Free speech: rotting from the inside out
5/3/2002 12:00:00 AM - Jonah Goldberg
On Wednesday, Attorney General John Ashcroft announced he was proposing legislation to make it difficult for child pornographers to manufacture "virtual porn."
This came as a response to last month's Supreme Court decision that overturned portions of the Child Pornography Prevention Act. The court held that the government couldn't ban "virtual child porn" - i.e. animated or computer-generated depictions of very young children in sexually explicit situations or scenes of older kids made-up to look like young children.
"The Supreme Court's legalization of computer-generated child pornography has created a dangerous window of opportunity for child abusers to escape prosecution," Ashcroft argued. "Prosecutors are now forced to prove that sexually explicit images involving children were, in fact, produced through the abuse of children, an extremely difficult task in today's worldwide Internet child pornography market."
In short, the attorney general is confined to proving that child pornographers have abused children or we can't ban their products. After all, we can't trample on the free speech of kiddie-smut-peddlers if they don't physically hurt any kids.
What a sick joke. Abuse of children is a secondary issue. Some things just deserve to be censored because they are evil. If we can't agree that child pornography is one of them, then we've got bigger problems. Whether the court was wrong in reading the Child Pornography Protection Act or Congress was wrong in writing it, no matter how you slice it, the law is an ass, to paraphrase Charles Dickens.
At the end of the day, the country's political leadership - the courts, Congress, the executive branch, as well as the journalists who police them - has simply failed to do what any bus driver, school teacher or store manager could manage to do in an afternoon. Banning child porn is one of those simple things that liberals and conservatives, libertarians and socialists can agree on.
Sure there are a tiny minority within a minority of people who want to make the issue complicated or clever, fraught with slippery slopes and "what if?" scenarios. But these people tend to be soaked-to-the-bone ideologues who see Big Brother around every corner.
Indeed, the irony of these radical civil libertarians and uncivil libertines is that if Big Brother ever arrives, it will be because of their misplaced energies. Here's what I mean. Most constitutional arguments about slippery slopes have a fairly straightforward logic. We protect those things at the extreme fringe of acceptable behavior and speech in order to ensure that our core liberties will be preserved. We allow neo-Nazis, black nationalists and Klansmen to spout their filth because, by allowing that speech, then all speech is allowed.
The problem is that the civil libertarians' obsession with protecting the extreme has caused them to turn their backs on the center. Political activities central to our democracy are becoming increasingly regulated. Every day, the "reformers" push for new regulations on political commercials, newspaper ads even the right to freely associate in public. If Tom Paine were alive today, he'd have to register "Common Sense" with the Federal Election Commission. The anonymously written Federalist Papers would be decried as "stealth ads."
In its April 16 decision, the Supreme Court replied to the charge that some images of pedophilia might entice or encourage would-be pedophiles or child pornographers, saying, "the prospect of a crime ... by itself does not justify laws suppressing protected speech."
I'm sympathetic to the court's reluctance to establish a new category of "thought crimes." But we're talking about child pornography for Pete's sake. The founders didn't have kiddie porn in mind when they wrote the First Amendment, and they certainly wouldn't have had any problem with local jurisdictions banning it.
More to the point, this is the same court that holds that the possible "appearance of corruption" is sufficient justification for all sorts of campaign finance laws and regulations. The "appearance of corruption"! In other words, we can lock up the political freedoms at the core of our republic because corruption lies in the eye of the beholder.
I can guarantee you that more people think "virtual child pornography" is more corrupting to our society than the ability to run issue-ads 30 days before an election. But the political class, in its laziness and its desire to protect incumbents, would much rather come up with clever reasons to keep child porn legal rather than call attention to the fact that much vital political activity is becoming increasingly illegal.
Keep the fringe free, regulate the core. In other words, free speech is rotting from the inside out.
I wish Ashcroft luck in his attempt to ban what should be banned on the outposts of our society. When he's done, it would be even better if he could return to the heartland of our democracy and free things up a bit.