This fall, the U.S. Supreme Court will decide the constitutionality of a remarkable statute that since 1996 has broadly criminalized the dissemination of all depictions that appear to show children engaging in "sexually explicit" conduct, notwithstanding that the images were generated purely digitally, without actual children (or even adult actors).
While the case, known as Ashcroft v. Free Speech Coalition,1 may seem a minor skirmish involving issues at the fringes of the First Amendment’s guarantee of free expression, it actually implicates a number of deeper principles that should engage all who believe in freedom of thought—not just those who wish to protect emerging technologies, but also those whose interests might include history, anthropology, abnormal psychology, and the visual and dramatic arts.
According to the legislative findings leading off the Child Pornography Prevention Act, viewing the forbidden pictures "can desensitize the viewer to the pathology of sexual abuse and the exploitation of children, so it becomes acceptable and even preferred by the viewer." Moreover, the findings say such images create an unwholesome moral environment. And, according to the arguments of the brief supporting the statute, the government will never be able to prosecute pornographers if it must bear the burden of proving the images are of real children rather than computer-generated simulations.
If it applies ordinary constitutional rules, the Court will, with little difficulty, reject these defenses and affirm the decision of the U.S. Court of Appeals for the Ninth Circuit to strike down the challenged portions of the statute.2
In 1959, the State of New York sought to prevent exhibition of the movie version of D.H. Lawrence’s Lady Chatterley’s Lover on the basis of its presentation of adultery as a desirable, acceptable, even proper pattern of behavior. The Court unanimously rebuffed the effort, holding that the State’s action "struck at the very heart of constitutionally protected liberty." "It is contended," wrote Justice Potter Stewart, "that the State’s action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax. In the realm of ideas, it protects expression that is eloquent no less than that which is unconvincing."3
Thus, in 1986, the Court summarily struck down an Indianapolis ordinance criminalizing sexually themed works that had the effect of subordinating women. Perhaps the material at issue had socially undesirable consequences, but, the lower court wrote, "the state may not ordain preferred viewpoints in this way."4 Significantly, even when the Court upheld broader suppression of sexually explicit works involving children, so as to afford physical protection to real children involved in abusive productions, it took pains to note that producers could always convey their message by such means as using adult actors who appeared to be younger.5
American courts need to apply the First Amendment in a technology-neutral way, eschewing the temptation to declare certain categories of speech unworthy of protection by the First Amendment and subject to censorship.
As to the argument that without the statute prosecution of child pornographers would be impossible is hardly a constitutional response to the government’s inability to bear the burden of proof in a criminal proceeding for the legislature to pass a statute relieving prosecutors of the need to do so. Practically speaking, this means that in the very rare instances when defendants have the courage to force such cases to trial, the government would have to offer proof, probably from other participants in the production, in addition to the images themselves.
Stunning Vagueness
More broadly, the 1996 Child Pornography Prevention Act rests on premises and language of stunning vagueness that together could lead to consequences that might ultimately eviscerate the First Amendment as a protector of unpopular speech.
Read literally, the Act’s ban on images that "appear to be" of children would support this result. This provision could have the effect of outlawing classical works of art featuring cherubs, photographs of primitive tribes, stills from the movie The Tin Drum (based on the Günter Grass novel), and many other depictions that could hypothetically be abused by a criminal.
Historically, the Court has therefore consistently rejected justifications for censorship based on the possible responses of some peculiarly vulnerable subset of the population. For example, in Butler v. Michigan, it unanimously reversed a conviction under a statute outlawing any publication "manifestly tending to the corruption of the morals of youth." Justice Felix Frankfurter wrote in the Court’s opinion that the effect "of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual . . . that history has attested as the indispensable conditions for the maintenance and progress of a free society."6
On another occasion, Justice Louis Brandeis stated the broader principle this way: "Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly."7 That is, if someone visits a Web site and is motivated to commit a murder, the murderer should be punished, not the site owner.
Despite all this history and these constitutional principles, there is some danger that the Court may actually uphold the statute at issue in Ashcroft.
Uniquely Threatening?
Historical experience—with the printing press, secular dramatic troupes, photographs, movies, rock music, broadcasting, sexually explicit telephone services, video games, and other media—shows that each new medium is viewed at first by governments as uniquely threatening, because it is uniquely influential, and therefore a uniquely appropriate target of censorship. The Court’s response to such developments has been mixed at best. For example, in 1915, it held movies to be "outside" of the First Amendment, in a case it did not overrule until 1952.8
This shortsightedness is the backdrop against which we find governments around the world today reacting with near-hysteria to the possibility of the creation, dissemination, and viewing through the use of computer technology of messages even vaguely related to sexuality. Unfamiliarity makes this new medium seem particularly dangerous, and governments are haunted by the fear that the mechanisms of communication may be outrunning those of control. American authorities worry that neither the doctrinal categories nor the substantive content of current First Amendment law are adequate for dealing with emerging problems. If they were to ignore the lessons of history, the courts might vindicate special restraints by simply declaring that cyberporn presents unique threats and is therefore, like movies 75 years ago, outside the First Amendment.
The common pattern of legal response to new communication technologies reflects the reality that new media achieve their initial marketplace success precisely because they are for some purposes a more effective form of communication than their existing counterparts.9 Thus, photographs were a special target of government censorship efforts in the 19th century because they were so much more realistic than painting. As described by art historian Peter Bacon Hales of the University of Illinois, Chicago, audiences of that period viewing magic lantern shows "were often so shocked by the portrayal of this new and terrifying world that they fainted, cried, or talked back to the magic lantern screen." In the early 20th century, audiences at Thomas Edison’s first movies, confronted with the spectacle of a locomotive heading right at them, fled the theaters in terror. Moreover, in every century, one of the first uses of innovative communication technology has been the transmission of sexual images, and one of the next has been communication in the furtherance of political dissent—thereby exacerbating the authorities’ concern for social stability.
Overblown Reaction
The courts should enforce First Amendment protections in the context of new media, just as they do in the context of the older ones, recognizing the damage that groundless fears might do to public discourse. In time, a consensus will arise that the first reaction to the perceived threat of pixelized pixies in cyberspace was as overblown as with other new media. Meanwhile, in the interests of social, political, and artistic progress, American courts need to apply the First Amendment in a technology-neutral way, eschewing the temptation to declare certain categories of speech unworthy of protection by the First Amendment and subject to censorship.
The whole point of the First Amendment is, after all, to preserve the possibilities of the future by denying the majority the right to suppress speech it finds hateful in the present.
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