John Whitehead's Commentary
Child Porn Is Not Free Speech
In 2004, federal agents caught Michael Williams in the act of attempting to exchange pornographic images of children online. In an Internet chat room, Williams boasted that he had "hard core" pictures of himself engaged in sex acts with his four-year-old daughter. He also told an undercover federal agent that he was willing to trade the photos for pictures depicting other children in provocative poses.
Despite his claims, Williams did not in fact have pornographic photographs of his daughter. Nevertheless, Williams was prosecuted under a federal law that outlaws the pandering of child pornography.
The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003 was passed by Congress in an effort to provide law enforcement officials and prosecutors the tools they need to combat child pornography and the industry that has grown up around it. Under this law, it is a crime to advertise, promote, distribute or solicit material that leads another to believe it contains child pornography--even if the material does not actually contain child pornography.
Convicted under this provision, Williams immediately appealed, claiming that the law was vague and overbroad in violation of the First Amendment's guarantee of free speech. And a panel of judges on the U.S. Court of Appeals for the Eleventh Circuit agreed that the law could be interpreted in such a way as to criminalize speech that is completely unrelated to child pornography.
Under the law as it now stands, the appeals court reasoned, "any promoter--be they a braggart, exaggerator, or outright liar--who claims to have illegal pornography materials is a criminal punishable by up to twenty years in prison, even if what he or she actually has is a video of 'Our Gang,' a dirty handkerchief, or an empty pocket." The appeals court also voiced the concern that the law could be wrongly applied to an e-mail sent by a grandparent and entitled "Good pics of kids in bed," showing grandchildren dressed in pajamas.
Now that the case is before the U.S. Supreme Court, it has been portrayed as a battle between those who advocate unbridled free speech and those who would place limits on artistic expression. For example, opponents of the law insist that it could be applied to movies like Traffic or Titanic that depict adolescent sex. Yet all of that is merely legal doublespeak to avoid talking about what is really at stake here. Because when all is said and done, this case is about one thing only: protecting children from those who would prey on them.
For starters, the First Amendment was never intended to protect obscenity or child pornography. And while I am one of the first to insist that offensive and unpopular speech must be protected under the umbrella of free speech, like all constitutional rights, there are limits to this freedom. As Justice Oliver Wendell Holmes once observed, "The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing panic." And pandering child pornography is tantamount to shouting fire by inflaming those who prey on the young. Someone is bound to get hurt.
According to experts from the FBI's Crimes Against Children Unit, there is a strong connection between people who trade or possess child pornography and those who molest children. As one FBI specialist explained to Congress, "of the total number of child pornographers investigated over the past several years, nearly 40 percent have been determined to be child molesters." Promoters of child pornography are well aware of this. At least one child pornography website boasts that it is "whetting the appetites of pedophiles everywhere."
One of the U.S. Court of Appeals' reasons for declaring the PROTECT Act unconstitutional was its concern that it could be a crime under the statute to offer for sale "a copy of Disney's 'Snow White' on false claims that it contains depictions of minors engaged in sexually explicit conduct."
Frankly, I don't have a problem with someone being charged under this law for falsely peddling child porn. We have to draw the line somewhere, and pandering child porn is just as bad as actually dealing in it.
If you really want to understand what we're up against, read the facts section of the Appeals Court's decision in the Williams case. It paints a horrifying picture of exactly how young children are preyed upon. It becomes evident that as the FBI has pointed out, the children are groomed to become comfortable with the idea of experimenting with sex through exposure to kiddie porn and, once their inhibitions have been lowered and they have been desensitized to sex, manipulated to perform sex acts.
It was this evil--and it is evil--that Congress was attempting to eradicate when it passed the PROTECT Act. As for the concern that genuine artistic endeavors could be mistaken for child porn and consequently be targeted for prosecution, it's time that we started exercising a little more common sense--and call on the courts to do so, as well.
We need strong laws to shield our children from these horrors. And we should not allow ourselves to be hoodwinked into believing that the Williams case has anything to do with the First Amendment. As the Washington Post noted, "To choke off demand for the product, those who peddle child pornography must be held criminally liable--even if they exaggerate or falsely advertise the material they hawk."
Let's protect our children, not the child predators.
Despite his claims, Williams did not in fact have pornographic photographs of his daughter. Nevertheless, Williams was prosecuted under a federal law that outlaws the pandering of child pornography.
The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003 was passed by Congress in an effort to provide law enforcement officials and prosecutors the tools they need to combat child pornography and the industry that has grown up around it. Under this law, it is a crime to advertise, promote, distribute or solicit material that leads another to believe it contains child pornography--even if the material does not actually contain child pornography.
Convicted under this provision, Williams immediately appealed, claiming that the law was vague and overbroad in violation of the First Amendment's guarantee of free speech. And a panel of judges on the U.S. Court of Appeals for the Eleventh Circuit agreed that the law could be interpreted in such a way as to criminalize speech that is completely unrelated to child pornography.
Under the law as it now stands, the appeals court reasoned, "any promoter--be they a braggart, exaggerator, or outright liar--who claims to have illegal pornography materials is a criminal punishable by up to twenty years in prison, even if what he or she actually has is a video of 'Our Gang,' a dirty handkerchief, or an empty pocket." The appeals court also voiced the concern that the law could be wrongly applied to an e-mail sent by a grandparent and entitled "Good pics of kids in bed," showing grandchildren dressed in pajamas.
Now that the case is before the U.S. Supreme Court, it has been portrayed as a battle between those who advocate unbridled free speech and those who would place limits on artistic expression. For example, opponents of the law insist that it could be applied to movies like Traffic or Titanic that depict adolescent sex. Yet all of that is merely legal doublespeak to avoid talking about what is really at stake here. Because when all is said and done, this case is about one thing only: protecting children from those who would prey on them.
For starters, the First Amendment was never intended to protect obscenity or child pornography. And while I am one of the first to insist that offensive and unpopular speech must be protected under the umbrella of free speech, like all constitutional rights, there are limits to this freedom. As Justice Oliver Wendell Holmes once observed, "The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing panic." And pandering child pornography is tantamount to shouting fire by inflaming those who prey on the young. Someone is bound to get hurt.
According to experts from the FBI's Crimes Against Children Unit, there is a strong connection between people who trade or possess child pornography and those who molest children. As one FBI specialist explained to Congress, "of the total number of child pornographers investigated over the past several years, nearly 40 percent have been determined to be child molesters." Promoters of child pornography are well aware of this. At least one child pornography website boasts that it is "whetting the appetites of pedophiles everywhere."
One of the U.S. Court of Appeals' reasons for declaring the PROTECT Act unconstitutional was its concern that it could be a crime under the statute to offer for sale "a copy of Disney's 'Snow White' on false claims that it contains depictions of minors engaged in sexually explicit conduct."
Frankly, I don't have a problem with someone being charged under this law for falsely peddling child porn. We have to draw the line somewhere, and pandering child porn is just as bad as actually dealing in it.
If you really want to understand what we're up against, read the facts section of the Appeals Court's decision in the Williams case. It paints a horrifying picture of exactly how young children are preyed upon. It becomes evident that as the FBI has pointed out, the children are groomed to become comfortable with the idea of experimenting with sex through exposure to kiddie porn and, once their inhibitions have been lowered and they have been desensitized to sex, manipulated to perform sex acts.
It was this evil--and it is evil--that Congress was attempting to eradicate when it passed the PROTECT Act. As for the concern that genuine artistic endeavors could be mistaken for child porn and consequently be targeted for prosecution, it's time that we started exercising a little more common sense--and call on the courts to do so, as well.
We need strong laws to shield our children from these horrors. And we should not allow ourselves to be hoodwinked into believing that the Williams case has anything to do with the First Amendment. As the Washington Post noted, "To choke off demand for the product, those who peddle child pornography must be held criminally liable--even if they exaggerate or falsely advertise the material they hawk."
Let's protect our children, not the child predators.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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