CHARLOTTESVILLE, Virginia (U-WIRE) — Pity poor Joe Q. Public. No matter how hard he tries, he can’t have an effective voice in government. The representatives Joe elects can’t make the laws that he wants — laws that draw a line in the sand and say what Joe and his neighbors will and won’t accept. And who does Joe Q. Public have to thank for the obstruction of the democratic process? Judicial activists who extend substantive rights to extremes they never should reach, and at a high societal cost to boot.
Last week the American people were treated to a healthy dose of judicial paternalism in Portland, Maine. A federal district court judge used his “gavel veto” to wipe away the voice of Congress and the American people in overturning the Child Pornography Protection Act of 1996. The act amended the definition of illegal child pornography to include computer-generated or altered images that look like minors engaged in sexual acts.
First Amendment absolutists will argue that the only reason pornography involving children is illegal is that the production of such material harms the children involved. But the secondary effects of child pornography merit prevention as well. Child pornography, like any other form of pornography, is designed with the intention of arousing its audience.
Sex among adults generally is accepted by society, so arousal through certain portrayals of adults is acceptable. But the statutory rape laws of the states clearly indicate that society does not accept sex with children. That society does not need to accept a portrayal of those acts if it has made clear its aversion to such images. Even if the pornographic material does not exploit children in its creation, mere computer alteration does not make it any more tolerable. It inspires deviant behavior that the government has a legitimate interest in combating.
This is not to say that free speech claims are less important. The Child Pornography Protection Act of 1996 is vastly different from the Communications Decency Act of 1995, struck down by the Supreme Court in the 1997 case Reno v. ACLU. The CDA criminalized the transmission of pornographic materials over the Internet to anyone who was under 18. The Court found that the CDA had a “chilling effect” on free speech, because people would hesitate to transmit information out of fear that a recipient might be a minor. The Court also found that less restrictive means were available to achieve the same goal, such as age verification sites and parental control.
The CDA was too restrictive because it restricted adult pornography, which society has determined permissible for adult viewing. In contrast, the CPPA was designed to protect children from being exploited by pornography. It makes no difference whether children are used in the actual filming of the material.
Even if a producer uses animated children, or a short, skinny 19-year-old actress to portray a 12-year-old girl, the secondary effects of the pornography are to sexually arouse a viewer and inspire conduct that the states already have made illegal. Child pornography does not only exploit the children pictured, it exploits all children.
Presumably, U.S. District Judge Gene Carter’s primary objection to the CPPA is that the law is overly broad, and would ban even sexual depictions protected by 1973’s Miller v. California standard of material with “serious literary, artistic, political, or scientific value.”
I haven’t the foggiest clue under what circumstances a picture of two children or a child and an adult having sex could have serious artistic, political or scientific value. (Literary value is irrelevant to the CPPA, because the law only applies to images). Benign pictures with social value would still be permissible under the CPPA: A naked child appearing in a non-sexual manner in a medical textbook would not fall under the law’s reach. The Child Pornography Protection Act was adopted to combat the use of computers to alter pictures of children, making it appear as though the children were engaged in explicit sex acts.
The public has spoken and determined that pornographic portrayals of children will not be tolerated. The people are free to reverse that determination if one day society says child pornography is acceptable. There is no constitutional prohibition on child pornography, no restriction that would prevent someone from one day convincing a majority of the voting public that child pornography was beneficial to society.
But until that day, no judge should be allowed to hide behind the First Amendment and countermand the will of the people. The only purpose of pictures of children engaging in sex acts is to inspire sexual deviants to pursue unlawful conduct. If that’s what James Madison sought to protect, I’ll eat my Constitution.
John Buford’s column originally appeared in Monday’s edition of the University of Virginia Cavalier Daily.