Posted on 04/24/2002 3:56:03 PM PDT by TLBSHOW
Whenever a Supreme Court opinion is bristling with references to Renaissance paintings, classical mythology, and "art and literature throughout the ages," you know the court is about to invoke the First Amendment to protect "Bisexual Schoolgirls' Porn Pictures."
Writing for the court, Justice Anthony Kennedy struck down a perfectly sensible federal child porn law last week. Though you might think the attorney general was preparing to rip "War and Peace" off the shelves, the law simply extended the reach of the federal child pornography laws to computer-generated "virtual" images of minors engaging in sexually explicit conduct. Without this law, it will be impossible, in practice, to prosecute any child pornography cases.
In order to prohibit, say, "Youngest Teen Sluts in the World!" while leaving the Federalist Papers unmolested, the law carefully defined "sexually explicit" conduct as: "actual or simulated ... sexual intercourse ... bestiality ... masturbation ... sadistic or masochistic abuse ... or lascivious exhibition of the genitals or pubic area of any person."
In response to this law, Justice Kennedy expounded on William Shakespeare's "Romeo and Juliet" – "the most famous pair of teen-age lovers." He continued: "The right to think is the beginning of freedom, and ... speech is the beginning of thought."
Oh, cut it out.
The last smut prosecutions for works with any redeeming value whatsoever took place almost four decades ago. Since then, pornographers have been running amok, producing the most degrading pornography imaginable – and then running to the Supreme Court to whine about threats to Shakespeare and "Lady Chatterley's Lover."
Some of the more respectable titles taken off the Internet include: "Preteen Pedophilia XXX," "Kiddie Pix," "Mary's Pictures of Young Nude Girls," "Lolita Angels," "Preteen Nudist Camp," "Naked Little School Girls," "Kiddie Porn Lolitas," "Rape Lolita," "Preteen Incest Rape."
Remember: I'm not the one who says "Preteen Sluts" is protected by the Constitution. Pornography defenders always insist on describing this particular constitutional right in vague euphemisms, such as "material dealing frankly with sex" and "sexually themed material." If I have to endure Justice Kennedy's pompous platitudes when we're talking about "Lolita Angels," then I'm not politely avoiding the topic.
The nation is swimming in pornography. You can't turn on TV without seeing simulated sex scenes. And Kennedy is worried that a law banning computer-generated photos of children engaging in sexually explicit acts will put Shakespeare at risk?
If judges pretended to be this confused when interpreting other laws, there could be no laws about anything. Indeed, Depends undergarments would be a necessity on the high court, as justices struggled with whether that feeling in their bellies meant they had to go to the bathroom or needed to burp. Is it "Othello" or is it "Kiddie Pix"?
In addition to Shakespeare, Kennedy claims that if Congress were permitted to outlaw virtual images of children in explicit sex scenes, movies like "Traffic" and "American Beauty" might be made differently. "[L]egitimate movie producers," Kennedy anxiously warns, might not "risk distributing images in or near the uncertain reach of this law."
Justice William Rehnquist points out in his dissent that both "American Beauty" and "Traffic" were made (and given awards) while this precise child porno law was on the books. Not only that, but during that time, four of five federal appeals courts were upholding the law. As Rehnquist says: "The chill felt by the court ... has apparently never been felt by those who actually make movies."
Moreover, the actress who played a teen-age girl in the crucially important simulated sex scene in "Traffic" was not, in fact, a minor. (Why does no one ever say, "'Casablanca' was a good movie – but what it really needed was simulated sex scenes with kids"?) Even high-priced lawyers for the porno industry couldn't come up with more than one "legitimate" Hollywood movie that might possibly – theoretically – fall under the virtual child porn law.
Here is a description, courtesy of an Internet rating service, of just some of the sex scenes from "American Beauty": "a couple has sex with thrusting, her legs up in the air ... a man is seen from behind masturbating in the shower ... a man masturbates next to his sleeping wife in bed ... a girl stands in front of boy, then takes her bra off and we see her breasts ... a man thinks a male couple is performing fellatio (they are not) ... a father kisses his daughter's teen-age friend, caresses her clothed breasts and pulls off her jeans until she's down to her underwear, and opens her shirt, exposing her bare breasts ... a man has several daydreams of a girl in a bathtub with rose petals covering her; he reaches his hand under the water at her crotch level as she puts her head back and moans."
So Congress can't ban virtual kiddie porn because the law might make producers think twice before making movies with scenes like that? This is the doomsday scenario? A little chilling might lead to "virtual" watchable movies.
Is this an FDR style freedom? "Freedom from want." "Freedom from fear."
How does the Supreme Court saying something is NOT illegal chip away at freedom?
The ruling regarding virtual child pornography renders unconstitutional laws already enacted by 24 states and so the central government takes even more of your freedom to govern yourself closest to home.
The sad thing is the overwhelming amount of "freedom lovers" who embrace it.
Have they ever ?? ?? ??
I do not claim that porn is protected speech. I merely point out that Article I, section 8 does not give the federal government the authority to do anything about it. The authority of the federal government is limited to those matters specifically listed in the Constitution. If you paid any attention to the original understanding of the framers, you'd know that.
I take it then that you do not believe in constitutional government. In which case, I don't suppose it does much good to continue our discussion. You see, I believe in the Constitution.
The notion that the "commerce clause" allows the federal government to exercise a generalized police power is an error. It is an error perpetuated by the left because they want unlimited federal government. You appear to have fallen into this error. This does not mean that you are a leftist, but you should consider the implications of what you say.
Unfortunately, many "conservatives" have knee-jerk reactions to issues such a pornography, drugs, euthanasia, etc. and are willing to abandon the idea of limited, constitutional government in order to solve this problems. Then they express outrage when liberals use the same doctrines to advance the liberal agenda.
You hit the nail on the head with this one . . .
Unfortunately, it's all too true. Just look around FR and you'll see loads of people who are willing to discard the Constitution to get their favorite project enacted. They become outraged if you point that fact out and use the same arguments that liberals use.
The sad thing is that they believe there is a real difference between what they say and what the liberals say.
Please refer me to these FEDERAL obscenity laws you refer to.
No, we are not talking about child pornography here. Thats why this discussion gets so many pissed off at you guys. You have no comprehension of what the SCOTUS struck down. It makes you all look so foolish.
LOL!! The un-answerable question.
Insofar as viewing rights to pornography are for sale on the internet, the very nature of the internet makes such sales "commerce with foreign nations, and among the several states" and for that matter with wired "Indian tribes." Unless there were some way for an internet porn site whose administration was located in, say, New Jersey, to guarantee that only New Jersey residents would have access, such a site is engaged in international and interstate commerce. Furthermore, free internet porn sites are typically supported by advertising, largely by pay sites, and so are adjuncts to commerce.
As Justice Story points out in his Commentaries, Article 8 makes no statement whatsoever about the motive for which the regulation of commerce is put in the power of the United States. "A power to regulate commerce is not necessarily a power to advance its interests. It may in given cases suspend its operations and restrict its advancement and scope."
Yep. Well stated. What will be the "free speech" topic in ten years? I shudder to think.
This is where the law failed to pass Constitutional muster. As was pointed out in the majority opinion, there are many mainstream (non-pornographic) works that depict minor characters engaged in sexual activity. When this is done for a movie, as an example, an adult actor is chosen to play the part of the minor character. Under 18USC2252(a)(5)(B), that was illegal, even though no minors were involved. In pointing out that the "children" protected by the statute are cartoons, Rush is right (again).
The fact that the Supreme Court has ruled on this precludes ANY state or local government from doing so. If the Supreme Court strikes down this law, it cannot be resurrected by any local authority.
I agree with you that the Federal government has no such authority, but now no local government does either.
Seeing as they struck down a Federal law, how is this a "power grab from the states"?
The interpretation you suggest putting on the commerce clause make a mockery of the whole idea of limited government. Your intepretation leaves the federal government to regulate virtually every facet of our lives. This was not the understanding that the founders had of the authority of the federal government.
One of the rules of statutory construction is that you should interpret statutes in light of the problems the statute sought to address. There were two problems that the commerce clause sought to address.
First, some states were putting tarriffs on goods from other states. Second, some states refused to allow goods from another state entry into their borders. These two issues caused significant problems with trade. These problems were among the main reasons the Constitutional Convention was held.
Reading the commerce clause in light of the problems to be addressed, and in light of the founder's understanding that they were instituting a government of limited authority, you can readily see that the interpretation you suggest is inappropriate.
I've long contended that this is the difference between liberals and consrevatives: Liberals like their big government slathered on from left to right while conservatives prefer it slathered on from right to left.
I concur with the result reached by the court, but I would dissent with the reasoning. Application of the 1st Amendment was inappropriate in this case. Perhaps Mr. Justice Thomas's concurring opinion points that out.
Be that as it may, the 1st Amendment does not legitimately apply to the states. Though I know that the court will apply it. Perhaps this would be a good test case for a state nullifying an unconstitutional decision of the Supreme Court.
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