Pandering to Child Pornographers

Maggie Gallagher
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Posted: Mar 28, 2007 9:04 AM

Hey, just what exactly is wrong with child pornography?

It's not the sort of thing that most people feel they need to spend a lot of time thinking about, but thanks to the Supreme Court, now we do.

Way back in 1996, when Bill Clinton was president, Congress passed a law prohibiting the sale, distribution and possession of any form of child pornography, whether an actual child was used in the image or a computer-generated one was substituted. In 2002, the Supreme Court, gripped by strange fears about what such a law might do to art, literature and freedom of something we call "speech" struck down the law as unconstitutional.

Drawing some fine distinctions, six justices said that Congress may ban the sale and use of child pornography that includes actual photos of children in sexual acts because the children are necessarily harmed by its production. But "virtual child pornography"-- i.e., computer-generated images that look like photos of children engaging in sexual acts? That's protected free speech, the majority ruled. Justice Anthony Kennedy, who wrote the opinion, waxed eloquent in his belief that the law threatened fundamental values, such as productions of "Romeo and Juliet," whose heroine was just 13.

With this ruling, the Supreme Court made prosecutions of child pornography much harder for two reasons: first because the burden of proof shifted to the government to prove an actual child was involved; and second because any idiot with Photoshop could convert his illegal "actual photos" into a computer-generated image protected by the First Amendment, and sell, distribute and possess to his twisted heart's content.

Is your blood boiling yet?

So Congress tried again in 2003, redrafting the law to include a crime known as "pandering" child pornography, which means to advertise, promote, distribute or solicit "any material or purported material" in a manner suggesting the material contains "an obscene visual depiction of a minor engaging in sexually explicit conduct" whether the image is of an "actual minor" or not. Surely only the most progressive productions of Shakespeare need be afraid?

But no, the 11th Circuit Court of Appeals in 2006 struck down this provision of the law -- used to convict a man soliciting child pornography in an Internet chat room and whose home computer contained images of actual children being exploited.

So what's the problem?

The federal court ruled that because the law was not restricted to commercial transactions and because a violater did not have to actually possess child pornography (only advertise that he did), "any promoter -- be they braggart, exaggerator, or outright liar -- who claims to have illegal pornography" could end up facing 20 years in jail, even if they didn't actually possess what they promised.

I repeat: So what's the problem with that?

We'll find out soon, because this week the Supreme Court agreed to take the case.

What's wrong exactly with soliciting or advertising child pornography for free? Somehow having a profit motive to pander child pornography was seen by the court as more destructive than having a personal motive. Let me put it this way: For normal people, the problem we want to solve in passing laws banning child pornography is not adults' lust for profits, but their lust for children.

And we are left wondering: What exactly is wrong with our courts? How blind can justice be?