The first round of papers has been filed in a federal appeals court in San Francisco challenging the constitutionality of the Child Pornography Prevention Act of 1996. At the same time, the new movie version of Vladimir Nabokov's book Lolita, starring Jeremy Irons, is opening all over Europe, even though it is not scheduled for release here.

These events are connected.

The United States long has had laws prohibiting sexual abuse of minors and trafficking in child pornography. The Supreme Court allows state and federal officials wide authority to protect minors from the sexual exploitation involved in making pornographic material with actual children. In 1996, Congress decided that this wasn't enough, so it added additional prohibitions. The new law outlaws images that appear to be of children, even if they are not. So, even if a movie like Lolita was filmed with an adult body double, it apparently would be prohibited if it contains simulated sexual conduct that appears to involve a minor. If you recall, that's what Lolita is about: a man's sexual obsession with a pubescent girl.

The theory behind the law is that such images encourage pedophilia. But sexual abuse of minors is already illegal.

Human motivation is complicated. There's no persuasive evidence of a causal relationship between exposure to sexually explicit material and crimes like rape or sexual abuse, or between viewing violence and committing violent crimes. Savage acts (sexual and other, against children and adults) have been undertaken under the influence and in the name of religion, but that doesn't mean religion causes savagery.

Disturbing images cannot be prohibited because of the fear that they will induce someone to engage in undesirable or criminal conduct. Otherwise, legislatures could decide that movies about armed resistance might encourage disaffected people to take to the streets with guns, or that pictures of lynching might encourage bigots to act on their racist beliefs. It is a basic tenet of our constitutional system that government can control people's behavior, not their thoughts.

There's no denying that words and images have power to affect how people think and act. But suppression of "bad" ideas or images, even if it were possible to agree on what those might be, does not result in the disappearance of those ideas or of acts premised on them. Ironically, some opponents of pornography who endorse censorship have had their own anti-pornography literature censored.

Silencing stories like Lolita will not eliminate pedophilia, which has existed throughout time, in permissive cultures and repressive ones. The film could help us understand something about sexual obsession. Will it? I wouldn't know. I can't see it.

Not every sexual image should be suppressed. Some serve important and legitimate goals. In its indiscriminate approach, Congress may have opened the door to creating a whole class of taboo subjects. It could sweep away sex education materials, serious artistic work with sexual content and pictures about other cultures and eras. If it is upheld, Americans may have to go to Europe to appreciate fully the value of the 1st Amendment.

Why Defend "Child Pornography"

FREEDOM OF EXPRESSION QUARTERLY
Winter 1998

By Joan E. Bertin

It's almost impossible to get anyone to defend child pornography. Even some First Amendment advocates hesitate. However, a case in the federal appellate court in San Francisco illustrates why anticensorship forces, whatever their views of child pornography, can no longer afford to ignore it.

Free Speech Coalition v. Reno challenges the constitutionality of the Child Pornography Prevention Act of 1996, which outlaws images that appear to be minors, even if they are not, or if they "convey the impression...of a minor engaged in sexually explicit activity." In other words, images of persons who appear to be minors engaged in sexual activity, even if no minor was in fact involved in anything of a sexual nature, are now forbidden. There are no exceptions, even for works with artistic, historical, educational, or scientific value. There is an affirmative defense, but only for material produced with an identifiable adult which does not "convey the impression" that a minor is involved.

Thus, the new movie version of Lolita, even though filmed with an adult "body double," could be deemed "child pornography" if it appears to involve a minor in simulated sexual activity. Of course that's what Lolita is about - a man's sexual obsession with a pubescent girl. The law is so broadly drawn that it arguably applies to art work such as Balthus' painting The Guitar Lesson; some renditions of Romeo and Juliet; photographs of sexual practices or rituals around the world; some sex education materials; graphic depictions of incest and child sexual abuse - even if made for the purpose of opposing them, and so forth. Jock Sturges' photographs of nude children might also be included if they constitute a "lascivious exhibition of the genitals or pubic area."

In the past, the Supreme Court has upheld laws prohibiting child pornography specifically because it poses a risk of serious harm to children who are used to create it. Laws prohibiting the production, sale and possession of child pornography made using real children, like laws prohibiting sexual abuse of minors, are not in question. But the 1996 law cannot be resolved on this rationale.

Congress is no longer satisfied with protecting actual minors from sexual exploitation. It has now taken aim at materials produced without exploiting or even using children. The theory is that such images encourage pedophilia and provide materials that can be used to seduce minors. But silencing stories like Lolita will not eliminate pedophilia, which has existed in permissive cultures and repressive ones. Viewing certain kinds of images does not cause the commission of sexual crimes against children, any more than religion causes violence - even though violent acts are depicted in the Bible and some violent criminals cite the Bible as their inspiration. If disturbing images could be prohibited because someone might use them as an excuse to engage in criminal conduct, there would be no movies about revolution, murder, and lynching. If we believed the enticement argument, we would also have to outlaw candy, ice cream, and money.

Government can control people's behavior, not their thoughts. To prevent sexually predatory behavior, the law can and should target those who act - not those who fantasize. Consider the implications of creating a class of criminals whose only "crime" is viewing computer-generated pictures. Or a class of criminals whose "crime" is researching depictions of adolescent sexuality from ancient Greece.

A lot is at stake in the child pornography case. First, there is a need to recognize that not every sexual image involving a minor is problematic, and some serve important artistic, historical, scientific, and educational goals. Justice Stevens, for example, has indicated that the First Amendment would protect sexually explicit images of minors if they are part of a "serious work of art, a document on behavioral problems, or a medical or psychiatric teaching device." The Court has often noted that "depictions of nudity, without more, constitute protected expression." If this were not the case, pictures of the Sistine Chapel could be banned - naked Adam, cherubs, and the rest. If a picture is worth a thousand words, this is no small loss.

After resolving the easy cases and reason is restored to the debate about child pornography, perhaps it will be possible to discuss the harms to the mind and spirit when taboos are institutionalized and dissent demonized.

Joan E. Bertin is Executive Director of the National Coalition Against Censorship.