What is child pornography?
7/30/2001 12:00:00 AM - George Will
WASHINGTON--Brian Dalton, 22, of Columbus, Ohio, will probably lower the moral tone of the prison if he serves the seven-year term--plus 18 months for violation of his probation--to which he recently was sentenced in Ohio. He seems to be an appalling person with ghastly tastes.
But his conviction under a state statute concerning child pornography is puzzling. He was convicted for writing in his 14-page journal, for his private delectation, pornographic stories involving three fictional children, caged in a basement. The journal was found during a search of his home by his probation officer. Dalton was on probation after serving time in jail for a 1998 conviction involving pornographic photographs of children.
The Associated Press reports that Dalton's stories about the sexual abuse and torture of children were so lurid that grand jurors asked the detective reading them to stop almost as soon as he began. But Dalton is believed to be the first person ever convicted in any U.S. jurisdiction for child pornography involving writings rather than photographs, films or other images of real children. A second problematic aspect of Dalton's case is that he evidently had no interest in disseminating his writings.
In 1969, in a case arising from Georgia, the Supreme Court ruled that ``the mere private possession of obscene matter cannot constitutionally be made a crime.'' Here the court stepped back from an earlier ruling that seemed to assert categorically that obscenity is never constitutionally protected.
The court reasoned that, ``Given the present state of knowledge, the state may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.'' The court grandly asserted that an American has a constitutional right ``to read or observe what he pleases--the right to satisfy his intellectual and emotional needs in the privacy of his own home,'' and ``the right to be free from state inquiry into the contents of his library'' because, ``if the First Amendment means anything, it means that a state has no business telling man, sitting alone in the his own house, what books he may read or films he may watch.''
Note the words ``observe'' and ``films'' and ``watch.''
However, in a 1982 case the Supreme Court upheld the constitutionality of a New York law that criminalized depicting sexual performances by children when the promotion involved materials depicting such performances. The court held that states have some leeway in regulating child pornography. This is so because, among other reasons, ``the use'' of children in pornography harms them.
Then in a 1990 case arising from Ohio the court held that the mere possession of child pornography can be proscribed. It had said that Georgia's justification for banning all obscenity, not just child pornography--the belief that obscenity could poison the minds of those exposed to it--was ``inadequate'' because it relied on a ``paternalistic interest'' in regulating minds. In contrast, Ohio's law proscribing even mere possession of child pornography was based on the state's ``compelling interests in protecting the physical and psychological well-being of minors and in destroying the market for the exploitative use of children by penalizing those who possess and view the offending materials.''
Note the word ``view.''
The court affirmed Ohio's right to attack child pornography ``at all levels in the distribution chain'' because the market for such materials ``has been driven underground,'' making it difficult to suppress by attacking only production and distribution. Furthermore, ``the materials produced by child pornographers permanently record the victim's abuse'' and cause ``continuing harm'' by ``haunting'' real children for years.
The court added another justification for criminalizing mere possession of such material: ``Evidence suggests that pedophiles use child pornography to seduce other children into sexual activity.'' Perhaps this is pertinent to Dalton's case, but, again, it seems to suggest that the problem is pornographic pictures or other images of real children. Are children apt to be seduced into sexual activity by written material?
The law under which Dalton was convicted criminalizes the creation of child pornography ``material.'' It does not specify images. But, again, it is likely that the lawmakers were thinking of the making of pornographic photographs or film that require the participation of real children.
It is unclear why Dalton pleaded guilty, thereby discarding a chance to contest his conviction. Meanwhile, this autumn the Supreme Court will consider, in a California case, whether computer-generated images of children engaged in sexual activities is proscribable child pornography. The cumulative logic of past rulings, which stressed the involvement of real children, suggests it is not.