People are always trying to define civilization. Well, here’s my definition in only two words: First Amendment. That’s right. In a world full of tin-pot tyrants and dime-store despots, the freedom to speak one’s mind is what makes American freedom unique. Free speech keeps government, corporations and even churches honest; it gives crackpots the same rights as statesmen and Nazis the same rights as communists. Those 14 magic words, “Congress shall make no law … abridging the freedom of speech, or of the press” have made this country the noisiest, most raucous, most entertaining, most frustrating but ultimately the most free society in the world.
Under the guise of protecting our sacred First Amendment, the United States Supreme Court has struck down parts of the Child Pornography Prevention Act of 1996, which made it illegal to “create, distribute or possess ‘virtual’ child pornography.” In other words, the feds sought to criminalize not only depictions of real people engaging in underage sex, but also any cartoon or digitally created image depicting underage sex. The 6 to 3 ruling did not entirely split across the usual liberal-conservative lines. Voting to strike the provisions were not only liberals Souter, Breyer, Ginsburg, and Stevens, but also conservatives Kennedy and Thomas. In favor of upholding the law were conservatives Scalia, Rhenquist and O’Connor.
You know what this tells me? That the six justices voting against this law need to step outside of their shiny white marble building and into the world the rest of us have to live in.
To understand why, just look at the court’s majority opinion. Justice Anthony M. Kennedy loftily declared that “the law prohibits speech that records no crime and creates no victims by its production.” In true ivory tower fashion he tells us that “the statute prohibits the visual depiction of an idea – that of teen-agers engaging in sexual activity – that is a fact of modern society and has been a theme in art and literature throughout the ages.”
Spoken like a true college professor, or a denizen of an East Village coffee house. But certainly not spoken like a parent. And definitely not spoken from the standpoint of someone like me, who spent the better part of her adult life in the trenches providing mental health care to people in need. Any justification of pornographic images as “a fact of modern society” leads me to believe that we have accepted this travesty as normal, a disturbing thought for any parent trying to protect his or her child. Believe me when I tell you that there are some mighty sick people out there – including pedophiliacs, one of the most predatory categories of mentally disturbed individuals there is.
Pedophiliacs and ephebophiliacs (those who prey on teen-agers) aren’t really concerned with the “facts of modern society” or “themes in art and literature throughout the ages.” What they seek – often by any means necessary – is sexual stimulation and gratification. The Internet, by allowing the private dissemination of sexually explicit imagery, is the perfect medium for these dysfunctional people. In their own homes, far removed from public stigma or control, they can indulge their fantasies. If that’s all it amounted to – gratification at home – then the court majority might have a point.
But they don’t have the point, and they certainly missed the law’s point. Because this time, Congress and President Clinton got it right. In banning so-called virtual images, they weren’t trying to protect a bunch of cartoons, but rather, very real children – by chilling the market for child pornography.
What are especially interesting are the fine distinctions drawn by the majority opinion in striking down the law. Justice Kennedy noted that in Shakespeare’s play “Romeo and Juliet,” the latter is only 13 years old, and therefore, under the law, the government “theoretically might have the play banned.” He also noted that Academy Award winners like “Traffic” and “American Beauty,” both of which touched on sex with teen-agers, might also be banned under the law.
Judge, give me a break! Are you trying to tell us that after 12 years of high school, four years of college, three years of law school and a passing score on a bar exam, that a judge can’t tell the difference between child porn and “Romeo and Juliet”? Or the difference between kiddie porn and the movie “Traffic”? I’ll bet one dollar that if I asked the first 50 people waiting in line to buy Power Ball tickets, I’d get good answers. But not from six of nine sitting Justices from the United States Supreme Court.
Now that I think about it, maybe a good definition of civilization requires two more words: Common sense.