pornography Prevention Act (CPPA), a law being challenged this fall before the Supreme Court. Gone in this law is the justification of the harm to actual children. Gone is the constitutional protection of "redeeming value." Non-obscene child pornography produced by using young-looking adults, or computer-generated images that use no children at all, are to be banned and punished severely because they might "whet the appetite" of pedophiles (members of a special audience if ever there was one) or be used to seduce children into performing sexual acts.
The long history of First Amendment jurisprudence—which has decided in case after case that "giving someone ideas" that might lead to bad conduct is protected speech unless the incitement is immediate (Go do this now!)—should be overturned, argues the government in defending the CPPA, when the ideas involved are sufficiently evil. And anyway, the argument goes, computer technology makes it too hard to prosecute child pornographers if you have to prove that actual children were used.
Did Congress have reason to decide that the distribution, indeed the very possession, of such materials can never be justified? Was there proof of their evil effect? Who needs proof? Could sexual images of children be used in successfully treating pedophiles, and actually lessen the frequency of child molestation? We will never know, because a study to find that out would now be criminal.
Pedophiles—those who have sexual thoughts about children, not necessarily child molesters—are defined as evil. Anyone who says he has any reason to possess these evil images must be a pedophile. In 1999, journalist Larry Matthews was convicted of downloading and sending child pornography online and sentenced to eighteen months in prison and a fine of $4,000, even though he said he was doing it to research a story. Actually he was lucky, since he faced thirty years in prison and a fine of $500,000. Perhaps his thirty years as a reporter and his previously reported stories for a radio station on Internet child porn weighed in his favor.
This law allows for no possible "literary, artistic, political, or scientific value," and the result is chilling. The movie remake of Lolita starring Jeremy Irons couldn't find a distributor for a year. A young woman cartoonist depicting the molestation of teenage girls is under fire. Those people who thought a series of provocative Calvin Klein ads were child pornography some years ago weren't joking.
As in the anti-communist frenzy of the McCarthy era, the public is responding to the charges of pervasive danger. In a telephone survey earlier this year, 92 percent of those surveyed (not all of whom were Internet users) were more worried about child pornography on the Internet than about computer viruses, fraud, or terrorist activity online. The author of the study was quoted as saying, "As soon as we asked the question, it was overwhelming how people reacted negatively to child pornography. It's something that may or may not touch the lives of every American, but everybody is horrified."
Precisely because, in an age of sound bites, it can be seen as dangerous to be seen as supporting "child porn" (Do not forget that all classes of obscenity are still illegal: it is nonobscene suggestive images that are in question here), the implications for unpopular speech in general are grave. Child molestation, whether to create a saleable image or to gratify a sexual impulse, is indeed something to be horrified about. But to define a class of expressive material as so terrible that even its temporary possession taints a person irrevocably is to believe in witchcraft. If the Court decides that material deemed to be inciting in this way can be, indeed, must be illegal under all circumstances, how long will unpopular political speech be safe? True, to most of us, the idea of child pornography is so unpleasant that we don't even want to think about it. However, when it comes to making thoughts unconstitutional, we'd better think twice.
I repost this, because it explains what I have been saying....and shall
be....better than I can myself.