supremes to discriminate reality from images, censorship
Jan 22, 2001 - 10:29 AM Justices Will Review Ban on Virtual Kiddie Porn By Laurie Asseo Associated Press Writer WASHINGTON (AP) - The Supreme Court agreed Monday to decide whether Congress can attack child pornography by banning computer-altered pictures that only appear to show minors involved in sexual activity. The court said it will hear the government's argument that by banning sexual images that do not actually portray children, a 1996 law "helps to stamp out the market for child pornography involving real children." A coalition of adult-oriented businesses that challenged the ban says it violates free-speech rights, and a San Francisco-based federal appeals court agreed. The Child Pornography Prevention Act expanded a long-standing ban on child pornography to prohibit any image that "appears to be" or "conveys the impression" of someone under 18 engaged in sexually explicit conduct. The law targeted computer technology that can be used to alter an innocent picture of a child into a depiction of a child engaged in sex. The Free Speech Coalition, a California-based trade association of adult-oriented businesses, challenged the law in federal court. The group said it opposes child pornography, but that films and photos produced by its members could wrongly be deemed to show minors engaged in sexual conduct. The group did not challenge a section of the law that banned the use of identifiable children in computer-altered sexual images. A federal judge upheld the law, but the 9th U.S. Circuit Court of Appeals decided in December 1999 the provisions challenged by the coalition violated the Constitution's free-speech protection. The court said the government did not show a connection between computer-generated child pornography and the exploitation of actual children. Several other appeals courts have upheld the provisions, and in the appeal acted on Monday, Justice Department lawyers asked the nation's highest court to resolve the conflict. The government has a compelling interest in preventing the sexual abuse and exploitation of children, government lawyers said, adding that pedophiles often use pictures to seduce other children into sexual activity. Because it is hard to distinguish computer-generated pictures from those actually portraying children involved in sex, "The government may find it impossible in many cases to prove that a pornographic image is of a real child," Justice Department lawyers said. The Free Speech Coalition's lawyers said that even without the disputed provisions, the 1996 law "remains a comprehensive and effective tool for fighting the real evils of child pornography." The case is Reno v. Free Speech Coalition, 00-795.
On Mon, 22 Jan 2001, Blank Frank wrote:
Jan 22, 2001 - 10:29 AM
Justices Will Review Ban on Virtual Kiddie Porn
The court said it will hear the government's argument that by banning sexual images that do not actually portray children, a 1996 law "helps to stamp out the market for child pornography involving real children."
Which, actually, I'm reasonably sure it does. But only by making the posession of such pictures a very serious legal risk. This argument says, "as long as we are jailing people for having these images (and subjecting them to public humiliation and ostracism via 'sex offender notification' laws when they get out), a fair number of people who might otherwise want to have them won't consider it worth the risk." Now that may be killing a *market*, but it doesn't have a damn thing to do with killing *demand*. This gets at something that I think is a very general principle; they wanted to get the suppliers who were abusing kids, fine. They decided that in order to get the suppliers they'd have to destroy the market, so they made posession of kiddie porn illegal -- This is already overstepping bounds, because there were less restrictive methods available. They could have made the posession of kiddie porn produced *after a particular year* illegal, for example. But then they got so eager to kill the market that they made posession of anything which *appears to be* kiddie porn illegal.... which had no effect whatsoever on the suppliers who were abusing kids in the first place. They lost sight of the fact that killing the market was a means to an end in the first place, and not an end in itself. Now, I think that there is a fundamental legal principle here, which is that every time you pass a law you ought to know exactly why you're passing it. Every law ought to be passed pursuant to some clearly stated principle or set of principles, and the admission of new items to the set of principles that are considered just basis for law ought to be very carefully considered. There's probably a fancy latin term for this, but I don't know what it would be. Anyway, what has happened here is that there was a law passed (against kiddie porn) on the principle that we ought not allow people to profit from abusing kids. And then a second law was passed (against CG pseudo-kiddie porn) on the principle that we ought not allow kiddie porn (a simplification or wilful misinterpretation of the purpose of the original law). Basically, a new principle got elevated into the set that laws can be passed to uphold, without anybody actually stopping and thinking about it and making a decision. And a bad law resulted. There is a fundamental rule here, which is that in a society governed by law you have to make decisions about and keep track of what principles laws can be passed to uphold. In the long run, given the availability of crypto, any laws against posessing some particular flavor or type of bits are doomed to be unenforceable. But still, that rule will always be with us, and while it remains unrecognized (or unimplemented) by governments, "regulatory creep" will continue to advance by the passage of bad laws. Bear
participants (2)
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Blank Frank
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Ray Dillinger