Freedom of expression

April 18, 2002

WE FIND CHILD pornography abhorrent, whether it is real or "virtual." Substituting childlike adult actors or computer-generated characters so lifelike as to fool the eye does not make this brand of smut any less repugnant.

So when the Supreme Court ruled this week to protect free speech in cases where no child is exploited in the manufacture or marketing of child pornography, we nodded in support and winced at the same time.

The Child Pornography Prevention Act of 1996 had over-reached, sweeping into the same gutter the abuse of children for adult entertainment and popular and literary images in which there "appear to be" minors having sex.

It made no distinction between a coming-of-age tale like American Beauty, a masterwork of art and a pedophile's video collection. It was interpreted as banning images that offend community standards as well as literature and art exploring all things profound and poignant about teen-age love.

This had to be corrected. Writing elegantly for the majority, Justice Anthony M. Kennedy cited Shakespeare's tragic young lovers to illustrate the difference between protected free speech and obscenity. Romeo and Juliet -- she was only 13 -- make quite wonderful poster children for the First Amendment.

But they are joined dubiously on that pedestal by the cyber-creations that substitute "virtual" children for real ones in twisted adult fantasies. The Supreme Court ruling means that kiddie porn created without the kids is different from that involving harm inflicted on an actual child or the manipulation of a photo of a real child. However, it may well be obscene, and purveyors may be prosecuted under other laws at the Justice Department's disposal.

But the Supreme Court has made clear that it is wrong to draft laws on the assumption that seeing or thinking about these images leads inexorably to a next step of acting them out. That is too much like legislating thought.

"First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," Justice Kennedy wrote. "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

For Attorney General John Ashcroft and child protection organizations, who saw the ill-fated law as a surefire tool for catching suspected pedophiles and pornographers, the Supreme Court leaves unfinished business. Under the law just overturned, the prosecution did not have to prove whether the children in the pictures were fake or real. What now?

Technology is morphing faster than the law. Investigators are dealing with images that are increasingly indistinguishable from photos, raising justifiable concern that exploitation of children will continue, covered up by computer wizardry.

In a democratic society where free expression is cherished, discomfort accompanies real efforts to weigh and balance our values and rights. We do not need government to tell us what to think or what we can read or download from the Internet. What we need government to do is protect innocent children from harm.

Mr. Ashcroft must make it his priority to find contemporary legal tools to net the abusers without setting traps so extreme that they ensnare people guilty of little more than dirty thoughts.

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