- The Washington Times - Friday, April 19, 2002

One gauge of whether a picture or a movie was pornographic used to be "community standards." If something was patently offensive in light of community standards and lacked serious literary, artistic, political or scientific value, it was pornographic, and a community could outlaw it. In simpler terms, we knew pornography when we saw it. But that rule went out the window on April 16, when the Supreme Court found the Child Pornography Prevention Act (CPPA) unconstitutional. The court's problem with the law stems from the continued perfection of computer-generated imagery, and the growing inability to distinguish between porn created with real children and the same porn created in the computer of a smut peddler.

The argument was over two provisions of the law. One banned computer-generated images of minors engaging in sexually explicit conduct. The other outlawed "morphed" images pictures of real children engaged in normal activities that have been computer-modified to depict sexual conduct. The law was challenged by the Free Speech Coalition, which the Supreme Court charitably describes as a "California trade association for the adult-entertainment industry."

Writing the 5-4 majority opinion, Justice Anthony Kennedy said that the CPPA's unconstitutionality stems, in part, from its scope. The court had a problem with the connection between the purpose of the law prevention of child abuse and its apparent reach. Justice Kennedy said that making porn with real children is obviously abuse, but making porn with a computer isn't. The government argued that the law was also intended to protect children from the impulses of pedophiles whose actions could be stimulated to real child abuse by the computer images. Said the court, "the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct."

But the problem with the court's decision, as Chief Justice William Rehnquist said in his dissent, is that it was not necessary to take the drastic action of throwing the whole law out. The Supreme Court, explained the chief, often adds an instruction to a law guiding lower courts to constitutional application of it, rather than junking the law and telling Congress to start all over. This is exactly what the court should have done.

As the court left it, Congress would have to start over again, but with the Democratic Senate, it is very unlikely that action will come before, well, before the Senate is back in Republican hands. The better answer is for states to pass their own laws that take into account the court's concerns. If we are to restore community standards and enforce them against pornography, how better to do it than to have each of our 50 states pass the laws themselves?

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