- The Washington Times - Tuesday, April 23, 2002

Child pornography is twice-cursed.It panders to the lowest of lusts; it provokes overkill by moral crusaders, like Carry A. Nation's hatchet assaults on saloons. Watching litigation born of the twin curses evokes hopes that both sides might lose, reminiscent of the Iraq-Iran war. The Supreme Court, however, lacks that option. Thus, last week the nation's Olympian jurists sermonized on the free speech protection of new frontiers in child pornography. By varying majority margins, the court held unconstitutional three provisions of the Child Pornography Prevention Act of 1996 (CPPA) outlawing non-obscene computer images of such sexually explicit trash; adult images that appear to involve minors; and non-pornographic materials commercially touted as child pornography. But no rejoicing is in order.

Freedom of speech is most urgent when political or first cousin truths are at stake. Peaceful and democratic changes in laws and customs pivot on the freedom to dissent or to preach the novel. Suppression may occasion violence or other anti-social conduct. And being heard, even when no converts follow, is therapeutic. In sum, in the blazing flourishes of Justice Louis D. Brandeis in Whitney vs. California (1927): "Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government."

In contrast to the expression Justice Brandeis celebrated, obscenity is unprotected by the First Amendment. It springs predominantly from the glands, not serious mental activity. And insofar as it gratifies animal lust, it stands at the nadir of liberty.

According to the Supreme Court's plastic definition in Miller vs. California (1973), obscenity appeals predominantly to the prurient interest, describes specific sexual organs or activities in a way patently offensive to community standards, and lacks serious literary, artistic, political or scientific value." The government may prohibit the sale or distribution of material to minors that is obscene only with reference to youths under Ginsburg vs. New York (1968). Further, a jury may infer pruriency from the manner in which allegedly obscene material is marketed, as the Supreme Court declared in Ginzburg vs. United States (1966). In sum, any jury aroused over child pornography can easily find a purveyor guilty of marketing the obscene because its three-pronged test rests on subjectivity.

Complementary to the government's powerful arsenal for attacking child pornography via obscenity prosecutions are criminal prohibitions on non-obscene sexual depictions of actual children engaged in lurid acts. The Supreme Court explained in New York vs. Ferber (1982) and Osborne vs Ohio (1990) that the compelling state interest in protecting children from sexual exploitation justified criminalizing child pornography short of obscenity.

With no legal market for such depravity, recruitment of children to generate production would dwindle.

Despite Miller and Ferber in its quiver, the federal government sought additional arrows to fight child pornography in the CPPA because politically irresistible. Who could refute in a sound bite a glib charge that a candidate sympathized with child pornographers?

The new law at issue in Ashcroft vs. Free Speech Coalition made criminal non-obscene pornography that appeared to involve children but that in fact depicted adults or computer images. It further criminalized possession of non-obscene material that at any point in the distribution chain, whether or not known to the possessor, had been marketed to convey the impression that it depicted a minor engaged in sexually explicit conduct.

To borrow from the film "Casablanca," the usual suspects raced to the federal courthouse weeping over the alleged "chilling effect" of the CPPA on constitutionally protected sexually explicit expression (and their ducats).

The plaintiffs included a trade association for the adult-entertainment industry, a book publisher advocating nudism, a painter of nudes falling short of Peter Paul Rubens and, a photographer specialist in erotic images.

Their making a chilling effect claim while the nation drowns in the sexually explicit was effrontery par excellence. Could anyone honestly swear under oath that their craving for sexual stimulation would go unsatiated if the CPPA were allowed to stand?

On the other hand, the government's defense of the act was equally astonishing. Simulated, non-obscene child pornography might be employed by pedophiles to seduce children, said the attorney general. The court majority retorted, however, that cartoons, candy, video games (or even a Beatrice Potter book on Peter Rabbit) might similarly be enlisted to prey on minors. But they cannot be prohibited simply because susceptible to misuse. In that eventuality, the ensuing criminal conduct can be punished.

The attorney general also urged as an unsubstantiated guess that virtual child pornography stirs pedophiles into crime, echoing the chorus of radical feminists denouncing the portrayal of women in subordinate or servile positions as sex objects or otherwise. But it seems equally plausible that virtual gratifications that cloy or satiate may prevent criminality. In any event, the proposition that speech can be suppressed because it might unintentionally plant in an eccentric handful the idea of crime would be the end of freedom of expression, including the Bible, the Koran and Shakespearean drama.

As Shakespeare himself would have said about Ashcroft vs. Free Speech Coalition: "A plague o' both your houses."

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