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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