Issue 107, Summer 2008

Only 6 years ago, the Supreme Court held that “virtual” child pornography – sexual depictions that appear to, but do not, involve actual children – is protected by the First Amendment, for the same reasons that simulated sex in films like Lolita is protected. The Court reasoned that, no matter how distasteful the material may be, if no real child is exploited, there is no basis for suppressing expression.

The present Court pays lip service to this precedent even as it undermines it. As a result of a decision issued on May 19, US v. Williams, it is now a crime to “advertise, promote, present [or] distribute” virtual child pornography – which is protected by the First Amendment – if the person doing it thinks it is real or intends another to think so. This result criminalizes intentions and statements about legal material.

But why should we care about such “low value” speech? One reason: the way the Court reached this result is not good news for the First Amendment. While conceding that the law chills some protected expression, the majority concluded it is not “substantially overbroad.” To dispense with the lower court finding that the statute is overly vague, the Court concluded the legal system could sort those cases out – small comfort to those who are forced to defend against false charges.

This is not an insignificant concern. Overzealous prosecutors who equate child nudity with pornography have charged parents and grandparents with crimes for taking pictures of their children in the bath, and charged academics for doing online research on erotic art. While these cases did not involve pandering, the statute approved by the Court will provide another way to target people who may have done nothing more than send an unwise e-mail with an attached photo that catches the eye of a crusading – or campaigning – prosecutor.

As the dissent observes, there is no evidence of a “prosecutorial crisis” in enforcing the laws against real child pornography, and no evidence of harm to actual children from virtual pornography. But the existence of “moral panic” around pedophilia tends to extinguish rational analysis. Those who have dared to explore the issue thoughtfully in the past have already been vilified , had their work censored, lost their funding, and in one case become the object of a Congressional resolution condemning their research.

The recent decision may rid the internet of some disturbing, if protected, material, but it will also further exacerbate the panic around children and sexuality and chill speech that has real value, including scholarly and academic discourse on the topic. This would be a truly perverse result of the decision. It is impossible to address the problem of real child pornography without being able to study or discuss it freely.