Fake Child Pornographers Unfairly Prosecuted For Evidence, Not Crime

2 November 2001

By Stentor Danielson

Meeting in a borrowed courtroom after an anthrax scare closed their usual building on Capitol Hill, the Supreme Court took up a case this week that asks whether the government can ban fake child pornography -- porn that looks real but isnít. A 1996 law bans any materials that seem to show minors engaged in sexual activity, whether or not the activity depicted actually took place or actually involved minors. The law covers images doctored through new technology to seem to be child porn, as well as the use of immature-looking adults to play minors.

The law is being challenged by a group of adult entertainment providers calling themselves the Free Speech Coalition. The law was upheld by a federal judge, but challenged by the 9th U.S. Circuit Court of Appeals, which bucked the trend toward supporting the law established by other federal courts.

Civil libertarians have joined the Free Speech Coalition in denouncing the law. They told the court that banning anything that looked like child porn, even if it wasnít, would restrict artistic expression. When Justice Antonin Scalia asked "what great works of Western art" we would lose if any appearance of sexual activity by minors were eliminated, lawyers cited the recent films Traffic and Titanic, as well as Vladimir Nabokovís novel Lolita and film adaptations thereof. Justice John Paul Stevens reminded a still-skeptical Scalia that Shakespeareís Romeo and Juliet contains sexual relations between two characters, at least one of which (Juliet) is only 13 years old. Many productions, as well as a classic film version, of this play deal quite unashamedly with this aspect of the loversí relationship.

I donít like having to side with purveyors of smut. I am no fan of pornography in general (despite what the people who spam my AOL e-mail address seem to think), and I find child pornography particularly offensive. I can see no good reason why an adult should be interested in the sexual activity of minors. However, other peopleís depravity is their own business.

The issue isnít that pornographers have some right to produce their materials. Supporters of the legality of fake porn insist that the First Amendmentís guarantee of free speech protects what they do. However, this leads us into the quagmire of what constitutes "speech." As anyone who has followed the perennial flag burning debate knows, speech can be as easily taken to mean only vocalized words as it can be taken to mean any type of expressive or communicative activity. But in the case of fake child porn, there is a simpler argument to be made: the government has no right to prevent child pornography.

The first thing we need to do is to be clear on why the government has an interest in preventing child pornography. It is not that the desire of an adult to see minors engaged in sexual acts is depraved, true as that may be. The government should not be the morality police. Rather, the governmentís interest comes from the damage that is done when pornographers force, coerce, trick or entice children into engaging in sexual activity.

The existence of the pornography itself is not the problem. A pornographic image is just an image. What is the problem is how the image is produced. Regular child pornography is produced when children, who are not mature enough to make the kind of free and informed decision necessary, engage in sexual activity. Children can be physically and psychologically damaged if they are made by adults to have sex. Pornography is simply the documentation of this act. The act is criminal, the evidence is not. What the 1996 law seeks to ban is evidence created without a crime.

Opponents of fake porn contend that allowing fake child pornography creates and sustains a market for child porn, thus increasing the likelihood that real child pornography will be created. This is backwards economics. Markets are created by demand, not supply. Banning anything that looks like child pornography wonít stop perverts from wanting sex with children. There will still be money to be made at child porn, and therefore someone will find a way (much easier since the advent of the Internet) to earn that money.

The existence of fake porn may, in fact, dilute the market, reducing real pornís market share through competition. As computer technology advances, it will become even easier to make fake porn as compared to the costs involved in arranging the illicit acts necessary to create real porn. This will give the more benign fake porn purveyors the advantage over real porn merchants.

Opponents also claim that child pornography of any kind is dangerous because it is a potential tool for real porn makers to lure children into cooperating. This argument mistakes the means for the end. What is criminal here is not the possession of porn, but the luring of children into the industry. Realistic child pornography is only one of many possible tools for this. Children are all too often lured into sexual situations even without the help of pictures of other children.

One final argument against fake porn is that it would be impossible to tell what is real and what is not. But that is an enforcement issue. I see little gain in making things illegal simply in order to streamline catching criminals, of deliberately setting out to arrest those who have done no wrong in order to make sure you get those who have. The issue is further complicated by the subjective nature of what constitutes child pornography. Given that people mature at different rates, who is to say whether an adult looks too young to be able to work in the adult entertainment industry? The standard imposed by the 1996 law is no more clear-cut than the division between real and fake porn.

Further, using the "if it looks like child porn, it is" standard diverts attention from what is really the issue -- the production of child pornography -- to its mere existence. Investigators should be concerning themselves with the damage done to children, not whether someone has dirty pictures.

The governmentís role is not to deprive depraved people of their gratification. The governmentís role is to protect its citizens from unwanted harm. Pretending that children have had sex is not causing unwanted harm.

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