First Amendment Freedom

Jeff Justus

July 10, 2002 

For years, local and federal law enforcement agencies have busted child pornography rings and even arrested individuals for possession of child pornography.  But what if the Supreme Court announced that child pornography was not illegal?

The Supreme Court has done just that.  In its ruling that the Child Pornography Prevention Act of 1996 (CPPA) was unconstitutional, the Supreme Court said that publishers have the right to create, sell, and otherwise distribute images of (among other things) persons of apparent minor age involved in sexual conduct or other provocative situations.  The challenge was brought to the Supreme Court by the Free Speech Coalition – an organization that represents mainly adult-oriented materials.

At the heart of the matter is a form of imagery called “virtual” child pornography.  Virtual child pornography is the creation of images either by painting, manipulated photography, computer generation, or other means to produce an image of pornographic nature featuring persons of apparent minor age. 

The Supreme Court justices who voted to overturn the 1996 CPPA law waved the banner of free speech as more important than child exploitation.  In fact, their decision really called child exploitation the benchmark for acceptable versus unacceptable child pornography. 

In other words, child pornography is fine and acceptable as long as a child was not exploited in its creation.  If no child was exploited, then child pornography is not only acceptable, but protected by U.S. law.

The CPPA said and the court disagreed that child pornography is a fueling agent in child abduction and abuse cases.

“The contention that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children runs afoul of the principle that speech with the rights of adults to hear may not be silenced in attempt to shield children from it.”[i]

“The argument that virtual child pornography whets pedophiles’ appetites and encourages them to engage in illegal conduct is unavailing because the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.”[ii]

In other words, the court does not think that the production and possession of child pornography (be it real or virtual) is unlawful or produces unlawful behavior.  If this is true, then why is it considered unlawful to yell “fire” in a crowded theater?  How many riots have begun with words or images that drive a mob to a destructive frenzy.  The Supreme Court says that the ability of words or images to drive a mob is not sufficient to ban the words or images.  It then adds that the CPPA has not proven that images of child pornography drive pedophiles to unlawful behavior.

Have you ever heard of a case where a pedophile was arrested and his home was not filled with child pornography?  Every time I hear about a pedophile arrest, it is reported that the offender was in possession of a large volume of child pornography.

Further, if, as the Supreme Court says, child pornography is not a crime absent the exploitation of a child, then why do law enforcement agencies pursue child pornography rings?  Why raid shops that sell or homes of those who possess child pornography?  If only the exploitation is the crime, then the photograph in and of itself is not criminal, or so we could argue with the approving nod of the majority of the Supreme Court.  A photograph is nothing more that pigment (colored ink) on a piece of paper.  Virtual child pornography is just color on a page says the Supreme Court.  Doesn’t this same test apply to a photograph of a nude child?  It’s just color on a page.  What I am trying to get at is that the Supreme Court refused to say that child pornography is a crime.  They would only say that it is a crime to exploit a child and that “real” child pornography is merely evidence of a crime.

Just so you know, the Justices (and the presidents who appointed them) who voted to overturn the CPPA are: Anthony Kennedy (Reagan), John Paul Stevens (Ford), David Souter (Bush), Ruth Bader Ginsburg (Clinton), and Steven Breyer (Clinton).  Those dissenting:  Clarence Thomas (Bush), William Rehnquist (Reagan), Sandra Day O’Connor (Reagan), and Antonin Scalia (Reagan).

I think the problem that we have needs to be examined.  Supreme Court justices are appointed for life.  We can’t just vote them out of office if we don’t like their politics.  It does call into question whom we elect for president (the ones who make the appointment) and whom we elect for the senate (those who confirm the presidential appointment).

Does the Supreme Court represent the people?

Before we answer that, let’s look at who represents whom.  I think we would all agree that the House of Congress and the Senate represent and defend the local people.  Who, then, does the President represent and defend?  The President defends and represents the nation collectively.

Now back to the first question.  Whom does the Supreme Court represent?  The Supreme Court represents and defends the law of the people.  This would tend to explain why the Court seems to favor the defendant over the victim.  Our laws were carefully crafted to preserve the rights of the innocent and the idea that one is innocent until proven guilty.  Therefore, U.S. laws have been interpreted as protecting freedom rather than restricting rights.

How those protections are manifested is the fare of the Supreme Court justices.  Nine people, who have no fear of reprisals, may speak their minds and interpret our laws as they would have them.  So, in a sense, even if we had a law that explicitly outlawed a particular activity, it could be argued that the new law violated in some way the first amendment right.  Depending on the political and moral whim of each Justice, the rights of the few might be granted at the cost of the many.

Let me state for the record my stand on the First Amendment.  It is this very amendment that grants me the right to publish this opinion.  I value that right and would fight to defend it.  However, I do not believe that this same right extends to “performance art” of an individual urinating on the steps of congress.  Anyone could perform any act of indecency in any public display and claim protection of the First Amendment.  In fact, gangsta’ rap “artists” produce compilations (sold as music?) of pure obscenity.  They perform these songs in public concerts.  Kids drive down neighborhoods with these songs blaring loud enough to be heard a mile away.  And it’s all protected under the First Amendment. 

Little Johnny will be sent home for using a single profanity in a public school room; however, if he brings in an obscene gangsta’ rap CD and plays it, it is protected as free speech.

My point is, where do we draw the line of what is free speech versus what is obscene?  Some Supreme Court justices would say there is no line – all speech is protected as free.  My response is that there must be a line between what is acceptable and protected free speech and what is obscene and should be restricted.

The idea of free speech was enacted to protect those with legitimate political ideas that happened to oppose the majority.  The idea of free speech was not, nor was it ever intended to be a carte blanche ticket to say whatever one wanted.  The First Amendment was written to protect legitimate voices.

Now the problem arises as to which are the legitimate voices.

This is the question that the Supreme Court answers almost daily.  And truth be told, it all comes down to the political and moral persuasion of the individual Supreme Court justice – not the law.  In truth, the law can never be written in such a way as to remove all subjectivity.  Laws that attempt to remove subjectivity end up restricting the freedom and legitimate rights of the innocent.  However, clarification of the law may be done in such a way as to work in concert with the constitution.  The Child Pornography Prevention Act of 1996 was apparently vague enough that the Supreme Court decided to strike it down.

If you are like me, you are very unhappy about this decision of the Supreme Court.  But what can you do?  Well, regarding this decision, you need to tell your congressmen and senators what you want.  Representative Mark Foley (R-Florida) is introducing legislation that will clarify and hopefully ban virtual child pornography.  The new act is entitled “Child Obscenity and Pornographic Prevention Act of 2002.”  Tell your representatives and senators that you support this act.  Encourage them to support this act and to ensure that the language is clear enough to prevent Supreme Court veto.

You can send a message to the Supreme Court.  Exercise your freedom of free speech to protect the decency of America.

A good website about the Supreme Court and the individual justices is http://supct.law.cornell.edu/supct/justices/fullcourt.html .  This site also features information about recent opinions of the court and individual justices.