John Whitehead's Commentary
When Logic and the Law Fail: Protecting Child Porn?
In a 6-3 ruling that seemed to go against all logic and standards of decency, the U.S. Supreme Court last week labeled unconstitutional a 1996 law banning computer-generated simulations of minors having sex. By striking down the Child Pornography Prevention Act, the high court weighed in on the side of a group ostensibly representing the interests of adult entertainment industry executives.
In classic Orwellian fashion, the group that challenged the virtual child pornography ban refers to itself as the Free Speech Coalition. But it doesn't take a genius to figure out that these people don't seem to be fighting so much for the First Amendment as for their right to turn a quick buck by producing materials that capitalize on the innocence of children. Congress passed the Child Pornography Prevention Act of 1996 to prevent pornographers from using emerging technologies to simulate child sex scenes without using actual children, but the law failed for at least two unfortunate reasons.
First of all, the law was ambiguous in some of its wording, providing pornographers with a loophole to use to their advantage and giving the Supreme Court a reason to strike it down.
And secondly, the Court majority was sidetracked by the argument that such a ban would have prevented the creation and distribution of such award-winning films as American Beauty and Traffic. But let's be frank. No one's attempting to ban films such as these. Even after the law went into effect, American Beauty received an Oscar for Best Film. What the creators of the Child Pornography Prevention Act intended to prevent was the distribution of titillating material that would feed the perverted appetites of pedophiles and child molesters--a real and immediate danger in our sex-obsessed society.
In commentary on the case, media outlets have painted it as a showdown between liberals and conservatives. This is, however, a smoke screen. The real issue is not about politics. Instead, it has everything to do with protecting our young people from the very real dangers that surround them. There can be no denying that there are predators who feed on the young. The recent spate of sex abuse revelations within the church, schools, etc., proves it. Yet despite the stated concern by proponents of the legislation that any child pornography, virtual or real, endangers children by reinforcing the behavior of pedophiles, the Court said they couldn't prove a nexis between pedophiles who watch such trash and then actually do it.
If proof is what they require, then Congress needs to convene a panel to study pedophilia and the possibility of such a connection because images definitely have an impact. Dale Kunkel, a senior researcher from the University of California Santa Barbara who worked on the National Television Violence Study, believes there is a clear correlation between violent behavior and violence on TV. "In fact," says Kunkel, "there are three primary types of antisocial effects that we're concerned with here. One is learning aggressive attitudes and behaviors. A second is desensitization to the victims or the harms that are suffered by victims of violence, and then also the fear of being victimized by violence that comes with a heavy dose of violent viewing."
If television violence affects viewers, why wouldn't sexually titillating images involving young children incite those already inclined to such perversions? Without wasting too much time debating the issue or bemoaning the ruling, legislators need to focus their efforts on drafting a better, more stringent law, one without loopholes big enough for groups like the so-called Free Speech Coalition to walk through.
All told, pornography is a rotten, seedy business. The debate on pornography will continue to rage as long as there are individuals willing to produce the smut--and individuals wanting to consume it. But child pornography needs to be put in a category all its own. Until they have reached the age of consent, children remain at the mercy of adults, who either protect them or abuse them.
No matter what the justification--that depictions, real or contrived, of children having sex are legitimate for educational, scientific or artistic reasons--there is no coherent rationale for such a ruling. Some civil libertarians reportedly hailed the Court's ruling as a defense of the First Amendment. But this civil libertarian believes we all need to reconsider our priorities.
And if we are really serious about this issue, then we need to pester, prod and lobby our representatives to create legislation that will hold up in court and protect our children from the growing population of sexual predators. In attempting to define obscenity, Supreme Court Justice Potter Stewart once famously said, "I know it when I see it." His meaning was clear--sometimes it's not enough to hold to the letter of the law. In those instances, common sense must take hold. Let us hope that Congress will produce effective legislation and, when it is challenged, that the Supreme Court will show they have the sense and the savvy to rule wisely and well.
In classic Orwellian fashion, the group that challenged the virtual child pornography ban refers to itself as the Free Speech Coalition. But it doesn't take a genius to figure out that these people don't seem to be fighting so much for the First Amendment as for their right to turn a quick buck by producing materials that capitalize on the innocence of children. Congress passed the Child Pornography Prevention Act of 1996 to prevent pornographers from using emerging technologies to simulate child sex scenes without using actual children, but the law failed for at least two unfortunate reasons.
First of all, the law was ambiguous in some of its wording, providing pornographers with a loophole to use to their advantage and giving the Supreme Court a reason to strike it down.
And secondly, the Court majority was sidetracked by the argument that such a ban would have prevented the creation and distribution of such award-winning films as American Beauty and Traffic. But let's be frank. No one's attempting to ban films such as these. Even after the law went into effect, American Beauty received an Oscar for Best Film. What the creators of the Child Pornography Prevention Act intended to prevent was the distribution of titillating material that would feed the perverted appetites of pedophiles and child molesters--a real and immediate danger in our sex-obsessed society.
In commentary on the case, media outlets have painted it as a showdown between liberals and conservatives. This is, however, a smoke screen. The real issue is not about politics. Instead, it has everything to do with protecting our young people from the very real dangers that surround them. There can be no denying that there are predators who feed on the young. The recent spate of sex abuse revelations within the church, schools, etc., proves it. Yet despite the stated concern by proponents of the legislation that any child pornography, virtual or real, endangers children by reinforcing the behavior of pedophiles, the Court said they couldn't prove a nexis between pedophiles who watch such trash and then actually do it.
If proof is what they require, then Congress needs to convene a panel to study pedophilia and the possibility of such a connection because images definitely have an impact. Dale Kunkel, a senior researcher from the University of California Santa Barbara who worked on the National Television Violence Study, believes there is a clear correlation between violent behavior and violence on TV. "In fact," says Kunkel, "there are three primary types of antisocial effects that we're concerned with here. One is learning aggressive attitudes and behaviors. A second is desensitization to the victims or the harms that are suffered by victims of violence, and then also the fear of being victimized by violence that comes with a heavy dose of violent viewing."
If television violence affects viewers, why wouldn't sexually titillating images involving young children incite those already inclined to such perversions? Without wasting too much time debating the issue or bemoaning the ruling, legislators need to focus their efforts on drafting a better, more stringent law, one without loopholes big enough for groups like the so-called Free Speech Coalition to walk through.
All told, pornography is a rotten, seedy business. The debate on pornography will continue to rage as long as there are individuals willing to produce the smut--and individuals wanting to consume it. But child pornography needs to be put in a category all its own. Until they have reached the age of consent, children remain at the mercy of adults, who either protect them or abuse them.
No matter what the justification--that depictions, real or contrived, of children having sex are legitimate for educational, scientific or artistic reasons--there is no coherent rationale for such a ruling. Some civil libertarians reportedly hailed the Court's ruling as a defense of the First Amendment. But this civil libertarian believes we all need to reconsider our priorities.
And if we are really serious about this issue, then we need to pester, prod and lobby our representatives to create legislation that will hold up in court and protect our children from the growing population of sexual predators. In attempting to define obscenity, Supreme Court Justice Potter Stewart once famously said, "I know it when I see it." His meaning was clear--sometimes it's not enough to hold to the letter of the law. In those instances, common sense must take hold. Let us hope that Congress will produce effective legislation and, when it is challenged, that the Supreme Court will show they have the sense and the savvy to rule wisely and well.
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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