supremes to discriminate reality from images, censorship
Ray Dillinger
bear at sonic.net
Mon Jan 22 14:36:21 PST 2001
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
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