It's not child pornography without a child

April 23, 2002|By Steve Chapman

CHICAGO - Attorney General John Ashcroft reacted grimly to the Supreme Court's decision striking down the Child Pornography Prevention Act. He said the ruling makes prosecuting child pornographers "immeasurably more difficult" and urged Congress to pass "stronger measures to fight child pornography."

The conservative American Center for Law and Justice charged that the verdict "gives pornographers the green light to engage in Internet porn and fails to close a legal loophole at the expense of our children." From listening to them, you'd think that purveyors and patrons of child pornography won a great victory.

They didn't. Never mind the label on the law. It was no more designed to prevent child pornography than a ban on alcohol is designed to prevent people from drinking root beer.

Child pornography - any visual depiction of sexual activity by children - has been outlawed with the blessing of the Supreme Court since 1982. And it remains that way. Anyone who takes photos of 15-year-olds or 8-year-olds engaged in erotic acts is still asking to be sent to prison. Anyone who possesses such photos, ditto. Those who prey on kids for sexual gratification can take no comfort from the verdict, because it has nothing to do with them.

What is affected by this decision is not real child pornography, but fake child pornography. The law at issue here was aimed at movies and photos that give the false impression that kids are performing sexual acts.

It's the equivalent of deciding that if you're going to prohibit apes in residential neighborhoods, you also have to prohibit guys in gorilla suits. What distinguished this measure from the law upheld by the Supreme Court 20 years ago is that it makes it a crime to create any image that merely "appears to be of a minor involved in sexually explicit conduct."

What was Congress talking about?

Two things: images of adults impersonating juveniles and computer-created images of people who look underage. What's missing from the discussion? Nothing, except the original object of concern: actual children. The law went beyond the original purpose of protecting kids from sexual abuse and exploitation. It focused instead on protecting people from allegedly unwholesome images and ideas.

The court's 1982 decision stressed that the truly terrible thing about child pornography is the damage it inflicts on its subjects. That's why it excluded this sort of fare from free speech protections. But the justices were specific about what could be censored - only "works that visually depict sexual conduct by children below a specified age."

In enacting this law in 1996, however, Congress and President Bill Clinton refused to be bound by such restrictions. They extended the prohibition to include anything that resembled child pornography.

But you can't have a cheeseburger without cheese, and last week, the Supreme Court said you can't have child pornography without a child.

Supporters of the law said even "virtual" child pornography should be banned because it appeals to the prurient interests of pedophiles.

It's too bad that some people derive pleasure from thoughts that are disgusting and criminal. But repellent thoughts don't necessarily lead to repellent actions - and if they do, it's the actions that deserve punishment, not the thoughts.

The other pretext for the law was that computer-generated images could hinder prosecution of child pornography by making it hard to tell if an image is of a real kid or an imaginary one.

But the government can't discard the First Amendment just because it may impede law enforcement any more than it can discard the Fourth Amendment, which inconveniences cops by forbidding unreasonable searches. At any rate, the danger is largely a phantom: Congress passed the law despite the Justice Department's 98 percent conviction rate in child pornography cases.

Just as people fantasize about murder without ever committing it, there are doubtless pedophiles who daydream about sex with children but never molest any. The threat to kids comes not from people who consume erotic photos of fictitious children. It comes from people who commit real acts of abuse against real kids. The supporters of this law seem to have forgotten the difference.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing newspaper.

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