The Supreme Court and ersatz kiddie porn Via Instapundit comes this story by Mike Lynch on the recent SCOTUS decision to strike down the Child Pornography Prevention Act.
"What the Supreme Court has said here is that ‘child pornography’ has to involve children,’" Mark Kernes, a senior editor at Adult Video News, told The New York Times. "And what a shock that is."
OK, first, the references:
From Lynch’s article:
The latter includes some twisted stuff, but it also includes much mainstream art and discourse. "The statute proscribes a visual depiction of an idea," wrote Justice Anthony Kennedy, "that of teenagers’ engaging in sexual activity, that is a fact of modern society and has been a theme in art and literature throughout the ages."
Now from the dissent of Rehnquist:
Judge Ferguson similarly observed in his dissent in the Court of Appeals in this case:
From reading the legislative history, it becomes clear that the CPPA merely extends the existing prohibitions on real child pornography to a narrow class of computer-generated pictures easily mistaken for real photographs of real children. Free Speech Coalition v. Reno, 198 F.3d 1083, 1102 (CA9 1999).
See also S.Rep. No. 104358, supra, pt. IV(C), at 21 ([The CPPA] does not, and is not intended to, apply to a depiction produced using adults engaging i[n] sexually explicit conduct, even where a depicted individual may appear to be a minor (emphasis in original)); id., pt. I, at 7 ([The CPPA] addresses the problem of high tech kiddie porn). We have looked to legislative history to limit the scope of child pornography statutes in the past, United States v. X-Citement Video, Inc., 513 U.S. 64, 7377 (1994), and we should do so here as well.2
This narrow reading of sexually explicit conduct not only accords with the text of the CPPA and the intentions of Congress; it is exactly how the phrase was understood prior to the broadening gloss the Court gives it today. Indeed, had sexually explicit conduct been thought to reach the sort of material the Court says it does, then films such as Traffic and American Beauty would not have been made the way they were. Ante, at 910 (discussing these films portrayals of youthful looking adult actors engaged in sexually suggestive conduct). Traffic won its Academy Award in 2001. American Beauty won its Academy Award in 2000. But the CPPA has been on the books, and has been enforced, since 1996. The chill felt by the Court, ante, at 6 ([F]ew legitimate movie producers would risk distributing images in or near the uncertain reach of this law), has apparently never been felt by those who actually make movies.
So, the ‘chilling effect of the CPPA does not actually exist, nor is the overbroad interpretation of Justice Kennedy warranted by the legislative intent of the act.
Chief Justice Rehnquist brings up another point:
We normally do not strike down a statute on First Amendment grounds when a limiting instruction has been or could be placed on the challenged statute. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). See, e.g., New York v. Ferber, 458 U.S. 747, 769 (1982) (appreciating the wide-reaching effects of striking down a statute on its face); Parker v. Levy, 417 U.S. 733, 760 (1974) (This Court has repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied). This case should be treated no differently.
Getting back to Mike Lynch:
The same goes for another of the law's targets: computer generated images. By definition, these fakes, the porno version of the Emergency Medical Hologram on Star Trek Voyager, don’t exploit children.
The government argued that even these simulations hurt children, on the grounds that they whet the appetites.
This is an oversimplification of the government’s position. Let’s look at the government’s real argument and see if it can be dismissed as easily.
Findings 6 though 13 of Subsection 1 of the CPPA present the government’s case. In these findings the government states that among other things: