In an extraordinary 6-3 ruling (Scalia and Rehnquist dissenting, with O'Connor dissenting in part), the Supreme Court upheld that American adults have a right to publish and consume child pornography, so long as actual children are not used in the production process.
For prosecutors, this means the additional, difficult burden in child pornography cases of proving beyond a reasonable doubt that what looks like a child having sex was actually a child having sex and not a virtual image, or an actual child digitally manipulated into having sex.
Attorney General John Ashcroft noted the decision would make prosecuting child pornography "immeasurably more difficult." But hey, our founding fathers died to make the world safe for child pornographers, right?
This latest court decision is part of the increasingly hard-to-digest fiction that pornographic images are speech. It is also a direct affirmation of the increasingly naked proposition driving our society: that the sexual interests of adults are more important than children and their needs. Such an utter reversal of moral priorities ought to (and in most places does) provoke disgust on the part of decent adults.
But it is also the logical result of a set of particularly destructive abstractions adopted by the court (and elite opinion) over the last generation. Pornography is not intended to express any idea. It is intended to short-circuit thought by provoking sexual desire. How do people move from lust to action? In the case of pedophiles, it helps to have a community of affirmation available, which pornographers are happy to supply in exchange for money. According to the FBI, a third of consumers of child pornography recently arrested in its Candyman sweep admitted to molesting children.
The obligatory fig leaf of art, used to cover up the ugliness of our single-minded obsession with adult sexual expression under any and all circumstances, is getting thinner and thinner. But still the Supreme Court trotted out the tired old convention that only the Supremes stand between Great Art and the philistine yahoos intent on chilling speech: "The statute proscribes the visual depiction of an idea, 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. Both themes -- teenage sexual activity and the sexual abuse of children -- have inspired countless literary works. William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age." According to The New York Times, both "Traffic" and "American Beauty" are movies theoretically threatened by the 1996 Child Pornography Act.
Maybe I am stretching the bounds of legitimate discourse here. But would it be so horrible if contemporary remakers of "Romeo and Juliet" had to find some other means of personal expression besides showing a 13-year-old having sex? As it happens, I liked the 1999 film "American Beauty" very much. The fact that it was made after the 1996 Child Pornography Act is further proof the statute has not chilled legitimate filmmakers' expression.
But what about the future? If I had to choose between saving one child from being abused by a pedophile and limiting the ability of a filmmaker to display graphic sex with children in the service of his or her art, I would have no trouble choosing the protection of children over the protection of artists. Nor did Democrats and Republicans in Congress have any trouble.
What is the Supreme Court's problem?
Maggie Gallagher is a nationally syndicated columnist, a leading voice in the new marriage movement and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.