-Caveat Lector-
[Eric is a longtime warrior on behalf of free expression. I've translated
his article from, ugh, Microsoft Word form to text, which has wrinkled the
article's formatting a little. But it should be readable. Eric, BTW, is
talking not about the obscene-for-minors-to-read COPA case, but the
morphed-nude-images-of-minors CPPA child porn case. Both are before the
Supreme Court. --DBM]
********
Date: Thu, 20 Sep 2001 20:40:24 -0400
From: "Eric M. Freedman" <[EMAIL PROTECTED]>
To: [EMAIL PROTECTED]
A piece of mine from the August issue of Communications of the ACM. Best. -E.
Eric M. Freedman
---
Pursuing Pixelized Pixies
This fall, in Ashcroft v. Free Speech Coalition, the Supreme Court will be
deciding the constitutionality of a remarkable statute that broadly
criminalizes the dissemination of all depictions that Aappear to be@ ones
of children engaging in Asexually explicit@ conduct notwithstanding that
the images were generated purely digitally, without the use of any actual
children (or adult actors for that matter) at all.
According to the legislative findings supporting the Child Pornography
Prevention Act, viewing the forbidden pictures Acan desensitize the viewer
to the pathology of sexual abuse or exploitation of children, so that it
can become acceptable to and even preferred by the viewer.@ Moreover, say
the findings, such images create an unwholesome moral
environment. Further, according to advocates of the statute, the
government will never be able to prosecute pornographers if it must bear
the burden of proving that the images are of real rather than digital children.
If it applies ordinary constitutional rules, the Supreme Court will with
little difficulty reject these defenses and affirm the decision of the
United States Court of Appeals for the Ninth Circuit to strike down the
challenged portions of the statute.
In 1959, the State of New York sought to prevent dissemination of the
movie version of ALady Chatterley=s Lover@ on the basis of its
Apresentation of adultery as a desirable, acceptable and proper pattern of
behavior.@ The Supreme Court unanimously rebuffed the effort, holding that
the State=s action Astruck at the very heart of constitutionally protected
liberty.@
AIt is contended,@ wrote Justice Potter Stewart, Athat the State=s action
was justified because the motion picture attractively portrays a
relationship which is contrary to the moral standards, the religious
precepts, and the legal code of its citizenry. This argument misconceives
what it is that the Constitution protects. Its guarantee is not confined
to the expression of ideas that are conventional or shared by a
majority. It protects advocacy of the opinion that adultery may sometimes
be proper no less than advocacy of socialism or the single tax. And in the
realm of ideas it protects expression which is eloquent no less than that
which is unconvincing.@
Thus, in 1986, the Court summarily struck down an Indianapolis ordinance
criminalizing those sexually-themed works that had the effect of
subordinating women. Perhaps the material at issue had socially
undesirable consequences, the lower court wrote, but, Athe state may not
ordain preferred viewpoints in this way.@ And even when the Court upheld
broader suppression of sexually explicit works involving children, so as to
afford physical protection to real children involved in abusive
productions, it took pains to note that producers could always convey their
message by such means as using adult actors who appeared to be younger.
As to the prosecutorial convenience argument, it is hardly a constitutional
response to the government=s inability to bear the burden of proof in a
criminal proceeding to pass a statute relieving the government of the need
to do so. Practically speaking, this means that in the very rare instances
when defendants have the courage to force such cases to trial, the
government will have to offer proof (e.g. from other participants in the
production) in addition to the images themselves.
More broadly, the statute rests on premises and language of stunning
vagueness, that together could lead to consequences that would eviscerate
the First Amendment as a protector of unpopular speech. For example, one
rationale offered for the legislation is that pedophiles might seduce
children into engaging in sexual activity by displaying computer-generated
images of other children doing so. This rationale would not only support
the banning of lollipops, but also of a huge range of images -- including
photographs made with mannequins, and cartoons. And, read literally, the
statutory ban on images that Aappear to be@ ones of children would support
this result. This could have the effect of outlawing classical works of
art featuring cherubs, photographs of primitive tribes, and many other
depictions that could hypothetically be abused by a criminal.
That is precisely why the Court has historically rejected justifications
for censorship that are based upon the possible responses of some
peculiarly vulnerable subset of the population. For example, in Butler v.
Michigan, it unanimously reversed a conviction under a statute outlawing
any publication Amanifestly tending to the corruption of the morals of
youth.@ Justice Felix Frankfurter wrote that the effect Aof this
enactment is to reduce the adult population of Michigan to reading only
what is fit for children. It thereby arbitrarily curtails one of those
liberties of the individual . . . that history has attested as the
indispensable conditions for the maintenance and progress of a free society.@
As Justice Louis Brandeis stated the broader principle on
another occasion, AAmong free men, the deterrents ordinarily to be applied
to prevent crime are education and punishment for violations of the law,
not abridgment of the rights of free speech and assembly.@ In other words,
if someone visits a website and is motivated to commit a murder, punish the
murderer not the site owner.
Despite all of this, there is some danger that the Supreme Court may uphold
the statute at issue in Ashcroft. And the danger arises from more than the
simple fact that the words Asex@ and Achildren@ appear in the same paragraph.
Historical experience -- with, among others, printing presses, secular
dramatic troupes, photographs, movies, rock music, broadcasting, sexually
explicit telephone services, and video games -- shows that each new medium
is seen at first as uniquely threatening, because uniquely influential, and
therefore a uniquely appropriate target of censorship. And the response of
the Supreme Court to such developments has been mixed at best. In 1915,
for example, it held movies to be outside of the First Amendment, in a case
that it did not overrule until 1952.
This is the backdrop against which we currently find governments reacting
with near-hysteria to the possibility of the creation, dissemination and
viewing through the use of computer technology of messages even vaguely
related to sexuality. Unfamiliarity makes this new medium seem
particularly dangerous, and governments are haunted by the fear that the
mechanisms of communications may be outrunning those of control. So the
authorities worry that neither the doctrinal categories nor the substantive
content of current First Amendment law are adequate to deal with emerging
problems. If they were to ignore the lessons of history, the courts might
vindicate special restraints by simply declaring that Acyberporn@ presents
unique threats and is therefore Aoutside@ the First Amendment.
The common pattern of legal response to new communications technologies
reflects the reality that new media achieve their initial marketplace
success precisely because they are for some purposes a more effective form
of communication than pre-existing ones. Thus, photographs were a special
target of censorship efforts in the 19th century because they were so much
more realistic than painting. As one historian has described, audiences of
that period viewing magic lantern shows Awere often so shocked by the
portrayal of this new and terrifying world that they fainted, cried, or
talked back to the magic lantern screen.@ And early in the 20th century,
audiences for Thomas Edison=s first movies, confronted with the spectacle
of a locomotive heading right for them fled the theaters in
horror. Moreover, in every century one of the first uses of innovative
communications technologies has been the transmission of sexual images, and
one of the next has been communication in the furtherance of political
dissent -- thereby further exacerbating the authorities= concerns for
social stability.
The courts should enforce the First Amendment in the context of new media
just as they do in the context of old ones, and recognize the damage that
groundless fears may do to public discourse. In time, a consensus will
arise that the first reaction to the perceived threat of pixelized pixies
in cyberspace was as overblown as with other new media. Meanwhile, the
courts, in the interests of social, political, and artistic progress, need
to apply the First Amendment in a technology-neutral way and eschew the
temptation declare certain categories of speech Aoutside@ the First Amendment.
The whole point of the First Amendment, after all, is to preserve the
possibilities of the future by denying the majority the right to suppress
speech it finds hateful in the present.
------------------------------
Eric M. Freedman ([EMAIL PROTECTED]) is a professor of law at Hofstra
University School of Law.
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