Borgman, Dean  “The Virtual Child Porn Debate,”  CYS.

 

 

 

The 1996 Child Pornography Prevention Act made it a crime to distribute, receive or possess an image that “appears to be of a minor engaging in sexually explicit conduct.”

 

 

Since that time the digital age has made it possible to create images that are life-like. The possibilities of sexual child predators creating, storing, sharing and using animated images to seduce children led Congress to pass a new federal law in 2002 banning “virtual” child pornography, including computer-generated images of minors in sexual situations.

 

 

On 20 May 2002 the Supreme Court declared that law unconstitutional as a violation of the First Amendment arguing that the First Amendment, in their majority opinion, should be presumed to protect pornography that “records no crime and creates no victims by its production.”

 

 

Writing for himself and Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Bryer, Justice Anthony M. Kennedy declared not only the new act, but the original act to be in part unconstitutional. Its language was unconstitutionally vague and far-reaching.  “The First Amendment requires a more precise restriction. Writing separately, Justice Clarence Thomas agreed with the decision.

 

 

Justice Sandra Day O’Connor only partially agreed with the Court’s majority decision. Dissenting were Chief Justice William H. Rehnquist and Justice Antonin Scalia. “The aim of ensuring the enforceability of our nation’s child pornography laws is a compelling one. The (law) targeted to this aim by extending the definition of child pornography to reach computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct.”

 

 

The Free Speech Coalition (FSC) had filed suit against the law, claiming it was too broad and violated free speech. Both the FSC, and the pornographers’ trade group, say they are against child pornography,  but that they are afraid the law could make legitimate, though distasteful, films and photos produced by pornographers, illegal.  FSC Executive Director Bill Lyons claims digitally generated, "virtual" child pornography is—somehow—different than regular photographs of child sex. "There is no child used in the creation of the image; therefore there cannot be child pornography based on the abuse of a child.”

 

 

Miriam Moore, of the Family Research Council, strongly disagrees with Lyons' position and argument.

 

 

"Even though this may not be pictures of actual children, it's being passed off to pedophiles as pictures and it's used in the cycle of abuse," Moore said. "It becomes integral to drawing more children into this."

 

 

Benjamin Bull, an attorney with the religious-liberties legal group Alliance Defense Fund, further argues:

It'll be the downfall of the enforcement of existing child pornography laws (Bull said, pointing out that computer-generated images can be nearly impossible to distinguish from actual photos). A pornographer could always assert in court that the material that he's being prosecuting for distributing isn't actual child pornography, but simply morphed virtual child pornography and there'd be no way for the government to disprove that.

 

 

On the other side, Danielle Cisneros, writing in the Duke Law and Technology Review (2002 Duke L & Tech. Rev. 0019, 9/23/2002) concludes her article:

The proposed amendment is so broad that it would encompass much of the entertainment industry. Imagine if all the movies depicting minors in sexually explicit situations were removed from the store shelves. Some very popular movies and works of art would suddenly become illegal contraband. It could happen if Congress passes this proposed amendment. Congress has again failed to narrowly tailor the law but hopefully, for the sake of our freedom of speech, the proposed amendment shall fail as well. The Supreme Court’s decision in Ashcroft v. The Free Speech Coalition indicates that there is a way to tailor the revision of the CPPA without violating the First Amendment. If the government believes that "virtual child" pornography will be used by child abusers to convince their victims to participate in sexual activities, Congress could narrowly tailor a criminal statute to punish such uses of the materials severely without banning the creation and possession of the work. Banning "virtual child" pornography will not effectively protect the nation’s children from perpetrators. It will simply eliminate a victimless alternative that is substantially less repugnant than the abuse of actual children. The proposed constitutional amendment and congressional bills are plagued with the same problem of being overbroad as the CPPA and violate the First Amendment’s protection of the freedom of speech.

Disagreeing with such a position and the Supreme Court’s decision, the conservative National Review Online (www.nationalreview.com) had this to say:

 

 

The Court… construed the purpose of the pornography laws too narrowly. The Court comes close to suggesting, that virtual child pornography is a good thing, since it reduces the demand for pornography involving actual children: “Few pornographers would risk prosecution for abusing real children if fictional, computerized images would suffice.” But the harm done by child pornography is not limited to the harm done to children exploited in the course of its production.

 

 

There is also the harm done to public morality, and to the many children who will suffer if that morality declines—if people who are attracted to sex with children, and the sexualization of children, are told that the law does not frown on this desire and behavior and that it even tolerates a subculture oriented around this desire. The making of “virtual” pornography inflicts that harm just as much as pornography involving actual children does.

 

 

For most of American history, nobody thought that the Constitution enjoined legislatures from enacting laws to protect public morals. Nobody doubted that such laws were legitimate even if they impinged on “free expression” (sex with a prostitute is an expression of lust, but it can be legally proscribed).  Today’s Court has a routinized distrust for democratic processes. In this case, it argued that prosecutors and juries would be unable to distinguish between obscenity and Romeo and Juliet. Our own view is that the general public can be trusted to draw the appropriate lines—especially when the alternative is to hope that sexual deviants will themselves respect the line between enjoying depictions of sex against children and actually forcing them on children.

 

 

QUESTIONS FOR REFLECTION AND DISCUSSION

 

 

1.     On which side of the debate are you?  Do you think freedom of speech should be protected even when it does social harm? Or, do you believe our laws should protect public health—that the issue of child pornography is a moral public health issue?

 

 

2.     Are you with the Congress who passed these laws to criminalize the use of child pornography digitally produced, or are you with the Supreme Court in striking down or limiting these laws?

 

 

3.     What do you think of the arguments above? Do they summarize the debate?

 

 

4.     Can things a person does alone or with another in secret damage others?

 

 

5.     Do you think pornography generally damages the health of society, the common good, and the welfare of family, children and young people?

 

 

6.     Is there a place for this discussion in the family, in schools, in churches and youth groups?  How can such discussions best be handled?

 

 

IMPLICATIONS

 

 

1.     The abduction and slaying of children by child rapists is increasing. Sexual addictions can lead to infantilizing of sexual desires. Child sexual abuse in the home is a huge problem. A local truck driver and his girl friend have just been arrested for sending posed pictures of her nude child by picture mobile, so the boyfriend, who has had sexual relations with the child, could masturbate while traveling cross-country.

 

 

2.     The pornography business is a multi-billion dollar industry world-wide. A good part of that includes child pornography.  Children are being seduced with alcohol and pornography; they in turn being exploited by cameras and the Internet.

 

 

3.     We must discuss and decide whether this is a public health issue or not.

 

 

c. CYS