Posted on 04/17/2002 8:45:48 AM PDT by KMC1
In my view, the Government's most persuasive asserted interest in support of the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. 2251 et seq., is the prosecution rationale that persons who possess and disseminate pornographic images of real children may escape conviction by claiming that the images are computer-generated, thereby raising a reasonable doubt as to their guilt. (See Brief for Petitioners 37.) At this time, however, the Government asserts only that defendants raise such defenses, not that they have done so successfully. In fact, the Government points to no case in which a defendant has been acquitted based on a computer-generated images defense. See id., at 3738, and n.8. While this speculative interest cannot support the broad reach of the CPPA, technology may evolve to the point where it becomes impossible to enforce actual child pornography laws because the Government cannot prove that certain pornographic images are of real children. In the event this occurs, the Government should not be foreclosed from enacting a regulation of virtual child pornography that contains an appropriate affirmative defense or some other narrowly drawn restriction.
The Court suggests that the Government's interest in enforcing prohibitions against real child pornography cannot justify prohibitions on virtual child pornography, because [t]his analysis turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech. (Ante, at 17.) But if technological advances thwart prosecution of unlawful speech, the Government may well have a compelling interest in barring or otherwise regulating some narrow category of lawful speech in order to enforce effectively laws against pornography made through the abuse of real children. The Court does leave open the possibility that a more complete affirmative defense could save a statute's constitutionality, see ante, at 18, implicitly accepting that some regulation of virtual child pornography might be constitutional. I would not prejudge, however, whether a more complete affirmative defense is the only way to narrowly tailor a criminal statute that prohibits the possession and dissemination of virtual child pornography. Thus, I concur in the judgment of the Court.
Thomas continues to be the staunchest and most consistent defender of the First Amendment on the Court, despite what the Fourth Estate has done to him over the years.
By the way, for all the "Thomas and Scalia vote in lockstep" idiots (I don't think there are any at FR, but DU is full of them), note that Scalia dissented on this one.
Although the decision has nothing to do with child pornography, which is still illegal. Brilliant analysis.
Im just glad I can't be prosecuted for owning American Beauty. And frankly, it scares me that you think I should be.
See people dont get this. The law made the depiction of Dennis Quaid and Wynona Rider(who was portraying a 13-year old) having sex in "Great Balls of Fire" a criminal act. This would be true to a great deal of movies or books. Thats absurd.
I don't want to agree. But I have to...
Me too. People who look to government to stamp out pornography cannot complain when the government comes back the next week to stamp out smoking, eating red meat, driving SUV's, home-schooling children, or any other darned thing.
Some people cannot get it through their heads that they are not the sole arbiters of what needs to be stamped out. Let the government get its nose in this tent, and there will be no end to it.
The real problem here, as John Adams stated, is that "Our Constitution was made only for a moral and religious people." Well, we have a whole bunch of people running around now who aren't very moral and aren't very religious, and it looks to people like the way to deal with this is to toss out the old Constitution and get a new one that allows things like warrantless searches, and police in ninja suits making "dynamic entries" into people's houses in the dead of night. That way, we'll be sure to get all the bad guys.
Maybe the problem could be approached from the other direction.
Thus, 2256(8)(B) bans a range of sexually explicit images, sometimes called virtual child pornography, that appear to depict minors but were produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology. Section 2256(8)(D) is aimed at preventing the production or distribution of pornographic material pandered as child pornography.
Kevin Curry - how refreshing to see his consistently well-reasoned, calm, non-hysterical, and understated manner.
OK, that's enough sarcasm for today.
So, then you support increased government intervention by making all pornography illegal to possess? What happened to the pro-freedom argument? And, is "fostering lust" illegal? I think not.
Not if it is an artists rendering.
Pictures of war increases the likelihood of war.
Pictures of people using guns increases the likelihood of guns being used.
Pictures of people drinking beer increases the likelihood of alchoholism.
Pictures of people using drugs increases the likelihood that other people will use drugs.
Pictures of homosexual parades increases the likelihood of straight people becoming gay.
I could go on but I think my point is made. While some of the above instances could carry some truth to them in certain people's minds, nobody would argue that all of the above was either possible or likely to occur. Furthermore nobody is doing anything about putting laws on the books that would ban any of the above pictures from existance. So why single out simulated pictures of a simulated act? It just doesn't make sense to me.
I'm all for stamping out pedophilia and NAMBLA but I want laws on the books that are specific and to the point. The law that just got struck down was overly vague and overly broad in it's scope.
It's not exactly like only the liberal wing of the Court rammed this decision down our throats you know. Clarence Thomas, not exactly a bastion of moderation let alone liberalism, sided with the majority. That alone should speak volumes that this was a bad law.
Ashcroft wants to decry this as the end of the world. What a bunch of baloney. He should quit whining about a bad law and get back to work on crafting a good law that will go after those that deserve it rather than just toss out a net and reel in whatever it catches.
The Government seeks to address this deficiency by arguing that speech prohibited by the CPPA is virtually indistinguishable from child pornography, which may be banned without regard to whether it depicts works of value. See New York v. Ferber, 458 U.S., at 761. Where the images are themselves the product of child sexual abuse, Ferber recognized that the State had an interest in stamping it out without regard to any judgment about its content. Id., at 761, n.12; see also id., at 775 (OConnor, J ., concurring) (As drafted, New Yorks statute does not attempt to suppress the communication of particular ideas). The production of the work, not its content, was the target of the statute. The fact that a work contained serious literary, artistic, or other value did not excuse the harm it caused to its child participants. It was simply unrealistic to equate a communitys toleration for sexually oriented materials with the permissible scope of legislation aimed at protecting children from sexual exploitation. Id., at 761, n.12.The end result is that if those pictures are the result of actual abuse, they remain illegal and possession remains a crime, as per the Ferber decision. If, however, they are simply the product of a twisted imagination, they cannot be banned under this decision. So it's not quite as clear-cut as "is it a drawing or is it a photograph?" - even a drawing would be illegal if the production of that drawing involved the actual abuse of real children.Ferber upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were intrinsically related to the sexual abuse of children in two ways. Id., at 759. First, as a permanent record of a childs abuse, the continued circulation itself would harm the child who had participated. Like a defamatory statement, each new publication of the speech would cause new injury to the childs reputation and emotional well-being. See id., at 759, and n.10. Second, because the traffic in child pornography was an economic motive for its production, the State had an interest in closing the distribution network. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Id. , at 760. Under either rationale, the speech had what the Court in effect held was a proximate link to the crime from which it came.
Jesse Sharpless... John Haines... George Haines... John Steel...Ephriam Martin...and Mayo... designing, contriving, and intending the morals, as well of youth as of divers other citizens of this commonwealth, to debauch and corrupt, and to raise and create in their minds inordinate and lustful desires ... in a certain house there ... scandalously did exhibit and show for money ... a certain lewd ... obscene painting representing a man in an obscene ... and indecent posture with a woman, to the manifest corruption and subversion of youth and other citizens of this commonwealth...offending [the]dignity of the Commonwealth of Pennsylvania.
The Defendent argued that his acts were in private and protected. The Court Disagreed. Judge Duncan Delivered the Verdict.
The defendents have been convicted, upon their own confession, of conduct of great moral depravity...This court is...invested with power to punish not only open violations of decency and morality, but also whatever secretly tends to undermine the principles of society...
Whatever tends to the destruction of morality, in general, may be punishable criminally. Crimes are public offenses, not because they are perpetrated publically, but because their effect is to injure the public. Buglary, though done in secret, is a public offense; and secretly destroying fences is indictable.
Hence it follows, that an offense may be punishable, if in it's nature and by it's example, it tends to the corruption or morals; although it not be committed in public.
The defendents are charged with exhibiting and showing...for money, a lewd,... and obscene painting. A picture that tends to excite lust, as strongly as writing; and the showing of a picture is as much a publication as selling a book...
If the privacy of the room was a protection, all the youth of a city might be corrupted, by taking them, one by one, into a chamber, and there inflaming their passions by the exhibition of lascivious pictures. In the eye of the law, this would be a publication, and a most pernicious one.
In demonstrating the strong feelings of the court on this issue, a second Justice, by the name of Judge Yeats, added to the pronouncement of the courts decision.
Although every immoral act, such as lying, ect... is not indictable, yet where the offense charged is destructive of morality in general...it is punishable at common law. The destruction of morality renders the power of government invalid...
The Corruption of the public mind, in general, and debauching the manners of youth, in particular, by lewd and obscene pictures exhibited to view, must necessarily be attended with the most Injurious consequences...
No man is permitted to corrupt the morals of the people, secret poision cannot be thus desseminated.
Although I detest porn, as a conservative, I am adverse to the government regulating what I can watch in the privacy of my bedroom. Ergo, as an adult, let me be responsible for my own viewing, not the government.
This leaves the issue of harm to the child. If there is no human child involved, if it is simply computer driven animation, then there was no real human child to be injured.
I don't like it, but the court is right on this.
No only is "virtual" child pornography immoral, ALL Pornography is immoral.
Tell me libertarian fools, why were we so wrong at the founding of our nation (see the above decision) and okay now?
Tell me why the judges in the above decision was wrong? Enlighten us with your hedonistic wisdom.
I find it amusing that Washington, Madison and the other founders did not oppose a law that forbid ALL pornography, as well as laws that forbid blasphemy, fornication, adultery and other immoral sins, yet we are told by libertarians that all the founders support the hedonistic religion known as libertarianism.
The facts are clear, in early America, In fact, in America all the way up until the 60's PORN WAS IMMORAL, ILLEGAL, INDECENT, and FORBIDDEN UNDER LAW!!!!! What makes the America of 2002 so enlightened that we did not all see back in the first couple hundred years of our existance.
The Barbarians are at the gates my friends. In fact, the barbarians have started to enter.
Indeed I tremble for my country, when I reflect that God is just, and His justice cannot sleep forever.
Yesterday it became legal to own, share, and create child porn (because no one will ever be able to prove it wasn't done digitally - and they'll soon stop trying). I've never seen a darker day. Do you know what this country will be like in three years after creating an appetite for this awful stuff?
That case upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were “intrinsically related” to the sexual abuse of children
All the suspect must do now is claim that he created the image on a computer. Photographic evidence in the suspect's custody is no longer enough for prosecution.
They will use illusions to Gun Control and call of us who support morality and morals Control Freaks. This is a strawman.
I doubt that anyone one of us who is opposed to this decision, is against Guns, but the libertarians want to make it seem that way.
This decision was wrong. Our founders would never have supported it. I have yet to have a libertarian hedonist explain step by step why the Supreme Court of Pennsylvania was wrong in 1815, and the Pedophiles on the Supreme Court in 2002 were right today.
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